Case A26040960

TIFFANY DAWSON · 2026 · Case ID: A26040960

GRANTED

Summary

The veteran, who served from July 1989 to July 1993, appeals the AOJ's rejection of a VA Form 20-0996 for several conditions, including PTSD, right ear hearing loss, right knee arthritis, left knee arthritis, and sleep apnea. The Board found the Form 20-0996 was untimely and an improper review option for these issues, agreeing with the veteran's representative that the AOJ properly rejected it. The Board also found that the veteran's representative's contention that the AOJ should have notified the veteran of the invalidity of the form earlier was not supported by the evidence, as the AOJ did not receive the form on the dates claimed by the representative. The Board also found no good cause for any delay in filing the form. Therefore, the Board found the veteran did not continuously pursue these claims. However, the Board granted service connection for degenerative arthritis of the spine with intervertebral disc syndrome. The AOJ had previously found a current disability and an in-service event for this condition but denied nexus. The Board reviewed mixed medical evidence, noting a VA examiner's opinion that lacked chronicity of care and denied nexus, while a private physician opined the condition was at least as likely as not secondary to the in-service injury. The Board found the VA examiner erred by focusing on continuity of care rather than symptoms, deeming the private opinion more probative and thus satisfying the nexus requirement. Service connection for degenerative arthritis of the spine with intervertebral disc syndrome is granted.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210319-150074

Full Decision Text

Citation Nr: A26040960
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210319-150074
DATE: April 30, 2026

ORDER

The Agency of Original Jurisdiction (AOJ) properly rejected the VA Form 20-0996 received on November 9, 2020 which sought review of the issues of entitlement to service connection for a) posttraumatic stress disorder (PTSD), b) right ear hearing loss, c) right knee arthritis, d) left knee arthritis, and e) sleep apnea.

Entitlement to service connection for degenerative arthritis of the spine with intervertebral disc syndrome is granted.

FINDINGS OF FACT

1. The VA Form 20-0996 received on November 9, 2020 was untimely vis-à-vis the December 17, 2018 rating decision. Therefore, the AOJ properly rejected it as a review option for the issues of entitlement to service connection for a) right ear hearing loss, b) right knee arthritis, c) left knee arthritis, and d) sleep apnea.

2. The VA Form 20-0996 received on November 9, 2020 was untimely vis-à-vis the September 26, 2019 higher-level review (HLR) rating decision.

3. The VA Form 20-0996 received on November 9, 2020 was an improper review option vis-à-vis the September 26, 2019 HLR rating decision. That is, the Veteran could not use the VA Form 20-0996 to seek review of the September 26, 2019 HLR rating decision.

4. The AOJ did not first receive the VA Form 20-0996 received on November 9, 2020 on August 19, 2020 and/or August 21, 2020.

5. The AOJ properly rejected the VA Form 20-0996 received on November 9, 2020 vis-à-vis the September 26, 2019 HLR rating decision. No extenuating circumstances concern the August 19, 2020 and August 21, 2020 submissions, nor has the Veteran demonstrated good cause to extend the filing deadline.

6. The Veteran's degenerative arthritis of the spine with intervertebral disc syndrome onset in and has continued since his active service.

CONCLUSIONS OF LAW

1. The Veteran did not continuously pursue the issues of entitlement to service connection for a) PTSD, b) right ear hearing loss, c) right knee arthritis, d) left knee arthritis, and e) sleep apnea through the VA Form 20-0996 received on November 9, 2020. 38 U.S.C. § 7105; 38 C.F.R. § 3.2500(c).

2. The criteria for entitlement to service connection for degenerative arthritis of the spine with intervertebral disc syndrome anaphylaxis have been met. 38?U.S.C. §?5108; 38?C.F.R. §§?3.159, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 1989 to July 1993.

Procedural History - VA Form 20-0996

The AOJ issued the administrative decision on appeal in November 2020, and it constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the March 19, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 4, 2025; a transcript is associated with the record. Therefore, the Board may only consider the evidence of record at the time of the November 2020 AOJ decision 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.

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
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.

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.

Procedural History - Spine

In November 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2019 decision. In March 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2019 decision.

In the March 19, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 4, 2025; a transcript is associated with the record. Therefore, the Board may only consider the evidence of record at the time of the December 2019 AOJ decision on appeal, which was subsequently subject to higher-level review, 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, which was subsequently subject to higher-level review 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.

Issue 1: Whether the AOJ's rejection of a VA Form 20-0996 received on November 9, 2020 which sought review of the issues of entitlement to service connection for a) posttraumatic stress disorder (PTSD), b) right ear hearing loss, c) right knee arthritis, d) left knee arthritis, and e) sleep apnea, was proper

Procedural History

On December 17, 2018, the AOJ issued a rating decision. As relevant here, the AOJ denied entitlement to service connection for a) right ear hearing loss, b) right knee arthritis, c) left knee arthritis, and d) sleep apnea.

