judge_norm: STEVEN V ADLER

text:
Citation Nr: A25009000
Decision Date: 01/31/25	Archive Date: 01/31/25

DOCKET NO. 230823-373236
DATE: January 31, 2025

REMAND ORDER

Entitlement to service connection for left elbow condition is REMANDED.

FACTUAL AND PROCEDURAL HISTORY

The Veteran served on active duty in the United States Army from January 2003 to August 2003 with additional National Guard service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2023 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In the April 2023 rating decision, the RO implicitly found that the Veteran had submitted new and relevant evidence when it adjudicated the claim on the merits.  The Board is bound by the favorable finding and does not need to readdress whether new and relevant evidence has been received to reconsider the claim herein.  38 C.F.R. � 3.104(c).

In the August 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2023 decision on appeal. 38 C.F.R. � 20.301. Any evidence submitted after the decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

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

REASONS FOR REMAND

Left Elbow Condition

The Veteran claims to have a left elbow disability due to an August 2019 slip and fall injury during service.  See June 2022 VA 21-526EZ, Fully Developed Claim (Compensation).   He reports seeking treatment for this injury.  See March 2023 Medical Records - Non-Governmental Facility.

At the time of the April 2023 rating decision, service treatment records dated through 2008 were associated with the claims file.  However, the Veteran reported a 2019 slip and fall injury during service.  As 2019 service treatment records were in evidence at the time of the rating decision on appeal, and there is no indication that the RO attempted to obtain these records, a pre-decisional duty-to-assist error has been identified.  38 C.F.R. � 20.802(a).  The claim is remanded to cure the error, obtain the outstanding service treatment records, and fulfill the RO's duty to assist.  Id.

The matter is REMANDED for the following action:

Obtain the Veteran's service treatment records pertaining to a 2019 slip and fall injury during service.

?

Document all requests for information as well as all responses in the claims file.

STEVEN V. ADLER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Amanda Baker, 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.


series: ama

judge_norm: R JANOFSKY

judge_role: Acting Veterans Law Judge

disposition: remanded

text:
Citation Nr: A25010000
Decision Date: 02/04/25	Archive Date: 02/04/25

DOCKET NO. 230912-377649
DATE: February 4, 2025

REMANDED

Entitlement to service connection for left ankle disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1987 to September 1991.

In a September 2023 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim.  In a September 2023 VA Form 10182 (Notice of Disagreement), the Veteran appealed to the Board of Veterans' Appeals (Board) and elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. � 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.  However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. � 3.103(c)(2)(ii).

The Veteran contends that he has a current left ankle disorder that is related to an injury during an in-service field training exercise.  See July 2023 VA Form 21-526EZ (Fully Developed Claim).

Remand is required to correct the following pre-decisional duty to assist errors.  38 C.F.R. � 20.802(a).

First, remand is required for an adequate VA medical opinion.  In August 2023, a VA examiner provided a positive nexus opinion.  The examiner's rationale stated, "...the claimant did not have a history of fractured ankle prior to service [sic].  His discharge exam does not list the condition but there is a CAPRI in VA files that list the condition [sic].  It is also noted in other progress notes and in Form 21-526EZ. [sic]."  This rationale is conclusory, vague, and insufficient.  Although this opinion included a list of pertinent records, including service treatment records (STRs), these STRs notably appear to reference right ankle issues, as opposed to left ankle issues. See July 1991 STR (STR - Medical PDF at page 33 of 55); see also STR with illegible date (STR - Medical PDF at page 34 of 55).

Second, a November 2022 VA primary care consult notes the Veteran's report of left ankle pain from time to time and mentions the Veteran's non-VA primary care physician, Dr. S.  This document was of record prior to the AOJ decision on appeal; however, there is no indication that the AOJ attempted to assist the Veteran in obtaining these potentially relevant, identified, non-VA treatment records before issuing that decision.

The matter is REMANDED for the following actions:

1.  After obtaining a completed release form from the Veteran, request all outstanding treatment records from Dr. S. (non-VA primary care provider).  Document all records requests and any negative responses. If any requested records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records.

2. Then, after completing Instruction 1 above (to the extent possible), request a VA medical opinion regarding the etiology of the Veteran's current left ankle disorder. The clinician is asked to address the following:

What is the medical probability (that is, is the likelihood at least approximately balanced, or nearly equal, or higher) that the Veteran's current left ankle disorder was incurred in or caused by active service?

A rationale for all stated opinions must be provided.

R. JANOFSKY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Y. Asfaw, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: R FEINBERG

judge_role: Veterans Law Judge

condition: tbi

text:
Citation Nr: A25011000
Decision Date: 02/06/25	Archive Date: 02/06/25

DOCKET NO. 230922-378885
DATE: February 6, 2025

REMANDED

Entitlement to service connection for traumatic brain injury (TBI) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1981 to August 1984.

In February 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2020 decision.

Although the Veteran initially requested Higher-Level Review when submitting the February 2020 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development.

In September 2022, the agency of original jurisdiction (AOJ) issued the decision on appeal.

In the September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the September 2022 agency of original jurisdiction (AOJ) supplemental claim decision on appeal. 38?C.F.R. � 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 38 C.F.R. �� 20.300,?20.301, 20.801.

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

TBI

The issue of entitlement to service connection for TBI is remanded to correct a duty to assist error that occurred prior to the September 2022 rating decision on appeal.

The AOJ obtained January 2020 and October 2020 medical examinations and opinions prior to the September 2022 rating decision on appeal. However, the medical examinations are not adequate.

First, the examinations did not consider the Veteran's reported symptoms of headaches and memory loss in the analysis when determining whether the Veteran has a diagnosis of TBI. The examination reports noted the Veteran's subjective symptoms of headaches and memory loss, yet, reported that the Veteran had no subjective symptoms.

Second, the October 2020 opinion stated that the Veteran's headaches did not begin until 2016, as reported in the 2017 headaches examination. However, the examiner failed to address the Veteran's reports of continuous headaches and memory loss since the November 1982 incident. A medical examiner is not free to simply ignore a veteran's lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007).

Finally, the October 2020 opinion states that there was no reported unconsciousness by the unit, and this conflicts with the Veteran's memory of the event. However, the November 1982 medical report of the incident records that the Veteran stated he was unconscious for some period of time, although the period of time the Veteran reported is illegible. While the assessment was abrasions to face, the November 1982 patient instructions state, "concussion, unconscious instructions given." As this opinion relies on incomplete facts, the opinion in not adequate.

