judge_norm: S HENEKS

benefit: overpayment

text:
Citation Nr: 25012000
Decision Date: 09/23/25	Archive Date: 09/23/25

DOCKET NO. 19-09 894
DATE: September 23, 2025

ORDER

The appeal as to whether a timely notice of disagreement (NOD) was received following a December 2013 administrative decision notifying the Veteran of an overpayment of education benefits under the Veterans Retraining Assistance Program (VRAP) is denied.

FINDINGS OF FACT

1.  In a December 2013 administrative decision, the RO notified the Veteran that his education benefits under VRAP were adjusted based upon an investigation conducted by VA's Office of the Inspector General (OIG) which created an overpayment.

2.  The NOD to the December 2013 VA decision was not received by the RO until March 2018.

CONCLUSION OF LAW

The criteria to determine that a timely NOD to the December 2013 VA decision that notified of the education benefits overpayment was received are not met.  38 U.S.C. �� 5107, 7105; 38 C.F.R. �� 3.1(q), (r); 3.102; 20.200; 20.201; 20.302.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty for training (ACDUTRA) from August 1980 to December 1980, and on active duty from October 1995 to January 1996, with additional service in the Army Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 VA's education branch determination that a NOD was not timely filed with respect to a prior December 2013 administrative decision creating an overpayment of educational assistance benefits under the VRAP.

In a July 2023 decision, the Board denied the claim on appeal.  The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court).  In a January 2025 Memorandum Decision, the Court vacated the Board's decision and remanded for readjudication.  In pertinent part, the Court found that the Board did not address the reasonably raised issue of whether there was a good cause extension to the Veteran's untimely NOD.

Whether a timely NOD was received following a December 2013 administrative decision notifying the Veteran of an overpayment of education benefits under VRAP.

The evidence of record shows that the Veteran was notified in August 2012 and January 2013 that he had been awarded education benefits under the VRAP for the school term beginning on November 9, 2012, through November 8, 2013.  His educational benefits were awarded at a monthly rate of $1,564.00, computed at 35 hours per week.  See also October 2012 VA Form 22-1999.

VA's OIG investigated the Veteran's enrollment and determined that he had completed a total of 116 training hours for the school term.  In consideration that education benefits under VRAP are based on the actual number of hours completed, the investigation found, per VRAP implementing laws and regulations, that anything paid to the Veteran above 116 training hours completed was considered an overpayment and that the benefit award required a readjustment.

Thereafter, in December 2013 the RO adjusted the Veteran's VRAP benefits to reflect his correct periods of attendance and notified him at the address of record at that time.  The Veteran was notified of his appellate rights.  However, no response was received within one year of the December 2013 notification letter, nor was VA's notification returned by the U.S. Postal Service as undeliverable.

In February 2014, VA's Debt Management Center (DMC) notified the Veteran of his debt and provided information about his appellate rights and how to request a waiver of indebtedness.  The notification advised the Veteran of the following:

You have the right to dispute the debt and the right to request a waiver.  If you request a waiver, you also have the right to request an oral hearing.  Information regarding these options on the enclosed document entitled, "Notice of Rights and Obligations."  Read it carefully.

In August 2014, the Veteran sent a hearing request to the U.S. Department of Treasury and objected to the amount of debt.  In response, it appears that the U.S. Department of Treasury contacted VA's DMC to provide clarification to the Veteran regarding his debt.  In a May 2016 letter, the DMC stated that the Veteran's dispute concerned whether he had made the required payments on his account.  He was notified that his debt was established because he had not attended school on a full-time basis for the period of November 11, 2012, to November 8, 2013, as required for VRAP purposes.  The letter further informed him that he had been initially notified of his debt in a February 2014 DMC letter, and that his debt had been forwarded to the U.S. Department of Treasury for collection as no response had been received.

In July 2016, the Veteran filed VA Form 21-4138, Statement in Support of Claim, regarding his VRAP debt.  He asserted that he had been enrolled full-time and had completed his program, requested that collection efforts cease, and further requested a hearing.

In March 2018, a little over 4 years following the December 2013 VA decision, VA received a statement from the Veteran which was construed as a NOD.  The Veteran indicated that during the time period that he was initially notified of his debt he had moved approximately 5 times during which he lost contact with mail and other important details of his life.  He additionally attached copies of the December 2013 decision and February 2014 notification of debt to his March 2018 NOD and noted that the first notice he acted upon came from the U.S. Treasury Department, which concerned the garnishment of his wages.

In a March 2018 decision, the Muskogee RO notified the Veteran that VA could not accept his NOD as timely as it had not been received within one year of the December 2013 VA decision which thereby became final.  In May 2018, the Veteran appealed VA's decision as to the timeliness of his NOD, a statement of the case (SOC) was issued in July 2018, and the Veteran perfected his appeal to the Board by filing a substantive appeal in February 2019.

Accordingly, the inquiry before the Board is whether the March 2018 NOD is considered timely with respect to the December 2013 VA overpayment decision.

After a review of the evidence of record, the Board finds that the claim on appeal must be dismissed based on noncompliance with the relevant claims processing regulations, specifically the regulation regarding the timeliness of the NOD.  See 38 U.S.C. � 7105(b)(1)(C) ("A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board").

In this regard, controlling laws and regulations provide that appellate review of a VA decision is initiated by filing a NOD and completed by filing a substantive appeal after a SOC has been furnished.  38 C.F.R. �� 20.200, 20.201.  A NOD must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office.  38 C.F.R. � 20.300.  As to notice of the VA decision, VA's regulations provide that notification for VA purposes is a written notice sent to the claimant's last address of record.  38 C.F.R. � 3.1(q).

In addition, except in the case of simultaneously contested claims, a claimant or his representative must file a NOD with a determination by the RO within one year of the date the RO mails notice of that determination to the claimant.  38 C.F.R. � 20.302(a).  The date of mailing of the letter of the NOD will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  Id.  In the event the postmark is not of record, the postmark date will be presumed to be five days prior to receipt of the document by VA.  Id.  In calculating this five-day period, Saturdays, Sundays, and legal holidays will be excluded.  Id.

If a NOD is not filed within the one-year time period, the RO decision becomes final.  38 C.F.R. �� 20.200, 20.201, 20.302.

During his May 2023 Board hearing, the Veteran's attorney stated that the December 2013 VA decision and notification did not provide information about how to object or respond.  The Veteran testified that he had received the February 2014 DMC letter notifying him of the overpayment.  The Veteran further testified that he contacted VA and "got nowhere," that he was told to contact the DMC, and that he thought he had filed a grievance with the DMC.  The representative indicated, in essence, that the only time these VA notifications were uploaded in the record occurred when the Veteran sent them to VA which made it difficult to know what VA actually sent or tried to send or how they processed this issue.

The Veteran further testified that he was homeless throughout this time period but also confirmed that he had received the initial December 2013 VA decision notifying him of the overpayment of education benefits.  In this regard, the Veteran testified that he received the VA letter which was why he became concerned and tried to follow up on the matter.  Lastly, the Veteran and his representative asserted that the concept of equitable tolling was applicable in this instance and, therefore, the March 2018 NOD should be accepted as timely.

