condition: diabetes

condition: cancer

condition: erectile

benefit: smc

text:
Citation Nr: A26027000
Decision Date: 03/25/26	Archive Date: 03/25/26

DOCKET NO. 250402-526777
DATE: March 25, 2026

ORDER

Entitlement to an effective date of June 2, 2021, for the grant of entitlement to service connection for diabetes mellitus type II is granted.

Entitlement to an effective date of June 2, 2021, for the grant of entitlement to service connection for residuals, prostate cancer is granted.

Entitlement to an effective date of June 2, 2021, for the grant of entitlement to service connection for erectile dysfunction is granted.

Entitlement to an effective date of June 2, 2021, for the grant of entitlement to special monthly compensation (SMC) based on loss of use of creative organ is granted.

FINDINGS OF FACT

1. The Veteran served in Thailand, to include Korat Royal Thai Air Force Base, from January 1966 to February 1967.

2. There evidence is at least in equipoise as to whether the Veteran's duties brought him to the air base perimeter on a regular basis.

3. The October 2016 rating decision which denied service connection for diabetes mellitus and prostate cancer was appealed and a Statement of the Case (SOC) was issued in April 2018. The SOC was not substantively appealed, nor was new and material evidence received within the appeal period.

4. The Veteran's claim to reopen the issues of entitlement to service connection for diabetes and prostate cancer was received by the Department of Veterans Affairs (VA) on June 2, 2021.

5. The Veteran's currently diagnosed erectile dysfunction is secondary, and therefore, part-and-parcel, to his service-connected prostate cancer.

CONCLUSIONS OF LAW

1. The criteria for an effective date of June 2, 2021, for the award of service connection for diabetes mellitus type II have been met. 38 U.S.C. �� 1155, 5107, 5110; 38 C.F.R. �� 3.155, 3.400.

2. The criteria for an effective date of June 2, 2021, for the award of service connection for prostate cancer have been met. 38 U.S.C. �� 1155, 5107, 5110; 38 C.F.R. �� 3.155, 3.400.

3. The criteria for an effective date of June 2, 2021, for the award of service connection for erectile dysfunction have been met. 38 U.S.C. �� 1155, 5107, 5110; 38 C.F.R. �� 3.155, 3.400.

4. The criteria for an effective date of June 2, 2021, for the award of special monthly compensation (SMC) based on loss of use of creative organ have been met. 38 U.S.C. � 5107; 5110; 38 C.F.R. �� 3.350, 3.352, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In January 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2024 decision. In March 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior January 2024 decision. Therefore, the Board may only consider the evidence of record at the time of the January 2024 decision

In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2025 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. � 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.301, 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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Effective Dates

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. � 5110(a). This statutory provision is implemented by VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. � 3.400.

Generally, the effective date for an award of service connection is the day after separation from service or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. � 5110(b)(1); 38 C.F.R. � 3.400(b)(2)(i).

1. Entitlement to an effective date of June 2, 2021, for the grant of entitlement to service connection for diabetes mellitus type II is granted.

2. Entitlement to an effective date of June 2, 2021, for the grant of entitlement to service connection for residuals, prostate cancer is granted.

The Veteran contends that he is entitled to an effective date prior to his already assigned August 10, 2022, for the grant of service connection for his type II diabetes mellitus and prostate cancer. The Veteran argues that he is entitled to an effective date of at least June 2021, for the award of service connection for diabetes mellitus and prostate cancer, as well as secondary erectile dysfunction and entitlement to SMC based on loss of use of a creative organ. See January 2025 VA HLR. The Veteran also argues that he is entitled to an earlier effective date as he did not receive the April 2018 SOC. Id.

After review of the record, the Board finds an effective date of June 2, 2021, but no earlier, for the award of service connection for diabetes mellitus and prostate cancer, is warranted.

As noted above, generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an initial or supplemental claim will be the date of receipt of the claim or the date. 38 C.F.R. � 3.400.

For supplemental claims received more than one year after the date on which the AOJ or Board issues notice of a decision, the effective date will be fixed in accordance with the date the entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. � 3.2500(h)(2).

Prior to February 19, 2019, a Veteran could file a VA Form 21-526EZ to have a claim readjudicated. On February 19, 2019, the AMA went into effect and claimants could no longer file a VA Form 21-526EZ to readjudicate a claim; instead, a supplemental claim must be filed to readjudicate a previously disallowed benefit. 38 C.F.R. � 3.160(e).

Under the AMA, a Veteran who wants to readjudicate a claim must file a VA Form 20-0995, Decision Review Request: Supplemental Claim. Id. If the supplemental claim does not meet all the requirements of a complete claim, to include the filing of the proper form, the VA may consider the claim to be an incomplete claim. 38 C.F.R. � 3.155(d). When a supplemental claim is incomplete under � 3.160(a), VA will notify the Veteran of the information necessary to complete the application form. Id. at (d)(1)(i). If VA receives a complete supplemental claim within 60 days of notice by VA that an incomplete claim was filed, it will be considered filed as of the date of receipt of the incomplete claim. Id.

In the present case, the AOJ issued an October 2016 rating decision denying the Veteran's service connection claims for diabetes mellitus type II and prostate cancer. The Veteran submitted a notice of disagreement in February 2017, and an SOC was issued in April 2018. The Veteran did not submit a substantive appeal or new evidence regarding his service connection claims within 60 days of the notice date of the SOC; thus, the April 2018 SOC became final. 38 U.S.C. � 7105(c); 38 C.F.R. �� 3.160(d), 20.1103.

The Veteran's representative submitted a statement in support of claim in July 2019. The representative also submitted requests for status of the claims in November 2019, November 2020, and December 2020. In January 2021, the AOJ sent the Veteran a letter informing him that as he was previously denied service connection, he had to file his claim on the proper form.

On March 4, 2021, the Veteran filed a statement of support of claim with a private nexus opinion.

Later in March 2021, the Veteran's representative stated they received a copy of the April 2018 SOC in March 2021 and that it was the first time they had received the SOC. The representative also submitted a VA Form 9. A March 2021 letter from the AOJ informed the Veteran and his representative that the VA Form 9 could not be accepted as the time limit to continue an appeal had passed.

The Veteran then filed a June 2, 2021, Supplemental Claim, seeking service connection for type II diabetes and prostate cancer.

A January 2023 rating decision granted service connection for diabetes mellitus and prostate cancer effective August 10, 2022, the date that the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, was enacted which expanded the presumption of in-service herbicide agent exposure to additional territories and countries, including Thailand. See PACT Act, Pub. L. No. 117-168 � 3373, 136 Stat. 1759 (2022) at � 403. However, in granting service connection on a presumptive basis under the PACT Act, the AOJ did not address whether the Veteran would be entitled to service connection for his diabetes under the law in effect prior to the enactment of the PACT act.

Starting June 2, 2021

The Board acknowledges that the PACT Act expands and extends eligibility of presumptive service connection. This includes presuming herbicide agent exposure to Veterans who served in any U.S. or Royal Thai military bases in Thailand. Claims granted under the PACT Act will be effective no earlier than August 10, 2022. As will be explained below, the Board has determined on a facts-found basis that the Veteran was exposed to herbicide agents during his service in Thailand, and as such, an earlier effective date for his claims is warranted.