As such, remand is warranted to obtain a new VA examination and opinion to determine whether the Veteran has residuals of a TBI that are related to service.

The matter is REMANDED for the following action:

Obtain a VA examination pursuant to the Veteran's claim for service connection for a TBI and determine whether the Veteran has a current diagnosis of residuals of a TBI that is related to his service, to include addressing the statement from the Veteran regarding the onset and continuity of his symptoms.

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	St. Laurent, A.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: JENNIFER WHITE

disposition: granted

text:
Citation Nr: A25012000
Decision Date: 02/10/25	Archive Date: 02/10/25

DOCKET NO. 210413-152909
DATE: February 10, 2025

ORDER

Entitlement to service connection for a right ear hearing loss disability is granted.

FINDING OF FACT

A February 2024 rating decision rated the Veteran on the basis of bilateral hearing loss.  Thus, apparently service connection for right ear hearing loss has been conceded.

CONCLUSION OF LAW

The criteria for grant of the issue of service connection for a right ear hearing loss disability have been met.  38 U.S.C. � 7105; 38 C.F.R. � 20.104

REASONS AND BASES FOR FINDING AND CONCLUSION

This matter was appealed to the Board of Veterans' Appeals from a December 2020 rating decision through submission of an April 2021 VA Form 10182.

In a February 2024 rating decision, service connection for a right ear hearing loss disability was apparently granted as the Veteran was rated based on such disability. Thus, the Board finds that rating decision to contain favorable findings which indicate that service connection is conceded.

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mecone, Alison M.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: TIFFANY DAWSON

condition: knee

condition: diabetes

text:
Citation Nr: A25013000
Decision Date: 02/12/25	Archive Date: 02/12/25

DOCKET NO. 230927-379889
DATE: February 12, 2025

ORDER

Entitlement to service connection for arthritis of the right knee is granted.

REMANDED

Entitlement to service connection for diabetes mellitus type 2 (hereinafter, diabetes) is remanded.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the Veteran's current osteoarthritis of the right knee is at least as likely as not related to his active duty service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for osteoarthritis of the right knee have been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army from July 1970 to February 1972.

The rating decisions on appeal were issued in May 2023 (service connection for right knee condition) and August 2023 (service connection for diabetes). Both constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

By way of background, the agency of original jurisdiction (AOJ) issued the rating decision denying service connection for right knee arthritis on May 22, 2023. On May 23, 2023, the Veteran submitted a VA Form 20-0996 Request for Higher-Level Review (HLR). On May 24, 2023, the AOJ issued the notification letter informing the Veteran of the May 2023 rating decision.

No additional action was taken until the Veteran submitted a September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), wherein the Veteran elected the Direct Review docket for his appeal of both the May 2023 and August 2023 rating decisions.

On October 3, 2023, the Board issued a docketing letter informing the Veteran, and his representative, that his appeal had been docketed. Thereafter, on October 29, 2023, the Veteran's representative submitted a brief arguing entitlement to service connection for both right knee arthritis and diabetes. On November 8, 2023, the AOJ notified the Veteran that his May 23, 2023 request for higher-level review was premature as a decision on the claim had not been made. See November 2023 Decision Review Against Pending Claim letter.  As such, the Board finds that the issues of service connection for diabetes and arthritis of the right knee are both on appeal in the instant matter.

Therefore, the Board may only consider the evidence of record at the time of the May 2023 (service connection for the right knee) and August  decision on appeal. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim for entitlement to service connection for a right knee disability, 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 issue of service connection for diabetes, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

1. Service connection for arthritis of the right knee

The Veteran contends that the arthritis he currently experiences in his right knee is the result of a twisted knee he suffered in service. See September 2020 statement in support of claim.

The May 2023 rating decision favorably established the following facts: 1) Service treatment records (STRs) note a twisted right knee in April 1971 and the January 1972 separation examination noted "bad right knee;" 2) the Veteran has a current diagnosis of degenerative arthritis of the right knee; 3) arthritis is a chronic disease that may be presumptively linked to military service; 4) the Veteran's arthritis became manifest to a degree of 10 percent or more following service; and 5) the Veteran's time in service meets requirements for presumptive service connection. Absent clear and unmistakable evidence to the contrary, the Board is bound by these favorable findings. 38 C.F.R. � 3.104 (c).

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. Generally, establishing 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).

A veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates than an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. � 3.304 (b). VA regulations expressly provide that the term "noted" denotes only such conditions as are recorded in examination reports, 38 C.F.R. � 3.304 (b), and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. � 3.306.

Prior to the recognized STRs noting a "twisted" right knee in April 1971and a "bad right knee" in January 1972, the Veteran marked "yes" to "trick or locked knee" on a February 1970 Report of Medical History upon his enlistment.  The clinician noted occasional sore knees on the Report of Medical History.  Significantly, the clinician clinically evaluated the Veteran's right knee as normal on the corresponding February 1970 entrance examination report. See February 1970 Report of Medical Examination. As there is nothing noted about the Veteran's right knee on his February 1970 entrance examination, the presumption of soundness has not been rebutted and the Veteran is presumed sound upon his entrance to active duty.  Thus, the Board will consider the claim for direct service connection. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

The Veteran submitted a statement in support of his claim in September 2020. Therein he explained that his knee was vulnerable to injuries sustained in service and, even after he received treatment for the pain, he continued to experience knee problems. He asserted that he is in "constant pain," he "can barely walk normal," has difficulty with stairs, and "shuffles" while walking. See September 2020 statement in support of claim.

The AOJ obtained VA medical opinions in December 2020 and October 2021. The December 2020 and October 2021 VA examiners each noted that the Veteran's in-service knee injury was acute and that, due to a lack of additional treatment records, there was no evidence of chronicity of care to support the Veteran's complaints of pain since that time. As such, both examiners concluded that it was less likely than not that the Veteran's current right knee arthritis was a result of his in-service knee injury. Consequently, the Veteran was denied service connection in January 2021 and November 2021 rating decisions.

In concert with a June 2022 supplemental claim, the Veteran submitted a May 2022 medical opinion from his private treatment provider. Dr. S.S. explained that the Veteran suffered from osteoarthritis in both knees, but the arthritis in his right knee was more severe than the arthritis in his left knee. As such, Dr. S.S. concluded that, "due to the difference in severity levels in [Veteran's] knees, I still feel that the right knee condition is caused by [the] injury sustained in service, as previously noted." See May 2022 private medical opinion by Dr. S.S. at Henry Ford Health (associated with the claims file in June 2022).