In his May 2018 NOD, the Veteran included a chronology of events in which he asserts that the first notification letter he ever received with respect to his VRAP debt came from the U.S. Department of Treasury on December 17, 2014.  He attributes this to the fact that he was homeless and had moved about five times within a two year period, which in turn caused him to lose contact with mail and other important details of his life.  While a claimant may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices are not regular or that they were not followed, the mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the decision.  See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Davis v. Principi, 17 Vet. App. 29, 37 (2003).

With regard to the assertion that the Veteran did not receive the December 2013 decision, as noted above, that letter was not returned by the U.S. Postal Service as undeliverable.  Accordingly, the presumption of regularity attaches to the facts of this case.  Woods v. Gober, 14 Vet. App. 214, 220 (2000).  Most importantly, during his Board hearing, the Veteran testified that he had received the December 2013 decision and the February 2014 DMC notice at the time they were sent.  The Board finds the Veteran's testimony in this regard to be the most probative evidence of record as it clearly establishes receipt of both letters.

Alternatively, the Veteran asserts that while he received the December 2013 VA decision, it did not include information about how to object or respond.  However, a review of the December 2013 decision shows that it clearly informed the Veteran to contact VA if he had questions or needed assistance and further notified the Veteran of his right to appeal the decision by writing to VA and explaining why he disagreed.  Lastly, the letter documents that the December 2013 decision had enclosed VA Form 4107 (Your Rights to Appeal our Decision) which explained his rights to appeal.  Additionally, the February 2014 DMC notification letter clearly notified the Veteran of his right to dispute the debt and the right to request a waiver, and it provided information on how to do so.  The letter additionally enclosed a Notice of Rights and Obligations.

Therefore, the Board finds the Veteran's assertion that he had not been provided information about how to object or respond is directly contradicted by the December 2013 decision and February 2014 DMC notification letter, and, therefore, the Board is unable to credit his assertion in this regard.  Accordingly, the Board finds that the Veteran was properly notified of his appellate rights.  Boyd v. McDonald, 27 Vet. App. 63 (2014).  Consideration of a time extension based upon inadequate notification is therefore not warranted.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory").

With respect to the Veteran's assertion that he contacted VA and "got nowhere," that he was told to contact the DMC, and that "he thinks" he filed a grievance with the DMC, his statements are contrary to his March 2018 NOD in which he indicated that the first notice he acted upon came from the U.S. Treasury Department.  Indeed, this latter statement is supported by the absence of evidence showing that he made attempts to contact VA, including statements and/or documentation showing that he had contacted VA to challenge the December 2013 VA decision, or the February 2014 DMC notice of indebtedness.  Conversely, the evidence shows that in August 2014, the Veteran initially moved to request a hearing with the U.S. Department of Treasury to cease all collection actions as it appears he had been notified of an Administrative Wage Garnishment by that Agency.  Accordingly, the evidence of record does not support a finding that the Veteran had initially contacted VA prior to his August 2014 action.

The Veteran and his representative further contend that the March 2018 NOD should be accepted as timely because the concept of equitable tolling is applicable to the facts of this case.  Specifically, the representative asserted that the Veteran's housing situation was unstable at the time of the VA decision, and that the only time VA notifications and other relevant evidence were uploaded into the record is when the Veteran sent them to VA.  The representative additionally asserts that equitable tolling must be considered as the asserted absence of VA notification letters and decisions made it unclear whether the Veteran knew how to, or what information he needed to submit, in order respond to the letters.  The representative further asserted that the Veteran attempted to appeal the VA decision by addressing this issue through the U.S Department of Treasury and his congresswoman.

In this regard, the Board notes that equitable tolling applies where circumstances preclude a timely filing, despite the exercise of due diligence, such as: (1) a mental illness rendering one incapable of handling one's own affairs or other "extraordinary circumstances" beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the AOJ or the Board.  See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curium order).  There is a three-part test to determine whether "extraordinary circumstances" justify equitable tolling: (1) the extraordinary circumstance must be beyond the veteran's control, (2) that it caused an inability to file during the requested tolling period, and (3) that the veteran exercised due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period.  Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014).  If "extraordinary circumstances" are shown, the "clock stops" and the requested period is not counted against the time-period for filing.  Id.

In this case, the evidence is persuasively against a finding that the Veteran's failure to file a timely NOD to the December 2013 administrative decision was the result of extraordinary circumstances beyond his control, reliance on an incorrect statement of a VA official, or a misfiling within VA that rendered him incapable of doing so during the one-year period following notice of the decision.  As noted above, the Veteran acknowledged receipt of the VA notification letter and that letter contained sufficient information as to filing a timely appeal and included further information in an enclosed informational document.  Accordingly, as he has acknowledged receipt of the notification letters, there are no extraordinary circumstances beyond his control to consider and there is no evidence that he had relied on incorrect statements from VA officials.

The Board acknowledges the Veteran's and the representative's assertion that the August 2014 submission to the U.S. Department of Treasury objecting to the amount of debt and requesting a hearing, and his attempt to reach out to his congresswoman, constituted informal NODs.  See May 2024 Board Hearing Transcript.

Prior to March 24, 2015, VA accepted informal NODs.  A NOD was defined by regulation as a "written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result."  38 C.F.R. � 20.201 (2006) (redesignated as 19.21).  While special wording was not required, the NOD must have been in terms which could be reasonably construed as disagreement with that determination and a desire for appellate review.  Id.

The Board has considered the arguments advanced by the Veteran and his representative.  However, there is simply no basis to conclude that the hearing request sent to the Department of the Treasury or the Veteran's action of reaching out to his congresswoman were NODs with the December 2013 administrative decision.

First, a review of the August 2014 hearing request is on an official document provided by the U.S. Department of Treasury.  See May 2015 DMC Letter and May 2016 VA Debt Management Center Letter.  There is additionally no language in the hearing request as to any action taken by VA.  Accordingly, the Board finds that the August 2014 hearing request was not a written communication expressing dissatisfaction or disagreement with the December 2013 VA decision, but rather whether he had made all required payments on a debt the U.S. Department of Treasury stated that he currently owed.  As such, the Board does not find that the August 2014 hearing request constituted an informal NOD to a VA decision.

Second, with regard to the assertion that the Veteran's action of reaching out to his congresswoman constituted an informal NOD, a review of the record shows that he had reached out to Congresswoman Pelosi (prior to the decision on appeal) regarding concerns he had with the Army.  As she was not his representative the February 2011 letter stated that his concerns would be forwarded to his congressman.  Thereafter, a September 2015 letter from the Department of the Army shows that he had reached out to the President of the United States concerning his character of discharge.  Accordingly, the claims file does not include any communication sent to an elected official expressing disagreement with the December 2013 VA decision.

Accordingly, the Board finds that the communications to the U.S. Department of Treasury, Congresswoman Pelosi, and the President were not NODs with the December 2013 VA decision.

Lastly, the Veteran and his representative assert entitlement to a good cause extension to his untimely NOD pursuant to 38 C.F.R. � 3.109(b).  VA regulations permit the extension of the time for doing any act required "to perfect a claim or challenge an adverse VA decision" if an extension is "requested" and "good cause" is shown.  See 38 C.F.R. � 3.109(b).

