HEADACHE DISORDER

J.P. NORMAN · 2026 · Case ID: A26040508

MIXED

Summary

The veteran, who served in the United States Navy from July 7, 1960, to July 6, 1964, appeals the denial of service connection for several conditions and the reduction of his disability rating for a back disorder. The Board granted service connection for right ear hearing loss and restored the veteran's prior 40 percent rating for his lumbar spine degenerative arthritis with intervertebral disc syndrome, finding the reduction improper and void ab initio due to procedural errors. The Board also granted an effective date of July 9, 2020, for left ear hearing loss. However, the Board denied earlier effective dates for residual surgical scarring and radiculopathy associated with the lumbar spine, as the claims were not received within one year of the most recent Intent to File. Multiple other claims, including for a dental disorder, headaches, sleep apnea, diabetes mellitus, GERD, heart disorder, hypertension, sternum disorder, erectile dysfunction, hip and knee disorders, and ancillary benefits like TDIU, were remanded for further development and adjudication. The Board noted that some evidence submitted after the initial agency decision could not be considered and advised the veteran to file a Supplemental Claim for that evidence.

Service Branch

NAVY

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

260330-642556

Full Decision Text

Citation Nr: A26040508
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 260330-642556
DATE: April 30, 2026

ORDER

The reduction in the rating of the Veteran's lumbar spine degenerative arthritis with intervertebral disc syndrome (hereinafter "back disorder"), from 40 percent to 20 percent effective September 15, 2023 is improper as void ab initio; therefore, the petition to restore the 40 percent rating effective July 9, 2020 is granted.

Entitlement to service connection for hearing loss of the right ear is granted.

Entitlement to an effective date of July 9, 2020, but no earlier, for service connection for hearing loss of the left ear is granted.

Entitlement to an earlier effective date prior to July 9, 2020 for service connection for residual surgical scarring associated with the lumbar spine is denied.

Entitlement to an earlier effective date prior to July 9, 2020 for service connection for right lower extremity sciatic radiculopathy associated with the lumbar spine is denied.

Entitlement to an earlier effective date prior to July 9, 2020 for service connection for right lower extremity femoral radiculopathy associated with the lumbar spine is denied.

Entitlement to an earlier effective date prior to July 9, 2020 for service connection for left lower extremity sciatic radiculopathy associated with the lumbar spine is denied.

Entitlement to an earlier effective date prior to July 9, 2020 for service connection for left lower extremity femoral radiculopathy associated with the lumbar spine is denied.

REMANDED

Entitlement to service connection for a dental disorder is remanded.

Entitlement to any compensable rating effective July 9, 2020 for service-connected hearing loss of the left ear is remanded.

Entitlement to increased ratings in excess of 40 percent effective July 9, 2020 for the service-connected back disorder is remanded.

Entitlement to service connection for an acquired psychiatric disorder (alternately claimed as depression or anxiety) is remanded.

Entitlement to service connection for a headache disorder is remanded.

Entitlement to service connection for obstructive sleep apnea is remanded.

Entitlement to service connection for diabetes mellitus, type II is remanded.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded.

Entitlement to service connection for a heart disorder (alternately claimed as arteriosclerotic heart disease or coronary artery disease) is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for a sternum disorder is remanded.

Entitlement to service connection for erectile dysfunction is remanded.

Entitlement to service connection for a right hip disorder is remanded.

Entitlement to service connection for a left hip disorder is remanded.

Entitlement to service connection for a right knee disorder is remanded.

Entitlement to service connection for a left knee disorder status-post arthroplasty is remanded.

Entitlement to ancillary benefits (initially claimed as a rating of total disability due to individual unemployability [TDIU] based upon service-connected disorders) is remanded.

FINDINGS OF FACT

1. By way of background, the Veteran's lumbar spine degenerative arthritis with intervertebral disc syndrome (hereinafter "back disorder") was rated 40 percent disabling effective July 9, 2020 until prior to September 15, 2023, on which date it was reduced to 20 percent disabling, based upon results detailed in an examination report of the same date.

2. The above rating reduction for the back disorder was promulgated in a December 2, 2023 rating decision, and this reduction for this disability reduced his disability benefits from an 80 percent total rating prior to September 15, 2023, to a 70 percent total rating thereafter. Nevertheless, the reduction was implemented without fully complying with applicable regulations. As a result, the rating decision is void ab initio.

3. Assuming arguendo that the procedural due process requirements of 38 C.F.R. § 3.105(e) do not apply to the Agency of Original Jurisdiction (AOJ), then resolving all reasonable doubt in the Veteran's favor, evidence is at least evenly balanced to suggest that the September 15, 2023 examination failed to demonstrate that the residuals of his back disorder underwent permanent improvement.

4. Resolving all reasonable doubt in the Veteran's favor, the evidence of record is at least evenly balanced to suggest that the Veteran has a valid diagnosis of right ear hearing loss for VA purposes, and also either that it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) first manifested during active duty service, or else that it is at least as likely as not otherwise directly attributable to active duty service.

5. After an October 6, 2006 rating decision became final, the Veteran then submitted a formal claim for service connection for left ear hearing loss, as received no earlier than July 9, 2020, which is a date more than one year after receipt of a July 27, 2018 Intent to File.

6. The Veteran submitted a formal claim for service connection for residual surgical scarring associated with the lumbar spine that was received on July 9, 2020, and there is no competent or credible evidence anywhere in the record to suggest that any such claim was received any earlier than that; meanwhile, there is no competent or credible evidence either to suggest that the formal claim was received within one year after any Intent to File, with the otherwise most recent Intent to File having been received on July 27, 2018.

