Service connection for athlete's foot is denied.

Citation Nr: A26069975 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 210803-176637 DATE: July 30, 2026 ORDER Service connection for athlete's foot is denied. Service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. Service connection for a dental and oral condition, manifested by jaw clenching, teeth grinding (bruxism), and associated jaw pain, as secondary to service-connected PTSD, is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative arthritis of the lumbar spine, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disability, is remanded. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. FINDINGS OF FACT 1. The persuasive evidence of record weighs against finding that the Veteran's athlete's foot had its onset during service or is otherwise related to an in-service disease, injury, or event. 2. The evidence is at least in equipoise as to whether the Veteran has PTSD that is related to a corroborated in-service stressor. 3. The evidence is at least in equipoise as to whether the Veteran's dental and oral condition, manifested by jaw clenching, teeth grinding (bruxism), and associated jaw pain, is proximately due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for athlete's foot have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.304(f). 3. The criteria for service connection for a dental and oral condition, manifested by jaw clenching, teeth grinding (bruxism), and associated jaw pain, as secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1998 to July 2002. The rating decisions on appeal were issued in February 2021 (PTSD and depression (acquired psychiatric disorder), sleep apnea, athlete's foot, dental or oral condition, TDIU) and March 2021 (lumbar spine disability, right shoulder disability), following Higher-Level Review (HLR) of February 2020 and March 2020 rating decisions. Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran testified before the undersigned Veterans Law Judge in April 2025. A transcript of the hearing is associated with the claims file. The Board notes that, in the August 2021 VA Form 10182, the Veteran identified the February 2021 rating decision as the decision on appeal for all issues, including entitlement to service connection for a lumbar spine disability and a right shoulder disability. However, as noted above, those claims were denied in a March 2021 rating decision. Viewing the record in the light most favorable to the Veteran, and because the August 2021 VA Form 10182 was timely as to the March 2021 rating decision, the Board finds that the Veteran intended to appeal the March 2021 denial of service connection for the lumbar spine and right shoulder disabilities. Accordingly, the Board liberally construes the August 2021 VA Form 10182 as encompassing the March 2021 rating decision as to those issues. Accordingly, the Board may only consider the evidence of record at the time of the February 2020 (posttraumatic stress disorder and depression (acquired psychiatric disorder), sleep apnea, athlete's foot, dental or oral condition, TDIU) and March 2020 (lumbar spine disability, right shoulder disability) AOJ decisions, which were subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decisions, which were subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§?20.300, 20.302(a), 20.801. 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 of entitlement to service connection for athlete's foot, an acquired psychiatric disability, and a dental and oral condition 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 claims of entitlement to service connection for, a right shoulder disability, a lumbar spine disability, sleep apnea, and entitlement to a TDIU, 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 seeks service connection for PTSD and MDD. To afford the Veteran the broadest and most sympathetic review of the claim, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disability, to include PTSD and MDD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). SERVICE CONNECTION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, air or service. 38 U.S.C. §§ 1110, 1131; 38?C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §?3.303(d). To establish a right to compensation for a present disability, a veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). Service connection is also warranted for disability which is proximately due to or "the result of" service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection under 38 C.F.R. § 3.310(a) is warranted where a non-service-connected disability would have been less severe but for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding that a "but for" causation or aggravation is enough to show entitlement to secondary service connection). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by the Veteran?is?related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor?is?adequate to support a diagnosis of?PTSD?and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor?is?consistent with the places, types, and circumstances of the Veteran's?service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38?C.F.R. §?3.304?(f)(3). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1?Vet. App.?49, 53 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1. Entitlement to service connection for athlete's foot The Veteran contends that his current athlete's foot is related to his active military service. During the April 2025 Board hearing, he testified that he first developed symptoms of athlete's foot while stationed at Cherry Point and Camp Lejeune after wearing military boots for prolonged periods, often in wet conditions. He stated that his feet became itchy and crusted over and occasionally developed sores. He explained that he generally did not seek treatment during service because doing so was discouraged and could result in being labeled a "sick bay commando." He further testified that he has experienced recurrent symptoms since service, has self-treated the condition with over-the-counter antifungal medications, and now wears open footwear (Crocs) whenever possible because enclosed shoes aggravate his symptoms. See April 2025 Board Hearing Transcript. In the February 2020 rating decision, the AOJ made the favorable finding that an August 2019 VA treatment record documented a skin condition involving athlete's foot. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Accordingly, the remaining question before the Board is whether the Veteran's current athlete's foot is related to his active military service. After carefully reviewing the evidence of record, the Board finds that the persuasive evidence weighs against the claim. The Veteran's service treatment records are silent for complaints, treatment, or diagnoses of athlete's foot or any chronic fungal infection affecting the feet. Likewise, the separation records contain no findings suggestive of a chronic fungal disorder of the feet. The first evidence of athlete's foot appears in an August 2019 VA treatment record, approximately 17 years after the Veteran's separation from service. An August 2019 VA treatment record notes athlete's foot among the Veteran's skin complaints. However, physical examination revealed warm, dry, intact skin without lesions or evidence of active infection. See October 2019 CAPRI records. More importantly, neither that treatment record nor any other competent medical evidence of record attributes the Veteran's athlete's foot to his military service. The Board has considered the Veteran's hearing testimony describing the onset of symptoms during service and their recurrence thereafter. The Veteran is competent to report observable symptoms such as itching, scaling, and discomfort of the feet, and in certain situations a lay person may be competent to establish the etiology of a disability. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed athlete's foot and his active service or events therein, as it would require medical expertise to say that the current athlete's foot, identified years after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his athlete's foot. 38 C.F.R. § 3.159 (a)(1), (2). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4). The threshold for determining whether the evidence indicates that a disability or symptoms may be associated with service is low. McLendon, 20 Vet. App. at 83. While the Veteran has not been afforded a VA examination regarding this claim, at the time of the February 2020 rating decision, the record contained no evidence of an in-service foot disorder and no competent evidence indicating that the Veteran's athlete's foot may be associated with service. The Veteran's assertions regarding the onset of symptoms during service were first presented during the April 2025 Board hearing and therefore could not have triggered VA's pre-decisional duty to assist. Accordingly, even the low threshold for obtaining an examination under McLendon had not been met at the time of the February 2020 rating decision and VA's duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon, 20 Vet. App. at 81. Accordingly, the Board finds that the persuasive evidence is against finding that the Veteran's athlete's foot was incurred in or is otherwise related to his active military service. As the evidence is not in approximate balance, the benefit-of-the-doubt doctrine is not applicable, and service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD The Veteran contends that he developed an acquired psychiatric disorder as a result of multiple traumatic events during his active military service. Prior to the February 2020 rating decision, he submitted a September 2019 Statement in Support of Claim for Service Connection for PTSD (VA Form 21-0781) identifying multiple non-combat stressors. Specifically, he reported being confined in a crowded broom closet during recruit training at Parris Island between October 1998 and January 1999; being struck in the face by a lead fragment while serving as a range coach at Marine Corps Air Station Cherry Point on or about July 13, 2001; and experiencing intense fear following the terrorist attacks of September 11, 2001 while assigned to MWSS-271 at Cherry Point. The Veteran provided approximate dates, locations, unit assignments, and detailed descriptions of each event. See September 2019 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD; see also April 2025 Board Hearing Transcript. The February 2021 rating decision made the favorable finding that the Veteran has a current diagnosis of PTSD. Specifically, the AOJ found that a February 2020 examination diagnosed PTSD. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). VA and private mental health treatment records document psychiatric treatment beginning in December 2014 and reflect varying psychiatric diagnoses throughout the appeal period, including unspecified anxiety disorder, generalized anxiety disorder, major depressive disorder (MDD), and unspecified trauma/stressor-related disorder. At the time he initially sought treatment, the Veteran reported that his anxiety had increased beginning around 2008 and discussed several post-service stressors. Beginning in 2017, however, he consistently attributed his psychiatric symptoms to traumatic events during military service, reporting anxiety, depression, intrusive thoughts, nightmares, hypervigilance, irritability, and sleep impairment. In June 2017, he was referred to VA's Trauma Recovery Program for further evaluation. Following that assessment, a VA psychologist determined that the Veteran did not satisfy the DSM criteria