In Ferko v. McDonough, 37 Vet. App. 262 (2024), the Court held that although the one-year appeal period in section 7105(b) is binding, it does not place a jurisdictional limitation on the Board.  Rather, it is a claim-processing rule, but it does not deprive the Board of authority to consider the merits of an appeal simply because a NOD is received late.  "This doesn't mean, however, that the one-year deadline is irrelevant.  It is an 'important and mandatory' component of section 7105(b)'s claim-processing rule."  Henderson, 562 U.S. at 435.  Such a claim-processing rule would be subject to waiver or forfeiture, but if the 'mandatory claim-processing rule' is properly invoked, it 'must be enforced.'  Hence, VA need not accept a NOD filed outside that one-year period unless a claimant establishes an adequate excuse for the NOD's untimeliness.

However, as noted above, the evidence of record shows the Veteran conceded that he had received the December 2013 decision and February 2014 DMC notification letter, both of which notified him of his appellant rights.  The Board further notes that during the one-year period in which to file a timely NOD with this decision, and the claims file shows that VA sent him a letter in October 2014 asking him to complete and return VA From 21-4142 in order to obtain identified private treatment records related to a separate service connection claim.  He promptly provided VA with the completed form in November 2014.

Therefore, despite the Veteran's assertion that he did not respond to the notice letters due to homelessness and/or being in a time of housing transition, the claims file shows that he could and did respond to VA communications during the time period in question.  Therefore, the Board finds that a good cause exception to filing a timely NOD has not been established.

(Continued on the next page)

?

For the above reasons, the Veteran's March 2018 NOD was untimely and there is no basis to waive this claim-processing rule violation or otherwise address this claim on the merits.  Therefore, as the proper claims processing rules have not been followed, the appeal is dismissed.

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lamb, Christopher

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.


series: legacy

judge_norm: D SMART

judge_role: Veterans Law Judge

disposition: denied

benefit: tdiu

text:
Citation Nr: 25013000
Decision Date: 10/16/25	Archive Date: 10/16/25

DOCKET NO. 20-15 486
DATE: October 16, 2025

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. During the period from January 3, 2017, to September 30, 2017, and from March 22, 2022, to October 23, 2024, the Veteran was in receipt of a 100 percent schedular rating for bladder cancer, and the Veteran's other service-connected disabilities, considered independently of his bladder cancer, did not preclude him from securing and following a substantially gainful occupation.

2. During the period from October 1, 2017, to March 21, 2022, there was not a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities.

3. For the period from October 24, 2024, the Veteran has been in receipt of special monthly compensation based on housebound status, and entitlement to a TDIU is moot.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service in the Army from November 1968 to November 1971.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision by the Department of Veterans Affairs Regional Office (RO). The Veteran has not requested a Board hearing in this appeal.

This matter has come before the Board previously, in November 2023 and July 2025, and on both occasions the Board remanded the matter for additional evidentiary development. The RO has substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to a TDIU

The Veteran asserts entitlement to a TDIU, asserting that his service-connected bladder cancer, neuropathy, posttraumatic stress disorder and anxiety, arteriosclerosis, and tinnitus have rendered him unable to secure and follow a substantially gainful occupation.

A claim for TDIU is essentially a claim for an increased rating, and the effective date of an award on such claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. � 5110; 38 C.F.R. � 3.400. Additionally, when the matter of entitlement to TDIU is raised by the record in any claim for increase, such matter becomes part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).

In this case, the Veteran's claim for a TDIU arose as part of his claim for service connection for bladder cancer, atrial fibrillation, and hypertension cancer. Thus, the rating period on appeal begins January 3, 2017, the effective date of service connection for those disabilities, and runs through the date of this decision.

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. � 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. � 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of � 4.16(a) requires the use of the combined rating table).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

During the rating period on appeal, the Veteran has had the following service-connected disabilities:

"	bladder cancer, rated at 100 percent from January 3, 2017, as noncompensable from October 1, 2017, and at 100 percent from March 22, 2022;

"	generalized anxiety disorder, rated at 70 percent from October 24, 2024;

"	coronary arteriosclerosis, rated at 10 percent from October 3, 2024, and at 60 percent from March 18, 2025;

"	atrial fibrillation, rated at 10 percent from January 3, 2017;

"	tinnitus, rated at 10 percent from January 25, 2019;

"	right lower extremity peripheral neuropathy of the sciatic nerve, rated at 10 percent from October 24, 2024;

"	left lower extremity peripheral neuropathy of the sciatic nerve, rated at 10 percent from October 24, 2024; and

"	hypertension, rated as noncompensable from January 3, 2017.

Based on the foregoing, the Veteran met the percentage standards set forth in � 4.16(a) from January 3, 2017, to September 30, 2017, and from March 22, 2022, onward. For these periods, the Board may consider the claim for a TDIU in the first instance.

For the period from October 1, 2017, to March 21, 2022, the Veteran did not meet the percentage standards in � 4.16(a). Thus, for this period, the Board may not consider the claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that the Veteran is unemployable by reason of service-connected disabilities. 38 C.F.R. � 4.16(b). As described in Ray, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. at 66.

Of additional note is that the Veteran has been in receipt of a 100 percent rating for bladder cancer from January 3, 2017, to September 30, 2017, and again from March 22, 2022. Receipt of this 100 percent rating on its own does not necessarily moot the issue of a TDIU, as a TDIU based on the Veteran's other service-connected disabilities, considered independently of his bladder cancer, during this period would entitle a veteran to special monthly compensation (SMC) under 38 U.S.C. � 1114(s). Bradley v. Peake, 22 Vet. App. 280, 289-94 (2008).

For the period from January 3, 2017, to September 30, 2017, and from March 22, 2024, to October 23, 2024, the Board will thus consider whether the Veteran's service-connected disabilities (other than bladder cancer) rendered him unable to secure and follow a substantially gainful occupation. However, from October 24, 2024, the Veteran is already in receipt of SMC under 38 U.S.C. � 1114(s). Thus, an award of a TDIU during that period would confer no additional benefit on the Veteran, and the issue is moot as to the period beginning October 24, 2024.

Turning to the merits of the Veteran's claim, the Board notes that it has reviewed all the evidence in the record relevant to the period on review. This includes VA and private treatment records, the Veteran's lay statements, and VA medical examinations from as early as June 2019 and as recently as March 2025. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran has a high school education with some college coursework. During service, the Veteran's military occupational specialty was light air defense artillery crewmember. After service, the Veteran went to work at his father's mill, and the Veteran and his brothers developed a successful clothing and accessories company. The Veteran is retired and has not worked since 1999.

The Veteran's ability to secure and follow a substantially gainful occupation during the rating period prior to October 24, 2024, was impacted by the effects of his service-connected hypertension, atrial fibrillation, tinnitus (from March 22, 2022), and coronary arteriosclerosis (from October 3, 2024). The Veteran was also affected by his service-connected bladder cancer during this period, but as explained above, the limiting effects of this disability will be assessed only in connection with the Veteran's claim for the period from October 1, 2017, to March 21, 2022, the period when the Veteran was not in a 100 percent schedular rating for bladder cancer.