7. The Veteran submitted a formal claim for service connection for right lower extremity sciatic radiculopathy associated with the lumbar spine that was received on July 9, 2020, and there is no competent or credible evidence anywhere in the record to suggest that any such claim was received any earlier than that; meanwhile, there is no competent or credible evidence either to suggest that the formal claim was received within one year after any Intent to File, with the otherwise most recent Intent to File having been received on July 27, 2018.

8. The Veteran submitted a formal claim for service connection for right lower extremity femoral radiculopathy associated with the lumbar spine that was received on July 9, 2020, and there is no competent or credible evidence anywhere in the record to suggest that any such claim was received any earlier than that; meanwhile, there is no competent or credible evidence either to suggest that the formal claim was received within one year after any Intent to File, with the otherwise most recent Intent to File having been received on July 27, 2018.

9. The Veteran submitted a formal claim for service connection for left lower extremity sciatic radiculopathy associated with the lumbar spine that was received on July 9, 2020, and there is no competent or credible evidence anywhere in the record to suggest that any such claim was received any earlier than that; meanwhile, there is no competent or credible evidence either to suggest that the formal claim was received within one year after any Intent to File, with the otherwise most recent Intent to File having been received on July 27, 2018.

10. The Veteran submitted a formal claim for service connection for left lower extremity femoral radiculopathy associated with the lumbar spine that was received on July 9, 2020, and there is no competent or credible evidence anywhere in the record to suggest that any such claim was received any earlier than that; meanwhile, there is no competent or credible evidence either to suggest that the formal claim was received within one year after any Intent to File, with the otherwise most recent Intent to File having been received on July 27, 2018.

CONCLUSIONS OF LAW

1. The reduction in the rating of the Veteran's lumbar spine degenerative arthritis with intervertebral disc syndrome (hereinafter "back disorder"), from 40 percent to 20 percent effective September 15, 2023 is improper as void ab initio; therefore, the criteria to restore the 40 percent rating effective July 9, 2020 have been met. 38 U.S.C. §§ 1155, 5107, 5112(b)(6); 38 C.F.R. §§ 3.105(e)(i); 3.344(c), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13, 4.25, 4.26, 4.71a, Diagnostic Codes
fter "back disorder"), from 40 percent to 20 percent effective September 15, 2023 is improper as void ab initio; therefore, the criteria to restore the 40 percent rating effective July 9, 2020 have been met. 38 U.S.C. §§ 1155, 5107, 5112(b)(6); 38 C.F.R. §§ 3.105(e)(i); 3.344(c), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13, 4.25, 4.26, 4.71a, Diagnostic Codes 5242, 5243.

2. The criteria for entitlement to service connection for hearing loss of the right ear have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

3. The criteria for Entitlement to an effective date of July 9, 2020, but no earlier, for service connection for hearing loss of the left ear have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

4. The criteria for entitlement to an earlier effective date prior to July 9, 2020 for service connection for residual surgical scarring associated with the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

5. The criteria for entitlement to an earlier effective date prior to July 9, 2020 for service connection for right lower extremity sciatic radiculopathy associated with the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

6. The criteria for entitlement to an earlier effective date prior to July 9, 2020 for service connection for right lower extremity femoral radiculopathy associated with the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

7. The criteria for entitlement to an earlier effective date prior to July 9, 2020 for service connection for left lower extremity sciatic radiculopathy associated with the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

8. The criteria for entitlement to an earlier effective date prior to July 9, 2020 for service connection for left lower extremity femoral radiculopathy associated with the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from July 7, 1960 to July 6, 1964. The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal of two separate rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO): dated February 11, 2025 (effective dates of service connection being set at July 9, 2020 for scars at the lumbar spine, bilateral lower extremity sciatic radiculopathy, bilateral lower extremity femoral radiculopathy), and dated March 20, 2026 (all other issues listed on the title page).

In the March 30, 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the respective agency of original jurisdiction (AOJ) decision on appeal: in this case, either February 11, 2025, if about the effective date of service connection for lumbar scars or any lower extremity radiculopathy, or else March 20, 2026. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.
Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the respective agency of original jurisdiction (AOJ) decision on appeal: in this case, either February 11, 2025, if about the effective date of service connection for lumbar scars or any lower extremity radiculopathy, or else March 20, 2026. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

The February 11, 2025 rating decision is responsive to all issues listed on the title page, but after the Veteran requested Higher-Level Review, a HLR rating decision was issued on December 22, 2025. The HLR rating decision made some favorable findings that are now binding on the Board, and then acknowledged differences of opinion about other issues. For claims with a difference of opinion, the AOJ issued the March 20, 2026 rating decision as if it arose from a supplemental claim.

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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Of claims being adjudicated in this Board decision, there are three issues being granted: one reversal of a reduction, one service connection, and one earlier effective date for service connection. The Board construes these three grants as full grants of maximum respective benefits, subject ot limitations of the Board's jurisdiction. Meanwhile, because the Board is remanding the claims of service connection, increased ratings effective July 9, 2020, and ancillary benefits, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

As noted, the appellant selected the Direct Review Docket. Pursuant to 38 C.F.R. § 20.202(c)(2), an appellant may modify a NOD to change the Board docket being requested. The time limit for such modification is "within one year from the date that the [AOJ] mails notice of the decision on appeal, or within 60 days of the date that the Board receives the [NOD], whichever is later." See 38 C.F.R. § 20.202(c)(2). "[T]he Board ordinarily may not decide an appeal before this time period is up." See Williams v. McDonough, 37 Vet. App. 305 (2024). As a result of Williams, supra, the Board could normally be precluded from adjudicating this claim until March 20, 2027 or up to 60 days after that date, to fully account for one year after both relevant rating decisions and a 60-day period to modify a NOD. The Veteran's attorney explicitly waived his right to switch dockets. See Correspondence Accompanying VA Form 10182 (rec'd Mar. 30, 2026) ("Please adjudicate this appeal as soon as possible.") (emphasis in original). The Board proceeds accordingly.