A September 2022 rating decision found that the evidence submitted with the June 2022 supplemental was neither new nor relevant, resulting in a November 2022 higher-level review finding that a duty to assist error had been made prior to the September 2022 decision. Thus, another VA examination and opinion were requested in support of the Veteran's claim.

At January 2023 VA examination, the Veteran reported that he had experienced right knee pain since his active service and has managed it by taking aspirin and other pain relievers. He also reported using a knee brace beginning in approximately 2003. The January 2023 VA examiner confirmed the Veteran's right knee arthritis with imaging and also diagnosed a curvature condition, "genu varum."  However, she opined that it is less likely than not that his current right knee conditions are related to the Veteran's service. In doing so, she explained that the Veteran's April 1971 injury was "acute" and "allowed him to return to duty lacking evidence of chronicity" in service. The examiner also noted the lack of post-service treatment records.

In addressing Dr. S.S.'s opinion, the January 2023 examiner stated it was "speculative" and that there is "enough evidence" showing that the in-service injury is the less likely cause, with the more likely cause being a "combination of his genu varum, age, and his [post-service employment]."

The Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. � 5107 ; 38 C.F.R. � 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Exact equipoise is not required for benefit of the doubt to be applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The December 2020, October 2021, and January 2023 VA opinions all found the Veteran's April 1971 right knee injury to be acute and concluded that there was no evidence of "chronicity of care;" thus, it was less likely than not that there is a nexus between the Veteran's in-service injury and his current disability. However, lack of treatment records may not constitute the sole basis for discrediting the Veteran's reports regarding the onset and continual nature of his right knee pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  Moreover, continuity of symptoms, not treatment, is required to support a claim for service connection. Layno v. Brown, 6 Vet. App. 465 (1994).

Additionally, the Board observes that the January 2023 VA opinion was the only one on record noting a diagnosis of "genu varum." As such, it is unclear if the January 2023 opinion was based on an accurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

Conversely, the Board notes that Dr. S.S.'s opinion is based on more established knowledge and understanding of the Veteran's medical history and reported symptoms. Statements made for the purpose of medical treatment are exceptionally trustworthy because the declarant has a strong motive to be truthful in order to receive the proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356 (1992). As such, the Board finds it unlikely that her opinion was speculative, as surmised by the January 2023 examiner. Additionally,  Dr. S.S.'s opinion is supported by the Veteran's multiple lay statements regarding the nature of his April 1971 right knee injury and the continuous pain he's experienced since it occurred. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (recognizing that a layperson is competent to relate observable symptoms of a disability).

Therefore, after careful review of the record, including the highly probative medical opinion of treating physician, Dr. S.S., as well as the credible lay statements of record, the Board finds the evidence is in at least approximate balance as to whether the Veteran's current right knee arthritis is related to his active service. Accordingly, the Board resolves any reasonable doubt in the Veteran's favor and the claim for service connection is granted. See 38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102; Lynch, 21 F.4th at 776.

REASONS FOR REMAND

2. Entitlement to service connection for diabetes is remanded.

The Veteran contends he developed diabetes as a result of exposure to herbicide agent, specifically Agent Orange, during Basic Training at Fort Knox, Kentucky. See May 2021 VA Form 21-526EZ.

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 is required due to AOJ error in satisfying a regulatory or statutory duty.

VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents, including diabetes mellitus type 2. 38 C.F.R. � 3.309 (e). Regarding presumptive service connection for diseases associated with exposure to herbicide agents, it is warranted if a disease listed under � 3.309(e), with the exception of chloracne or other acneform disease, becomes manifest to a degree of 10 percent at any time after service. As opposed to the requirements for direct service connection, the disease need not manifest within the appellate period.

The August 2023 rating decision on appeal favorably established that the Veteran is diagnosed with diabetes mellitus Type II, has sufficient time in service to meet the requirements for presumptive service connection, and his diabetes became manifest to a degree of 10 percent or more following service. As explained above, absent clear and unmistakable evidence to the contrary, the Board is bound by these favorable findings. 38 C.F.R. � 3.104 (c).

The Veteran's STRs are silent as to any complaints of, treatment for, or onset of diabetes while the Veteran was in the service.

However, as the Veteran has been diagnosed with a current disability for which a presumptive nexus to in-service exposure to herbicide agent has been established, the Board must assess whether there is sufficient evidence to find that the Veteran was exposed to herbicide agent while on active duty.

In a June 2021 statement, the Veteran asserted that Agent Orange was stored and used at Fort Knox while he was stationed there in 1970. In support of his claim, he referred to a letter from the Chief of Environmental Management Division (EMD), Directorate of Base Operations Support, Fort Knox, KY. The Veteran claimed that the letter confirmed that the Fort Knox Department of Public Works used herbicide agents as weed control for golf courses. The Veteran further claimed that, when Agent Orange was sprayed, it "was almost like a fog." See June 2021 statement in support of claim. In a May 2022 statement, the Veteran reiterated his belief that Agent Orange was used at Fort Knox. He stated therein that he was exposed to the herbicide agent in dining halls, barracks, and "everywhere else they were trying to clear out weeds." See May 2022 statement in support of claim.

The Veteran did not include a copy of the Fort Knox EMD letter with his statements.  Rather, to support his assertions, the Veteran submitted a copy of a November 2002 Board decision in which it was revealed that the Fort Knox EMD letter, cited in the Veteran's June 2021 statement, was sent to the VA Regional Office in Detroit, Michigan in 2002, as a response to VA's attempts to confirm the use of herbicide agent at Fort Knox. See November 2021 "Web / HTML Documents" (containing a copy of Board decision 0215618).

In the instant matter, the AOJ attempted to confirm the Veteran's contentions with a September 2022 request to the VA Military Records Research Center. In a February 2023 response, the VA researcher found that a review of "unredacted 2019 DoD Tactical Herbicide Location list failed to verify herbicide agent exposure as claimed by the Veteran." The VA researcher was unable to locate unit histories for the Veteran's training unit at Fort Knox and concluded that there was no evidence to support exposure to herbicide agents at Fort Knox in 1970. See February 2023 Records Research Center Response.

As the AOJ could not confirm that the Veteran was exposed to herbicide agent while stationed at Fort Knox in 1970, the Veteran's claim for service connection for diabetes was denied in the August 2023 rating decision on appeal.

The Board notes that the February 2023 Records Research Center Response is supported by the most recent federal list of domestic locations known to have tested, disposed of, or stored herbicide agents. Fort Knox, Kentucky is not one of the listed locations where herbicide agents were tested, disposed of, or stored in the United States. See 89 Fed. Reg. 9803 (Feb. 12, 2024).