for PTSD because the reported index event did not meet the applicable trauma criterion, but nevertheless diagnosed unspecified trauma/stressor-related disorder and recurrent MDD. Subsequent VA and private treatment records continued to document psychiatric symptoms and diagnoses, including trauma/stressor-related disorder, depression, and generalized anxiety disorder. See February 2019 and December 2019 CAPRI records; VA Treatment Records submitted April 23, 2025; and Private Treatment Records from Highland Rivers Health. The Veteran was afforded a VA PTSD examination in February 2020. Unlike the earlier VA treating psychologists, the examiner diagnosed PTSD under the DSM-5 and found several of the Veteran's reported in-service stressors sufficient to support that diagnosis. See February 2020 VA PTSD DBQ. After careful review of the record, the Board finds that service connection for PTSD is warranted. Although the claimed stressors were not verified by official service department records, the record contains an October 2019 sworn statement from J. A., a fellow servicemember, who reported that he personally witnessed the broom closet incident from beginning to end. The Board finds J. A.'s statement to be competent, credible, and sufficient to corroborate the occurrence of that in-service stressor. In particular, the statement is based on J. A.'s firsthand observations, is internally consistent, and the Board finds no reason to question his credibility. Moreover, given the nature of the reported event, the Board does not find the absence of official documentation to diminish the probative value of this firsthand eyewitness account. The February 2020 VA examiner expressly relied, in part, on the corroborated broom closet incident in diagnosing PTSD and opining that the disorder was related to the Veteran's military service. The Board finds the February 2020 VA opinion highly probative because it was based on an examination of the Veteran, consideration of his reported history, application of the DSM-5 diagnostic criteria, and a reasoned medical explanation connecting the corroborated in-service stressor to the current diagnosis. For the reasons noted above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD is related to his active military service. Resolving all reasonable doubt in the Veteran's favor, service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To the extent that other psychiatric disorders have been diagnosed, there is no indication that there are distinct psychiatric symptoms attributable to such disorders, and all psychiatric symptoms will therefore be attributed to the now service-connected PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Consequently, consideration of whether other psychiatric disorders are related to the Veteran's military service is unnecessary. 3. Entitlement to service connection for a dental and oral condition, manifested by jaw clenching, teeth grinding (bruxism), and associated jaw pain, as secondary to an acquired psychiatric disorder The Veteran seeks service connection for a dental or oral condition, claimed as secondary to his acquired psychiatric disability, to include PTSD. During the April 2025 Board hearing, he testified that he experiences bruxism manifested by clenching and grinding his teeth, which he attributes to psychiatric symptoms, including stress and nightmares. He reported that the condition has resulted in dental problems, including a cracked tooth and bleeding gums. See April 2025 Board Hearing Transcript. Although the Veteran's service treatment records do not reflect dental trauma, they show that he received treatment for dental conditions while in service. Consistent with this evidence, in the February 2020 rating decision, the AOJ made the favorable findings that the Veteran was treated for dental conditions during military service and that he had a current diagnosis of PTSD, the claimed primary condition. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). The Board finds that service connection for a dental and oral condition, manifested by jaw clenching, teeth grinding (bruxism), and associated jaw pain, is warranted, as secondary to the Veteran's now service-connected PTSD. Throughout the appeal period, VA treatment records consistently document jaw clenching, teeth grinding, and associated jaw pain in connection with the Veteran's psychiatric symptoms, including anxiety, stress, and nightmares. Specifically, in December 2014, during treatment for anxiety, the Veteran reported jaw clenching and subsequently reported that jaw pain caused by clenching awakened him from sleep. In June 2017, during a mental health evaluation, he again reported clenching his jaw, with associated tension extending into his temple and causing headaches. An August 2019 VA treatment record also documents teeth grinding. These symptoms were repeatedly documented by treating clinicians throughout the appeal period. The Veteran has also consistently and credibly reported that he clenches his jaw and grinds his teeth during periods of anxiety, stress, and nightmares, resulting in dental problems, including a cracked tooth and bleeding gums. See February 2019, October 2019, and December 2019 CAPRI records; VA Treatment Records submitted April 23, 2025; and April 2025 Board Hearing Transcript. The Veteran is competent to report symptoms such as jaw clenching, teeth grinding, and associated jaw pain. The Board finds his reports credible, as they have remained consistent throughout the appeal period and are supported by contemporaneous VA treatment records documenting these symptoms in connection with his psychiatric symptomatology. His competent and credible reports, together with the consistent VA treatment records, provide a sufficient basis for establishing that his current dental and oral condition is proximately due to his now service-connected PTSD. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection on a secondary basis is warranted. See 38 C.F.R. § 3.310; 38 U.S.C. § 5107(b). REASONS FOR REMAND Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. See?38?C.F.R. §?20.802(a). Having reviewed the evidence of record, the Board finds that remand for a pre-decisional duty to assist error is required. 1. Entitlement to service connection for a right shoulder disability The Veteran contends that his current right shoulder disability is the result of physical training and repetitive use during active military service. He reports that he developed right shoulder pain during service, that the pain persisted following separation, progressively worsened over the years, and ultimately required right shoulder surgery following a motor vehicle accident in 2016. See October 2002 Notice of Disagreement (NOD) and April 2025 Board Hearing Transcript. In the March 2020 rating decision, the AOJ made the favorable findings that the Veteran has a current diagnosis of partial tear of the conjoined tendon of the right shoulder, status post repair surgery, and that he was treated for right shoulder tendinitis/rotator cuff impingement during active service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Service treatment records document repeated treatment for right shoulder complaints beginning in November 2001, with assessments including impingement syndrome and rotator cuff tendinitis. The records further reflect that he was treated with medication, including Naprosyn and Motrin, placed on light duty, and instructed to avoid shoulder activity. A March 2002 treatment record notes a previous diagnosis of rotator cuff tendinitis and assessed shoulder impingement. At his June 2002 predischarge VA examination, the Veteran reported right shoulder pain of approximately one year in duration, which he attributed to physical training. Although radiographic studies were normal and objective examination revealed full range of motion without objective abnormalities, the examiner diagnosed chronic right shoulder tendinitis based on the Veteran's reported history and symptoms. Post-service VA treatment records reflect that the Veteran sought treatment for right shoulder pain following a September 2016 motor vehicle accident. September and December 2016 treatment records document his reports of right shoulder pain since the accident, requests for diagnostic imaging, and an assessment of a possible rotator cuff tear. A February 2017 orthopedic surgery consultation notes that an outside MRI reportedly demonstrated rotator cuff tearing and reflects that surgical intervention was being considered. The record also reflects continued complaints of chronic right shoulder pain during the appeal period. See February 2019, October 2019, December 2019, and March 2020 CAPRI records; VA Treatment Records submitted April 23, 2025. The Veteran was afforded a VA shoulder and arm conditions examination in March 2020. He reported that he underwent right shoulder surgery in approximately April or May 2017 following the 2016 motor vehicle accident. He further reported that the surgery was performed through VA authorization at Pinnacle Orthopedics and consisted of rotator cuff surgery during which bone spurs were identified. The examiner diagnosed partial tear of the conjoined tendon, right shoulder, status post repair surgery, and opined that the disability was less likely than not related to service, reasoning primarily that there was no documented continuity of treatment following service until the Veteran sought treatment after the 2016 motor vehicle accident. See March 2020 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). The Board finds that the March 2020 VA medical opinion is inadequate for adjudicative purposes. Specifically, the examiner did not adequately address the Veteran's competent reports of continuing right shoulder symptoms since service. Notably, the June 2002 predischarge examiner diagnosed chronic right shoulder tendinitis, and only several months later, in his October 2002 NOD, the Veteran reported that his right shoulder condition had not improved and had instead worsened. The March 2020 examiner did not adequately address this contemporaneous evidence when concluding that the current right shoulder disability was unrelated to service. Instead, the examiner discounted the Veteran's reports of continuing symptoms and relied primarily on the absence of documented medical treatment for many years following service. In reaching this conclusion, the examiner did not adequately consider whether the Veteran's reports of right shoulder symptoms beginning during service and continuing thereafter, when considered together with the June 2002 diagnosis of chronic right shoulder tendinitis and his October 2002 report of continued and worsening symptoms, supported a relationship between his in-service right shoulder condition and his current disability. Although the record does not document medical treatment for the right shoulder for several years following separation, the absence of contemporaneous medical evidence, standing alone, is not dispositive of whether a disability is related to service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Moreover, it is symptoms, rather than treatment, that are relevant in determining whether a relationship exists between an in-service injury and a current disability. The Veteran is competent to report right shoulder pain since service and continuously thereafter, as these types of symptoms are observable through the five senses. See Layno v. Brown, 6?Vet. App.?465 (1994). Accordingly, because the examiner did not adequately reconcile the conclusion with the Veteran's competent lay reports