On December 20, 2018, the AOJ notified the Veteran of the December 17, 2018 rating decision.

On May 13, 2019, the AOJ issued a rating decision in which it denied entitlement to service connection for other-specified trauma and stressor-related disorder.

On May 16, 2019, the AOJ notified the Veteran of the May 13, 2019 rating decision.

On August 22, 2019, the Veteran filed a VA Form 20-0996 in which he requested an HLR of the May 13, 2019 rating decision.

On September 26, 2019, the AOJ, in an HLR rating decision, affirmed the May 13, 2019 rating decision.

On October 2, 2019, the AOJ notified the Veteran of the September 26, 2019 rating decision.

On August 19, 2020, the Veteran appointed a new representative, R.L., of the Georgia Department of Veterans Services. That day, R.L. filed a 6-page submission with the AO
13, 2019 rating decision.

On August 22, 2019, the Veteran filed a VA Form 20-0996 in which he requested an HLR of the May 13, 2019 rating decision.

On September 26, 2019, the AOJ, in an HLR rating decision, affirmed the May 13, 2019 rating decision.

On October 2, 2019, the AOJ notified the Veteran of the September 26, 2019 rating decision.

On August 19, 2020, the Veteran appointed a new representative, R.L., of the Georgia Department of Veterans Services. That day, R.L. filed a 6-page submission with the AOJ via facsimile. This 6-page submission was comprised of:

" Page 1: A facsimile coversheet on VA letterhead

" Page 2: A "Centralized Intake Coversheet" on which R.L. indicated he was submitting a VA Form 21-22, a VA Form 21-4138, and a VA Form 20-0996.

" Pages 3-4: a VA Form 21-22

" Page 5-6: a VA Form 21-4138

On August 21, 2020, R.L. filed a duplicate of his 6-page August 19, 2020 filing with the AOJ via facsimile.

On November 9, 2020, R.L. filed an 8-page submission with the AOJ via facsimile. This 8-page submission was comprised of the 6-page submission received on August 19, 2020 and August 21, 2020 and a VA Form 20-0996 signed on August 19, 2020. On the VA Form 20-0996, the Veteran requested an HLR of the issues of 1) "sleep apnea," 2) bilateral hearing loss (acoustic trauma)," 3) "bilateral knee," 4) "PTSD," and 5) "lower lumbar." Moreover, he listed the decision date of all five issues as "0-0-".

On November 12, 2020, the AOJ a) accepted the VA Form 20-0996 as valid regarding the "lower lumbar" issue, and b) rejected it as untimely regarding the remaining four issues.

On March 19, 2021, the Veteran appealed the AOJ's rejection of the VA Form 20-0996 for the issues of 1) "sleep apnea," 2) bilateral hearing loss (acoustic trauma), 3) "bilateral knee," 4) "PTSD."

Merits

Given the procedural history above, the Board finds the Veteran filed the VA Form 20-0996 received on November 9, 2020 in response to the December 17, 2018 rating decision and the September 26, 2019 HLR rating decision. The undersigned confirmed this finding with the Veteran and his current representative at the February 2025 hearing. At that hearing, the Veteran's representative acknowledged that the VA Form 20-0996 received on November 9, 2020 a) was untimely vis-à-vis the December 17, 2018 rating decision, and b) was an improper review option vis-à-vis the September 26, 2019 HLR rating decision.

Nevertheless, the Veteran's representative contends R.L. first filed the VA Form 20-0996 received on November 9, 2020 on August 19, 2020 and/or August 21, 2020. If true, the Veteran's representative then contends the AOJ should have notified the Veteran that the VA Form 20-0996 was invalid vis-à-vis the September 26, 2019 HLR rating decision. If it had, the Veteran's representative then contends the Veteran would have sought review of the September 26, 2019 HLR rating decision via a supplemental claim before October 2, 2020, one year after it notified the Veteran of the September 26, 2019 HLR rating decision, thereby preserving his continuous pursuit of this claim under 38 CFR 3.2500.

The Board agrees with the Veteran's representative on three findings, but it disagrees with the Veteran's representative on its principal argument.

First, the Board finds the VA Form 20-0996 received on November 9, 2020 was untimely vis-à-vis the December 17, 2018 rating decision. Therefore, the AOJ properly rejected it as a review option for the issues of entitlement to service connection for a) right ear
9 HLR rating decision via a supplemental claim before October 2, 2020, one year after it notified the Veteran of the September 26, 2019 HLR rating decision, thereby preserving his continuous pursuit of this claim under 38 CFR 3.2500.

The Board agrees with the Veteran's representative on three findings, but it disagrees with the Veteran's representative on its principal argument.

