Case A26040444

KRISTY L. ZADORA · 2026 · Case ID: A26040444

MIXED

Summary

The veteran, who served from August 1990 to May 1995, appeals decisions denying earlier effective dates for several service-connected conditions and denying service connection for obstructive sleep apnea and left ear hearing loss. The veteran withdrew his appeal for a right ankle disorder. The Board denied earlier effective dates for gastroenteritis, lumbosacral strain, bilateral radiculopathy, left ankle strain, right knee strain, and hemorrhoids, finding the claims were not established prior to December 5, 2018, despite the veteran's assertion of an earlier intent to file. The Board granted service connection for obstructive sleep apnea as secondary to the service-connected lumbosacral strain, relying on a private physician's opinion that linked the veteran's limited mobility and weight gain from the back condition to the development of sleep apnea. This opinion was found more probative than a VA examiner's opinion, which found no causal link. The Board also granted service connection for left ear hearing loss, finding it etiologically related to in-service acoustic trauma, despite a VA examiner's negative opinion based on an ambiguous enlistment audiogram. The Board found the examiner's rationale inadequate to rebut the presumption of soundness, and the favorable findings from the right ear hearing loss claim supported the grant for the left ear.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200426-84311

Full Decision Text

Citation Nr: A26040444
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 200426-84311
DATE: April 29, 2026

ORDER

Entitlement to service connection for right ankle disorder is dismissed.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for gastroenteritis is denied.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for a lumbosacral strain is denied.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for left lower extremity radiculopathy, sciatic nerve is denied.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for right lower extremity radiculopathy, sciatic nerve is denied.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for a left ankle lateral collateral ligament strain is denied.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for a right knee strain is denied.

Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for hemorrhoids is denied.

Entitlement to service connection for obstructive sleep apnea as secondary to service connected lumbosacral strain is granted.

Entitlement to service connection for left ear hearing loss is granted.

FINDINGS OF FACT

1. During the May 2024 hearing, the Veteran withdrew his appeal as to entitlement to service connection for a right ankle disorder.

2. On December 5, 2018, the Veteran submitted an Intent to File a Claim for Compensation and/or Pension or Survivors Pension and/or DIC (VA Form 21-0966).

3. Within a year of the intent to file a claim, on March 19, 2019, the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) for his claims for entitlement for service connection for gastroenteritis; a lumbosacral strain; bilateral lower extremity radiculopathy, sciatic nerves; a left ankle disorder; a right knee disorder and hemorrhoids.

4. The Veteran's obstructive sleep apnea is caused by his service connected lumbosacral strain with obesity as an intermediate step.

5. Left ear hearing loss was not noted at service entrance and did not clearly and unmistakably preexist service.

6. The Veteran's left ear hearing loss is etiologically related to acoustic trauma sustained during active service.

CONCLUSIONS OF LAW

1. The criteria for dismissal of service connection for a right ankle disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for gastroenteritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

3. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for a lumbosacral strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

4. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for left lower extremity radiculopathy, sciatic nerve have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

5. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for right lower extremity radiculopathy, sciatic nerve have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

6. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for a left ankle lateral collateral ligament strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

7. The criteria for an effective date earlier than December 5, 2018 for
of service connection for right lower extremity radiculopathy, sciatic nerve have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

7. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for a right knee strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

8. The criteria for an effective date earlier than December 5, 2018 for the award of service connection for hemorrhoids have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

9. The criteria for service connection for obstructive sleep apnea as secondary to service connected lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

10. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1990 to May 1995.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions dated in October 2019 (as to lumbosacral strain, left lower extremity radiculopathy, right lower extremity radiculopathy, a left ankle lateral collateral ligament strain, a right knee strain, hemorrhoids, gastroenteritis, and left side hearing loss) and April 2020 (as to right ankle disorder and obstructive sleep apnea) issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decisions on appeal constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

Although the Veteran initially requested Higher-Level Review when submitting the October 2019 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window.

In the May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 29, 2024 before the undersigned Veterans Law Judge; a hearing transcript has been associated with the claims file. Therefore, the Board may only consider the evidence of record at the time of the October 2019 and April 2020 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. In regards to the May 2024 hearing, during prehearing conference the Veteran clarified issues on appeal. He made clear his intent was not to pursue increased rating claims but in fact the intent was to pursue earlier effective date claims. The undersigned Veterans Law Judge accepted the earlier effective dates as being on appeal.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim
.300, 20.302(a), 20.801. In regards to the May 2024 hearing, during prehearing conference the Veteran clarified issues on appeal. He made clear his intent was not to pursue increased rating claims but in fact the intent was to pursue earlier effective date claims. The undersigned Veterans Law Judge accepted the earlier effective dates as being on appeal.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board is cognizant of the recent decision issued by the United States Court of Appeals for Veterans Claims (Court) in the case of Williams v. McDonough, 37 Vet. App. 305 (2024). There, the Court held, in essence, that the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2). However, an exception applies where a veteran has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303, as this would preclude a docket switch under 38 C.F.R. § 20.202(c)(2). Here, the Veteran selected the Hearing docket and has testified at a May 2024 hearing and hence a docket switch may no longer be conducted. Therefore, the Board shall proceed with adjudication.