The Board also notes that prior Board decisions are not evidence. See Hime v. McDonald, 28 Vet. App. 1, 7 (2016). Nevertheless, both the Veteran's June 2021 and May 2022 statements, when viewed in concert with the prior Board decision associated with the claims file in November 2021, suggests that additional evidence, specifically a 2002 letter from Chief, EMD at Fort Knox, Kentucky may be available to use in determining whether the Veteran was exposed to herbicide agent. As is it indicated that the letter was originally sent to VA, the Board finds that VA was in, at least, constructive possession of the 2002 Fort Knox EMD letter prior to the August 2023 rating decision on appeal and all reasonable efforts should be taken to associate a copy with the Veteran's claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (Federal records are in constructive possession of the agency and must be obtained if the material was not previously considered and could be determinative of the claim).  The AOJ's failure to do prior to the August 2023 rating decision on appeal is a pre-decisional duty to assist error that supports a remand of the claim.

Finally, the Board acknowledges an unclassified article by the Army War College, submitted by the Veteran in June 2022, entitled "Accidental Herbicide Damage," "Vietnam" "Lessons Learned No. 74." A review of the article reveals that there were misuses of herbicide agents during the Vietnam conflict. However, the article does not suggest that herbicide agents were used at Fort Knox nor is Fort Knox included in the "MACV Lessons Learned Index" following the article. The only reference to Fort Knox, Kentucky is in the list of locations to which the article was distributed at the time of its publication. See June 2022 Correspondence. Thus, the Board finds that it is not sufficient evidence to resolve whether the Veteran was exposed to an herbicide agent at Fort Knox, Kentucky.

The matter is REMANDED for the following action:

1. Attempt to obtain and associate with the claims file a 2002 letter from Chief, Environmental Management Division, Directorate of Base Operations Support, Fort Knox, KY sent to the VA Regional Office at Detroit, MI. See November 2021 "Web / HTML Documents" (containing a copy of Board decision 0215618).

(Continued on the next page)

?

All efforts to secure the 2002 Fort Knox EMD letter should be noted in the claims file. The Veteran, as well as his representative, should be offered an opportunity to respond to all relevant evidence found pursuant to this additional development.

If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure.

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	O'Neil, A.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: K A KENNERLY

condition: respiratory

text:
Citation Nr: A25014000
Decision Date: 02/14/25	Archive Date: 02/14/25

DOCKET NO. 231016-384784
DATE: February 14, 2025

REMANDED

Entitlement to service connection for pulmonary sarcoidosis, to include as secondary to asbestos exposure, is remanded.

REASONS FOR REMAND

The appellant had active service in the United States Navy from September 1974 to September 1978; and periods of active duty for training (ADT) in the United States Naval Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2023 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration (the agency of original jurisdiction (AOJ)), which denied service connection for pulmonary sarcoidosis.

In October 2023, the appellant submitted a notice of disagreement (NOD (via VA Form 10182)), appealing the October 2023 rating decision to the Board, and requesting Direct Review by a Veterans Law Judge.

Evidentiary Window

As the appellant has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issue on appeal.  See 38 C.F.R. �� 20.300(a), 301.  The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. � 20.301. The appellant has not filed such a request. If additional evidence was submitted after the AOJ decision, the Board will not consider it. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. � 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered.  Id.; see also Cook v. McDonough, 36 Vet. App. 175 (2023).  However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ.  38 C.F.R. � 3.103(c)(2)(ii).

Under the Appeals Modernization Act (AMA), VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error.  38 U.S.C. � 5103A(e); 38 C.F.R. � 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for 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. 38?C.F.R. �?20.802(a).

While additional delay is regrettable, remand is necessary in order to correct a pre-decisional duty to assist error.

The appellant contends that her pulmonary sarcoidosis is related to her military service.  See Fully Developed Claim, August 14, 2023.  Specifically, the appellant contends that she was exposed to asbestos while stationed at Naval Air Station (NAS) Moffett Field working as a hospital corpsman from 1975 to 1976 in a facility that contained asbestos, moisture, and mold; and in the 1980's while stationed on the USS Dwight D. Eisenhower during a Dependent's Day Cruise.  Id.

In the October 2023 rating decision, the AOJ favorably found that the appellant has a current diagnosis of pulmonary sarcoidosis.  Favorable findings made by the AOJ are generally binding on the Board, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.  See 38 U.S.C. � 5104A; 38 C.F.R. �� 3.104(c); 20.801(a).  Such evidence is not present in this case.

Service treatment records (STR) reflect that the appellant was treated for upper respiratory infections several times during military service.  See STR, February 28, 1977, October 7, 1977, and November 2, 1977.  Additionally, the appellant's military personnel record indicates that she served as a hospital corpsman and was assigned to Naval Regional Medical Center Branch Clinic, Moffett Field.  See Military Personnel Record, August 31, 1978.  The appellant's statements in regard to duties performed during military service, are competent, and consistent with the circumstances of her service. See 38 U.S.C. � 1154(a); 38 C.F.R. � 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records).

First, remand is required in order for the AOJ to verify whether the appellant was exposed to asbestos during service.  See 38 C.F.R. 3.159(b)(1), (c).  In September 2023, the AOJ requested that the appellant provide responses to the following questions about her claimed disability and exposure to asbestos:

"	Where were you exposed to asbestos? (Organization, rank, task group, company, or squadron, etc.)

"	When were you exposed?

"	How were you exposed?

"	What are the names of other service persons who were with you at the time of exposure?

"	What other things that may cause cancer (cigarettes, chemicals, etc.) were you exposed to while in service?

"	After service?

"	What type of work did you do before service?

"	What type of work have you been doing since service?

See Subsequent Development Letter, September 18, 2023.

In an October 2023 statement, the appellant provided the following responses:

I was exposed to asbestos while stationed at NAS Moffett Field, Mountain View, Calif.  I was a hospital corpsman assigned to the clinic located on base.  We were moving from the old clinic due to the building's age (asbestos), moisture, and mold.  The building was old, and a newly built clinic was located outside the main gates.  Exposure was during the time period of 1975-'76.  I was, also, exposed while stationed on the USS Dwight D Eisenhower, Norfolk, VA.  I was the Hospital Corpsman 2nd class assigned to the medical department below deck during a special Dependent's Day Cruise.  This, I believe, was around the time of 1980 while in the reserves.  Then only names I can actually remember are: [P.G.], retired RN from the Palo Alto VA in Calif. and [L.B.], I believe in San Jose, CA.  Other cancer-causing agents during my tenure in the service; we were all around cigarettes/smokers during this time period.  This does not take away from the fact that I was exposed to asbestos while at my stations.  After the service, I worked at a private prison, Correction Corporation of America in Venus, TX. for 9 years.  I transferred to Austin, TX, working at a private prison there for 2 years.  I moved back to the Fort Worth area and went to Tarrant County College Police Academy becoming TCLEOS certified and worked at Mansfield Jail as Sgt. Deputy Marshall for 2 years.  I was then hired by the U.S. Treasury Dept., Bureau of Engraving and Printing.  I attended the Federal Police Academy in Artesia, NM graduating and working as a Federal Police Officer for the Bureau in Ft. Worth, TX for 20 years until I retired in 2017.