Prior to the passage of the PACT Act, VA had established a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era on a facts-found basis. In May 2010, VA published a Compensation and Pension Service Bulletin which establishes "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010). In explaining the need for the new procedures, VA had determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of exposure to herbicide agents on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases.

As noted above, the Veteran's diabetes mellitus and prostate cancer shall be presumed to have been caused by service if he was exposed to herbicides. The Board notes that the Veteran's service treatment records (STRs) do not show any treatment for or diagnosis of any diabetic or prostate conditions in service, and as such, direct service connection is not warranted.

The Veteran's military occupational specialty (MOS) during his service in Thailand was Electrical Warfare Repairman. Military personnel records reflect that the Veteran was stationed at Korat RTAFB from January 1966 to February 1967. The Veteran has provided lay statements regarding his duties and potential exposures to herbicides while stationed in Thailand. In a September 2011 claim, the Veteran reported that he was involved in recovery and repair of the electronic countermeasure receiver and antennas which required him to be in direct contact with the outside skin of the F105 D&F aircraft which had just returned from mission in North Vietnam. In a July 2019 statement, the Veteran's representative asserted the VA failed to consider the Veteran's exposure to herbicides during daily life at Korat. The representative indicated that the Veteran reported the NCO barracks were located within the drift zone, and these are the barracks that he lived in while stationed in Korat. If he was not working, he was normally in or near his sleeping/living quarters. He also reported that he was required to ride to the launch vehicle which would position "at the end of the runway in the event of Wild Weasel or ESM equipment failures." In March 2021, the Veteran submitted a statement from K. O., Ph.D., indicating that "In my opinion as a soil scientist, it is likely that during the tenure (1966 and 1967) of Vietnam at the Korat RTAFB that his living and working at this base exposed him to dioxin TCDD during the American Vietnam Wartime period, 1965 to 1972."

After a thorough review and consideration of the evidence, the Board determines that it is plausible that the Veteran's MOS duties would place him on the perimeters of the Korat RTAFB. Although the Veteran's MOS as Electrical Warfare Repairman is not one of the military occupations conceded to have been actually exposed to herbicides in Thailand, the Board finds the Veteran's statements to be credible regarding his actual proximity to the perimeter of the base. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).

For the above reasons, the evidence is at least in equipoise as to whether the Veteran was exposed to herbicides on the perimeter of Korat RTAFB. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

In light of the evidence of record, the Board finds that service connection was warranted for his claimed diabetes mellitus and prostate cancer under the law in effect prior to the PACT Act. As such, an effective date of June 2, 2021, the date of receipt of the Veteran's supplemental claim, for the award of service connection for diabetes mellitus and prostate cancer is warranted.

Prior to June 2, 2021

In arguing for an earlier effective date, the Veteran's attorney has asserted that he did not receive notice of the April 2018 Statement of the Case (SOC). See March 2021, Correspondence. In his written argument, the representative stated that they received a copy of the April 2018 SOC in March 2021 and they had not received a copy prior to that time as demonstrated by repeated requests for written status updates. Id. In addition, there is no evidence of returned mail or non-receipt aside from the Veteran's representative's assertion, nearly two years later, that the notice was not received. As the record unequivocally shows that the correct addresses for both the Veteran and the representative were stated on the notification letter, the representative's argument squarely fails.

Accordingly, the Board finds that the record does not reflect clear evidence contrary to a finding that proper notice was sent to the Veteran's (and his representative's) official address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (holding that the VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach); see also Mason v. Brown, 8 Vet. App. 44, 55 (1995); see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (holding that a claimant's statement of nonreceipt, standing alone, is not the type of clear evidence to the contrary which is sufficient to rebut the presumption of regularity in the administrative process). The documentary evidence demonstrates that the VA used the correct mailing address and there is no evidence that the mailing was returned as undeliverable. See Boyd v. McDonald, 27 Vet. App. 63, 72 (2014).

Turning to the record, the Veteran did not initiate an appeal nor did he submit new and material evidence within 60 days from the date of April 23, 2018, SOC notice letter. 38 C.F.R. � 3.156(b). That decision, therefore, became final. 38 U.S.C. � 7105(c); 38 C.F.R. �� 3.104, 20.1103. No procedural or factual irregularities have been identified that would undermine the finality of that determination.

The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. � 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. As such an effective date of June 2, 2021, for the award of service connection for diabetes mellitus and prostate cancer, but no earlier, is granted. 38 C.F.R. � 3.155(d)(1)(i).

3. Entitlement to an effective date of June 2, 2021, for the grant of entitlement to service connection for erectile dysfunction is granted.

With regards to the Veteran's claim for erectile dysfunction, the Board finds that the medical evidence of record demonstrates that his erectile dysfunction is secondary to his prostate cancer, an earlier effective date for which is granted herein.

Here, VA examination conducted in December 2022, shows that his erectile dysfunction had an onset of March 2011 and is secondary to his service-connected prostate cancer, now granted for the time period from June 2, 2021.

An earlier effective date has been granted for prostate cancer, herein, for the period from June 2, 2021, and evidence indicates the presence of erectile dysfunction, from that date. As such, an earlier effective date of June 2, 2021, for the grant of service connection for erectile dysfunction must be granted.

4. Entitlement to an effective date of June 2, 2021, for the grant of entitlement to special monthly compensation (SMC) based on loss of use of creative organ is granted.

Regarding the effective date for the award of SMC for the loss of use of a creative organ, as in this case, entitlement to SMC is premised on the award of service connection for erectile dysfunction. As such, the effective date for the award of SMC for loss of use of a creative organ cannot be earlier than the effective date for service connection for erectile dysfunction. Accordingly, as an effective date of June 2, 2021, but no earlier, is warranted for the award of service connection for erectile dysfunction is not warranted, the same effective date must be assigned for the award of SMC based on loss of use of a creative organ.

Martin T. Mitchell

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Boushehri, Diane M. Donahue

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: ama

judge_norm: RYAN T KESSEL

judge_role: Veterans Law Judge

disposition: denied

benefit: cue

condition: psychiatric

condition: back

text:
Citation Nr: A26028000
Decision Date: 03/27/26	Archive Date: 03/27/26

DOCKET NO. 230328-334112
DATE: March 27, 2026

ORDER

The motion to reverse or revise on the basis of clear and unmistakable error (CUE), a February 12, 2009 rating decision denying service connection for depression, is denied.

The motion to reverse or revise on the basis of CUE, a February 12, 2009 rating decision denying service connection for a back condition, is denied.

?

FINDINGS OF FACT

1. The February 12, 2009 rating decision is final.

2. At the time of the February 12, 2009 rating decision, the Veteran was not service connected for a right knee disability, and, even if the right knee was service connected, the evidence did not make it undebatable that the Veteran had depression or a back condition secondary to a right knee condition.

CONCLUSIONS OF LAW

1. The criteria for revising or reversing on the ground of CUE the final, February 12, 2009 rating decision denying service connection for depression, have not been met.  38 U.S.C. � 5109A; 38 C.F.R. � 3.105.

2. The criteria for revising or reversing on the ground of CUE the final, February 12, 2009 rating decision denying service connection for a back condition, have not been met.  38 U.S.C. � 5109A; 38 C.F.R. � 3.105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1978 to February 1993.

The case is on appeal from a February 2023 rating decision.