This appeal is advanced on the docket on account of the Veteran's advanced age. 38 U.S.C. § 7107(a)(2). 38 C.F.R. § 20.900(c).

A claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). The Board interprets the Veteran's claim as one for increased ratings for the lumbar spine disorder, including but not limited to a reversal of the reduction from 40 percent to 20 percent. Because the claim was not clearly limited, the Board will assert jurisdiction over both the reduction reversal claim and the increased ratings claim. A reversal of a reduction is a full grant of that claim on appeal, and the Board can do exactly that. Meanwhile, as the claim for increased ratings must be remanded, the Veteran will not be prejudiced by the outcomes of the lumbar spine disorder in this decision.

A veteran's rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran's disability, VA is required to comply with several general regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.

Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that they have 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that they may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e).

VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29-97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. The rating reduction on appeal herein was originally implemented in a December 2, 2023 rating decision, but the Board interprets the Veteran's continuous prosecution of increased ratings to necessarily include continuous prosecution of the reduction reversal. As a consequence of the December 2, 2023 rating decision, the Veteran's total disability rating was 80 percent prior to September 15, 2023, and then 70 percent thereafter. The Board accordingly concludes that requirements of 38 C.F.R. § 3.105(e) must apply.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In the most recent rating decision issued to the Veteran, see Rating Decision (Codesheet) (Mar. 20, 2026), the Veteran's total disability rating is now 80 percent ever since July 9, 2020. The Board does not
prior to September 15, 2023, and then 70 percent thereafter. The Board accordingly concludes that requirements of 38 C.F.R. § 3.105(e) must apply.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In the most recent rating decision issued to the Veteran, see Rating Decision (Codesheet) (Mar. 20, 2026), the Veteran's total disability rating is now 80 percent ever since July 9, 2020. The Board does not mean to impugn the validity of those outcomes, but the Board will not allow requirements of 38 C.F.R. § 3.105(e) to be excused after the fact. In other words, if 38 C.F.R. § 3.105(e) applies, then it should not be rendered moot, even if subsequent actions might effectively undo the rating reduction.

In any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). It is essential, both in the examination and evaluation of the disability, that each be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2.

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) & (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.

The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating.

Under 38 C.F.R. § 3.344(a) & (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995).

The provisions of 38 C.F.R. § 3.344(a) & (b) further provide certain procedural protections to a Veteran with regards to reductions of rating. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Here, the prior rating for the Veteran's back disorder was rated 40 percent disabling for less than five years, namely July 9, 2020 to prior to September 15, 2023. Thus, the provisions of 38 C.F.R. § 3.344(c) apply in this case, but neither § 3.344(a) nor (b).

In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer, infra. However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens, supra.

A claim stemming from a rating reduction action is a claim for restoration of the prior rating, and not a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App.
reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer, infra. However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens, supra.

A claim stemming from a rating reduction action is a claim for restoration of the prior rating, and not a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). There are certain procedures that are required when a rating is reduced, and the lower rating would result in a reduction or discontinuance of compensation payments being made. See 38 C.F.R. § 3.105(e). Specifically, when reduction of a rating is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e) (emphasis added by the Board).

To properly reduce a rating, VA must meet both procedural and substantive benchmarks.

Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e).

When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999).

As the AOJ promulgated on December 2, 2023, the rating decision states the following:

The evaluation of lumbar spine degenerative arthritis with intervertebral disc syndrome is decreased to 20 percent effective September 15, 2023, based on your recent contract VA examination showing that a lower evaluation is warranted. (38 C.F.R. § 3.105, 38 C.F.R. § 3.501). Please note that all due process requirements have been met as your overall combined evaluation will not be adversely affected.

See Rating Decision (Narrative) (Dec. 2, 2023), at Page 4 of 14, first paragraph of Issue No. 2 of 18, directly below header); but contra Rating Decision (Codesheet) (Dec. 2, 2023), at Page 2 of 5 (listing "Combined Evaluation for Compensation" as 80 percent then effective August 24, 2023 until prior to September 15, 2023, and then 70 percent thereafter). The AOJ's statement that "[his] overall combined evaluation [was] not [] adversely affected" is therefore clearly erroneous, and the Board expresses all sincere apologies for all unnecessary hardship created by this error. Because the Veteran was afflicted by a reduction of total disability benefits compensation, he was entitled to notice of a pre-determination hearing if requested within 30 days, to notice of an opportunity to submit relevant evidence in support of the current rating within 60 days, and notice of a final reduction effective the next first calendar day of the month following 60 days prior to that implementation. The Veteran was afforded none of those, thereby rendering the rating reduction void ab initio.

Procedural due process requirements of 38 C.F.R. § 3.105(e) are not limited to clerical steps at a prescribed schedule. In addition to timing, § 3.105(e) directs the AOJ to promulgate a rating proposal setting forth all material facts and reasons as relevant to the reduction or discontinuance. 38 C.F.R. § 3.105(e); 38 U.S.C. § 5112(b)(6). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more
that implementation. The Veteran was afforded none of those, thereby rendering the rating reduction void ab initio.

Procedural due process requirements of 38 C.F.R. § 3.105(e) are not limited to clerical steps at a prescribed schedule. In addition to timing, § 3.105(e) directs the AOJ to promulgate a rating proposal setting forth all material facts and reasons as relevant to the reduction or discontinuance. 38 C.F.R. § 3.105(e); 38 U.S.C. § 5112(b)(6). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The heightened duty to show sustained material improvement as contemplated by 38 C.F.R. § 3.344(a) and (b) is not for application; rather, the provisions of 38 C.F.R. § 3.344(c) concerning disabilities that have not stabilized, are applicable. This regulation provides that reexaminations disclosing improvement will warrant a rating reduction. However, in any rating reduction case, not only must it be determined that an improvement in disability has occurred, but also that that the improvement in disability actually reflects an improvement in the appellant's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995).