The record shows that, during the relevant period, these disabilities have resulted in some occupational impairment. Taken together, the Veteran's heart disabilities (hypertension, atrial fibrillation, and coronary arteriosclerosis) result in fatigue, weakness, and dizziness, with the latter mainly when changing positions or engaging in moderate activities. The Veteran's tinnitus bothers the Veteran but is less noticeable when he is distracted. As to bladder cancer, the Veteran requires close proximity to a restroom at all times, as he experiences urinary frequency and urgency.

VA medical examiners have offered opinions regarding the Veteran's ability to work. A February 2023 VA examiner opined that the Veteran could perform sedentary work, so long as he had close proximity to the bathroom. This opinion merits significant probative weight, as it is consistent with the evidence discussed above regarding the Veteran's limitations.

Similarly, an examiner in February 2024 opined that the Veteran experienced no functional impact from his hypertension, and an examiner in January 2025 opined that the Veteran experienced no functional impact from the Veteran's heart disabilities. These opinions merit some probative weight, as the record reflects that the Veteran did experience some functional impact from these disabilities, such as fatigue, weakness, and dizziness.

On the other hand, a March 2025 VA examiner opined that the Veteran's heart disabilities would cause him to miss work shifts. This opinion merits less probative weight. The opinion reflects significantly worsened functioning from the aforementioned February 2024 and January 2025 examinations and thus suggests that the Veteran's symptoms became more severe by March 2025. However, any worsening of the Veteran's symptoms after October 24, 2024, is not probative of entitlement to a TDIU, as the issue is moot from that date.

The Veteran has reported that his post-traumatic stress disorder and anxiety, hearing loss (which is not service connected), neuropathy, and "other medical issues" make it difficult for him to work around others. The Veteran is competent to report lay-observable symptoms, Layno v. Brown, 6 Vet. App. 465, 470 (1994), and his reports are credible. However, the Veteran assigns these statements little probative weight as to the relevant period, as the Veteran was not service connected for post-traumatic stress disorder and anxiety, hearing loss, or neuropathy prior to October 24, 2024, and entitlement to a TDIU is moot for the period from October 24, 2024.

Given the foregoing, the Board concludes that, at all relevant times, the Veteran had the functional capacity, experience, and training to perform work involving minimal standing, walking, or lifting and ready access to a bathroom, such as clerical work or other office-based employment. For the period from January 3, 2017, to September 30, 2017, and from March 22, 2022, to October 23, 2024, which the Board may adjudicate in the first instance, the evidence is persuasively against a finding that the Veteran's service-connected disabilities (independent of his bladder cancer) rendered him unable to secure and follow substantially gainful occupation. Thus, entitlement to a TDIU for these periods is denied.

For the period from October 1, 2017, to March 21, 2022, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of service-connected disabilities. Accordingly, referral of the claim for this period is not warranted.

Lastly, as explained above, for the period from October 24, 2024, an award of a TDIU would provide no additional benefit to the Veteran. For this period, then, the Veteran's claim is moot.

(Continued on the next page)

?

For these reasons, the appeal is denied.

D. SMART

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Mansfield, Associate 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.


judge_norm: MICHAEL A PAPPAS

condition: back

condition: knee

disposition: granted

condition: psychiatric

disposition: remanded

text:
Citation Nr: 25014000
Decision Date: 11/14/25	Archive Date: 11/14/25

DOCKET NO. 18-44 952
DATE: November 14, 2025

ISSUES

1. Entitlement to service connection for a low back disability (claimed as low back pain).

2. Entitlement to service connection for a left ankle disability.

3. Entitlement to service connection for a right ankle disability.

4. Entitlement to service connection for a left knee disability.

5. Entitlement to service connection for a bilateral hearing loss disability.

6. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, and to include as due to service-connected tinnitus.

7. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU).

ORDER

Entitlement to service connection for a low back disability (claimed as low back pain) is denied.

Entitlement to service connection for a left ankle disability is denied.

Entitlement to service connection for a right ankle disability is denied.

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a bilateral hearing loss disability is denied.

Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, on the basis of aggravation by his service-connected tinnitus is granted subject to the laws and regulations governing the award of compensation benefits.

REMANDED

Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's low back disability is not shown to be causally or etiologically related to an in-service event, injury, or disease.

2. The Veteran's left ankle disability is not shown to be causally or etiologically related to an in-service event, injury, or disease.

3. The Veteran's right ankle disability is not shown to be causally or etiologically related to an in-service event, injury, or disease.

4. The Veteran's diagnosed left knee disability manifested more than one year after the Veteran's separation from active-duty service, and it is not shown to be causally or etiologically related to an in-service event, injury, or disease.

5. The Veteran does not have a bilateral hearing loss disability of such severity to constitute a disability for VA compensation purposes.

6. The Veteran's acquired psychiatric disorder, to include depressive disorder is at least as likely as not aggravated by his service-connected tinnitus.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a low back disability are not met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

2. The criteria for entitlement to service connection for a left ankle disability are not met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

3. The criteria for entitlement to service connection for a right ankle disability are not met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

4. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. �� 1110, 1131; 38 C.F.R. �� 3.303, 3.307, 3.309.

5. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. �� 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. �� 3.303, 3.307, 3.309, 3.385.

6. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, on the basis of aggravation by his service-connected tinnitus have been met. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from July 1985 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal.

By way of background, the Veteran was originally denied entitlement to service connection for tinnitus and a bilateral hearing loss disability in a rating decision from March 2005. He appealed those denials to the Board, and in a Decision from September 2009, both of the Veteran's claims were denied.

The Veteran subsequently filed a claim to reopen the previously denied tinnitus and bilateral hearing loss claims, in addition to filing claims for entitlement to service connection for bilateral ankle disabilities, bilateral knee disabilities, depressive disorder, and low back pain.

In a rating decision from May 2015, the RO granted the Veteran entitlement to service connection for tinnitus at a 10 percent disability rating, effective the date of his claim to reopen, October 9, 2014. That same rating decision reopened but continued to deny the bilateral hearing loss disability claim, in addition to every other service connection claim.

The Veteran filed a timely Notice of Disagreement (NOD) in June 2015, appealing the disability rating of his tinnitus, and the denial of every service connection claim except for the right knee claim. The Board observes that entitlement to service connection for a right knee disability is not currently on appeal.

The Veteran was issued a statement of the case (SOC) in July 2018, and he filed a timely VA Form 9 in August 2018, through which, he requested a hearing before a Veterans Law Judge.

The Veteran was then given a hearing before a Veterans Law Judge in March 2022. During the hearing, the Veteran demonstrated his intention to withdraw his bilateral hearing loss and tinnitus claims. See March 2022 Statement in Support of Claim. The Veteran was later informed that the audio transcript of the hearing was unavailable due to audiological problems. The Veteran was asked whether or not he wished to have another hearing for the issues on appeal.

The Veteran confirmed in March 2023 that he desired to have another Board Hearing, and in August 2023 he was given a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file.

During the hearing, the Veteran indicated that he did not want to withdraw the issues related to his tinnitus and bilateral hearing loss claims and provided testimony on those issues. Therefore, those issues remained on appeal.