In a March 2023 notice of disagreement (NOD), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal with the exception that CUE issues must be decided based on the evidence of record at the time of the decision being collaterally attacked.  38 C.F.R. � 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. �� 20.300, 20.301, 20.801.  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 that 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.

In a November 2024 decision, the Board denied an appeal regarding whether a November 24, 2020 rating decision properly revised an effective date of the grant of service connection for major depressive disorder, from December 30, 2010, to February 4, 2013, on the basis of a clear and unmistakable error (CUE) pursuant to 38 C.F.R. � 3.105, in a January 26, 2019 rating decision.  That issue is not within the scope of this appeal.

In a March 2025 decision, the Board dismissed a March 2024 appeal as to the issue of entitlement to an earlier effective date prior to February 4, 2013, for the grant of service connection for major depressive disorder.  The Board cited the instant appeal filed in March 2023.  The Board noted that the RO had bifurcated the Veteran's September 2022 Supplemental Claim into two aspects, the instant CUE issue and an increased rating/earlier effective date issue.  The Board found the instant appeal was already pending when the Veteran filed the March 2024 appeal.  The Board dismissed the March 2024 appeal accordingly.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

CUE

A CUE motion is a collateral attack on a final RO decision.  See 38 U.S.C. � 5109A; 38 C.F.R. � 3.105(a).  CUE is established when the following conditions are met.  First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied.  Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated."  Finally, the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Evans v. McDonald, 27 Vet. App. 180, 185 (2014).  See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

"CUE is a very specific and rare kind of 'error'... of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error...[I]f it is not absolutely clear that a different result would have ensued," based upon the facts and law that were understood at the time of the decision, then any error that may have occurred in a final RO decision is not clear and unmistakable.  Evans, 27 Vet. App. at 185-86 (quoting Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993)).

1. Whether CUE exists in a February 12, 2009 rating decision denying service connection for depression.

2. Whether CUE exists in a February 12, 2009 rating decision denying service connection for a back condition.

In his September 2022 CUE motion, and reiterated in his March 2023 NOD, the Veteran argued that the February 12, 2009 rating decision must be revised on the basis of CUE because a later Board decision granted an earlier effective date for the award of service connection for the right knee effective from August 6, 2008.  The February 12, 2009 rating decision denied service connection for depression, but the Board's later decision impacted the finality of that rating decision because depression was awarded secondary to the right knee disability.  This award, therefore, changed the outcome of the February 12, 2009 rating decision, a finding of fact that directly impacted the denial of service connection for depression.  The grant of service connection for the right knee retroactive to August 6, 2008, directly impacted the earlier decision to deny service connection for depression, so that decision should be reconsidered based on the change in facts of the case available at the time of the decision.  The Veteran argued that this same reasoning applies to the low back condition because service connection was granted on a secondary basis.

In this case, as a preliminary matter, the Board finds that the February 12, 2009 rating decision is final.  The Veteran did not appeal the rating decision.  Also, new and material evidence was not received within one year of the decision.  Additional evidence was received, but it related to different medical conditions.  See 38 C.F.R. � 3.156(b).  Hence, the February 12, 2009 rating decision is subject to collateral attack via the instant CUE motion.  See Lang v. Wilkie, 971 F.3d 1348, 1352 (Fed. Cir. 2020).

The Board also finds that the Veteran has pled CUE with sufficient particularity.  His argument in the CUE motion is sufficient to inform the Board of his contentions.  The Board also finds that the Veteran's CUE motion may proceed as to all issues because he has not previously filed a CUE motion for these issues.  Accordingly, the matter is appropriate for consideration on the merits.

As to the merits, the representative is correct that a January 2021 Board decision granted an earlier effective date of August 6, 2008, for the award of service connection for a right knee disability.  Originally, the RO granted service connection for the right knee (as right knee degenerative arthritis with derangement of the anterior cruciate and medial and lateral meniscus) in a January 2013 rating decision.  The RO assigned the effective date from August 6, 2008.  The RO then issued a rating decision in January 2014 granting a separate disability rating for right knee instability.  The Veteran appealed the effective date assigned for right knee instability.  The January 2021 Board decision revised the effective date for right knee instability.  (It did not address the previously awarded effective date for right knee degenerative arthritis with derangement of the anterior cruciate and medial and lateral meniscus.)

The Veteran is also correct that depression was awarded service connection secondary to the right knee disability.  The Board granted service connection for depression in a September 2018 decision.  The Board cited a May 2013 VA opinion indicating that a right knee disability had exacerbated the Veteran's existing depression.  The Board found this evidence to establish secondary aggravation under 38 C.F.R. � 3.310.

With regard to the back, the RO granted service connection in a January 2015 rating decision.  The RO granted service connection as secondary to the service-connected right knee disability.

The representative's argument is flawed for two reasons.  First, the Board's decision to grant an earlier effective date for the right knee disability did not actually change the facts of the case.  The Veteran was already service connected for a right knee disability effective from August 6, 2008.  The later Board decision simply granted an earlier effective date for a different aspect of the same right knee disability.  Hence, the facts did not change.

Second, the representative's argument misunderstands the nature of the CUE inquiry.  The question is not whether a later change in the case impacts an earlier decision by changing the underlying facts.  The question is whether the adjudicator had the incorrect facts before it as they existed at the time of the earlier decision.  New or recently developed facts or changes in the law subsequent to the original adjudication may provide grounds for reopening a case or for a de novo review but they do not provide a basis for revising a finally decided case.  See Russell, 3 Vet. App. at 313.

At the time of the February 12, 2009 rating decision here, the RO had not granted service connection for the right knee, and it had not assigned an effective date from August 6, 2008.  Likewise, the Board had not awarded an earlier effective date for the right knee instability.  The later award of service connection for the right knee with an earlier effective date from August 6, 2008, was a new fact impacting depression and the back.

But this is immaterial to the CUE analysis.  The analysis can only look to the state of the facts as they existed at the time of the February 12, 2009 rating decision.  To this end, the facts of the Veteran's case did not include the award of service connection for the right knee effective from August 6, 2008.  This fact did not change until well after the February 12, 2009 rating decision.

If the RO had assigned, or Board had revised, the effective date for the award of service connection for the right knee on the basis of CUE, the representative's argument may be correct.  See, e.g., Pirkl v. Shinseki, 718 F.3d 1379, 1384 (Fed. Cir. 2013).  Neither decision, however, revised the effective date for the right knee on the basis of CUE.  Rather, as it stood at the time of the February 12, 2009 rating decision, the Veteran was not service-connected for the right knee.

(Continued on the next page)

?

Moreover, even if the Veteran had been service connected for the right knee at the time of the February 12, 2009 rating decision, the outcome would not have been undebatably different.  See Smith v. McDonough, 101 F.4th 1375 (Fed. Cir. 2024).  The evidence at the time of the February 12, 2009 rating decision did not establish a psychiatric or back condition secondary to the right knee condition.  The fact of the secondary nexus to the right knee was not developed until after the February 12, 2009 rating decision.  For depression, the September 2018 Board decision based its award of service connection on a May 2013 VA examination opinion indicating that the right knee disability had exacerbated his existing depression.  For the back, the January 2015 rating decision cited an August 2014 VA opinion finding that the back condition was at least as likely as not proximately due to or the result of an abnormal gait from the right knee disability.  Such evidence was not in the record at the time of the February 12, 2009 rating decision.  The Veteran has not otherwise pointed to any evidence of record at the time of the February 12, 2009 rating decision making a secondary nexus undebatable.