See Lay Statement, October 4, 2023.

Unfortunately, it does not appear that the AOJ attempted to verify whether the appellant was exposed to asbestos during the reported periods of service.  See 38 C.F.R. 3.159(c) (VA will make reasonable efforts to help claimant obtain evidence necessary to substantiate the claim).  This represents a pre-duty to assist error. 38?C.F.R. �?20.802(a).

Second, remand is required in order to afford the appellant an adequate VA examination and obtain an adequate etiological opinion.  See 38 C.F.R. 3.159(c)(4) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim).

In McLendon v. Nicholson, 20 App. 79 (Vet. App. 2006), the U.S. Court of Appeals for Veterans Claims reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. � 3.159(c). VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C. � 5103A(d)(2). The third requirement of "an indication" that a disability "may be" associated with service is a "low threshold." See McLendon, 20 Vet. App. at 83.

Prior to the rating decision on appeal, the appellant had a diagnosis of pulmonary sarcoidosis, was treated for upper respiratory infections during service, and the record reasonably raised the possibility of in-service exposure to asbestos.  See STR, February 28, 1977, October 7, 1977, and November 2, 1977; Military Personnel Record, August 31, 1978; VA Treatment Record, October 4, 2004; Lay Statement, October 4, 2023; Rating Decision-Narrative, October 12, 2023.  However, the appellant was not afforded a VA examination to determine whether her current pulmonary sarcoidosis began during or is related to service. McLendon, supra. As there was insufficient evidence to render a decision, the AOJ's failure to provide the appellant with an examination and obtain a medical opinion represents a pre-adjudication error of the duty to assist. 38?C.F.R. �?20.802(a). VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. C.F.R. 3.159(c)(4).

The matters are REMANDED for the following action:

1. The AOJ should make efforts to verify the appellant's claimed exposure to asbestos during service.

2. After the above development, schedule the appellant for a VA examination with an appropriate VA clinician in order to determine the nature and likely etiology of the appellant's pulmonary sarcoidosis. The clinician must review the claims file and a copy of this Remand. All tests deemed necessary should be performed and the results reported in detail.

After review of the claims file and examination of the appellant, the clinician is asked to respond to the following:

(a)	Whether it is likely (at least an approximate balance of positive and negative evidence) that the appellant's pulmonary sarcoidosis began during service. The clinician must address the in-service treatments for upper respiratory infections.

(b)	Whether it is likely (at least an approximate balance of positive and negative evidence) that the appellant's pulmonary sarcoidosis manifested within one year of discharge from military service. The clinician must address the appellant's lay statements about the onset of her symptomatology, her statements regarding continuity of symptomatology since onset and/or since discharge from service, and any supporting lay statements.

(c)	Whether it is likely (at least an approximate balance of positive and negative evidence) that the appellant's pulmonary sarcoidosis is otherwise etiologically related to her service, to include as secondary to asbestos exposure.

An opinion based on the absence of treatment records without consideration of a veteran's competent lay statements is inadequate. Dalton v. Nicholson, 21 Vet. App. 2 3, 39-40 (2007); Smith v. Wilkie, 32 Vet. App. 332, 340 (2020). The Board does not intimate any opinion regarding the credibility of the appellant's lay statements at this time.

Any opinion expressed by the clinician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the clinician should identify and specifically cite each reference utilized. If the clinician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3. Thereafter, readjudicate the claim.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Camille NeSmith, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: JONATHAN HAGER

disposition: denied

condition: cancer

condition: skin

text:
Citation Nr: A25015000
Decision Date: 02/19/25	Archive Date: 02/19/25

DOCKET NO. 231031-389306
DATE: February 19, 2025

ORDER

Entitlement to an initial compensable rating for residuals of prostate cancer is denied.

Entitlement to an initial compensable rating for scar, residual prostate cancer is denied.

FINDINGS OF FACT

1. The probative evidence of record shows that the Veteran's prostate cancer is in remission with no residual voiding dysfunction or renal dysfunction.

2. The Veteran's scar, residual of prostate cancer measures 10 cm x 0.5 cm; it is not painful, or unstable, or have underlying soft tissue damage and does not have any other disabling effects.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable disability evaluation for prostate cancer are not met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528.

2. The criteria for an initial compensable rating for a scar, residual of prostate cancer are not met. 38 U.S.C. �� 1155, 5107(b); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.118, DC 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1986 to September 2006.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2023 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for prostate cancer and scar, prostate cancer residual, and assigned noncompensable ratings effective August 10, 2022.

In the October 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket and indicated disagreement with the noncompensable disability ratings that were assigned to service-connected prostate cancer and scar, prostate cancer residual.

Therefore, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

?

Increased Ratings

Disability ratings are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. � 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned.

Entitlement to an initial compensable rating for residuals of prostate cancer

The Veteran's prostate cancer is rated under DC 7528. 38 C.F.R. � 4.115b. Under DC 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Id. The note to DC 7528 provides that following the cessation of surgical, X-ray, antineoplastic, chemotherapy or other therapeutic procedures, a 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. Id. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. � 3.105 (e). Id. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id.

Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. � 4.115a. Where a diagnostic code refers to the criteria for a voiding dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. � 4.115a.

Under the criteria for voiding dysfunction manifested by urine leakage, a 20 percent rating is warranted for urine leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day; a 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; and a maximum 60 percent is warranted for requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.

Under the criteria for voiding dysfunction manifested by urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A maximum 40 percent rating is warranted for daytime voiding interval of less than one hour, or; awakening to void five or more times per night.

The record reflects that the Veteran underwent a prostatectomy for treatment of his service-connected prostate cancer in March 2008. He was granted service connection for his prostate cancer many years later, in a September 2023 rating decision due to a change in the law. See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act).