The Veteran's claim was then before the Board in October 2023. In that Decision, the Board denied the claim of entitlement to an increased disability rating for service connected tinnitus and found that new and material evidence had been received to reopen the claim for entitlement to service connection for a bilateral hearing loss disability. The Board also recharacterized the claim of entitlement to service connection for depressive disorder, to entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also raised the issue of entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447.

Each of those claims was then remanded for additional development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Following the Board remand, the Veteran has made an additional claim that psychiatric disorder is proximately due to and/or aggravated by his service-connected tinnitus. Thus, that claim has also been recharacterized, as shown above.

Finally, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.902(c). 38 U.S.C. � 7107(b).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. �� 5102, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Service Connection

To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. � 3.303(a).

Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. � 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

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

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. � 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

1. Entitlement to service connection for a low back disability (claimed as low back pain); service connection for a left ankle disability; service connection for a right ankle disability; and service connection for a left knee disability.

The Veteran has claimed that his low back disability, his left knee disability, and his bilateral ankle disabilities are each due to his active-duty service.

Turning to the first criteria for entitlement to service connection, the Veteran was seen for a VA examination in January 2024. The Veteran was seen in person, and his claims file was reviewed. Following clinical testing, the Veteran was given diagnoses of left knee osteoarthritis, bilateral ankle strain, and lumbosacral strain.

Therefore, the Veteran's diagnoses have been confirmed, and he has met the first criteria for entitlement to service connection for the low back disability, the bilateral ankle disabilities, and the left knee disability.

Turning to the second criteria, the Veteran was given a Board hearing before the undersigned in August 2023. During the hearing, the Veteran testified that he believes his various musculoskeletal problems stem from boot camp. The Veteran described having to "dig foxholes, cut trees to conceal the Howitzer [gun]." The Veteran described having to move the heavy artillery guns, including the rounds for those guns, which were "two hundred and four pounds," and he "wrenched [his] back quite a few times doing that." The Veteran also described getting in a fight during basic training, and part of his punishment was that they "made me walk around on my tiptoes ... twice around the track on my tiptoes." He remembers that "the following day, both of my knees and both of my ankles were swollen." He believes that the pain he experiences in his back, his left knee, and his bilateral ankles comes from those in-service events. The Veteran also testified that he was discouraged from speaking up or complaining about the pain because that was a sign of weakness. The Veterans Law Judge asked the Veteran directly why he told an examiner in 1995, after he had separated from service, that he had no problems. The Veteran testified that, again it was seen as a sign of weakness, and he wanted to preserve the option for going back into national guard service.

The Veteran's spouse submitted a statement in July 2015. She wrote that her husband told her that he experiences pain and swelling in his ankles, knees, and lower back. She wrote that the Veteran told her stories of having to work the Howitzer gun, and how unwieldly it was, and that his active service may be the cause of his musculoskeletal pain today.

The Veteran's claims file contains a buddy statement from D. P., received in July 2015. D. P. wrote that he witnessed the Veteran "falling off the tank," on a mission, and being told to "suck it up and deal with it." He remembers the Veteran "complaining while we were training about his knee."

The Veteran's brother also submitted a statement, received in March 2022. In the statement, the Veteran's brother wrote that the Veteran was in "exceptional physical condition" before he left for service, but when the Veteran "returned from basic, it was common to see him wearing knee and ankle braces ... [and] complaining about back pain."

The Veteran is competent to report the symptoms he experiences, such as those associated with his musculoskeletal disabilities. The Veteran's family and D. P. are competent to report that which they have heard the Veteran report, and what they have witnessed. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

The Board has reviewed the Veteran's claims file. Although the Veteran's service-treatment records are negative for any complaints related to the claimed disabilities, he has provided competent testimony regarding his in-service physical strains, and the duties that he has described are generally applicable to his period of active-duty service. Again, he is competent to report these claims, generally. Therefore, the Board finds that the Veteran has demonstrated the second criteria for each of the claims listed in this section. 38 C.F.R. � 3.303.

Turning to the third criteria, the Board observes its prior Decision from October 2023. In that Decision, the private treatment report from Dr. P.Y. was deemed inadequate, as was the nexus reports provided by the Institute for Orthopaedic Innovations. The Veteran had not been given a VA examination however, and therefore his claims were remanded so that an etiological opinion could be rendered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

That VA examination came in January 2024. As noted above, the Veteran was seen in person, and his claims file was reviewed. The examiner conducted a clinical review for the low back disability, the bilateral ankle disabilities, and the left knee disability. The examiner also specifically noted that the buddy statements provided by the Veteran's friends and family, as well as his testimony had been considered. This included the Veteran's claims of in-service injuries and physical ailments. The examiner then provided four separate opinions, one for each of the claims in this section. The examiner opined that each claimed disability was less likely than not due to his active-duty service. They noted the Veteran's "physical training, heavy lifting, jumping off vehicles, guns," etc. They also wrote that the Veteran had never sought treatment for, nor complained of injuries to any of the disabilities claimed. The examiner confirmed that the service treatment records were silent, and even a later medical exam from May 1995 from the Veteran's time in the Reserves reported no issues. On the contrary, the Veteran's first reports of many disabilities was around September 2014 during a chiropractor appointment. The examiner noted that the ankle disabilities therefore occurred decades following his separation from service, and were therefore less likely than not due to that active-duty service. For the left knee osteoarthritis, similar findings were made, but they went further to not only provide a negative etiological opinion, but instead to say that the mild knee osteoarthritis was related to age and the Veteran's body mass index instead. Those opinions were also given regarding the Veteran's low back strain, and evidence of the Veteran's specific testimony and lay contentions were included within the negative nexus opinion.

As such, negative opinions were provided for each of the Veteran's claims.

There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Following the VA examination, the Veteran submitted another statement, received in February 2024. The Veteran provided similar contentions, again arguing that he believed his musculoskeletal disabilities were due to his active-duty service. He described various injuries that he had to "not report due to fear of consequences," and that he did not want to be perceived as weak. The Veteran cited to some medical studies which discussed injuries during military training.

The RO took the Veteran's statements and medical literature and forwarded it to the same VA examiner who provided the January 2024 exam and opinion. The examiner then wrote that they had reviewed the Veteran's additional lay statements, as well as the specific medical literature, but that the negative etiological opinions had not changed. As such, the prior opinions were essentially given again, considering the new evidence.

Most recently, the Veteran's February 2024 statements, as well as statements made by his spouse, were reiterated in December 2024 and re-uploaded. These statements are mostly duplicitous, albeit with more detail. The Board has reviewed these opinions and statements, in full.

In consideration of the above, the Board finds that the Veteran has not met the third and final criteria for entitlement to service connection for any of the claimed disabilities within this section. His current diagnoses of the left knee osteoarthritis, the bilateral ankle disabilities, and his low back disability have all been confirmed. The Veteran has also provided detailed statements and testimony regarding his in-service injuries, coupled with his fear of reprisal for reporting those injuries, and not wanting to appear weak. The Veteran and his family and friends are competent to provide such statements, and thus the second criteria for entitlement to service connection has been met for each claim. After deeming the prior examinations of record inadequate, the Board remanded the Veteran's claim for new examinations, which were provided. The examiner provided a clinical review of the Veteran, in person, reviewed his claims file, which included the lay statements and testimony, and then provided detailed negative etiological opinions. Factors such as the Veteran's lack of complaints during service, his complaint-free service treatment records, and the nearly thirty-year time gap all played a role in the examiner's opinion. They also noted the Veteran's age and body mass index as relevant factors, but regardless, they provided specific opinions for each claim in question, and conformed to the legal standard for providing such opinions. Then, when the Veteran submitted additional statements and cited to medical literature, the RO directed the examiner to review the new statements and medical literature, however the opinions offered did not change. That opinion has also been afforded significant probative weight.