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The Board is bound by the Veteran's 40 percent rating as the lumbar spine was rated prior to September 15, 2023, as well as all supporting facts within the relevant examination report. See C&P Exam (Sept. 22, 2020, rec'd Oct. 7, 2020). Upon subsequent examination on September 15, 2023, the Veteran asserted that his sequelae are more severe, including but not limited to the facts that he is vulnerable to falling at home, is increasingly dependent on an electric wheelchair, has great difficulty getting in and out of an automobile, and can only effectively ride fully reclined in the front passenger seat, as if his head is in the rear passenger row. The Board has no reason to impugn the Veteran's credibility, nor his competence to relay any of these increasingly severe symptoms to the VA examiner. See C&P Exam (Sept. 15, 2023, rec'd Sept. 23, 2023), at Page 3 of 17, Question No. 2A.

38 C.F.R. § 4.13 provides that when any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. The examiner ultimately estimated that flare-ups limit the Veteran's forward flexion range of motion to 40 degrees, but citations and discussions of relevant evidence are nearly non-existent. See C&P Exam (Sept. 15, 2023, rec'd Sept. 23, 2023), at Pages 4-8 of 17, Question No. 3 et seq; but cf. id. at Question 3B, top of Page 7 of 17 ("Veteran has significant balance issues, has to use his walker for support with range of motion."); see also id. at Question No. 3F ("He has less movement of his back than normal and requires the assistance of a walker just to balance. He can't sit or stand for long periods of time because his balance is impacted and because he has back pain. He is experiencing less movement than he used to because of the pain and his balance issues. If he moves more it hurts and he could also fall so he has to have something in place to grab on to."). The Board concludes that these differences in examination results are limited to thoroughness of examinations or uses of descriptive terms.

Resolving all reasonable doubt in the Veteran's favor, the
balance issues, has to use his walker for support with range of motion."); see also id. at Question No. 3F ("He has less movement of his back than normal and requires the assistance of a walker just to balance. He can't sit or stand for long periods of time because his balance is impacted and because he has back pain. He is experiencing less movement than he used to because of the pain and his balance issues. If he moves more it hurts and he could also fall so he has to have something in place to grab on to."). The Board concludes that these differences in examination results are limited to thoroughness of examinations or uses of descriptive terms.

Resolving all reasonable doubt in the Veteran's favor, the Board finds that the VA has not met its burden to show improvement in the Veteran's ability to function under the ordinary conditions of life and work based on improvement of his service-connected lumbar spine disorder. See Brown, 5 Vet. App. at 420-421; Faust v. West, 13 Vet. App. 342, 349 (2000); Kitchens v. Brown, 7 Vet. App. 320 (1995); 38 C.F.R. § 3.344(c).

Ultimately, the Board is prohibited from remanding to associate negative evidence against a Veteran's claim with the claims file, see Mariano v. Principi, 17 Vet. App. 305, 312 (2003), and when the evidence is at least evenly balanced to grant a claim in full, a remand would cause undue delay in adjudicating the claim, see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). By granting the claim in full now, the Board can ensure that the Veteran is not so prejudiced. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

The reduction effective September 15, 2023, as carried out by unlawfully changing the back disorder's rating (without considering any of the other associated disabilities, such as the scars and the radiculopathies) from 40 percent to 20 percent under 38 C.F.R. § 4.71a via the December 2, 2023 rating decision, is improper, so the former 40 percent rating must be RESTORED as undisturbed from July 9, 2020. In other words, the petition to reverse the reduction is hereby GRANTED, and the Board determines that reversing this rating reduction is a full grant of maximum benefits available for this claim on appeal. See Grantham, supra. The Board stresses one final time that this full grant is warranted under 38 C.F.R. § 3.105(e) by itself, which would ordinarily make the analysis under 38 C.F.R. § 3.344(c) extraneous; however, the same full grant could nonetheless also be warranted under 38 C.F.R. § 3.344(c).

2. Entitlement to service connection for hearing loss of the right ear is granted.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013).

In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d
When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by these standards must be currently present, and service connection is possible if the current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant; however, if the evidence of record is persuasive for or against the claim, then the benefit-of-the-doubt rule does not apply, and the claim is instead adjudicated in accordance with the evidence. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

It is not in serious dispute that the Veteran was exposed to at least one in-service occurrence of hazardous noise exposure. If there were, then the Board would simply note that since service connection has already been granted for tinnitus and left ear hearing loss, reasonable doubt could be resolved by accepting the occurrence establishing service-connected tinnitus and/or left ear hearing loss, and applying that same occurrence to the right ear. Meanwhile, the Veteran's diagnosis of a current disability of right ear hearing loss for VA purposes is confirmed. By way of background, on June 13, 2023, the Veteran underwent audiometric testing. See C&P Exam (June 13, 2023; rec'd June 20, 2023). The authorized VA examination audiogram is associated with the claims file. The results are reproduced below:

HERTZ

500 1000 2000 3000 4000

RIGHT 40 40 60 80 80

LEFT 40 40 70 75 80

Speech discrimination scores using the Maryland CNC word list were as
Veteran's diagnosis of a current disability of right ear hearing loss for VA purposes is confirmed. By way of background, on June 13, 2023, the Veteran underwent audiometric testing. See C&P Exam (June 13, 2023; rec'd June 20, 2023). The authorized VA examination audiogram is associated with the claims file. The results are reproduced below:

HERTZ

500 1000 2000 3000 4000

RIGHT 40 40 60 80 80

LEFT 40 40 70 75 80

Speech discrimination scores using the Maryland CNC word list were as follows: for the right ear, 84 percent; left ear, 80 percent. As shown here, audiometric testing results as of this date confirms hearing loss for VA purposes in the right ear, as well as the left ear where hearing loss is already service-connected and was no longer in dispute. 38?C.F.R. §?3.385. More specifically, among all of the auditory thresholds specified by regulation, the right ear has one at 40 decibels or greater, on a date no later than June 13, 2023.