For these reasons, the Board finds that it is not clear that the correct facts, as known at the time, were not before the VA adjudicator at the time of the February 12, 2009 rating decision, or that the statutory and regulatory provisions extant at the time were incorrectly applied.  Consequently, the Veteran's arguments cannot sustain a finding that the February 12, 2009 rating decision denying service connection for depression and a back disability constitutes CUE.  38 U.S.C. � 5109A; 38 C.F.R. � 3.105.  Accordingly, the motion to revise or reverse the decision is denied.

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Bosely, 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 LANE

benefit: pension

text:
Citation Nr: A26029000
Decision Date: 03/31/26	Archive Date: 03/31/26

DOCKET NO. 250121-511635
DATE: March 31, 2026

ORDER

The reduction of nonservice-connected pension benefits from May 1, 2024, based on countable income was proper; the appeal is denied.

FINDING OF FACT

The Veteran's VA pension benefits were properly reduced from May 1, 2024, based on a change in the Veteran's countable income.

CONCLUSION OF LAW

The reduction of the Veteran's nonservice-connected pension benefits, effective May 1, 2024, was proper.  38 U.S.C. � 1521; 38 C.F.R. �� 3.3, 3.23, 3.155, 3.271, 3.272, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1975 to March 1979.

The rating decision was issued in May 2024.  In January 2025, the Veteran filed VA Form 10182, Notice of Disagreement, choosing to continue his appeal via Direct Review by a Veterans Law Judge under the Appeals Modernization Act (AMA).  Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision.  The Board cannot hold a hearing or accept into the record additional evidence in its direct review.

Whether the reduction of pension based on countable income was proper

Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. �3.23.  38 U.S.C. �1521; 38 C.F.R. �3.3(a)(3).  The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations.  38 C.F.R. �3.21.  The MAPR is revised every December 1st and is applicable for the following 12-month period.  The MAPR shall be reduced by the amount of the countable annual income of the claimant.  38 U.S.C. �� 1503, 1521; 38 C.F.R. ��3.3, 3.23(b).

In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions.  38 U.S.C. �1503(a); 38 C.F.R. �3.271(a).  For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid."  38 C.F.R. � 3.272(g)(1)(iii).

For the purpose of determining initial entitlement or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve.  38 C.F.R. � 3.273(a).

Analysis

The Veteran contends that he is entitled to nonservice connected pension benefits.

In December 2007, the Veteran submitted VA Form 21-526, Veterans Application for Compensation or Pension.  He did not report any income.  In May 2008, VA awarded entitlement to nonservice-connected pension benefits, effective December 17, 2007.  The Veteran began receiving $931.00, in VA pension benefits effective January 1, 2008.

A February 8, 2023, Social Security Association (SSA) inquiry revealed that the Veteran was receiving SSA benefits.  Based on his SSA income, on February 11, VA proposed to reduce the Veteran's pension benefits.  The letter informed the Veteran that he had 60 days to submit evidence, and he had the right to request a hearing.

A May 8, 2024, SSA inquiry revealed that the Veteran began receiving $1,037.20 from December 2023 and paid $117.20 in monthly Medicare Part B Premiums.

On May 15, 2024, VA reduced the Veteran's benefits effective May 1, 2024.  The reduction resulted in an overpayment debt.  Also, on May 15, VA informed the Veteran that it experienced a data quality issue which impacted its ability to verify his continued eligibility for VA benefits via a SSA Income Match program.  After the issue was resolved, VA created a debt based on updated SSA income information.  However, VA stated that it would not collect this pension debt now or in the future.

On May 16, VA informed the Veteran that it received information from SSA concerning a decrease in his monthly Medicare Part B premiums in 2023.  VA stated that the evidence indicated that his monthly Medicare Part B premiums decreased to $117.20.  VA proposed to count this medical expense change and reduce his pension payments effective January 1, 2024.  The letter informed the Veteran that he had 60 days to submit evidence, and he had the right to request a hearing.

In June 2024, the Veteran submitted VA Form 21-8416, Request for Information concerning Medical, Legal or Other Expenses.  He reported paying $117.20.  A July 11, 2024, SSA inquiry revealed that the Veteran received $1,037.20 in monthly SSA benefits, effective May 2024, and he paid $192.20 in Medicare Part B Premiums.  On July 19, the Veteran submitted an invoice documenting a $2,051.00 medical bill.  On July 24, VA amended the Veteran's disability pension award based on his July 19, 2024, correspondence.  VA also increased the Veteran's pension benefits effective February 1, 2024.

In January 2025, the Veteran disagreed with the reduction.

As a preliminary matter, where a reduction or discontinuance of benefits is warranted by reason of information received concerning income, net worth, dependency, or marital or other status, a proposal for the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action, furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that the benefits should be continued at their present level.  Unless otherwise provided, if additional evidence is not received within that period, final adverse action will be taken, and the award will be reduced or discontinued effective as specified under the provisions of 38 C.F.R. �� 3.500 through 3.503.  See 38 C.F.R. � 3.105(h).

The Board finds that the May 15, 2024, proposal adequately set forth all of the material facts and reasons for the reduction of benefits based on the Veteran's receipt of SSA income.  See 38 C.F.R. �� 3.103(b)(3)(i), 3.105.  The Veteran was given 60 days to respond and submitted information in support of the claim.  See 38 C.F.R. �� 3.103(b)(3)(i), 3.105(h).  In a July 24, 2024, decision, VA took final action.  For these reasons, the Board finds that the procedural and appellate due process rights outlined in 38 C.F.R. �� 3.103 and 3.105(h) are met.

The Board will next address whether, based on his countable income, the reduction of pension benefits from May 1, 2024, was proper.

As noted above, basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. � 3.23.  The applicable MAPR for a Veteran with no dependents was $ 16,551.00 effective December 1, 2023.  See VA Pension benefit rates, https://www.va.gov/pension/veterans-pension-rates/ (last visited March 17, 2026).  For purposes of calculating countable income, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are in excess of five percent of the maximum annual pension rate.  See id.  In this case, five percent of the applicable MAPR is $827.00.  See id.

VA uses annualized income to calculate countable income.  See 38 C.F.R. � 3.271(a).  SSA benefits are countable in calculating the Veteran's countable income.

The record shows that from May 1, 2024, the Veteran received $12,446.40 ($1,037.20 x 12 months) in annual SSA benefits.  He paid a total of $2,306.40 ($192.20 X 12 months) in annual medical expenses.  Medical expenses in excess of $827.00 may be counted to reduce income.  His annualized medical expenses totaling $1,479.40 ($2,306.40-$827.00).  Therefore, his countable income was $10,967.00 ($12,446.40-$1,479.40).

The monthly pension rate is calculated by reducing the MAPR of $16,551.00 by countable income and dividing the remainder by 12.  As such, the Veteran's monthly pension rates would be $465.33 per month ($16,551.00-$10,967.00=$5,584.00/12 months).  For the above reasons, the Board finds that the reduction of pension benefits based on countable income from May 1, 2024, was proper.

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Moore, T.