1. Entitlement to service connection for right ankle disorder is dismissed.

A claimant may withdraw a VA From 10182 on an appeal before the Board, at any time prior to the Board issuance on a decision on the matter. 38 C.F.R. § 20.204. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision and may be made by the veteran or by his authorized representative. 38 C.F.R. § 20.205. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C. § 7105(d).

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

The Veteran withdrew his appeal for entitlement to service connection for a right ankle disorder at the May 2024 Board hearing. The Veteran was accompanied by his representative and the Board apprised him of the consequences of withdrawing his appeal. The withdraw was explicit, unambiguous and done with full understanding of the consequences. 38 C.F.R. § 19.55; See DeLisio v. Shinseki, supra; Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there remains no allegations of errors of fact or law for appellate consideration regarding the above-mentioned issue, the Board does not have jurisdiction over this claim, and it is dismissed.

Effective Date Criteria

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i).

To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one-year of receipt
date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i).

To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one-year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155.

The law provides that, where compensation is awarded pursuant to any Act or administrative issue, the effective date shall not be earlier than the effective date of such Act or administrative issue. 38 U.S.C. § 5110(g). If compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary, the effective date of such award shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114.

With regard to compensation for disabilities for which service connection was granted on a secondary basis, the effective date can be no earlier than the date of the claim for service connection on a secondary basis. Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (2021).

2. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for gastroenteritis is denied.

3. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for a lumbosacral strain is denied.

4. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for left lower extremity radiculopathy, sciatic nerve is denied.

5. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for right lower extremity radiculopathy, sciatic nerve is denied.

6. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for a left ankle lateral collateral ligament strain is denied.

7. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for a right knee strain is denied.

8. Entitlement to an effective date earlier than December 5, 2018 for the award of service connection for hemorrhoids is denied.

The Veteran contends that an earlier effective date of October 3, 2018 for the award of service connection for his gastroenteritis, a lumbosacral strain, left lower extremity radiculopathy, right lower extremity radiculopathy, a left ankle lateral collateral ligament strain, a right knee strain and/or hemorrhoids is warranted. The Veteran contends that he submitted his VA Form 21-0966 (on October 3, 2018 and that service connection for these disabilities is warranted as of that date. See statement on October 2019 VA Form 20-0996; See statement on May 2020 VA Form 10182; See Hearing transcript, page 13.

On December 5, 2018, VA received the Veteran's VA Form 21-0966. In a subsequent December 10, 2018 letter, VA informed the Veteran
, left lower extremity radiculopathy, right lower extremity radiculopathy, a left ankle lateral collateral ligament strain, a right knee strain and/or hemorrhoids is warranted. The Veteran contends that he submitted his VA Form 21-0966 (on October 3, 2018 and that service connection for these disabilities is warranted as of that date. See statement on October 2019 VA Form 20-0996; See statement on May 2020 VA Form 10182; See Hearing transcript, page 13.

On December 5, 2018, VA received the Veteran's VA Form 21-0966. In a subsequent December 10, 2018 letter, VA informed the Veteran that it received his intent to file on December 5, 2018. Although the Veteran indicates that he filed the intent in October 2018 and the document reflects an internal signature date of October 3, 2018, the is December 5, 2018, top of the document reflects that it was faxed from a "F.C." location on December 5, 2018 and accepted at the VA Claims Intake Center on December 5, 2018. Within a year on March 19, 2019, the Veteran submitted formal claims for service connection for gastroenteritis, a lower back condition, a left ankle condition, a right knee condition and hemorrhoids. See March 2019 VA Form 21-526EZ. These basic facts are not in dispute.

Given this, the effective date of the instant service connection claims are governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400, which hold that the effective date shall be the date of the claim or the date the entitlement arose, whichever is later. As discussed above, the Veteran submitted his formal claim within one year from the date of the intent to file, thus the date of the Veteran's claim is December 5, 2018.