regarding the onset and continuity of his right shoulder symptomatology, the Board finds the March 2020 opinion inadequate for adjudicative purposes. Adjudicating a claim based on the findings of an inadequate medical opinion constitutes a pre-decisional duty to assist error by the AOJ requiring remand. See 38 C.F.R. § 20.802. Accordingly, a remand is necessary to obtain an adequate medical opinion addressing the nature and etiology of the Veteran's current right shoulder disability. The Board notes further that during the March 2020 VA shoulder and arm conditions examination, the Veteran specifically reported that he underwent right shoulder surgery in approximately April or May 2017 through VA-authorized community care at Pinnacle Orthopedics following the 2016 motor vehicle accident. However, the operative report and related orthopedic treatment records are not associated with the claims file, and there is no indication that the AOJ attempted to obtain those identified records prior to issuing the March 2020 rating decision. The procurement of potentially pertinent medical records referenced by the Veteran is required. See 38 C.F.R. § 3.159(c)(1). VA also has a duty to seek records of relevant treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). Furthermore, VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2). Despite evidence suggesting the existence of private treatment records pertaining to the claimed right shoulder disability, the AOJ did not request that the Veteran identify any private treatment providers or provide authorization for VA to obtain outstanding relevant records. The AOJ's failure to attempt to obtain outstanding private treatment records constitutes a pre-decisional duty to assist error warranting remand. See 38 C.F.R. § 20.802. 2. Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative arthritis of the lumbar spine The Veteran contends that his current lumbar spine disability had its onset during active service. Specifically, he asserts that he developed low back pain during boot camp after repeatedly sleeping in the position of attention and from the physical demands of military training. He maintains that, although he did not seek treatment during boot camp because he believed he had to "suck it up," he experienced back pain throughout service, reported ongoing low back symptoms at separation, and has continued to experience recurrent back pain since service that has progressively worsened and resulted in his current lumbar spine disability. See June 2002 VA Pre-Discharge Examination and April 2025 Board Hearing Transcript. The March 2020 rating decision includes favorable findings that the Veteran's service treatment records document an in-service back complaint and that he has a current diagnosis of degenerative arthritis of the lumbar spine. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Service treatment records reflect that in September 2001, the Veteran sought treatment for sudden onset right chest and back pain while walking. The treating clinician assessed chest wall pain and prescribed Motrin 800 mg and seven days of light duty. At the time of his June 2002 separation screening, the Veteran did not report recurrent back problems. However, during his June 2002 predischarge VA examination, he reported a two-month history of constant low back pain, which he attributed to physical training. Despite these complaints, objective examination of the lumbar spine revealed full range of motion, lumbar spine radiographs were essentially normal, and the examiner specifically found that there was no pathology to render a diagnosis. However, the examiner noted that even with doing something simple like putting on/taking off a shirt, or arching or washing his back, the Veteran experiences pain. Following service, the medical evidence is negative for complaints of low back pain until October 2016. Thereafter, VA treatment records reflect intermittent complaints of chronic low back pain. In January 2020, the Veteran reported chronic low back pain with intermittent radiation into the left lower extremity and stated that he had previously undergone physical therapy, acupuncture, and chiropractic treatment. Later that month, he reported progressive low back pain since 2001. Subsequent treatment records continued to document complaints of chronic low back pain. See February 2019, October 2019, December 2019, and March 2020 CAPRI records; VA treatment records submitted April 23, 2025. The Veteran was afforded a VA Back Conditions examination in March 2020. He reported that his low back symptoms began during boot camp in late 1998, explaining that he was required to sleep at attention and believed that maintaining that position placed additional pressure on his lower spine. He further reported that, although he did not seek treatment during service, he raised concerns regarding his low back during his separation examination. The Veteran stated that his symptoms had continued since service and reported receiving post-service treatment, including physical therapy, chiropractic care, and possibly acupuncture, with physical therapy and chiropractic treatment occurring in 2016 or 2017. The examiner diagnosed degenerative arthritis of the spine and opined that the disability was less likely than not incurred in or caused by service. In support of that conclusion, the examiner acknowledged the June 2002 pre-discharge examination documenting a two-month history of low back pain, but explained that the contemporaneous examination demonstrated normal lumbar findings and no diagnosed lumbar pathology. The examiner further noted that there was no objective evidence linking the Veteran's in-service complaints to the lumbar degenerative changes first documented many years after separation. See March 2020 VA Back Conditions DBQ and Medical Opinion. The Board finds that the March 2020 VA medical opinion is inadequate for adjudicative purposes. Specifically, the examiner did not adequately address the Veteran's June 2002 predischarge report of constant low back pain during the preceding two months or explain whether those reported symptoms represented the onset of his current lumbar spine disability. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the term "disability" as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of the disability, and that pain alone can serve as a functional impairment and therefore qualify as a disability. In other words, service connection may be warranted for pain causing functional impairment without a current diagnosis of a particular disability. Id. However, the Court in Saunders cautioned that a veteran cannot demonstrate service connection simply by asserting subjective pain; to establish a disability, a veteran's pain must amount to a level of functional impairment of earning capacity. Id. at 1367-68. Here, although the June 2002 examiner found no objective lumbar pathology, the March 2020 VA examiner did not discuss whether the Veteran's reported constant low back pain including when performing simple activities, as noted above, represented functional impairment of earning capacity consistent with Saunders or otherwise reflected the onset of his currently diagnosed lumbar spine disability. Accordingly, the Board finds the March 2020 opinion inadequate for adjudicative purposes. Adjudicating a claim based on the findings of an inadequate medical opinion constitutes a pre-decisional duty to assist error by the AOJ requiring remand. See 38 C.F.R. § 20.802. Accordingly, a remand is necessary to obtain an adequate medical opinion addressing the nature and etiology of the Veteran's current lumbar spine disability. Additionally, because the record reflects that the Veteran was involved in a post-service motor vehicle accident in 2016, and records relating to that accident may contain information relevant to the etiology of his current lumbar spine disability, remand is also warranted to obtain any outstanding private treatment records associated with that accident. 3. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disability The Veteran seeks service connection for sleep apnea, which he initially claimed as secondary to his acquired psychiatric disability, to include PTSD. During the April 2025 Board hearing, he also asserted that symptoms of sleep apnea began during active service. Specifically, he testified that his then-wife observed that he would awaken gasping for breath and not breathing, although he did not recognize those symptoms as manifestations of sleep apnea at the time. He further testified that similar symptoms persisted following service and that he was subsequently diagnosed with sleep apnea following a sleep study. See April 2025 Board Hearing Transcript. In the February 2020 rating decision, the AOJ made the favorable finding that the Veteran had a diagnosis of PTSD, the disability upon which his secondary service-connection theory was based. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). The service treatment records are silent for complaints, treatment, or a diagnosis of sleep apnea or any other sleep disorder. Moreover, the record before the AOJ at the time of the February 2020 rating decision did not contain a confirmed diagnosis of sleep apnea. Indeed, a September 2019 VA treatment record documented a negative review of systems for sleep apnea and CPAP use. See October 2019 CAPRI records. However, the evidence then of record documented persistent or recurrent sleep-related symptoms. During VA mental health treatment in June 2017, the Veteran reported significant difficulty sleeping in connection with his psychiatric symptoms and reported that he could not relax during sleep due to recurrent thoughts and nightmares concerning his reported military experiences. In November 2018, he reported continued difficulty falling and staying asleep and awakening from nightmares approximately three times per week. Significantly, his wife also reported observing him gasping for air several times per week while sleeping. In January 2019, the Veteran again reported lack of sleep in conjunction with anxiety, stress, and reliving experiences from the Marine Corps, and in August 2019, he continued to report difficulty sleeping and daytime tiredness or low energy. See December 2019, March 2020, and October 2022 CAPRI records. Thus, although the record did not contain a confirmed diagnosis of sleep apnea, it contained evidence of recurrent sleep-related symptoms, including observed breathing difficulty during sleep. As noted above, VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4). The threshold for determining whether the evidence indicates that a disability or symptoms may be associated with service is low. McLendon, 20 Vet. App. at 83. Here, although sleep apnea had not yet been diagnosed, the record before the AOJ at the time of the February 2020 rating decision contained competent evidence of persistent or recurrent sleep-related symptoms. The record also contained the Veteran's reports, made during the course of VA mental health treatment, of specific stressful events during active service, as well as evidence indicating that his ongoing sleep impairment may be associated with those reported military experiences and his psychiatric symptoms. Notably, in January 2019, the Veteran specifically reported lack of sleep in conjunction with anxiety, stress, and "reliving situations from the USMC." Nevertheless, the record contained insufficient medical evidence to determine whether the Veteran's reported symptoms represented sleep apnea or another sleep-related breathing disorder and, if so, whether