The last remaining element is the nexus, i.e.: whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the current hearing loss is etiologically related to the in-service acoustic injury. With regards to nexus, 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) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). 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), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).

In sum and substance, the June 2023 examiner concluded that the left (already service-connected) ear underwent a significant hearing threshold shift during active duty service, but the right (this ear on appeal) did not. The examiner further specified that "There is no report of complaint/treatment for hearing decrease in STR's or at separation." See C&P Exam (rec'd Jun 20, 2023), at Page 4 of 9, Question No. 3 (right ear [continued]). This etiological opinion however offers no rationale about the relevance or lack thereof of complaints of right ear hearing loss after discharge. See generally 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 that the Board can consider and weigh against contrary opinions."). In the context of this appeal, any continued denial of this claim would ultimately be based solely upon an absence of evidence from the record, even though an etiological opinion based on that basis is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's reports of in-service injury and instead relied on the absence of evidence in a veteran's service treatment records to provide a negative opinion).

The Board will ultimately conclude that a current hearing loss diagnosis is valid at any time during the appellate period, the in-service acoustic injury is conceded, he is competent to testify about symptoms that he can observe, such as a decrease in his hearing acuity since active duty service, see, e.g.: Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), and there is no affirmative evidence that directly contradicts the Veteran's contentions. The Board has no reason to impugn the Veteran's credibility. The Board is also precluded from remanding a claim for the purpose of obtaining negative evidence against a
a current hearing loss diagnosis is valid at any time during the appellate period, the in-service acoustic injury is conceded, he is competent to testify about symptoms that he can observe, such as a decrease in his hearing acuity since active duty service, see, e.g.: Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), and there is no affirmative evidence that directly contradicts the Veteran's contentions. The Board has no reason to impugn the Veteran's credibility. The Board is also precluded from remanding a claim for the purpose of obtaining negative evidence against a claim, see Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Instead, the Board will grant the claim for service connection now, and the Veteran cannot possibly be prejudiced by such an adjudication, see Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

As such, upon review of this record, the Board finds the evidence to at least be evenly balanced as to whether the Veteran's right ear hearing loss is related to his service-especially since his left (other) ear hearing loss is already service-connected. The appeal therefore must be GRANTED. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). There is no further doubt to be resolved because that represents a full grant of the benefit sought on appeal. The Veteran cannot be prejudiced by granting this claim in full now, see Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997), so the Board will do exactly that.

Earlier Effective Dates for Service Connection

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a).

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. §§ 5110(a); 38 C.F.R. § 3.400.

Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application for an increased rating is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

The Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.
Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply to claims filed on or after March 24, 2015.

Upon receipt of an intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by VA. If VA receives a complete application form prescribed by VA, as defined in 38 C.F.R. § 3.160(a), 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(b).

The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. Brannon v. West, 12 Vet. App. 32, 34-35 (1998). While the Board must interpret the Veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran. Id.

The word "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. 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, as defined in 38 C.F.R. § 3.160(a), 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 of the intent to file a claim was received. 38 C.F.R. § 3.155(b) (emphasis added by the Board).

While, under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as an informal claim for disability where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Merely seeking treatment does not establish a claim, to include an informal claim, for an increased rating.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Prior to this Board decision, left ear hearing loss was service-connected effective December 15, 2022; the others, effective July 9, 2020. In this case, the Board has thoroughly reviewed the Veteran's complete claims file for every communication received or generated prior to December 15, 2022, so as to fully consider all evidence for any potential earlier effective date.

Although the Board must provide adequate reasons and bases for a decision, the Board need not discuss all evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on what the relevant evidence shows, or fails to show, with respect to the Veteran's claims on appeal. Consequently, any evidence not discussed within this decision is irrelevant, duplicative, or unfavorable to the Veteran's claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

3. Entitlement to an effective date of July 9, 2020, but no earlier, for service connection for hearing loss of the left ear is granted.

By way of background, the Veteran first filed a claim for service connection for bilateral hearing loss no later than May 2006. See VA Form 21-526 (May 2006). That claim was denied in a rating decision dated October 6, 2006, as issued by the VA Regional Office in Sioux Falls, South Dakota. See Rating Decision (Narrative) (Oct. 6, 2006). After two administrative letters concerning this denial were issued later that month, see VA Form 21-8947 and Letter (rec'd Oct. 11, 2006), the next communications of any kind from the Veteran to the VA were received on July 27, 2018. See VA Forms 21-22 and 21-0966 (rec'd July 27, 2018). These are more than one year after the October 2006 rating decision. That October 2006 rating decision is therefore final. Meanwhile, July 27, 2018 is a date after March 24, 2015, so the standard forms amendment accordingly must apply to this claim for service connection, whenever it was received but no later than December 15, 2022. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155),
-22 and 21-0966 (rec'd July 27, 2018). These are more than one year after the October 2006 rating decision. That October 2006 rating decision is therefore final. Meanwhile, July 27, 2018 is a date after March 24, 2015, so the standard forms amendment accordingly must apply to this claim for service connection, whenever it was received but no later than December 15, 2022. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155), contra 38 C.F.R. § 3.157 (effective prior to March 24, 2015).