The record does not show that any communication was received from the Veteran reflecting an intent to file a claim for these disabilities prior to December 5, 2018, to include

date stamped in October 2018. Therefore, the Board concludes that the record does not show that the Veteran submitted an informal or formal claim for entitlement to service connection for his disorders, such that an effective date earlier than December 5, 2018, may be assigned. In this regard, there were no pending claims prior to December 5, 2018 for the service connected disorders pursuant to which benefits could be granted. Indeed, a thorough review of the record prior to December 5, 2018 does not reveal any formal or informal claims for the service connected disorders. A claim is required to establish service connection. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).

The Board notes that the Veteran contends that an earlier effective date is warranted for the award of service connection because he signed the intent to file claim on October 3, 2018. As noted above, the VA Form 21-0966 clearly reflects a fax date of December 6, 2018 as well as the date of receipt at the VA Claims Intake Center of December 6, 2018.The effective date of an award of compensation is the date of the claim or the date entitlement arose, whichever is later. Therefore, the date of receipt of claim is the appropriate effective date. This argument is therefore without merit.

Accordingly, the Board finds that an effective date earlier than December 5, 2018 for the award of service connection for gastroenteritis, a lumbosacral strain, left lower extremity radiculopathy, right lower extremity radiculopathy, a left ankle lateral collateral ligament strain, a right knee strain and/or hemorrhoids is not warranted. The appeals are denied. 38 U.S.C. § 5107; 38 C.F.R.§ 3.102; Lynch v. McDonough, supra.

Service Connection Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, such as organic diseases of the nervous system, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Board notes that the Court has held that the presumption of aggravation under 38 U.S.C. § 1153 only applies in cases where a preexisting disability was noted at the service entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Otherwise, the matter goes to the analysis of the presumption of soundness. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see Horn, 25 Vet. App. at 234-35 (holding that the burden of proof in presumption of soundness cases rests with VA); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

Generally, as a matter of law, the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of a veteran's own admissions during clinical evaluations of a pre-service history of symptoms. Thus, in the absence of any contention that the appellant never made the statements attributed to him or her (reporting pre-existing symptoms), those statements alone may rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012) (Doran v. Brown, 6 Vet. App. 283, 286 (1994)). Likewise, a later medical opinion based on statements made by the veteran about the pre-service history of her condition may be sufficient to rebut the preexistence prong of the presumption of soundness, notwithstanding the lack of contemporaneous clinical evidence or recorded history. Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000); Horn, 25 Vet. App. at 237-38.

The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition).

A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).

Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jenson v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)). However, if an increase in disability is shown, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b).

The veteran can provide competent reports of factual matters of which she has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

9. Entitlement to service connection for obstructive sleep apnea as secondary to service connected lumbosacral strain is granted.

The Veteran seeks entitlement to obstructive sleep apnea as secondary to his service connected PTSD. See March 2019 VA Form 21-526EZ. Moreover, during the May 2024 Board hearing, the Veteran asserted that his obstructive sleep apnea is secondary to his service connected back pain/sciatic nerve pain, as his service connected lumbar spine disability caused him to gain weight due to painful movement which led to weight gain and then to sleep apnea. See also May 2024 Board hearing testimony.

An April 2020 rating decision
3 (Fed. Cir. 2009).

9. Entitlement to service connection for obstructive sleep apnea as secondary to service connected lumbosacral strain is granted.

An April 2020 rating decision made favorable findings that there is a diagnosis of obstructive sleep apnea and the claimed primary disability of PTSD is service connected. The Board is bound by these favorable findings.

Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to develop a Veteran's claim fully and sympathetically to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

Obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC-1-2017. In Walsh, the Court further held that the Board needs to consider the obesity-intermediate step theory predicated on aggravation where appropriate. The Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused the veteran to become obese or aggravated the veteran's obesity; (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused or aggravated by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).

Turning to the question of whether there is an etiological relationship between the Veteran's service connected lumbosacral strain and PTSD and his diagnosed obstructive sleep apnea, the Board notes that the record contains two etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below.

A March 2020 VA examiner also opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service connected conditions. The examiner reasoned that PTSD does not have the capacity to cause an architectural change in throat to result in obstructive sleep apnea such as the Veteran was diagnosed with. Furthermore, the examiner noted that if it were related to PTSD that began in the military, it would have surfaced more proximate to the time of service, not 25 years later. The examiner reasoned that the literature does make association relationships of treating obstructive sleep apnea and PTSD however there is no indication in the literature of a causal effect. The examiner continues according to the authors, younger veterans with PTSD are rarely screened for sleep apnea and frequently remain undiagnosed and that they noted that the mechanism underlying the relationship between sleep apnea and PTSD in military veterans is unclear. The examiner noted that potential factors that may connect the two disorders include disturbed sleep in combat, prolonged sleep deprivation, sleep fragmentation and hyperarousal due to the physical and psychological stressors of combat, the chronic stress from PTSD, or the sleep disturbances caused by obstructive sleep apnea. The examiner noted that longitudinal studies are needed to examine the temporal relationship between sleep apnea and PTSD. However, the examiner did not provide an opinion as to secondary aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). This opinion is therefore afforded little, if any, probative weight.