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: BETHANY L BUCK

disposition: remanded

condition: knee

condition: neck

condition: tinnitus

text:
Citation Nr: A26030000
Decision Date: 04/02/26	Archive Date: 04/02/26

DOCKET NO. 210331-150072
DATE: April 2, 2026

REMANDED

Entitlement to service connection for left wrist pain is remanded.

Entitlement to service connection for a left bicep injury secondary to service-connected left knee instability is remanded.

Entitlement to service connection for neck pain is remanded.

Entitlement to service connection for tinnitus is remanded.

REASONS FOR REMAND

The Veteran had active-duty service from July 1981 to April 1990.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A February 2025 notification advised the Veteran that a hearing was scheduled for May 13, 2025. The Veteran did not appear for the scheduled Board hearing.

Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following the date of the scheduled hearing. 38?C.F.R. �?20.302(c). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date of the scheduled Board hearing, or (2) more than 90 days following the date of the scheduled hearing, the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.302(c), 20.801.

However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

1. Entitlement to service connection for left wrist pain is remanded.

Per the record, the Veteran suffered a left wrist fracture one year prior to having entered active-duty service. See June 1981 Enlistment Examination. While VA obtained a medical opinion addressing direct service connection, an opinion as to whether the Veteran's pre-existing wrist injury/condition was aggravated by service was not obtained. See December 2020 VA medical opinion. Accordingly, the Board finds that a remand is required in order to correct this pre-decisional duty to assist error, especially in light of evidence that the Veteran's left wrist was symptomatic during service. See Service Treatment Records (STRs).

2. Entitlement to service connection for a left bicep injury secondary to service-connected left knee instability is remanded.

Upon review of the record, the Veteran alleges that he damaged his left bicep region due to a fall caused by service-connected left knee instability. See June 2020 Statement in Support of Claim. Here, the Veteran was diagnosed with muscle atrophy of the left upper arm, as well as with a left shoulder strain; however, the VA examiner did not offer an opinion as to these diagnosed conditions in relation to the Veteran's theory in finding no such diagnosis for the left bicep, specifically. See October and December 2020 VA examination reports. The Board finds this was in error. Here, the claim extends to these other diagnoses of the same region in which the Veteran has claimed injury under Clemons, especially as he is not competent to provide a diagnosis but where his contentions and exam findings align with his theory in terms of where the injury occurred and how. Clemons v. Shinseki, 23 Vet. App. 1,5 (2009). Accordingly, the Board remands to correct this pre-decisional duty to assist error to acquire medical opinions for his currently diagnosed left upper arm muscle atrophy and left shoulder strain prior to adjudicating the appeal.

3. Entitlement to service connection for neck pain is remanded.

4. Entitlement to service connection for tinnitus is remanded.

At the outset, the Board notes no favorable findings were made by the RO on the claim, and yet the Veteran's STRs clearly document neck pain during service, and where the Veteran is competent to report those same symptoms at present. See June 2020 Statement in Support of Claim. Thus, the Board finds that the claim met the low threshold under McLendon prior to the rating decision on appeal being issued and that therefore he was owed an examination assessing the nature and etiology of his claimed for condition requiring remand to accomplish this development prior to the adjudication of the claim on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In a similar vein, the Veteran is competent to report experiencing tinnitus, and in relation to his military personnel record, specifically his military occupational specialty (MOS) of fighting vehicle infantry man, the Board finds he was also owed an examination here as well as to the nature and etiology of his claimed for condition. While the Veteran did not provide lay statements as to the nature and duration of his symptoms as it relates to a presumptive theory of entitlement, the Board ultimately finds that the claim met the low threshold under McLendon and that therefore a remand is required. See July 2020 VA Form 21-526EZ; July 2020 Statement in Support of Claim.

The matters are REMANDED for the following action:

Acquire VA examinations and medical opinions for the claims on appeal, to include addendums for the claims of a left wrist condition and left shoulder/arm condition(s). Upon review of the record, to include this remand, and as indicated below, the VA examiner is requested to opine as to the following:

1. Left Wrist...

a. Did the Veteran's left wrist injury, which existed prior to service, increase in severity during service?

b. If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease?

The VA examiner's attention is directed to the Veteran's service treatment records (STRs) revealing that he suffered a left wrist fracture approximately one year prior to entering active-duty service, as well as evidence that the left wrist became symptomatic during service. See VBMS, document(s) titled "STR-Medical," receipt(s) dated June 20, 2013 (page 20, Enlistment Examination; pages 8, 11, 12, STRs revealing left wrist symptoms of tenderness during service); document titled "VA 21-4138 Statement In Support of Claim," receipt dated July 14, 2020 (lay statements of increased severity of the left wrist since service).

2. Left Arm/Shoulder...

Is it at least as likely as not that the Veteran's currently diagnosed left shoulder strain and/or left upper arm muscle atrophy are due to or aggravated by his service-connected left knee disability, to include but not limited to, the instability aspects of said service-connected disability?

Here, the VA examiner is specifically requested to address the Veteran's lay statements that due to his service-connected left knee instability he suffered a fall of which caused his now diagnosed left shoulder strain and left upper arm muscle atrophy. See VBMS, document titled "VA 21-4138 Statement In Support of Claim," receipt dated July 14, 2020 (stating that his service-connected left knee gave way and caused his claimed for left arm/shoulder conditions by way of fall).

Note that aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability.

3. Neck...

Is it at least as likely as not that the Veteran suffers from a currently diagnosed condition of the neck that incurred during service or otherwise directly relates to service, to include, but not limited to his complaints of neck pain while in service?

The VA examiner is specifically requested to address the lay testimony of record indicating that the Veteran suffers from constant pain in his neck, and that his STRs reveal similar complaints therein. See VBMS, document titled "VA 21-4138 Statement In Support of Claim," receipt dated July 14, 2020; document titled "STR-Medical," receipt(s) dated June 20, 2013 (pages 88, 89 of .pdf evidence complaints of neck pain during service).

4. Tinnitus...

Direct Service Connection

Is it at least as likely as not that the Veteran suffers tinnitus as due to his military occupational specialty (MOS) of fighting vehicle infantry man?

Presumptive Service Connection

Is it at least as likely as not that the Veteran suffers from tinnitus that was noted as chronic in service, manifested to a compensable degree in service with attributable continuity of symptomatology, or within the one-year presumptive period following separation from service?

For all requested medical opinions herein, the VA examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher.

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.R. Fey, 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: A C MACKENZIE

disposition: granted

text:
Citation Nr: A26031000
Decision Date: 04/06/26	Archive Date: 04/06/26

DOCKET NO. 250601-549186
DATE: April 6, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for basal cell carcinoma is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was at least as likely as not attributable to his in-service noise exposure.

2. Resolving reasonable doubt in favor of the Veteran, the most probative evidence reflects that the Veteran's basal cell carcinoma is etiologically related to his in-service tactical herbicide exposure.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. �� 1110, 5107(b); 38 C.F.R. � 3.303.

2. The criteria for entitlement to service connection for basal cell carcinoma are met. 38 U.S.C. �� 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States (US) Army from October 1966 to October 1968, including within the Korean Demilitarized Zone (DMZ).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2025 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ), pursuant to a VA Form 20-0995 received in January 2025 wherein there was no continuous pursuit. The rating decision on appeal constitutes an initial decision; therefore, the review system known as the Appeals Modernization Act (AMA) applies. VA Form 20-0995, Receipt Date: January 13, 2025; Rating Decision- Narrative, Receipt Date: May 17, 2025.

