Citation Nr: 21068177 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-22 357 DATE: November 9, 2021 ORDER A rating of 10 percent, but no higher, for left knee scar is granted. An initial rating in excess of 10 percent for tinnitus is denied. An effective date prior to August 11, 2015 for the grant of service connection for tinnitus is denied. Entitlement to nonservice-connected pension from April 16, 2020, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. Entitlement to an earlier effective date for the grant of service connection for left knee scar is remanded. Entitlement to nonservice-connected pension benefits prior to April 16, 2020, is remanded. Entitlement to total disability based on individual unemployability due to service-connected disability (TDIU) prior to April 16, 2020, is remanded. FINDINGS OF FACT 1. The Veteran's left knee scar is manifested by pain but is not unstable. 2. The Veteran is in receipt of a 10 percent initial evaluation for tinnitus, which is the maximum schedular rating for that disability. 3. On August 11, 2015, the VA received a completed VA 21-526EZ, Fully Developed Claim, for service connection for tinnitus; VA received no prior Intent to File form or a formal claim on a standardized form. 4. The Veteran has had a total disability rating based on individual unemployability due to service-connected disability (TDIU) since April 16, 2020. 5. Compensation and pension benefits may not be concurrently awarded. 6. From April 16, 2020, the Veteran's compensation benefit results in a greater award than that of pension benefit. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, but no higher, for the Veteran's left knee scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for an initial rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.87, Diagnostic Code 6260. 3. The criteria for an effective date earlier than August 11, 2015, for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400; 3.2500(c), (h). 4. As a greater compensation benefit is being awarded, the appeal for NSC pension from April 16, 2020, is denied. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. § 3.102, 3.151, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to March 1993. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). As pertinent to the Veteran's service connection claim for an acquired psychiatric disability, although the Veteran submitted a claim for major depressive disorder (MDD), the Board has recharacterized the issue as a claim for an acquired psychiatric disability, generally. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to MDD or another psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As an initial matter, the Board notes that the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) was originally denied by the RO in a January 2015 decision. In August 2015, within a year of that rating decision, the Veteran submitted a service connection claim for MDD. A November 2015 rating decision denied the Veteran's claim for service connection for MDD. In December 2015, the Veteran submitted yet another claim for service connection for MDD, which the RO confirmed and continued in a December 2015 decision. Thus, given the above timeline, the January 2015 and November 2015 rating decisions were not final and the claim for an acquired psychiatric disability is simply one for service connection. Accordingly, new and material evidence is not required, and the Board will consider the claim on the merits. During the pendency of the appeal, in a December 2020 rating decision, the RO granted entitlement to a TDIU from April 16, 2020. As this award is not a complete grant of the benefit sought, the claim of entitlement to TDIU prior to April 16, 2020, remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a compensable rating for left knee scar. The Veteran contends that his left knee scar warrants a compensable rating. He has not detailed his allegations. The Board finds that the evidence supports a 10 percent rating, but no higher, for the Veteran's left knee scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804. The Veteran's service-connected left knee scar is rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7802. Effective August 13, 2018, VA amended the criteria for rating skin disabilities. See 83 Federal Register 32592 (July 13, 2018). VA published in the Federal Register the proposed rule for the Schedule for Rating Disabilities: Skin on August 12, 2018. The final rule implements the Secretary's proposed rule with limited revisions. The summary in the Federal Register notes that these new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018, and claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria are more favorable to the veteran will be applied. In this case, both the rating criteria prior to and after the August 13, 2018, amendments would be for consideration. However, as discussed below, the specific amendments to the rating criteria for skin disabilities are not applicable to the instant case. As noted above, the Veteran is currently assigned a noncompensable evaluation under Diagnostic Code 7802. Under Diagnostic Code 7805, scars, other; and other effects of scars are to be evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. The Veteran's scar is not located on his head, face, or neck; therefore, Diagnostic Code 7800 is not applicable. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. Prior to the August 2018 amendments, Diagnostic Code 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under Diagnostic Code 7801, a 10 percent rating is warranted for area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted for area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is warranted for area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is warranted for area or areas of 144 square inches (929 square centimeters) or greater. Note (1) provides that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Diagnostic Code 7802 provides a 10 percent evaluation for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage and involve an area or areas of 144 square inches (929 square centimeters) or greater. Prior to the August 2018 amendments, Diagnostic Code 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. Notes (1) and (2) found under Diagnostic Code 7801 are also applicable to Diagnostic Code 7802. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, and a maximum 30 percent rating is warranted for five or more scars that are unstable or painful. There are three general notes associated with 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) indicates that scars evaluated under diagnostic codes 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. Turning to the evidence, VA examination report, dated in April 2014, reflects that the Veteran's left knee scar is less than 39 square centimeters (six square inches), painful, and not unstable. See C&P Exam (April 2014). Thus, because the Veteran's scar is painful, the Board finds an evaluation of 10 percent is warranted under Diagnostic Code 7804. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 10 percent at any point during the appeal period for his left knee scar. However, the evidence does not demonstrate that his scar is unstable or that he has any additional painful or unstable scars associated with his left knee. As such, a higher rating is not warranted under Diagnostic Code 7804. In addition, the Veteran does not have a scar that is deep and nonlinear or that is associated with underlying soft tissue damage, measuring at least 12 square inches but less than 72 square inches. As such, a higher evaluation is not warranted under Diagnostic Code 7801. Moreover, the maximum evaluation under Diagnostic Code 7802 is 10 percent. Thus, a higher evaluation cannot be granted under that Diagnostic Code. Additionally, there is no evidence of any other disabling effects as contemplated under Diagnostic Code 7805. As such, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 7805. Based on the foregoing, the Board finds that a 10 percent rating is warranted for the Veteran's left knee scar throughout the pendency of the appeal. The weight of the evidence, however, is against the finding that a rating in excess of 10 percent is warranted at any time during the appeal period. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran seeks an initial rating in excess of 10 percent for his service-connected tinnitus, which is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. This is the maximum schedular rating assignable for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Although the Veteran argues that he is entitled to an initial evaluation in excess of 10 percent for tinnitus, Diagnostic Code 6260 precludes an evaluation in excess of a single 10 percent schedular rating for tinnitus. Under these circumstances, the disposition of this claim is based on the law, and not the facts of this case. Therefore, the claim for an increased rating must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. An effective date prior to August 11, 2015 for the grant of service connection for tinnitus. The Veteran contends that his service-connected tinnitus should be assigned an effective date prior to August 11, 2015. See NOD (April 2016). He does not detail his allegations. The Board concludes that an effective date earlier than August 11, 2015, for the grant of service connection for tinnitus is not warranted under the applicable laws. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400. The effective date based upon a grant of direct service connection will be the day following separation from active service or date entitlement arose if claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(2). The date of claim is determined by the date it was received by VA. See 38 C.F.R. § 3.1(r). For VA compensation purposes, a "claim" is defined as "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim provided "[a]ny communication or action, indicating an intention to apply for one or more benefits... [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (2014). VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award "will be the date of the informal claim." Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155). Effective March 24, 2015, the law no longer allows for informal claims and the pertinent regulation allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155 (b) ("Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form... [for the] benefit sought within 1 year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received."). However, if submitted in writing, intent to file must be on a standardized form. Id. at § 3.155(b)(1)(ii) (mandating that the claim must be "[w]ritten on an intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted an intent to file a claim.") If not on a standardized Intent to File form, then any communication "is considered a request for an application form for benefits" and has no impact on effective dates, which is governed based upon when the formal claim is received. Id. at § 3.155(a). In this case, VA received on July 27, 2015 the Veteran's VA 21-4138 Statement in Support of Claim that he would like to file a claim for service connection for tinnitus. See VA 21-4138 Statement in Support of Claim (July 2015). The RO subsequently requested a formal application in an August 2015 correspondence to the Veteran with an enclosed formal application, VA 21-526EZ, Fully Developed Claim (Compensation). See Request for Application (August 2015). On August 11, 2015, VA received the Veteran's completed VA 21-526EZ, Fully Developed Claim for service connection for tinnitus. See VA 21-526EZ, Fully Developed Claim (Compensation) (August 2015). In November 2015, the RO granted that claim for service connection for tinnitus effective from the date of the receipt of VA 21-526EZ, Fully Developed Claim by VA August 11, 2015. See Rating Decision (November 2015). Based on the above facts, the Board finds that the effective date of the grant of service connection for tinnitus is August 11, 2015, the date of receipt of the Veteran's completed VA 21-526EZ. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As such, the assignment of an effective date earlier than August 11, 2015, for the grant of service connection for tinnitus is not warranted. Although the record shows that the Veteran included a statement requesting service connection for tinnitus in his July 27, 2015, VA 21-4138, such was not submitted on a standardized Intent to File form. As such it is considered a request for an application form for benefits, and not an application in itself. Thus, it had no impact on the effective date of the grant of service connection for tinnitus in this case, as such is governed based upon when the formal claim is received. Id. at § 3.155(a). Again, the Board accepts that the Veteran had tinnitus prior to the effective date of the grant of service connection. However, the Board is bound by the applicable legal authority and finds no basis therein to assign an effective date earlier than August 11, 2015. The Board is without authority to grant benefits out of equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 4. Entitlement to nonservice-connected pension from April 16, 2020. Where a veteran is in receipt of compensation for service-connected disabilities and claims a pension, the greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151(a). The governing laws and regulations have long held that a veteran may not receive concurrent payments of compensation and pension benefits, and require a veteran to elect to receive one benefit or the other. See 38 U.S.C. § 5304; 38 C.F.R. § 3.700. 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 shall be reduced by the amount of the countable annual income of the surviving spouse. 38U.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). Income from the Social Security Administration (SSA) is included as countable income as it is not specifically excluded under 38 C.F.R. § 3.272. 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). Here, a December 2020 rating decision granted TDIU from April 16, 2020. See Rating Decision - Narrative (December 2020). The Veteran's award of TDIU results in a greater benefit than the maximum pension benefit the Veteran would be eligible to receive. The Veteran has not indicated that he wishes to receive the lesser benefit. Compensation benefits for a service-connected disability and pension benefits may not be received at the same time. 38 U.S.C. § 5304; 38 C.F.R. § 3.700. Therefore, as the compensation benefit for his service-connected disabilities since April 16, 2020 has been greater, and the Veteran may not concurrently receive compensation and pension benefits, entitlement to pension benefits from April 16, 2020, is denied. Although the Veteran may elect to receive either benefit, even if one is a lesser amount, the Board will not make such a determination. See 38 C.F.R. § 3.701. Accordingly, the claim is denied. REASONS FOR REMAND Issues 5 & 6: It appears that the Agency of Original Jurisdiction (AOJ) has not obtained service personnel records (SPRs). Thus, a remand is required for the AOJ to obtain all outstanding SPRs. 5. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that his acquired psychiatric disorder, to include PTSD, stems from his military service. In his September 2014 statement, the Veteran detailed his in-service stressor: he heard and witnessed his fellow soldier and friend getting caught between two tanks resulting in his death. See VA 21-0781, Statement in Support of Claim for PTSD (September 2014). As a preliminary matter, the Board notes that the Veteran's in-service stressor has been corroborated. See VA Memo (November 2014). For the following reasons, the Board finds that remand is necessary. 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, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD requires: (1) Medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). 38 C.F.R. § 4.125. This applies to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014 (i.e., have not yet been certified to the Board). See 80 Fed. Reg. 14,308 (Mar. 19, 2015). VA examination report, dated in January 2015, reflects that the Veteran did not meet the diagnostic criteria for PTSD; his diagnosis at that time was unspecified depressive disorder. See C&P Exam (January 2015). In the corresponding medical opinion, the examiner reasoned that the Veteran reported not receiving treatment for any psychiatric concern until 2013, around the time he filed his claim, and that he reenlisted in the National Guard, where "his performance was very good and there was no mention in record of him having any distress." Thus, the opinion concluded that it is less likely than not that the Veteran's reported stressor is related to his current mental health complaints. The Board finds the January 2015 VA medical opinion is inadequate. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. In this case, there is competent and credible medical evidence, dated after September 2014 with a November 2014 VA memorandum corroborating the Veteran's in-service stressor. Hence, there is credible supporting evidence of the claimed stressor in addition to the Veteran's statements and testimony. Per the November 2014 VA memorandum, the stressor has been corroborated and conceded. However, the VA medical opinion obtained subsequent to that November 2014 VA memorandum called into question the Veteran's stressor and did not adequately address whether such would lead to the diagnosis of PTSD and/or provide clarity as to the etiology of the diagnosed unspecified depressive disorder. Next, the available VA treatment records, private treatment records and Vet Center records, include additional acquired psychiatric diagnoses, including PTSD, depression, anxiety, generalized anxiety disorder and panic disorder. See CAPRI (November 2014). In August 2015, the Veteran presented to the emergency room with complaints of depression with thoughts of hurting himself. See CAPRI (November 2019). More recently, in April 2020, the Veteran underwent treatment at a mental health clinic. See CAPRI (April 2020). The treatment records, further, reveal individual therapy and medication for the acquired psychiatric disorders as well as Vet Center treatment. Accordingly, since the VA medical opinion does not show consideration of this medical evidence, the Board finds the VA medical opinion is inadequate as it is not based on a complete medical history of the Veteran. Given the above, and that the January 2015 VA medical opinion is inadequate, remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lastly, the records of the Veteran's inpatient treatment in August 2015 are not presently associated with the Veteran's file. A review of the record reveals that VA partially obtained records of that treatment, including some records that appear to have been scanned into Vist-A; as a result, a remand is also needed to obtain these potentially relevant identified outstanding private treatment records. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). More recent treatment records from Methodist also appear to have been scanned into Vist-A in September 2019, but not associated with the record. Therefore, a remand is required to allow VA to obtain these records. 6. Entitlement to service connection for sleep disorder, to include OSA. The Veteran contends that his sleep disorder, to include OSA, resulted from his service. While he has not set forth specific allegations, his VA treatment records note his reports that sleeping issues started after a traumatic event, and the Veteran reported "loud snoring, waking up gasping for air or strangling, non-refreshing sleep, sleepy during the day, witnessed apnea." See CAPRI (November 2019) (October 2015). For reasons explained below, the Board finds that remand is necessary. At the onset the Board notes that the Veteran has been diagnosed with OSA, in November 2015, and his VA treatment records show an impression of "moderate sleep disorder breathing." See CAPRI (November 2019) In developing the issue, VA obtained a nexus opinion. A May 2016 VA medical opinion reflects the conclusion that it is less likely than not that the Veteran's OSA was incurred in or caused by the claimed in-service injury, event or illness. See C&P Exam (May 2016). In support of this conclusion, the examiner referenced (1) obesity and supine sleeping position as risk factors for developing this OSA, noting that the Veteran was 220 pounds at separation in 1993 and was almost 250 pounds in the Fall 2015, and (2) the Veteran's STRs reflecting no evidence that the Veteran had OSA in service. The opinion also provided that the Veteran "has been diagnosed with major depression and PTSD and his sleep issues are symptoms of these mental health diagnoses." The Board finds the May 2016 VA medical opinion is inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). In determining the adequacy of a medical examination or opinion, an examination or opinion is considered adequate, "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's '"evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991))). Therefore, when a medical examination or opinion is provided, the clinician must support the conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Id. at 124-25. Here, the medical opinion is inadequate for the following reasons. First, it is not definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the opinion contains clear conclusions with some supporting data, but no reasoned medical explanation connecting the two. Additionally, the opinion manifests with noncommittal phrases that do not meet the standard of "at least as likely as not" as it concludes that the most likely cause for Veteran's OSA is the obesity. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Lastly, in concluding that the most likely cause of OSA is obesity, the examiner appears to have based his opinion on general medical knowledge without addressing the Veteran's specific disability factors. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). To that extent, while the examiner noted the increase in weight from 220 pounds in 1993 to 250 pounds in 2015, he did not address whether the Veteran's weight at the time of separation would also fall into the category of obesity, which would undermine the opinion that obesity is the likely cause of OSA. Second, the medical opinion is inadequate because in relied, at least in part, on the lack of evidence in Veteran's STRs to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In this regard, the opinion does not address the Veteran's full contentions or lay reports annotated in his VA treatment records. Third, while the opinion suggests that the Veteran's sleep problems other than OSA are attributable to his "diagnosed" PTSD and major depressive disorder, the opinion's inaccurate assumption that the Veteran currently carries a diagnosis of PTSD calls into question the ultimate etiological conclusions. Notably, the record does not show a DSM-V diagnosis of PTSD. Lastly, in remanding this claim, the Board further notes that an additional theory of entitlement for the Veteran's sleep disorder and/or OSA (i.e., as secondary to a service-connected disability) is reasonably raised by the record. In this regard, the VA medical opinion obtained in May 2016, as noted above, suggests that his sleep issues are symptoms of his major depressive disorder and PTSD. In October 2015 during treatment the Veteran also reported sleeping issues after a traumatic event in service, which he alleges caused his acquired psychiatric disability, remanded herein. VA must consider all possible theories of entitlement raised by the evidentiary record. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which he can obtain a benefit sought for the same disability). Therefore, given that the VA examiner did not address, among other things, the Veteran's full contentions, the May 2016 VA medical opinion is inadequate for decision making purposes, and remand is necessary for a new medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 7. Entitlement to an earlier effective date for the grant of service connection for left knee scar. Regarding the Veteran's claim for entitlement to an earlier effective date for the grant of service connection for left knee scar, the Veteran submitted a timely notice of disagreement (NOD April 2016) with a November 2015 rating decision, but a statement of the case has not yet been issued. A remand is required for the agency of original jurisdiction to issue a statement of the case. 38 C.F.R. §§ 20.200, 20.904(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 8. Entitlement to a TDIU is remanded prior to April 16, 2020. The Veteran contends and the evidence suggests that he has been unable to work since October 2018, in part due to his acquired psychiatric disability, which is remanded herein. See Correspondence (October 2018); VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (April 2020). Thus, the claim for TDIU prior to April 16, 2020, is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder remanded herein. Therefore, the Board must defer consideration of this matter at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). 9. Entitlement to nonservice-connected pension benefits prior to April 16, 2020. The Veteran also claims entitlement to nonservice-connected pension benefits prior to April 16, 2020, and contends that such is warranted as a result of his nonservice-connected sleep disorder. As indicated above, the Veteran's claim for service connection for a sleep disorder is being remanded herein. Thus, the claim for nonservice-connected pension prior to April 16, 2020, is inextricably intertwined with the claim for service connection for a sleep disorder remanded herein. Therefore, the Board must defer consideration of this matter at this time. See Harris, supra. Moreover, the Board again notes as above that where a veteran is entitled to both disability compensation and pension, only the greater benefit will be awarded, unless the veteran specifically elects the lesser benefit. See 38 C.F.R. § 3.151 (a). Here, given the uncertainty as to the total amount of disability compensation the Veteran will receive pursuant to the Board's decision and remand in this case, the Board finds that a decision on the matter of entitlement to pension benefits would be premature. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an earlier effective date for the grant of service connection for a left knee scar. 2. Obtain complete SPRs pertaining to the Veteran's active-duty service from March 1989 to March 1993 through official sources and potential repositories of such records to include. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 3. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 4. Obtain the Veteran's VA treatment records for the period from January 2021 to the Present. Associate copies of all treatment records from VA and private treatment providers that have been scanned into the VistA Imaging system with the Veteran's claims folder. 5. Thereafter, schedule the Veteran for a VA examination (which, if deemed appropriate, may be via telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any mental disorder to include PTSD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. A complete medical history should be obtained. The opinion should include, among other things, a discussion of the Veteran's documented history and assertions. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the conceded in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the conceded in-service stressor. 6. Obtain an opinion from an appropriate physician to determine the nature and etiology of the Veteran's diagnosed obstructive sleep apnea and any other diagnosed sleep disorder. The following should be addressed. (a.) Whether OSA, at least as likely as not, was first manifested during the Veteran's active service considering his competent, credible report of snoring and his reports of difficulty sleeping since service. (b.) Only if the above development shows that an acquired psychiatric disorder is related to service, opine on whether OSA and/or any other diagnosed sleep disorder (1) is at least as likely as not proximately due to any psychiatric disorder or (2) is aggravated beyond its natural progression by any psychiatric disorder. The opinion must identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. Further, the rationale must reflect an analysis based on causation rather than association. It is noted that direct service connection requires a causal relationship (not an association) between the current disability and the in-service disease or injury. A complete rationale is required. 7. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.