The Board also notes that the Veteran's service-treatment records were silent about any complaints related to any of these disabilities, and no complaints occurred until around 2014. This represents a period of nearly thirty years. The passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

Furthermore, for specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.307(a)(3), 3.309(a). The presumptive chronic diseases include arthritis, such as that of the Veteran's left knee.

Here, although the Veteran has a current diagnosis of osteoarthritis of the left knee, that diagnosis was not made until 2024, with complaints first evident around 2014.

Thus, the Board finds that the Veteran has not met the third and final criteria for entitlement to service connection on a direct basis for the bilateral ankles, the low back disability and the left knee, and he has also not met the criteria for presumptive service connection for the left knee osteoarthritis.

In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claims in that it is not in approximate balance or nearly equal to the evidence that supports the claims.

As such, the benefit of the doubt rule is not for application, and the claims for entitlement to service connection for a low back disability, a left ankle disability, a right ankle disability, and a left knee disability must each be denied. 38 U.S.C. � 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to service connection for a bilateral hearing loss disability.

The Veteran has claimed that he has a current diagnosis of bilateral hearing loss for VA purposes, which is due to his active-duty service.

With respect to claim for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. � 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

During the Veteran's hearing in August 2023, he testified that he believes his hearing loss is now to the level of being compensable for VA rating purposes. He testified that he believes the hearing loss disability stems from him standing so close to large artillery and guns, including the howitzer, during his active-duty service. During the hearing, the Veteran's spouse also testified that she has observed the Veteran's hearing becoming much worse since he separated from service, and that the Veteran routinely has to listen to the television at a high volume, and she regularly has to repeat what she says to the Veteran.

The Veteran is competent to report the symptoms he experiences, such as those associated with his claimed hearing loss. The Veteran's spouse is also competent to report as to that which she witnesses. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

As noted above, the Veteran's claim was remanded in October 2023. In prior Decision, the Board found that a May 2015 VA examination was inadequate as certain portions of the Veteran's hearing acuity could not be tested, and responses were too variable. The Board also found that a private treatment report from Dr. P.Y., given in July 2015 was inadequate. The Board therefore remanded the Veteran's claim. Specifically, the Veteran was to be scheduled for a VA audiological examination, so that his claimed bilateral hearing loss could be confirmed, and an etiological opinion could be rendered.

That VA examination occurred in February 2024. The VA audiologist had access to the Veteran's claims file and conducted an in-person audiological evaluation. The examiner noted the Veteran's lay statements, which included the Veteran's claims of in-service exposure to hazardous noise. Audiological testing indicated the following the decibel loss at the pure tone threshold for each ear:

			HERTZ

	500	1000	2000	3000	4000

RIGHT	10	15	20	20	30

LEFT	10	10	15	30	30

Speech discrimination was found to be 98 percent for the right ear and 100 percent for the left ear. The examiner indicated that the use of the word discrimination score was appropriate for the Veteran.

There is no evidence that the VA audiologist was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity and diagnosis of the Veteran's bilateral hearing loss disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Turning to an analysis of the evidence, the Board finds that the Veteran does not currently have a bilateral hearing loss disability of such severity to constitute a disability for VA compensation purposes. 38 C.F.R. � 3.385. Considering the audiological measurements from the February 2024 VA audiologist, the Veteran was not found to have the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz at 40 decibels or greater, or that the auditory thresholds for at least three of those frequencies were 26 decibels or greater, or that his speech recognition scores using the Maryland CNC Test was less than 94 percent. 38 C.F.R. � 3.385.

Thus, notwithstanding the Veteran's assertion that he has a bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current bilateral hearing loss disability for VA purposes, and the claim must be denied on that basis. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. � 3.385 to define hearing loss for VA compensation purposes).

Thus, the Board finds that entitlement to service connection for a bilateral hearing loss disability is not warranted.

In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claim in that it is not in approximate balance or nearly equal to the evidence that supports the claim. As such, the benefit of the doubt rule is not for application, and the claim for entitlement to service connection for a bilateral hearing loss disability must be denied. 38 U.S.C. � 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

3. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, and to include as due to service-connected tinnitus.

The Veteran has claimed that his psychiatric disorder is due to his active-duty service. More recently, he has also claimed that it may be proximately due to his service-connected tinnitus.

The Veteran wrote in August 2023 that he remembers a few in-service events that he believes are responsible for his depression symptoms. While the Veteran submitted these on a VA Form 21-0781, which identifies possible stressors for claims related to post-traumatic stress disorder (PTSD), the Board recognizes that the Veteran has never claimed entitlement to PTSD. Those in-service incidents include watching his drill sergeant fall "approximately 20 feet" before hitting the ground, resulting in his injury, as well as the "constant yelling from drill instructors and extreme pressure to perform" during basic training. These events are also explained in further detail in another statement from August 2023, but he also wrote that he was scared to report his feelings at the time because he had to be a tough soldier, and they were trained to "push through and don't complain ... you don't tell anyone about your pain and suffering."

The Veteran testified before the undersigned in August 2023. During the hearing the Veteran described those same in-service events: he "saw a drill sergeant giving instructions on the obstacle course and while he was giving instructions he fell," and eventually learned that he had broken some ribs when hitting the ground; and being punished for being in a fight, and afterwards being yelled at by the drill instructors. The Veteran testified to feelings of depression, anxiety, and anger towards others. The Veteran's spouse also testified during the hearing that the Veteran exhibited symptoms of anger towards their family and children, and that she believes it was due to his mistreatment during his active-duty service.

A separate statement from the Veteran's spouse was submitted in August 2023. The Veteran's spouse wrote that the Veteran has dealt with depression since separating from service. She wrote that the Veteran shared the in-service events with her that stick with him, such as the drill instructor falling during training. She wrote that the Veteran has panic attacks, that he is "continuously on edge," that the chores around the house are "run like bootcamp," and that the Veteran is withdrawn and isolated, even during family functions.

The Veteran's claims file also contains statements from the Veteran's family members. A statement from March 2022 from the Veteran's sister notes that the Veteran "stopped attending family gatherings and did not hangout with friends," once he returned from basic training. The Veteran's stepson wrote in April 2022, that the Veteran "was never able to show affection to any of us in the house," and that the Veteran would often yell, or even "sometimes physically punish me."