In a June 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing Submission docket, and a hearing was held before the undersigned Veterans Law Judge on December 10, 2025.?See?VA Form 10182, Receipt Date: June 1, 2025; Hearing Transcript, Receipt Date: December 10, 2025. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the May 2025 AOJ decision on appeal, as well as any evidence?submitted?by the Veteran or their attorney at the December 2025 hearing, or within 90 days following said hearing. 38 C.F.R. �?20.302(a).?

While the Board notes that this appeal arises from a rating decision issued within the past year, during which the Veteran has the right to switch appeal dockets, the decision below represents a complete grant of the benefits sought on appeal. The Veteran will accordingly not be prejudiced by this decision, and the Board may proceed with the decision. See Williams v. McDonough, 37 Vet. App. 305 (2024).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. � 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Entitlement to service connection for bilateral hearing loss.

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

The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. � 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

The Veteran is seeking service connection for bilateral hearing loss based on his in-service exposure to hazardous noise, to include as a result of his duties as a sergeant in the infantry. Hearing Transcript, Receipt Date: December 10, 2025.

Audiometric findings establish bilateral hearing loss for VA purposes from a May 2025 VA examination. Compensation & Pension (C&P) Examination, Receipt Date: May 7, 2025 (fourth of five documents chronologically in series). The Veteran's diagnosis of bilateral hearing loss and exposure to hazardous noise were both conceded in the May 2025 rating decision as enumerated favorable findings. 38 C.F.R. � 3.385.

Therefore, the question before the Board is whether the Veteran's bilateral hearing loss is related to service. On this question there is evidence in favor of and against the claims. For the reasons that follow, the Board finds that the Veteran's bilateral hearing loss is related to his military service. 38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a).

The evidence in favor of the claim includes a January 2026 private medical opinion, in which the private physician concluded that it is more likely than not that the Veteran's hearing loss is related to the Veteran's repeated prolonged noise exposure in the military given the Veteran's specific history that includes that his symptoms developed in the 1980's and that the Veteran denied loud prolonged noise exposure outside of the military. The Board acknowledges that the private examiner stated that the Veteran served as a gunner in the military, even as the Veteran testified he was a sergeant and his military record shows that he was an infantry direct fire crewman. Therefore, and notwithstanding the use of an analogous but imprecise military occupational specialty (MOS) for the Veteran, the Board assigns some probative weight to the opinion because it characterizes the Veteran's conceded noise exposure as the cause of his current hearing loss and is based on an accurate review of the Veteran's medical and post-military occupational history, while providing an explanation that contains clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The evidence against the claims includes a pertinent unfavorable May 2025 VA medical opinion.  However, the Board finds this medical opinion to be inadequate, in as much as such presumes that a favorable opinion for entitlement to service connection for hearing loss must always be supported by objective findings of permanent auditory damage during active duty, which is inaccurate. After considering the foregoing, the Board assigns no probative value to the May 2025 VA medical opinion.

The Board acknowledges the unfavorable medical evidence of record, noting the fatal deficiencies in the medical rationales as outlined above. At the same time, the Board acknowledges that the January 2026 private medical opinion includes a nominally incorrect characterization of the Veteran's MOS.

The Board concludes that the unfavorable medical nexus evidence on the one hand, and the favorable evidence, on the other hand, are at least in approximate balance as to the question of whether the Veteran's current bilateral hearing loss is etiologically related to his military service. Given the foregoing, the Board has resolved reasonable doubt in the Veteran's favor and finds that service connection is warranted for bilateral hearing loss; the claim is thus granted in full. 38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to service connection for basal cell carcinoma.

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. �� 1110; 38 C.F.R. �� 3.307, 3.309(e).

Pertinent to the instant case, VA amended its regulations to extend a presumption of herbicide exposure to Veterans who (1) served between September 1, 1967, and August 31, 1971; (2) in a unit that, as determined by the DOD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, unless (3) there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. � 1116B; 38 C.F.R. � 3.307(a)(6)(iv).

Here, the Veteran's personnel records show that he served in the Republic of Korea at the DMZ from November 1967 to October 1968, which is within the period prescribed by 38 C.F.R. � 3.307(a)(6)(iii). As such, he is presumed exposed to an herbicide agent, which the AOJ has conceded.

In addition, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest within a specified period, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. � 1116. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. � 3.307(a)(6)(i). For a Veteran with presumptive herbicide exposure, a number of enumerated diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. � 1116(a)(2); 38 C.F.R. �� 3.307(a)(6), 3.309(e). A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republics of Vietnam or Korea during the Vietnam era is not warranted for any condition not specifically determined by the Secretary to warrant such presumption. See Notice, 72 Fed. Reg. 32,399 (2007). The Veteran's basal cell carcinoma is not among such listed diseases.

Nevertheless, this does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran believes that his basal cell carcinoma results from his exposure to herbicides during his service in the Korean DMZ. For the reasons that follow, the Board finds that the Veteran's basal cell carcinoma is etiologically related to his in-service tactical herbicide exposure.

With regard to a current disorder, a VA examination shows a current recurring diagnosis of basal cell carcinoma on various parts of the Veteran's face, back, and chest that began in the 1990's. Thus, the Veteran has a current skin disability, to include basal cell carcinoma, and the first element of service connection has been met. C&P Examination, Receipt Date: May 15, 2025 (fourth of four documents chronologically in series).

The Board also finds that the second requirement of service connection, an in-service event, is met. As previously noted, the Veteran is presumed to have been exposed to tactical herbicide agents in service, which was conceded by the AOJ. The Veteran is also competent to testify as to his observing dead vegetation and cleared vegetation in general at the Korean DMZ, and that he had a clear level viewing point, without trees or vegetation, of the North Korean soldiers. In addition, the Board finds that the Veteran's descriptions are consistent with the circumstances of his service and the remaining evidence reflected in the claims file.

Concerning the third element of service connection, the nexus requirement, the Veteran submitted a December 2025 statement from his treating dermatologist and dermatologic surgeon, B.T.J., who stated that he has treated the Veteran for 16 years for his dozens of non-melanoma skin cancers and further opined that Agent Orange has an association with all of these cancers developing and therefore it is at least as likely as not that such is the case for this Veteran's skin disorders. Medical Treatment- Non-Government Facility, Receipt Date: January 30, 2026. Although the private December 2025 examiner did not use the precise legal standard of "at least as likely as not," the Board assigns some probative weight to this medical opinion because it characterizes the Veteran's conceded herbicide exposure as the cause of his current skin disability and is based on an accurate review of the Veteran's medical history, while stating the association between Agent Orange exposure and the development of skin cancer. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Veteran was also provided with a pertinent VA examination in May 2025, wherein the VA examiner favorably opined that the Veteran's basal cell carcinoma, was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the indicated toxic exposure risk activity, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. In support of this opinion, the VA examiner noted the Veteran's exposure to herbicides during service in the Korean DMZ. Significantly, the Board notes that the May 2025 VA examiner mistakenly implies that as a result of the foregoing, the Veteran qualifies for presumptive service connection. Although the May 2025 VA examiner provided an inaccurate conclusion, nevertheless, the examiner considered and weighed the combined effect of all toxic exposure risk activities of the Veteran. Therefore, the Board assigns some probative weight to this medical opinion because it characterizes the Veteran's conceded herbicide exposure as the cause of his current skin disability.