An August 2024 opinion from the Veteran's private primary care physician, Dr. J.W.C., was submitted in the post-hearing evidence window. The provider indicated that the chronic pain from the Veteran's lumbar back disorder limited the physical mobility and capacity to exercise. The provider reasoned that a lack of exercise has significantly impaired his ability to lose weight and the weight gain has also contributed to the development and severity of his obstructive sleep apnea. The provider indicated that it was his clinical opinion that the Veteran's chronic lumbar spine disability contributed significantly to the development of his obstructive sleep apnea. The provider also opined it is more likely than less likely that the Veteran's lumbar radiculopathy played a major role in the development of the Veteran's obstructive sleep apnea.

The Board finds the August 2024 private opinion to be adequate. Notably, the August 2024 private physician reviewed the claims file, discussed applicable medical studies and provided an internally consistent and adequate opinion supported by a well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). The opinion is therefore afforded probative weight. There is therefore no contrary opinion of record as to secondary service connection with obesity as an intermediate step.

In sum, the Veteran has a current diagnosis of obstructive sleep apnea. The only probative opinion of record are in support of the Veteran's claim for entitlement to service connection on a secondary basis. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).

Thus, the Board finds that service connection for obstructive sleep apnea as secondary to service connected lumbosacral strain is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

10. Entitlement to service connection for left ear hearing loss is granted.

The Veteran seeks entitlement to service connection for a left ear hearing loss as etiologically related to service. See March 2019 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ).

October 2019 and December 2019 rating decisions made favorable findings that the Veteran had been diagnosed with sensorineural hearing loss, and that a
Board finds that service connection for obstructive sleep apnea as secondary to service connected lumbosacral strain is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

10. Entitlement to service connection for left ear hearing loss is granted.

October 2019 and December 2019 rating decisions made favorable findings that the Veteran had been diagnosed with sensorineural hearing loss, and that a qualifying event, injury or disease had its onset during service based on a primary specialty of military police represents an at least moderate probability of exposure to hazardous military noise; the Board is bound by these favorable findings.

At the outset, the Board notes the Veteran's right ear hearing loss is service connected based on in-service noise exposure. During the June 2019 VA examination, a negative opinion for the Veteran's left ear was provided, as the examiner indicated that the Veteran had left ear hearing loss upon service enlistment. The service treatment records includes a July 1990 service enlistment examination. The Veteran denies a history of hearing loss on the Report of Medical History, and the July 1990 enlistment audiogram documents:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 10 5 10 5

LEFT 10 10 5 10 10

The Board finds, first, that left ear hearing loss was not noted at service entrance. The July 1990 enlistment examination and Report of Medical History did not identify hearing loss at service entrance, and while the Veteran had high auditory threshold of 30 decibels at 6000 Hertz in the left ear, his hearing threshold levels at the time did not represent a hearing loss disability for VA purposes. Because left ear hearing loss was not "noted" at service entrance, there must be clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness.

The Board finds, secondly, that left ear hearing loss did not clearly and unmistakably preexist service. The evidence of record does not indicate that left ear hearing loss preexisted the Veteran's enlistment in service. There was no evidence of hearing loss in the left ear prior to service. Although the June 2019 VA examiner opined that left ear hearing loss clearly and unmistakably preexisted service, this rationale was based solely on the July 1990 reading at 6000 Hertz, which the Board finds did not show a hearing loss disability for VA purposes. Thus, the Board finds that the rationale provided is not adequate and the June 2019 opinion does not amount to "clear and unmistakable evidence" showing that left ear hearing loss preexisted service. A higher burden of proof is required to rebut the presumption of soundness. Accordingly, the Veteran is presumed to have been sound at service entrance with regard to left ear hearing loss, and the claim is one for service connection, not aggravation. See Wagner, 370 F.3d at 1097.

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In regard to direct service connection, as noted above, the AOJ has found that a qualifying in-service event occurred. The Veteran has current left ear hearing loss. A June 2019 VA examiner found that hearing loss, particularly right ear hearing, is due to in-service hazardous noise exposure. Based on these findings, the Board finds reasonable that the left ear hearing loss is also due to in service hazardous noise exposure.

Accordingly, the Board finds that service connection for a left ear hearing loss is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. McPhaull, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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