The Veteran is competent to report the symptoms he experiences, such as those associated with his depression. The Veteran's family members are also competent to report that which they witness and experience. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

The Veteran's claim was previously before the Board in October 2023. In that Decision, the Board found that the etiological report provided by Dr. P.Y. was inadequate, as it was brief, conclusory, and not based on appropriate diagnostic standards under the relevant DSM. Furthermore, a March 2015 report was drafted by Dr. W.A., but no nexus opinion was given. A later report from April 2022 was given by Dr. W.A., but the Board also found that report inadequate, as it was written seven years later, it does not indicate what DSM was used in making the determination, and it appears that the information as taken exclusively from the Veteran, as opposed to following an independent review of the claims file.

Therefore, the Board deemed the current medical evidence inadequate to Decide the Veteran's claim, and it was remanded. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Following the Board remand, additional lay statements were written and submitted by the Veteran and his family/friends.

One buddy statement from L.H., noted that the Veteran experienced a "long term effect" after his separation from service, and that he was "constantly on edge," was nervous, and agitated. L.H. noted that the Veteran had informed him it was from a lack of sleep, and because "of the constant ringing in his ears and his memories from the military."

Another buddy statement from K.T. noted that she had worked with the Veteran for fifteen years, and that he was moody, difficult to speak with and irritated. The Veteran had informed K.T. that he was depressed, and that it was due to his time in the military.

The Veteran was given a VA psychiatric evaluation in January 2024. The Veteran was not seen in person, but instead via telehealth conference, and his claims file was reviewed. The examiner opined that the Veteran had a current diagnosis of major depressive disorder. They then wrote that it was less likely than not that the Veteran's diagnosis was due to his time in the military. The wrote that the Veteran did not make any complaints regarding his mental health until nearly three decades following his separation from service, and that around 2014 he had reported distress due to physical pain, generally, and "lack of meaning after retiring" from work. They also noted that the veteran had worked from 2017 to 2022 with no reports of mental health problems. As such, a negative etiological opinion was provided.

In February 2024, the Veteran wrote a statement, whereby he stated that his mental health evaluation was brief, and that he was unclear about some questions he was being asked. The Veteran reported that the examiner "scoffed" at him, and that some of the information could be inaccurate in the report provided.

In a separate statement, the Veteran wrote that he believed that his depression was secondary to his service-connected tinnitus. He described additional events in service whereby he was yelled at by the drill sergeants, and that he felt stressed and unable to report his symptoms for fear of being called weak. As related to his tinnitus, he wrote that the ringing is constant, which causes "a hard time concentrating and focusing," "makes me feel very agitated and also makes my depression worse." The Veteran feels verbal and physical outbursts due to the ringing in his ears, and that he "can't get away from the sound and it becomes too much to take." A similar statement was received in November 2024, and the Veteran's spouse submitted a statement with prior similar contentions, also in November 2024.

The Veteran then submitted an article linking depression and anxiety to Veterans with tinnitus. A second and third article were included, discussing tinnitus causing additional stress on those diagnosed with it, generally.

In February 2024, a report was provided by Dr. T.F. They noted that the Veteran was not seen in person, nor given an exam, however a thorough review of the medical history was provided. Dr. T.F. opined that the Veteran's depression and mental health difficulties were "due to service-connected tinnitus." They cited numerous lay statements within the claims file, including his complaints of constant ringing in his ears, which caused him severe stress, agitation, depression, etc. They then cite to various medical articles, and wrote that "there is extensive support in the research literature for a significant connection between tinnitus and anxiety and depression." As such, they opined that the Veteran's depression was "caused [by] and substantially aggravated" by his service-connected tinnitus.

The RO, in receiving the lay statements and opinion, requested that the January 2024 VA examiner provided an updated opinion. April 2024 that opinion was rendered. They opined that the Veteran's diagnosis of major depressive disorder was less likely than not proximately due to his service-connected tinnitus. They continued that "this is not to suggest that his tinnitus is not having an impact on his depressive symptoms, it is stating that it does not reach the established threshold for a direct connection." They later wrote that the Veteran's depressive disorder was less likely than not "aggravated beyond its natural progression by his tinnitus," because the "progression of his depression is the result of marital discord, life transition, and a reflection on his life in general."

In June 2024, Dr. T.F. responded to the April 2024 VA examiner's opinion, writing that they disagree, and that it should be "considered less persuasive." They wrote that there were problems in the opinion provided because it is "simply cherry-picking other factors that can impact depression," but that does not contradict the Veteran's lay statements. Dr. T.F. criticizes that the VA examiner "did not examine him to establish the extent to which his tinnitus actually contributed to the occurrence of these situational stressors." The Board observes that Dr. T.F. report that he also did not examine the Veteran, but instead only reviewed the claims file.

In September 2024, the VA examiner responded to the criticisms of Dr. T.F., writing that she was aware of medical research related to tinnitus and depression, but that she stood by her original findings, insofar as it was "less likely than not" that the Veteran's depressive disorder was proximately due to or the result of the Veteran's tinnitus.

Most recently, in December 2024, a different psychologist, Dr. C.M., provided a report. They wrote that the Veteran had been interviewed, the claims file was reviewed, and an independent assessment was made. The examiner cited to specific instances in the claims file of the Veteran complaining of tinnitus, and that the ringing in his ears was stressful, and caused depressive symptoms and agitation. They also cited to the Veteran's reports to other examiners within the claims file, insofar as his ability to sleep was diminished due to the ringing in his ears, which caused him psychiatric problems. The examiner also cited to medical literature and research, linking depression with those that have tinnitus. Finally, they wrote that, based on the DSM-5, they believed that the Veteran's major depressive disorder was at least as likely as not "exacerbated' by his service-connected tinnitus.

Finally, the Veteran's Attorney submitted an Appellate Brief in January 2025. They wrote that their primary contentions were related to the mental health claim, and they had no further arguments regarding the claims for service connection for hearing loss, the low back, the left knee, and the bilateral ankles. They argued that the statements and opinions provided by the relevant examiners, coupled with the lay statements of the Veteran, indicate that the Veteran should be awarded entitlement to service connection for major depressive disorder, on a direct basis and or based on secondary service connection to his tinnitus.

The Veteran's claim is now before the Board.

Turning to the first criteria, the board finds that the Veteran has a current diagnosis of major depressive disorder. This diagnosis has been constantly reaffirmed by multiple examiners, as identified above. As such, he has met the first criteria for entitlement to service connection.

As per the second criteria, the Veteran is currently service connected for tinnitus. Therefore, he has a current service-connected disability, and this criterion is also met. 38 C.F.R. � 3.310.

Turing to the third criteria, the Board has multiple opinions from which to consider. The first two private opinions from Dr. P.Y. and Dr. W.A. have been deemed inadequate, as has already been discussed above. The Veteran was then given a VA examination in January 2024, prior to him expanding his claim to include consideration of secondary service connection. The January 2024 VA examiner provided a negative nexus opinion, finding that the Veteran's lack of in-service complaints, coupled with the multiple decades of not seeking any further treatment, indicate that his depressive disorder was less likely than not due to his active-duty service. The Board finds this opinion competent, credible, and therefore entitled to significant probative weight.

The Veteran then expanded his claim to include secondary service connection, in relation to his tinnitus. Along with this, he submitted an opinion from Dr. T.F. Although Dr. T.F. did not interview the Veteran in person, the opinion provided clearly conducted a review of the Veteran's claims file, including his lay statements, and the statements from his friends and family. They then cited to medical literature linking tinnitus to depression, and opined that it was at least as likely as not that the tinnitus aggravated the Veteran's current depressive symptoms. Thus, a positive opinion was provided. The Board also finds this opinion entitled to significant probative weight.