On August 13, 2018, the VA sent the Veteran a letter acknowledging receipt of his Intent to File a claim, as it was received on July 27, 2018. See Notification Letter (Aug. 13, 2018). It clearly states that "If your completed application is received within one year from the date that your intent to file was received and we decide that you are entitled to VA benefits, we may be able to compensate you from the date we received your intent to file. If your completed application is not received within one year from the date that your intent to file was received and we decide that you are entitled to VA benefits, we can only compensate you from the date we received your completed application." Id. at Paragraphs 2 and 3, prior to "What Should You Do?" The Board has thoroughly inspected the claims file for any competent or credible evidence of communication within one year after July 27, 2018. There is none. Instead, the next communication of any variety in the claims file is a formal application for service connection for left ear hearing loss, as received on July 9, 2020.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The claim was received on July 9, 2020, and it was granted service connection in an August 15, 2023 rating decision, albeit only effective December 15, 2022. December 15, 2022 was the date that another Intent to File was received, but the Board has no explanation as to why the AOJ did not accept this claim in the form as received on July 9, 2020, see cf. Correspondence (July 15, 2020).

Ultimately, in between July 9, 2020 (receipt of claim) and August 15, 2023, the AOJ never denied this claim, see cf. Rating Decision (Oct. 8, 2020), so this claim has clearly been continuously prosecuted from July 9, 2020, but no earlier than that, and also not merely December 15, 2022. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(b), 3.400. The correct date for service connection for the Veteran's hearing loss disorder of the left ear (the ear already service connected prior to this adjudication) is July 9, 2020. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. §§ 3.155(b), 3.160(a), 3.400(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997). This claim for an earlier effective date is GRANTED to that extent only, but since the evidence of record is persuasively against entitlement to any even earlier effective date-i.e., prior to July 9, 2020, any remaining portion of the claim must be DENIED, because the benefit-of-the-doubt doctrine is no longer applicable prior to July 9, 2020. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400(b)(2)(i); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). The Board reminds the Veteran that the AOJ will assign an effective date and an initial
, because the benefit-of-the-doubt doctrine is no longer applicable prior to July 9, 2020. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400(b)(2)(i); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). The Board reminds the Veteran that the AOJ will assign an effective date and an initial rating for service connection for hearing loss of the right ear, as has been granted above.

4. Entitlement to an earlier effective date prior to July 9, 2020 for service connection for residual surgical scarring associated with the lumbar spine is denied.

5. Entitlement to an earlier effective date prior to July 9, 2020 for service connection for right lower extremity sciatic radiculopathy associated with the lumbar spine is denied.

6. Entitlement to an earlier effective date prior to July 9, 2020 for service connection for right lower extremity femoral radiculopathy associated with the lumbar spine is denied.

7. Entitlement to an earlier effective date prior to July 9, 2020 for service connection for left lower extremity sciatic radiculopathy associated with the lumbar spine is denied.

8. Entitlement to an earlier effective date prior to July 9, 2020 for service connection for left lower extremity femoral radiculopathy associated with the lumbar spine is denied.

A claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). The Board has thoroughly inspected the Veteran's VA Form 10182 that dockets these appeals, and all other communications from the Veteran and his attorney. While they have prosecuted claims for increased ratings for the lumbar spine disorder (including reversal of a reduction), there is no competent or credible evidence of any intent to pursue claims for increased ratings for the scars or for any lower extremity radiculopathy, even though they are associated with the lumbar spine disorder. The Board accordingly will only assert jurisdiction over claims for earlier effective dates for service connection, and not for any increased rating. The Veteran is free to file a Supplemental Claim for any reason, so if one is received for increased ratings, that/those claim(s) will be adjudicated once received.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The Veteran's lumbar scars, bilateral lower extremity sciatic radiculopathy, and bilateral lower extremity femoral radiculopathy are each service-connected effective July 9, 2020, with no interim staged ratings after any initial rating. See generally Rating Decision (Codesheet) (Mar. 20, 2026).

The Board has thoroughly inspected the claims file for any evidence of claims initiated on these subjects, except prior to July 9, 2020. Simply stated, there is none. See contra VA Form 21-526 (rec'd Oct. 4, 2002), at Page 6 of 14, Part B, Section I (obstructive sleep apnea and memory loss); VA Form 21-526 (rec'd May 4, 2006), at Page 8 of 17, Part B, Section I (bilateral hearing loss, tinnitus, teeth problems from dental repair during active duty service, a tooth protrusion through the lower lip in a line of duty accident, and a right eye disorder). After those respective rating decisions, see VA Form 21-8947 (rec'd July 9, 2003); Rating Decision (Oct. 6, 2006), the next communications of any kind from the Veteran to the VA were received on July 27, 2018. See VA Forms 21-22 and 21-0966 (rec'd July 27, 2018). Meanwhile, July 27, 2018 is a
Page 8 of 17, Part B, Section I (bilateral hearing loss, tinnitus, teeth problems from dental repair during active duty service, a tooth protrusion through the lower lip in a line of duty accident, and a right eye disorder). After those respective rating decisions, see VA Form 21-8947 (rec'd July 9, 2003); Rating Decision (Oct. 6, 2006), the next communications of any kind from the Veteran to the VA were received on July 27, 2018. See VA Forms 21-22 and 21-0966 (rec'd July 27, 2018). Meanwhile, July 27, 2018 is a date after March 24, 2015, so the standard forms amendment accordingly must apply to this claim for service connection, whenever it was received but no later than July 9, 2020. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155), contra 38 C.F.R. § 3.157 (effective prior to March 24, 2015).

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The Veteran's service-connected scars and radiculopathies, as associated with this back disorder and as on appeal for earlier effective dates, are each already service-connected effective July 9, 2020. This appears to be more favorable than previous, when these disorders were only associated with a December 2022 Intent to File. See Intent to File Letter (Dec. 15, 2022); VA Form 21-526EZ (rec'd May 15, 2023). The Board cannot identify any credible or lawful basis to award any earlier effective dates prior to July 9, 2020, because no matter when the scars or radiculopathies may have manifested, the claims were only received on July 9, 2020, and governing laws dictate that between these two choices, the effective date for service connection should be the later of these two. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(b), 3.400. Meanwhile, the formal claim was received more than one year after an Intent to File, so 38 C.F.R §§ 3.155(b) and 3.160(a) do not apply, and cannot avail any other effective date.