First, the Board finds the VA Form 20-0996 received on November 9, 2020 was untimely vis-à-vis the December 17, 2018 rating decision. Therefore, the AOJ properly rejected it as a review option for the issues of entitlement to service connection for a) right ear hearing loss, b) right knee arthritis, c) left knee arthritis, and d) sleep apnea. The Veteran's representative concurred with this conclusion at the February 2025 hearing.

Second, the Board likewise finds the VA Form 20-0996 received on November 9, 2020 was untimely vis-à-vis the September 26, 2019 HLR rating decision. The Veteran's representative concurred with this conclusion at the February 2025 hearing.

Third, the Board also finds the VA Form 20-0996 received on November 9, 2020 was an improper review option vis-à-vis the September 26, 2019 HLR rating decision. That is, the Veteran could not use the VA Form 20-0996 to seek review of the September 26, 2019 HLR rating decision. The Veteran's representative concurred with this conclusion at the February 2025 hearing.

Fourth, the Board finds the AOJ did not first receive the VA Form 20-0996 received on November 9, 2020 on August 19, 2020 and/or August 21, 2020. The facsimile indicates R.L. transmitted six pages on both August 19, 2020 and August 21, 2020. R.L. may have intended to send the VA Form 20-0996 on those days, but nothing suggests that he did. Moreover, nothing suggests R.L.'s submissions were interrupted during the facsimile transmission or the AOJ's receipt and upload of the transmissions. Indeed, the Board would have to believe that R.L. attempted to transmit for the VA Form 20-0996 on both August 19, 2020 and August 21, 2020, and such transmission failure only applied to the VA Form 20-0096, not to any other page in the submission. This is a bridge too far, and the evidence does not support this contention. Accordingly, the Board finds the AOJ properly rejected the VA Form 20-0996 received on November 9, 2020 vis-à-vis the September 26, 2019 HLR rating decision, and no extenuating circumstances concern the August 19, 2020 and August 21, 2020 submissions.

Moreover, the Board does not find that good cause has been shown for the delay in submitting the VA Form 20-0996 received on November 9, 2020. Under 38 C.F.R. § 3.109(b), "time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues." Here, neither the Veteran nor his representative have requested the Board consider a good-cause extension. Even assuming either one had requested an extension, the Board finds good cause has not been shown for any delay. The circumstances show R.L. neglected to confirm that he had transmitted the VA Form 20-0996 twice. This, without any additional factors, does not rise to good cause.

In sum, the Board finds the Veteran did not continuously pursue the issues of entitlement to service connection for a) PTSD, b) right ear hearing loss, c) right knee arthritis, d) left knee arthritis, and e) sleep apnea through the VA Form 20-0996 received on November 9, 2020.

Issue 2: Entitlement to service connection for degenerative arthritis of the spine with intervertebral disc syndrome

Service Connection - Direct

Service connection may be established for a disability resulting from disease or
delay. The circumstances show R.L. neglected to confirm that he had transmitted the VA Form 20-0996 twice. This, without any additional factors, does not rise to good cause.

Issue 2: Entitlement to service connection for degenerative arthritis of the spine with intervertebral disc syndrome

Service Connection - Direct

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d).

The United States Court of Appeals for the Federal Circuit has held that a three-element test must be satisfied to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) ((quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).

Merits - Direct

In the March 2021 rating decision on appeal, the AOJ found the Veteran had a current disability (degenerative arthritis of the spine with intervertebral disc syndrome) and an in-service event ("Your service treatment records dated July 1993 notes complaint of back pain.") but denied the claim based on no medical nexus. Therefore, the Board will focus on the outstanding element.

The evidence regarding medical nexus is mixed. In December 2019, a VA examined examiner opined: "During service, condition was acute only. Veteran separated in 1993 which shows many years of gaps in care. There is no objective medical evidence found to confirm that the current degenerative arthritis of the spine, intervertebral disc syndrome and left side lumbar radiculopathy are related to the back injury in the service. There is no evidence of chronicity of care. A nexus has not been established." In contrast, Dr. S.B., in March 2025, opined: "The Veteran's low back disease is consistent with post-traumatic arthritis, and it is my medical opinion [the Veteran's] lumbar spinal disease is at least as likely as not secondary to his injury while enlisted in the military." The opinions diverge on whether the in-service event caused the current disability. While both are probative and supported by the record, the Board finds the VA examiner erred by focusing on continuity of care, not symptoms, as the law requires. Therefore, the Board finds Dr. S.B.'s opinion more probative than the VA opinion. In turn, the Board finds the Veteran has satisfied the third element of his direct service connection claim.

Because the Veteran has satisfied all three elements of his direct service connection claim, the Board grants the appeal.

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Sopko, 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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