In the September 2023 rating decision, the Veteran was granted a noncompensable rating for his prostate cancer, effective August 10, 2022, which was of the date of enactment of the PACT Act. Therefore, the relevant period for appellate consideration is from August 10, 2022, the effective date of the grant of service connection.

VA treatment records show that the Veteran's prostate cancer was in remission following a prostatectomy in March 2008. Accordingly, a 100 percent rating, temporary or otherwise, may not be assigned because pursuant to DC 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Rather, the focus here is on the nature and severity of all residuals.

In this case, the record does not contain competent medical or lay evidence of voiding dysfunction or renal dysfunction. In this regard, VA treatment records dated June 2007 to November 2022 show that the Veteran denied dysuria, hematuria, urgency, hesitancy, increased frequency, difficulty with urination, incontinence, and discharge. Additionally, there is no evidence of local reoccurrence or metastasis.

For the forgoing reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's prostate cancer residuals have more nearly approximated a compensable rating at any point during the appellate period. Rather, the evidence persuasively weighs against such a rating, and the benefit of the doubt doctrine is therefore not for application in this regard. Lynch v. McDonough, 21 F. 4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or the other is the benefit of the doubt doctrine not for application).

Entitlement to an initial compensable rating for scar, residual of prostate cancer

The September 2023 rating decision on appeal granted service connection for a scar as a residual of the Veteran's service-connected prostate cancer, rated noncompensable, effective from August 10, 2022 (pursuant to the PACT Act). The Veteran's scar is rated under DC 7802. The Board notes that DC 7805 provides that other scars, including linear scars, and other effects of scars, are evaluated under diagnostic codes 7800, 7801, 7802, and 7804 and an appropriate diagnostic code, if there are any effects not considered under diagnostic codes 7800-04. 38 C.F.R. � 4.118.

The Board notes that scars may be rated under Diagnostic Codes 7800 (for scars of the head, face, or neck); 7801 (for scars not of the head, face, or neck that are associated with underlying soft tissue damage); 7802 (for scars not of the head, face, or neck that cover an area or areas of 144 square inches (929 sq. cm.) or greater); and 7804 (painful or unstable scars). Inasmuch as the Veteran's scar does not involve the head, face, or neck; does not have underlying soft tissue damage; and is not painful or unstable, Diagnostic Codes 7800, 7801, and 7804 are not applicable to the Veteran's claim, and will not be addressed further.

Under DC 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent with area or areas of 144 square inches (929 sq. cm.) or greater. Note 1 to DC 7802 indicates, for the purposes of DCs 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 for DC 7802 indicates 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.

An August 2023 VA examination report shows that the Veteran had a residual scar on his anterior trunk from his prostate surgery that measured 10 cm long and .5 cm wide. The scar was neither painful nor unstable. Additionally, the scar was not assessed as deep and nonlinear, or associated with underlying soft tissue damage.

The above evidence shows that the Veteran has one residual anterior trunk scar that was neither unstable nor painful, was not deep and nonlinear, and was not associated with underlying soft tissue damage. There is no lay statement or evidence submitted by the Veteran to the contrary, to include any indication that the scar is painful.

For the forgoing reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the scar symptoms have more nearly approximated a compensable rating at any point during the appellate period. Rather, the evidence persuasively weighs against such a rating, and the benefit of the doubt doctrine is therefore not for application in this regard. Lynch, 21 F. 4th at 781-82.

(Continued on the next page)

?

Conclusion

The Board has considered the Veteran's claims and decided entitlement based on the evidence.  Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Hemphill, 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.


series: legacy

judge_norm: THOMAS L ENGLISH

text:
Citation Nr: 26001000
Decision Date: 01/28/26	Archive Date: 01/28/26

DOCKET NO. 11-06 561
DATE: January 28, 2026

ORDER

Entitlement to service connection for voiding dysfunction secondary to the service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis is granted.

Entitlement to an initial evaluation in excess of 10 percent for status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis is denied.

FINDINGS OF FACT

1. The competent and credible evidence of record persuasively establishes a finding that the voiding dysfunction is secondary to the service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis.

2. The competent and credible evidence of record persuasively establishes a finding that the service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis symptoms manifested as requiring suppressive drug therapy lasting six months or longer.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for voiding dysfunction secondary to the service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis have been met.

2. The criteria for entitlement to an initial evaluation in excess of 10 percent for status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 7599-7525.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1990 to June 1994, from January 1995 to January 1999, from October 2002 to September 2003, November 2003 to July 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In July 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the record. This VLJ has since become unavailable to participate in the appeal. In July 2018, the Board sent a letter to the Veteran providing him with an opportunity to present testimony at a new hearing before a different VLJ. As explained in that letter, as the Veteran did not respond within 30 days from the date of the letter, the Board may assume that he does not want another hearing.

The vasectomy claim was previously before the Board in October 2015, and November 2018 when it was remanded for further development, and in August 2021 when a 10 percent evaluation was granted for the service-connected vasectomy.

The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). In an August 2022 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred in failing to provide an adequate statement of reasons or bases. The parties agreed that the Board erred in relying on an inadequate medical opinion that found that the Veteran's erectile dysfunction was unrelated to his service-connected vasectomy.

These issues returned to the Board in December 2022 when the increased rating claim was expanded and recharacterized to include secondary service connection claims for erectile dysfunction, varicocele, and cyst of the vas deferens in order to properly reflect the Veteran's assertions. Each claim was remanded for further development.

While on remand, a September 2023 rating decision granted the claim of entitlement erectile dysfunction with varicocele. This represents a full grant of the benefits sought, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).

The vasectomy claim returned to the Board in December 2023 when service connection for small extratesticular cystic lesion secondary to service-connected status post vasectomy with persistent pain syndrome was granted, and the vasectomy claim was again remanded for further development. In January 2025, the Board determined that a claim of entitlement to service connection for voiding dysfunction secondary to the service-connected vasectomy, and remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review.

1. Entitlement to service connection for voiding dysfunction secondary to the service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303(d).

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. � 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The Veteran alleges that he has voiding dysfunction secondary to the service-connected vasectomy.

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. � 3.303(d). VA examinations in May 2023, and February 2024 indicated that there was voiding dysfunction, although they did not indicate whether it was related to the service-connected vasectomy. Accordingly, the first element of service connection is met.

Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. � 3.303(d). As indicated above, the Veteran asserts that he has voiding dysfunction related to the service-connected vasectomy. The Board finds the Veteran's statements competent as they are capable of lay observation. 38?U.S.C. �?1154(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the probative value of a witness statement may be affected by inconsistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met.