The Board acknowledges the deficiencies in the favorable medical rationales as outlined above. At the same time, the Board acknowledges that there is no unfavorable medical opinion of record.

Given the foregoing, the Board has resolved reasonable doubt in the Veteran's favor to find that service connection is warranted for basal cell carcinoma; the claim is thus granted in full. 38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Akkerman, Shayna R.

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: LESLEY A REIN

text:
Citation Nr: A26032000
Decision Date: 04/07/26	Archive Date: 04/07/26

DOCKET NO. 200623-93310
DATE: April 7, 2026

ORDER

Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee, status post arthroscopic meniscal repair with degenerative arthritis, is granted.

FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, the positive and negative evidence is in approximate balance that his currently diagnosed left knee arthritis with mild lateral patellar tilt was caused by his service-connected right knee, status post arthroscopic meniscal repair with degenerative arthritis.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee, status post arthroscopic meniscal repair with degenerative arthritis, have been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Navy from July 1983 to July 1986 and from January 1991 to December 2013 with additional periods of service in Navy Reserve from July 1986 to December 2013.

In November 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2019 rating decision.  In February 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision.

In the June 23, 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing docket.  Therefore, the Board may only consider the evidence of record at the time of the July 2019 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his 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 before the scheduled hearing, or (2) more than 90 days after the scheduled hearing, the Board did not consider it in its decision.  38 C.F.R. �� 20.300, 20.302, 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.

The Board recognizes that in the July 2019 rating decision, the AOJ determined that new and relevant evidence had not been received to readjudicate the claim for service connection for a left knee disability.  In the February 2020 HLR rating decision, the AOJ denied the claim for service connection for a left knee disability without mentioning whether it had received new and relevant evidence to readjudicate the claim.  However, the Board construes the readjudication and denial on the merits as an implicit finding that new and relevant evidence was received.  The Board is bound by this favorable finding and will therefore address the merits of the claim for a left knee disability.  38 C.F.R. � 3.104(c).

Finally, the Veteran testified before a Veterans Law Judge at a June 2024 Virtual hearing.  A transcript of this hearing is of record.

1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee, status post arthroscopic meniscal repair with degenerative arthritis

The Veteran asserts that his left knee disability was caused by his service-connected right knee disability.  Specifically, the Veteran contends that following his in-service right knee surgery in 2013, he continued to experienced right knee pain.  To compensate for his right knee pain, the Veteran said that he began to transfer his weight to his left knee.  He said that he did not seek treatment for his left knee problems until after service.  See June 2024 Board hearing transcript.

The question before the Board is whether the Veteran's left knee disability was caused or aggravated by a service-connected disability.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a left knee disability is warranted.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. � 1110; 38 C.F.R. � 3.303(a).  Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence 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.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. � 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. � 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.  The claimant is entitled to the benefit-of-the-doubt when the competing evidence is in "approximate balance" or "nearly equal."  That is, exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule.  Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

As preliminary matter, the evidence shows that the Veteran has a current diagnosis for left knee arthritis with mild lateral patellar tilt.  See February 2019 VA examination report.  The Veteran is service-connected for right knee, status post arthroscopic meniscal repair with degenerative arthritis.  The question remains whether the Veteran's left knee disability was caused or aggravated by his service-connected right knee disability.

The Board recognizes that the record includes conflicting medical opinions regarding the etiology of the Veteran's left knee disability.  With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).

Here, in a February 2019 VA opinion, the VA examiner opined that the Veteran's currently diagnosed left knee arthritis with mild lateral patellar tilt was less likely than not caused by his service-connected right knee, status post arthroscopic meniscal repair with degenerative arthritis.  In providing a rationale, the February 2019 VA examiner found that the Veteran had an antalgic gait on the left.  However, the February 2019 VA examiner further found that there was no documentation in the Veteran's claims file that his left knee disability was caused by his service-connected right knee disability.  The February 2019 VA examiner also stated that she was unable to find current literature to support a medical relationship and that these conditions were separate medical conditions.

The Board finds that the February 2019 VA examiner's opinion is inadequate.  First, although the Veteran reported during the VA examination that he was using his left knee to compensate for his right knee disability and the February 2019 VA examiner specifically found that the Veteran had an antalgic gait on the left, the February 2019 VA examiner did not specifically address the Veteran's contention.  Miller v. Wilkie, 32 Vet. App. 249 (2020).  Second, the February 2019 VA examiner relied on a lack of documented medical evidence demonstrating that the Veteran's right knee disability caused his left knee disability.  Third, the February 2019 VA examiner made a general reference to her review of current medical literature and not finding any support for a relationship between the two conditions.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  Finally, while the February 2019 VA examiner's opinion addressed the causation prong of secondary service connection, no aggravation opinion was provided.  See El-Amin v. Shinseki, 26 Vet. App. 136 (2013).  For all of these reasons, the Board finds that the February 2019 VA examiner is insufficient to decide the claim and has no probative value.

By contrast, in July 2024, the Veteran submitted an opinion from his private treating provider.  The private treating provider noted that she had been treating the Veteran for his bilateral knee problems since 2019.  She noted that the Veteran had undergone a right knee arthroscopy in 2013 due to injuries from his military service.  Based on her prior treatment of the Veteran, the private treating provider opined that his left knee had consequently become symptomatic due to recovery compensation and chronic injury of the right knee.  The Board finds that this opinion provides the most persuasive evidence regarding the etiology of the Veteran's left knee disability as it was based on a review of the Veteran's medical records and considered his lay assertions.  The Board concludes that taking into consideration the totality of the evidence, and resolving all reasonable doubt in favor of the Veteran, his currently diagnosed left knee arthritis with mild lateral patellar tilt was caused by his service-connected right knee, status post meniscal repair with degenerative arthritis.

In summary, resolving all reasonable doubt in favor of the Veteran, service connection for a left knee disability, currently diagnosed as left knee arthritis with mild lateral patellar tilt, is warranted.  Therefore, the Veteran's service connection claim for a left knee disability must be granted.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Journet Shaw, 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: M MILLS

text:
Citation Nr: A26033000
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 251218-624718
DATE: April 9, 2026

ORDER

Entitlement to service connection for diabetes is granted.

REMANDED

Entitlement to so service connection for emphysema is remanded.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his diabetes is due to active-duty service.

CONCLUSION OF LAW

The criteria for service connection for diabetes are met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from May 1966 to November 1969.

These matters come before the Board of Veterans' Appeals (Board) from a November 2025 rating decision by the Department of Veterans Affairs' (VA) Veterans Benefits Administration (VBA), the agency of original jurisdiction (AOJ).

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the November 2025 AOJ decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. � 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.303, 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of entitlement to service connection for emphysema, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

The Veteran's appeal has been advanced on the docket (AOD).  The Board interprets the AOD as an intent to have this matter reviewed expeditiously.  While "the Board ordinarily may not decide an appeal before" the "time period is up" to change review lanes, the Board finds the AOD to be an implicit waiver of this call for delay.  Williams v. McDonough, 37 Vet. App. 305, 307 (2024).  Accordingly, the Board proceeds with the below.