such disorder had its onset during or was otherwise related to his active military service. Under these circumstances, the Board finds that the low threshold for obtaining a VA examination was met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the Veteran was not afforded a VA examination, and no medical opinion addressing the nature and etiology of his claimed sleep disorder was obtained prior to the February 2020 rating decision. The AOJ's failure to obtain an examination and medical opinion constitutes a pre-decisional duty-to-assist error requiring remand. See 38 C.F.R. § 20.802. The Board acknowledges the Veteran's contention that his sleep apnea is secondary to his now service-connected PTSD. Because the pre-decisional duty to assist error identified herein pertains only to the theory of direct service connection, the Board may not order additional development regarding secondary service connection. Nevertheless, upon readjudication of the claim, the AOJ should also address the reasonably raised theory of secondary service connection in light of the Board's grant of service connection for PTSD. 4. Entitlement to a TDIU The Veteran seeks a total disability rating based on individual unemployability and contends that he is unable to secure or follow substantially gainful employment due to his PTSD. In his October 2019 VA Form 21-8940, he reported that he became too disabled to work in January 2016 due to PTSD. He explained that his psychiatric symptoms, including anxiety, impaired concentration, difficulty remaining seated for extended periods, and discomfort working in close proximity to others, interfered with his employment as a bankruptcy paralegal and resulted in verbal counseling at work. He further reported that these difficulties caused him to change career fields and become self-employed, but that he continued to experience depression and anxiety that interfered with his ability to work and interact with others. See October 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A November 2019 VA 21-4192 Request for Employment Information in Connection with Claim for Disability reflects that the Veteran worked as a paralegal from December 2015 to March 2016. The employer reported that the Veteran lost no time from work due to disability, that no concessions were made because of disability, and that his employment ended due to job abandonment. The February 2020 VA PTSD examination reflects that the Veteran obtained a real estate license in 2016, opened his own real estate firm in 2018, and remained associated with that business at the time of the examination. Thus, the record before the AOJ reflected that the Veteran had been self-employed in a real estate business since 2018. However, the AOJ did not obtain sufficient information regarding the nature and extent of that self-employment to determine whether it constituted substantially gainful or marginal employment. In particular, the record lacks information regarding the nature of his work, the number of hours worked, his duties, and objective financial documentation, such as tax returns, Social Security earnings statements, or business records, reflecting his gross or net income during the relevant period. Because this information was reasonably identified by the record and was necessary to adjudicate the TDIU claim, the AOJ's failure to attempt to obtain this information constitutes a pre-decisional duty to assist error requiring remand. See 38 C.F.R. § 20.802. In addition, remand is necessary because the Board's grants of service connection for PTSD and a dental and oral condition materially alter the Veteran's overall disability picture. The AOJ has not yet assigned initial disability ratings or effective dates for those disabilities or considered the Veteran's entitlement to a TDIU in light of those awards. Accordingly, following correction of the pre-decisional duty to assist error, the AOJ should implement the Board's grants of service connection for PTSD and a dental and oral condition, assign the appropriate initial disability ratings and effective dates, and then readjudicate entitlement to a TDIU in the first instance. The Board also notes that the claims for service connection for a right shoulder disability, a lumbar spine disability, and sleep apnea are being remanded for additional development. The outcome of those claims may further affect the Veteran's entitlement to a TDIU upon readjudication. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain the Veteran's outstanding treatment records pertaining to his reported right shoulder surgery performed through VA authorization at Pinnacle Orthopedics in approximately April or May 2017. All reasonable efforts should be made to obtain these records, to include requesting that the Veteran complete any necessary authorization forms. Document all requests and responses in the claims file. If any records cannot be obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Following completion of the above, forward the claims file and a copy of this REMAND to a clinician for an opinion concerning the nature and etiology of the Veteran's right shoulder disability. The need for an in-person examination is left to the discretion of the clinician. The clinician shall be provided with and review the electronic claims file, including a copy of this Remand. The clinician must provide a comprehensive rationale in addressing a medical opinion on the following: (as applicable) (a.) Provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current right shoulder disability had its onset during, or is otherwise related to, the Veteran's active military service. In providing the requested opinion, the clinician must consider and discuss the November 2001 through April 2002 service treatment records documenting repeated treatment