The correct date for service connection for the Veteran's lumbar scars and lumbar radiculopathies is July 9, 2020, as already in effect for all of these disorders. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. §§ 3.155(b), 3.160(a), 3.400(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Since the evidence of record is persuasively against entitlement to any even earlier effective date-i.e., prior to July 9, 2020, these claims for earlier effective dates must be DENIED, because the benefit-of-the-doubt doctrine is simply not applicable. 38 U.S.C. § 5107; 38 C
9, 2020, as already in effect for all of these disorders. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. §§ 3.155(b), 3.160(a), 3.400(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Since the evidence of record is persuasively against entitlement to any even earlier effective date-i.e., prior to July 9, 2020, these claims for earlier effective dates must be DENIED, because the benefit-of-the-doubt doctrine is simply not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400(b)(2)(i); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement).

REASONS FOR REMAND

1. Entitlement to service connection for a dental disorder is remanded.

For compensation purposes, service connection for a dental disability can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as due to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150.

To establish entitlement to service connection for loss of a tooth, the veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381(b). The Board notes that the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran's active service. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. The Federal Circuit defined "service trauma" as "an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). This definition excluded "the intended result of proper medical treatment." Id.

In a May 2006 application, the Veteran articulated one plausible theory of a tooth injury that is not specifically excluded as ineligible for service connection. See VA Form 21-526 (rec'd May 4, 2006), at Page 8 of 17, Part B, Section I, handwritten No. 3. The claim appears to have been denied for the Veteran's failure to provide further evidence. See cf. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues).

When the Veteran then reopened this claim, see VA Form 20-0995 (rec'd May 15, 2023), he was afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); contra Waters, supra. The examiner appears to have concluded that the Veteran has no relevant diagnosis, or else that all dental disorders are secondary to an unsuccessful suicide attempt. See C&P Exam (June 15, 2023, rec'd July 28, 2023); Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.
79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); contra Waters, supra. The examiner appears to have concluded that the Veteran has no relevant diagnosis, or else that all dental disorders are secondary to an unsuccessful suicide attempt. See C&P Exam (June 15, 2023, rec'd July 28, 2023); Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).

The Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board. See generally Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran explicitly offered a plausible theory of a line of duty injury in 1962 or 1963, and there is no competent or credible evidence to suggest that VA examiners considered it. For this reason, the Board finds that the AOJ committed pre-decisional error in violation of the duty to assist, when they denied the claim on an inadequate examination report that is not responsive with the Veteran's assertions. This claim must be remanded accordingly.

2. Entitlement to any compensable rating effective July 9, 2020 for service-connected hearing loss of the left ear is remanded.

The Veteran's left ear hearing loss was previously noncompensable effective December 15, 2022; however, pursuant to this Board decision, it is now entitled to service connection effective July 9, 2020. As the disability has never yet been rated from July 9, 2020 to prior to December 15, 2022, the Veteran's claim for increased ratings is inextricably intertwined with those initial ratings that the AOJ has not yet assigned. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Meanwhile, and similarly, the Board has also granted the Veteran's claim for service connection for hearing loss of the right (other) ear. As such, this claim for increased ratings is also inextricably intertwined with those initial ratings that the AOJ has not yet assigned. See Harris, supra.

For both of the above reasons, this claim must be remanded accordingly.

3. Entitlement to increased ratings in excess of 40 percent effective July 9, 2020 for the service-connected back disorder is remanded.

4. Entitlement to service connection for an acquired psychiatric disorder (alternately claimed as depression or anxiety) is remanded.

5. Entitlement to service connection for a headache disorder is remanded.

6. Entitlement to service connection for obstructive sleep apnea is remanded.

7. Entitlement to service connection for diabetes mellitus, type II is remanded.

8. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded.

9. Entitlement to service connection for a heart disorder (alternately claimed as arteriosclerotic heart disease or coronary artery disease) is remanded.

10. Entitlement to service connection for hypertension is remanded.

11. Entitlement to service connection for a sternum disorder is remanded.

12. Entitlement to service connection for erectile dysfunction is remanded.

13. Entitlement to service connection for a right hip disorder is remanded.

14. Entitlement to service connection for a left hip disorder is remanded.

15. Entitlement to service connection for a right knee disorder is remanded.

16. Entitlement to service connection for a left knee disorder status-post arthroplasty is remanded.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). All fourteen of the above issues are listed in the March 20, 2026 rating decision, which has been processed as a supplemental rating decision-not Higher-Level Review. By docketing this appeal as on appeal of a
service connection for a left hip disorder is remanded.

15. Entitlement to service connection for a right knee disorder is remanded.

16. Entitlement to service connection for a left knee disorder status-post arthroplasty is remanded.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). All fourteen of the above issues are listed in the March 20, 2026 rating decision, which has been processed as a supplemental rating decision-not Higher-Level Review. By docketing this appeal as on appeal of a later rating decision, the Board can permissibly consider more evidence. Doing so is more favorable to the Veteran.

All of these claims were returned on Higher-Level Review on December 22, 2025. See VA Form 20-0999 (Dec. 22, 2025); Notification Letter (Dec. 31, 2025). Examinations were ordered, but the Veteran failed to attend them. VA medical records were then obtained no later than January 14, 2026 (still prior to the rating decision on appeal), and they suggest that the Veteran was admitted to an emergency room for treatment, while confirming that the Veteran was recently incarcerated. See VA Medical Record (rec'd Jan. 14, 2026), at Pages 1-2 of 159.