1. Entitlement to service connection for diabetes is granted.

The Veteran seeks service connection for emphysema. Specifically, the Veteran contends his diabetes is due to exposure to aqueous film forming foam (AFFF) in service. See VA Form 10182 NOD, December 18, 2025.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. � 1131; 38 C.F.R. � 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. � 3.303(d).

A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence 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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

At the outset, the November 2025 rating decision made a favorable finding that the Veteran has been diagnosed with a disability. Indeed, VA treatment records reflect that the Veteran is currently being treated for diabetes. See Primary Care Outpatient Clinic Note, October 26, 2023.  The Board is bound by this favorable finding. 38 C.F.R. � 3.104(c).

The Veteran asserts that he was exposed to AFFF during active service during a fire incident. See VA Form 20-0995 Supplemental Claim, October 6, 2025. VA has also determined that the Veteran engaged in toxic exposure risk activities (TERAs). See TERA Memorandum, November 8, 2025. Specifically, VA found that the Veteran was on the firefighting team during active-duty service and received a citation for good service during an emergency fire. Indeed, his military personnel records show that he was commended for combating and extinguishing a fire aboard the USS Kearsarge on December 23, 1967.  Accordingly, the Board finds that the reported exposures to AFFF are generally consistent with the places, types, and circumstances of his service. See 38 U.S.C. � 1154. Thus, the in-service injury requirement for service connection is also satisfied.

Finally, there is evidence of a nexus between the Veteran's diabetes and his in-service AFFF exposure. The Veteran submitted a December 2025 private nexus opinion from C.L., MSN, A-GNP-C., who opined that there is pathophysiological link between the exposure of AFFF to the development of diabetes amongst individuals, which is rooted in the chemical composition of AFFF. AFFF contains environmental pollutants such as polyfluoroalkyl which disrupts endocrine function which affects insulin regulation thus leading to diabetes. In support, the private nexus opinion also cited to medical literature entitled "Exposure to per and polyfluoroalkyl substances (PFAS) and type 2 diabetes risk."

The Board finds the opinion from NP C.L, highly probative, as it contains "factually accurate, fully articulated, sound reasoning" for the conclusion that the Veteran's diabetes was related to in-service AFFF exposure. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is not contradicted by any other competent evidence in the record. Notably, the AOJ did not obtain VA medical opinion for the claim.

Resolving any reasonable doubt in his favor, the Board therefore finds that the Veteran's diabetes was the result of exposure to AFFF during service. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Service connection is granted.

REASONS FOR REMAND

1. Entitlement to service connection for emphysema is remanded.

The Veteran seeks service connection for emphysema.

While the Board regrets any further delay, the Board cannot make a fully informed decision on the issue because the Veteran has not been afforded a VA examination in connection with his claim for emphysema.

The November 2025 rating decision on appeal denied the Veteran's claim for emphysema finding that the Veteran did not have a diagnosed disability. However, the Veteran's VA treatment records show that the Veteran is currently on 6L of oxygen tank because he is having breathing issues. See Primary Care Provider Telephone Note, January 20, 2021. Moreover, the Veteran has not been provided a VA examination in connection with this claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

The records reflect that the AOJ scheduled a VA examination for the Veteran to occur in November 11, 2025; however, the Veteran did not appear for his scheduled examination. The record reflects that the Veteran is in a nursing home. In addition, the Veteran has previously requested for a virtual examination because he has difficulty breathing on his own and requires an oxygen tank that traveling for an in-person examination would be difficult. See Correspondence, July 18, 2023.

Given that the Veteran was unable to attend the examination to determine the nature and etiology of his claimed emphysema, the Board finds that the AOJ committed a predecisional duty to assist error by not rescheduling a new virtual VA examination for the Veteran's claimed emphysema. The Board finds that a new VA examination is warranted because the Veteran has demonstrated good cause for failing to report for his VA examination. 38 C.F.R. � 3.365(a).

On remand, the VA examiner should consider Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), when providing an opinion as to whether the Veteran has emphysema that results in functional impairment of earning capacity, and if so, whether such disability is due to active-duty service.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his claimed emphysema. Please schedule a telehealth or virtual examination.

In the event a telehealth or virtual examination cannot be conducted, notate in the file why and forward the Veteran's claims file for a medical opinion.

The examiner must review the claims file and a copy of this remand. The examiner should provide an opinion as to the following:

(a.) Does the Veteran have emphysema, or any lung condition, to include pain that rises to the level of functional impairment?

(b.) If the Veteran is diagnosed with emphysema, the examiner must opine whether the Veteran's emphysema is related (an approximate balance of positive and negative evidence), to an in-service, injury, event or disease.

A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate.

M. MILLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Mendoza, 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: D SMART

condition: hip

text:
Citation Nr: A26034000
Decision Date: 04/14/26	Archive Date: 04/14/26

DOCKET NO. 200904-108282
DATE: April 14, 2026

REMANDED

Entitlement to a compensable rating for left hip stress fracture, limitation of flexion is remanded.

Entitlement to a compensable rating for right hip stress fracture, limitation of flexion is remanded.

Entitlement to a compensable rating for left hip stress fracture, limitation of extension is remanded.

Entitlement to a compensable rating for right hip stress fracture, limitation of extension is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 2002 to March 2011.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In a September 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. An April 2024 notification advised the Veteran that a hearing was scheduled for July 2024. The Veteran did not appear for the scheduled Board hearing.

However, because the Board is remanding the Veteran's claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

The Board further notes that the September 2020 VA Form 10182 indicated that the Veteran was appealing an October 2018 rating decision.  However, the September 2020 VA Form 10182 is untimely as to the October 2018 rating decision since more than one year passed from the issuance of that rating decision without the Veteran initiating an appeal.  However, the Board has liberally construed the Veteran's VA Form 10182 as timely appealing the February 2020 rating decision as that rating decision also addressed the Veteran's bilateral hip ratings which the Veteran indicated were the issues she was appealing on her September 2020 VA Form 10182.  See 38 C.F.R. � 20.202(a) (the Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to identify the specific decision and issue or issues therein with which the claimant disagrees).

1. Entitlement to a compensable rating for left hip stress fracture, limitation of flexion is remanded.

2. Entitlement to a compensable rating for right hip stress fracture, limitation of flexion is remanded.

3. Entitlement to a compensable rating for left hip stress fracture, limitation of extension is remanded.

4. Entitlement to a compensable rating for right hip stress fracture, limitation of extension is remanded.

The Veteran was afforded a VA examination for her service-connected bilateral hip disabilities in July 2018.  After the July 2018 VA examination but prior to the issuance of the February 2020 rating decision on appeal, the Veteran alleged that her bilateral hip disabilities had worsened.  See January 2019 Decision Review Officer (DRO) hearing notes and January 2020 Higher-Level Review (HLR) Informal Conference Worksheet.  Accordingly, the Board finds that remand is required to determine the severity of the Veteran's bilateral hip disabilities.  See 38 U.S.C. � 5103A; 38 C.F.R. � 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination).

The Board acknowledges that the Veteran was afforded additional VA examinations for her bilateral hips in March 2022 and September 2024; however, those examinations are outside of the evidence window reviewable by the Board at this time.

The matters are REMANDED for the following action:

1. Schedule a VA examination to determine the current severity of the Veteran's service-connected bilateral hip disabilities.

All indicated studies and tests should be performed. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed.

D. SMART

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Palombi, Jessica R

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.