Third, the Board finds that the evidence of record does support a finding that the voiding dysfunction is related to active service.

A VA examiner in May 2025 opined that it was at least as likely as not that the voiding dysfunction was caused by the service-connected vasectomy. They explained that there was post operative swelling and inflammation, causing post vasectomy pain syndrome which can more likely than not affect the bladder or urinary tract causing urinary frequency.

In an August 2025 addendum opinion, the examiner indicated that the voiding dysfunction was caused by the service-connected vasectomy. They explained that there was post operative swelling and inflammation, causing post vasectomy pain syndrome which can more likely than not affect the bladder or urinary tract causing urinary frequency with common side effects such as pain, swelling, bruising in scrotum, infection, and hematoma. The examiner concluded that this is reflected by the Veteran's reported symptoms.

In September 2025, another VA examiner corroborated the May and August 2025 opinions. They explained that terazosin is used to treat men who have symptoms of an enlarged prostate gland, which is also known as benign prostatic hyperplasia (BPH). The examiner indicated that when the prostate gland gets larger, certain muscles in the gland get in the way of the tube that drains urine from the bladder, which can cause problems with urinating, such as a need to urinate often, a weak stream when urinating, or a feeling of not being able to empty the bladder completely. They found that the service-connected vasectomy more likely than not caused inflammation which affected the urinary tract including the prostate, which was treated with terazosin for voiding dysfunction.

The Board affords the May, August, and September 2025 medical opinions significant probative value as they were conducted by medical professionals with consideration of the Veteran's lay statements, and specific facts in this case, and are supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

As the probative evidence of record is in the Veteran's favor, the Board finds that the claim of entitlement to service connection for voiding dysfunction secondary to the service-connected vasectomy have been met, and the appeal is granted.

2. Entitlement to an initial evaluation in excess of 10 percent for status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. � 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. �� 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. � 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).

The Veteran submitted his service connection claim in July 2009. Accordingly, the Board will consider evidence from July 2009 through the present.

The service-connected vasectomy is rated as 10 percent under Diagnostic Code 7599-7525. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. � 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. �� 4.20, 4.27.

Here, the old criteria provides that chronic epididymo-orchitis is rated as a urinary tract infection. 38 C.F.R. � 4.115b. Urinary tract infections, without poor renal function, warrants a 10 percent rating where such require long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id.

The new criteria also provides that epididymo-orchitis is rated as a urinary tract infection. 38 C.F.R. � 4.115b. Urinary tract infections, without poor renal function, warrants a 10 percent rating where there is recurrent symptomatic infection requiring 12 hospitalizations per year or suppressive drug therapy lasting six months or longer. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage by stent or nephrostomy tube; or requiring greater than 2 hospitalizations per year; or requiring continuous intensive management.

Both the old and new versions of Diagnostic Code 7525 provide that tubercular infections should be rated in accordance with 38 C.F.R. �� 4.88b or 4.89, as appropriate. However, the record does not reflect evidence of such infections at any time during the appeal period. Likewise, urinary tract infections under 38 C.F.R. � 4.115b may be rated for renal dysfunction when there is evidence of poor renal function. In this respect, the VA examination reports clearly indicate that the Veteran does not have poor renal function due to his service-connected epididymo-orchitis.

Evidence

October 2009 VA treatment records noted mild to moderate improvement of pain with Tramadol. December 2009 VA treatment records reflected pain due to vasectomy complications.

The Veteran underwent a VA examination in December 2009 where he reported persistent pain with any exertion or sexual activity. The examiner opined that there was no functional impact, or effects on his usual daily activities.

In a January 2010 statement, the Veteran asserted that he was informed that surgery to correct the condition was not guaranteed to be successful, so he chose to stay on medication. In March 2011 statement, he shared that he had increased his pain medication for his constant pain.

March 2012 VA treatment records reflected that the pain was constant and dull, rated at a 3 out of 10 which increased to 8 out of 10 during ejaculation, which remained intense for a few minutes. He denied any urethral discharge. April 2013 VA treatment records indicated that the pain was constant and worse with intercourse and ejaculation, and that he would like to consult with urology as the pain interfered with his quality of life.

At the June 2015 Board hearing, the Veteran testified that the pain was dull and constant, that doctors had told him that they were unsure if any surgery would have any benefit, and that he would likely lose a testicle if unsuccessful. He indicated that he treated the condition with pain blocking injections.

The Veteran underwent a VA examination in October 2017 where he reported pain in the right testicle during intercourse, which he treated with Viagra. There was no evidence of any orchiectomy, renal dysfunction, retrograde ejaculation, or infections. The physical examination was normal. The examiner denied any functional impact.

In a July 2018 statement, the Veteran asserted that he had chronic pain, so he had to be careful with lifting and moving objects, or washing himself.

The Veteran underwent VA examinations in August and October 2018 where he reported that he was unable to obtain an erection without medication, which he treated with Viagra. There was no evidence of any orchiectomy, renal dysfunction, retrograde ejaculation, male reproductive organ infections, or tumors. On physical examination, the examiner noted the service-connected nodule. They opined that there was no functional impact.

In a January 2021 statement, the Veteran reported experiencing pain upon erection in the area of the vasectomy when lifting, sitting, walking, running, and during sexual intercourse.

The Veteran underwent another VA examination in May 2023 where he reported that he had pain with intercourse, poor quality ejaculation, an inability to maintain an erection, and a burning sensation, which he treated with sildenafil. There was no evidence of any orchiectomy, renal dysfunction, retrograde ejaculation, or tumor. The examiner noted that the Veteran had taken antibiotics in the past, but not recurrently or long term, and had not taken any recently. The Veteran was not physically examined at his own request. The examiner opined that there was no functional impact.

The Veteran underwent another VA examination in February 2024 where he reported that the condition had worsened, and he treated it with Naprosyn, Meloxicam, and Sildenafil. There was no evidence of any orchiectomy, renal dysfunction, or retrograde ejaculation. The examiner opined that there was functional impact due to persistent tenderness in the right side of the varicocele, which caused discomfort while sitting, working, and performing normal daily chores.

Analysis

Based on the aforementioned, the Board finds that the service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis is appropriately assigned an initial 10 percent evaluation based on suppressive drug therapy lasting six months or longer under both the old and the new criteria. The Veteran has consistently treated the condition with medication since the onset of this appeal. A higher 30 percent evaluation under the old criteria is not warranted as the evidence of record does not reflect a finding that there is a recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. A higher 30 percent evaluation under the new criteria is not warranted as there is no evidence that there is a recurrent symptomatic infection requiring drainage by stent or nephrostomy tube, or requiring greater than 2 hospitalizations per year, or requiring continuous intensive management. The Veteran has not reported receiving this sort of treatment.