Resolving all reasonable doubt, the Board finds good cause to excuse the Veteran's failure to attend these examinations-either due to a hospitalization, incarceration, or both. The Board further finds that the AOJ committed pre-decisional error in violation of the duty to assist, when they denied the claims without considering good cause for the Veteran's absence and without offering an opportunity to reschedule the examinations.

For all of the above reasons, all fourteen of these claims must be remanded accordingly. The Board sincerely apologizes for all undue delay in adjudicating these claims, but the Board cannot escape the conclusion that these remands are unavoidable.

17. Entitlement to ancillary benefits (initially claimed as a rating of total disability due to individual unemployability [TDIU] based upon service-connected disorders) is remanded.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). As a result of this decision, the Veteran has a 40 percent rating effective July 9, 2020 for the service-connected lumbar spine disorder by itself; meanwhile, and also effective July 9, 2020, the Veteran has other service-connected disabilities combining for a total disability picture of 70 percent or more, including but not limited to bilateral lower extremity sciatic radiculopathy, bilateral lower extremity femoral radiculopathy, tinnitus, and hearing loss that requires new initial ratings and readjudication. See generally 38 C.F.R. § 4.16.

The Board acknowledges that the Veteran ascribes his unemployability to his lumbar spine disorder. See VA Form 21-8940 (rec'd Aug. 24, 2023). Nevertheless, the Board is remanding a collection of fifteen remaining claims for service connection, including but not limited to one examination for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Under Akles v. Derwinski, the Board has jurisdiction over a claim for special monthly compensation as inferred based on the record. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that a claim for an increased rating can include entitlement to special monthly compensation as an inferred issue); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that special monthly compensation benefits are to be accorded when a veteran becomes eligible without need for a separate claim).

Even though the Board can consider multiple disabilities of the same etiology as "one" disability to adjudicate a TDIU, see 38 C.F.R. § 4.16, any such package of multiple disabilities as "one" for a TDIU is not "one" for SMC. In order to award statutory SMC under 38 U.S.C. § 1114(s), there must be literally one disability that is totally disabling, and then separate disabilities independently rated 60 percent or more. Youngblood v. Wilkie, 31 Vet. App.
2008) (stating that special monthly compensation benefits are to be accorded when a veteran becomes eligible without need for a separate claim).

Even though the Board can consider multiple disabilities of the same etiology as "one" disability to adjudicate a TDIU, see 38 C.F.R. § 4.16, any such package of multiple disabilities as "one" for a TDIU is not "one" for SMC. In order to award statutory SMC under 38 U.S.C. § 1114(s), there must be literally one disability that is totally disabling, and then separate disabilities independently rated 60 percent or more. Youngblood v. Wilkie, 31 Vet. App. 412 (2019). The Board will assume that the Veteran is seeking maximum benefits. Under these unique circumstances, the Board determines that it is more advantageous to remand the claim as inextricably intertwined with all other remanded claims, in case any one disorder might be totally occupationally disabling by itself, see Youngblood, supra; Harris, supra.

This claim is remanded accordingly.

The matters are REMANDED for the following action(s):

1. Readjudicate the Veteran's claim for service connection for a dental disorder. Subsequent readjudication must specifically consider whether the Veteran has any such disability at any time during the appellate period, even if it may now be resolved, due to a line of duty accident yielding a tooth protrusion through his lower lip. See VA Form 21-526 (rec'd May 4, 2006), at Page 8 of 17, Part B, Section I, handwritten No. 3; Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

2. Readjudicate the Veteran's claim for any compensable rating effective July 9, 2020 for service-connected hearing loss of the left ear, not merely effective December 15, 2022. This readjudication must be done after initial ratings are assigned for the now service-connected hearing loss of the right ear.

3. Readjudicate the Veteran's claim for ratings in excess of 40 percent for a lumbar spine disorder effective July 9, 2020. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

4. Readjudicate the Veteran's claim for service connection for an acquired psychiatric disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

5. Readjudicate the Veteran's claim for service connection for a headache disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

6. Readjudicate the Veteran's claim for service connection for a sleep apnea disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

7. Readjudicate the Veteran's claim for service connection for diabetes mellitus type II. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

8. Readjudicate the Veteran's claim for service connection for gastroesophageal reflux disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

9. Readjudicate the Veteran's claim for service connection for a heart disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

10. Readjudicate the Veteran's claim for service connection for hypertension. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

11. Readjudicate the Veteran's claim for service connection for a sternum disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

12. Readjudicate the Veteran's claim for service connection for a genitourinary disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

13. Read
cause has been shown to excuse a previous absence.

13. Readjudicate the Veteran's claim for service connection for a right hip disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

14. Readjudicate the Veteran's claim for service connection for a left hip disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

15. Readjudicate the Veteran's claim for service connection for a right knee disorder. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

16. Readjudicate the Veteran's claim for service connection for a left knee disorder, status-post arthroplasty. Readjudication should include efforts to reschedule an examination, on the assumption that good cause has been shown to excuse a previous absence.

17. Readjudicate the Veteran's claims for all ancillary benefits that may be inextricably intertwined with the above. The Veteran has previously ascribed his individual unemployability to his service-connected back disorder, but the AOJ should consider whether special monthly compensation in excess of TDIU is warranted, including but not limited to due to any service-connected disorder (not being strictly limited to the back disorder) being totally occupationally disabling by itself.

See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that a claim for an increased rating can include entitlement to special monthly compensation as an inferred issue); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that special monthly compensation benefits are to be accorded when a veteran becomes eligible without need for a separate claim); Youngblood v. Wilkie, 31 Vet. App. 412 (2019).

J.P. Norman

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Engle, Michael B.

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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