In April 2024, the VA examiner provided another opinion, however the response is internally inconsistent. They opine that the Veteran's major depressive disorder was less likely than not due to his tinnitus, but that "this is not to suggest that his tinnitus is not having an impact on his depressive symptoms." Later, they denied that the tinnitus was aggravating his depressive symptoms, and instead the depression was due to other factors going on in the Veteran's life. As this opinion is internally inconsistent in its opinions from direct service connection to secondary service connection, the Board affords it no probative weight.

For the record, Dr. T.F. then responded, arguing that the April 2024 VA opinion should be deemed inadequate. While the Board ultimately concurs with that assessment, it is beyond the purview of a private examiner to be opining on what the Board does or does not find probative evidence. That is for the Board to decide alone. On that basis, the June 2024 report from Dr. T.F. is also afforded no probative weight. The same can be said of the final VA opinion, which merely cites to repeated medical literature and reaffirms their prior opinions.

The most complete and developed opinion came in December 2024 from Dr. C.M. The report indicates that the Veteran's claims file was reviewed, which included his testimony and statements, as well as the statements of his family and friends. They also noted that the correct DSM was used to make the assessment, and an interview was conducted before the report was compiled. The examiner then cited to medical literature linking tinnitus and depression, and then opined that the Veteran's acquired psychiatric disorder was aggravated by his service-connected tinnitus. Thus, a positive opinion was given.

There is no evidence that Dr. C.M. was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In consideration of the above, the Board finds that the Veteran has met the criteria for entitlement to service connection on a secondary basis due to aggravation. The Veteran has a current diagnosis of major depressive disorder, and he is currently service connected for tinnitus. The Veteran has expanded his claim through lay statements, in addition to statements from his family and friends, and he has submitted specific articles linking tinnitus to depressive symptoms. Multiple opinions were provided on this issue. The first opinion from Dr. T.F. was afforded significant probative weight, as was the later-received opinion from Dr. C.M., which found that the Veteran's acquired psychiatric disorder was aggravated by his service-connected tinnitus. These positive nexus opinions on secondary service connection due to aggravation outweigh the negative nexus opinion from the VA examiner, because it was internally inconsistent and therefore afforded no probative weight. Thus, the criteria for entitlement to service connection on a secondary basis due to aggravation are met.

The Board has also considered entitlement to service connection on a direct basis, but notes that the evidence is less in his favor when evaluating this standard. That is because, when weighed, the opinions offered on direct service connection which were negative are afforded significant probative weight. This includes the first VA examiner's opinion, and the additional opinions after that are predominantly for secondary service connection. The Board is also mindful of the lack of in-service treatment and/or complaints for depressive symptoms during the Veteran's active-duty service, as well as the nearly three decades before treatment was sought. See Maxson, Id.

Accordingly, the Board finds that the evidence is not persuasively against finding in favor of the claim, insofar as the evidence is, at the very least, in approximate balance when evaluating his claim for service connection on a secondary basis due to aggravation. As such, the benefit of the doubt rule is for application in the Veteran's favor, and the Board finds that the Veteran's acquired psychiatric disorder is at least as likely as not aggravated by his service-connected tinnitus. Thus, he has met the third and final criteria for entitlement to service connection on the basis of aggravation, and his claim for service connection on the basis of aggravation is granted. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

REASONS FOR REMAND

The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated.

1. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

The Veteran testified before the undersigned in August 2023 that he believes some of his claimed disabilities, some of which he is not currently service connected, are the cause of his difficulty maintaining gainful employment. He stated that he was forced to take an early retirement due to some of his physical restrictions, but also due to his psychiatric symptoms. The Veteran's wife also testified that the Veteran had negative interactions at work, and she believes that they are due to his claimed disabilities.

The Veteran is competent to report the symptoms he experiences, and how he believes they impacted his ability to work. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

Therefore, the Veteran's claim for entitlement to TDIU, at the very least, partially relates to his herein-granted claim for entitlement to service connection for a psychiatric disorder on the basis of aggravation by service-connected tinnitus. That grant has not yet been implemented by the RO, as it is granted herein by the Board. That also means that the granted claim has not been assigned an initial disability rating on the basis of aggravation, and this must occur before the Board can address the issue of entitlement to TDIU, as the initial ratings/ratings assigned to service-connected disabilities control whether consideration is on a schedular or an extraschedular basis.  38 C.F.R. � 4.16(a, b); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined when adjudicating one may significantly impact adjudication of the other); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Any necessary additional development focusing on the impact of the Veteran's acquired psychiatric disorder has on his ability to work finally must occur prior to TDIU adjudication, and any outstanding records should be obtained.

The matters are REMANDED for the following action:

1. Issue a rating decision to implement the Board decision granting entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, as due to aggravation by his service-connected tinnitus.

2. Undertaking any necessary additional development, particularly as it relates to the impact the Veteran's service-connected acquired psychiatric disorder has on his ability to work. This includes obtaining any outstanding records and conducting any other development relevant to the adjudication of the claim for TDIU.

(Continued on next page.)

3. After ensuring that the requested actions are completed, readjudicate the Veteran's TDIU claim. If the requested benefits remain denied, the Veteran and his Attorney should be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order.

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Pappas, Michael A.

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.


judge_norm: J W ZISSIMOS

condition: herbicide

text:
Citation Nr: 25015000
Decision Date: 12/16/25	Archive Date: 12/16/25

DOCKET NO. 21-00 851
DATE: December 16, 2025

REMANDED

Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1967 to March 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision.

In December 2023, the Board remanded for further development.  The case has since been returned to the Board for appellate review.

In the December 2023 remand, the Board noted that it did not appear that the agency of original jurisdiction (AOJ) undertook all necessary efforts to verify the Veteran's claimed exposure to herbicides aboard a ship from contact with aircraft returning to the carrier and from supplies and other items from military bases in Vietnam.

Following the remand, in October 2024 and April 2025, the AOJ requested deck logs from the USS Oriskany dated from June 1967 to March 1971, but there was no indication that a response was received.  In August 2025, an ILER IES Record Unavailable Response was also associated with the claims file, and an August 2025 Toxic Exposures Risk Activity (TERA) Memorandum noted that the Veteran did not qualify for a presumption of herbicide exposure during service.  However, it continues to remain unclear whether the AOJ completed all necessary efforts to verify Veteran's claimed exposure to herbicides aboard the ship from contact with aircraft returning to the carrier and from supplies and other items from military bases in Vietnam.  Therefore, the Board finds that a remand is required to ensure compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).

The matter is REMANDED for the following action:

1.   The AOJ should take any appropriate, additional steps to attempt to verify the Veteran's claimed exposure to herbicide agents aboard the USS Oriskany (CVA-34) from contact with aircraft returning to the carrier and supplies and other items from military bases in Vietnam.

All attempts and responses should be documented in the claims file.

2.  The AOJ should ensure compliance with the preceding directives and conduct any other development as may be indicated.

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Osegueda, 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.