for right shoulder complaints, including assessments of impingement syndrome and rotator cuff tendinitis, treatment with medication, and periods of light duty; the June 2002 predischarge VA examination diagnosing chronic right shoulder tendinitis; the Veteran's October 2002 NOD wherein he reported that his right shoulder symptoms had not improved following service and had worsened; the Veteran's competent lay statements that he has experienced recurrent right shoulder symptoms since service; and the March 2020 VA Shoulder and Arm Conditions DBQ. The examiner must also determine the significance, if any, of the 2016 motor vehicle accident and subsequent right shoulder surgery, including whether the Veteran's current right shoulder disability represents a progression of the chronic right shoulder tendinitis diagnosed during service, a separate post-service injury, or both. The examiner is advised that the absence of documented medical treatment, standing alone, may not serve as the sole basis for a negative opinion. A complete rationale is required for all of the requested opinions. If it is not possible to provide the requested opinion(s), without resorting to speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then, forward the claims file and a copy of this REMAND to a clinician for an opinion concerning the nature and etiology of the Veteran's lumbar spine disability. The need for an in-person examination is left to the discretion of the clinician. The clinician shall be provided with and review the electronic claims file, including a copy of this Remand. The clinician must provide a comprehensive rationale in addressing a medical opinion on the following: (as applicable) (a.) Provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current lumbar spine disability had its onset during, or is otherwise related to, the Veteran's active military service. In rendering the opinion, the examiner must specifically address the Veteran's June 2002 predischarge report of constant low back pain during the preceding two months. The examiner should discuss whether those reported symptoms (1) represented functional impairment of earning capacity, even in the absence of objective lumbar pathology, and/or (2) represented the onset of the Veteran's currently diagnosed lumbar spine disability. In providing the requested opinion, the clinician must consider and discuss the September 2001 service treatment record documenting the Veteran's complaint of back pain; the June 2002 predischarge VA examination reflecting the Veteran's report of constant low back pain for the preceding two months, despite normal clinical findings and no diagnosed lumbar pathology; the Veteran's competent lay statements regarding the onset and history of his lumbar spine symptoms; and the March 2020 Back (Thoracolumbar Spine) Conditions DBQ. The examiner must also determine the significance, if any, of the Veteran's reported 2016 motor vehicle accident, including whether his current lumbar spine disability represents a continuation of the symptoms reported at the June 2002 predischarge examination, a separate post-service injury, or both. The examiner is advised that the absence of documented medical treatment, standing alone, may not serve as the sole basis for a negative opinion. A complete rationale is required for all of the requested opinions. If it is not possible to provide the requested opinion(s), without resorting to speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Then, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed sleep apnea. The clinician shall be provided with and review the electronic claims file, including a copy of this Remand. The clinician must provide a comprehensive rationale in addressing a medical opinion on the following: (a.) The examiner should identify any sleep apnea or other sleep-related breathing disorder present during the period on appeal. (b.) For any diagnosed sleep apnea or other sleep-related breathing disorder, opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability had its onset during, or is otherwise related to, the Veteran's active military service. In rendering the requested opinion, the examiner should consider and discuss the Veteran's history of sleep-related symptoms documented in the VA treatment records, including his June 2017 reports of significant difficulty sleeping and inability to relax during sleep; the November 2018 reports of difficulty falling and staying asleep, awakening from nightmares, and his wife's observation that he gasped for air several times per week while sleeping; the January 2019 report of lack of sleep in conjunction with anxiety, stress, and reliving experiences from the Marine Corps; the August 2019 reports of difficulty sleeping and daytime tiredness or low energy; and the subsequent medical evidence concerning the diagnosis and treatment of obstructive sleep apnea. The examiner is advised that the absence of documented medical treatment, standing alone, may not serve as the sole basis for a negative opinion. A complete rationale is required for all of the requested opinions. If it is not possible to provide the requested opinion(s), without resorting to speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Undertake development to determine the nature and extent of the Veteran's self-employment during the appeal period. Such development should include requesting that the Veteran provide information regarding his duties, hours worked, and earnings, as well as documentation sufficient to verify his earned income, to include copies of federal income tax returns (with all schedules), Forms 1099, business records, profit and loss statements, or other documentation reflecting his gross and net earnings from self-employment. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.