The service-connected erectile dysfunction with varicocele, and small extratesticular cystic lesion, both associated with the service-connected vasectomy, were separately evaluated by the RO, and are no longer part of this appeal. The now service-connected voiding dysfunction will be evaluated in the first instance by the RO upon effectuation of this appeal. The evidence of record does not reflect any renal dysfunction.

The Board is sympathetic to the Veteran's lay statements that the disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating.

Accordingly, the criteria for the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected status post vasectomy with persistent pain syndrome, chronic epididymo-orchitis have not been met, and the appeal is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim, in which case the claim is denied. In other words, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. � 5107; 38 C.F.R. � 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). Here, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Id.

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rogos, J.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: S HENEKS

benefit: tdiu

text:
Citation Nr: 26002000
Decision Date: 02/12/26	Archive Date: 02/12/26

DOCKET NO. 18-34 872
DATE: February 12, 2026

ORDER

Prior to April 6, 2016, entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

FINDING OF FACT

Prior to April 6, 2016, the Veteran's service-connected posttraumatic stress disorder (PTSD) did not preclude him from securing and following a substantially gainful occupation.

CONCLUSION OF LAW

Prior to April 6, 2016, entitlement to a TDIU have not been met.  38 U.S.C. �� 1155, 5103, 5103A; 38 C.F.R. �� 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1974 to April 1975.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs Regional Office (RO).

By way of history, the Veteran filed a service connection claim for PTSD in March 2013.  That claim was granted in the December 2015 rating decision on appeal which assigned an initial 50 percent rating.  He filed a timely notice of disagreement (NOD) in November 2016 appealing the assigned effective date and rating.  In June 2018, a statement of the case (SOC) was issued.  On April 6, 2018, the Veteran additionally filed a TDIU claim seeking entitlement based solely on his service-connected PTSD.

During the pendency of the appeal, a June 2018 rating decision granted an increased 70 percent rating and TDIU effective April 6, 2016.  In a June 2018 supplemental SOC, the issue of entitlement to an earlier effective date for the TDIU grant was added.  He perfected his appeal via a June 2018 Form 9.

An April 2023 Board decision denied an earlier effective date for the grant of service connection for PTSD, denied an initial rating in excess of 50 percent prior to April 6, 2016, and denied a rating in excess of 70 percent thereafter.  The Board also remanded the TDIU claim prior to April 6, 2016, and service connection claims for seizure disorder and a heart disability.

In a July 2024 decision, the Board granted service connection for seizure disorder, denied service connection for a heart disability, and remanded the TDIU claim.  The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court).  In a June 2025 Order, the Court vacated the Board's decision with regard to the denial of the claim for a heart disability, and remanded for readjudication in compliance with the Joint Motion for Remand (JMR).  Thereafter, the Board remanded the TDIU and service connection claim for a heart disability in an October 2025 decision.

During the pendency of the appeal, a November 2025 rating decision granted service connection for arteriosclerotic heart coronary artery disease effective October 18, 2016.  Therefore, as the AOJ granted the benefit sought on appeal, that issue is no longer before the Board.

Prior to April 6, 2016, entitlement to a TDIU.

As noted above, the current TDIU claim stems from the service connection claim for PTSD filed on March 15, 2013.

A review of the April 2016 TDIU claim shows that the Veteran reported becoming too disabled to work in November 2007.  In this regard, he reported that he left his employment as a truck driver due to his PTSD symptoms which had caused many stressful experiences and memories.  Due to his PTSD, he reported an episode in which he was taken away by ambulance, and due to symptoms including extreme anger, paranoia, and anxiety, he had been unable to be around others and had been unable to work since that time.

Prior to the appeal period, the evidence of record includes a November 2009 SSA examination for disability determination shows that the Veteran reported having worked as a construction worker and truck driver.  He quit his work in construction when he began having back problems, and he stopped driving trucks following a stroke in 2007.  Additionally, a May 2010 Social Security Administration (SSA) decision found that the Veteran had been unable to perform past relevant work as a construction worker and truck driver and that he had not engaged in substantially gainful employment due to severe impairments including lumbar spine disability, left knee disability, a seizure disorder, and chronic obstructive pulmonary disease (COPD).

A May 2011 VA medical record noted no obvious or reported cognitive difficulty in employment, social, or daily living situations.  In July 2012, the Veteran was seen as a follow-up for seizures.  Since the previous February, he reported 3 to 4 spells per week with some improvement with medication.  He also reported that he was not working or driving due to his seizures.  An October 2012 record noted no obvious or reported cognitive difficulty in employment, social, or daily living situations.

In November 2012, a VA medical record shows that the Veteran reported symptoms of guilt, anger, and feeling ashamed, and impairment in occupational functioning due to his PTSD.  He additionally had difficulty sleeping, irritability, difficulty with concentration, hypervigilance, and hyper-startle response.

In a May 2013 letter, the Veteran's spouse reported that he had bad mood swings, outbursts, nightmares, and being antisocial most of the time.  They often did not go out, and she stated that the Veteran did not do well in crowds.  For example, if they went out to eat, he would try to sit where no one could come up behind him and he could only relax at home.

During the appeal period, a June 2013 VA psychiatric record shows the Veteran reported that things were going well.  He was not interested in continuing treatment and was satisfied with the results.  In this regard, he reported that he had regained control of his life, went out with friends, fished, ate at restaurants, went shopping, and was able to be in crowds.

In November 2013, the Veteran reported an incident when a stranger mistook him for someone else and grabbed him.  He reported throwing the man on the ground but apologized for his response and no charges were pressed.  The man shook his hand before departing.  Since then, he reported daily nightmares and constant intrusive thoughts.  Prior to this incident he reported doing well, and that he shopped, went out to dinner, and spent time with his friends.  Since the incident he did not allow anyone to get behind him, was jittery all the time, hypervigilant, did not eat, and was no longer spending time with friends.

The Veteran underwent a VA PTSD examination in September 2015.  His PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  He reported having numerous hobbies but not having a social life or friends and he intermittently talked to his neighbor.  He associated with his spouse, stepchildren, son-in-law, and grandchildren.  He had a strained marital relationship.  Past employment included working on homes, irrigation and sprinkler systems, and as a truck driver.  He stopped working in 2007 following a seizure.  He reported mental health symptoms including sleep deprivation.  He received therapy through VA but stated that his treatment made his symptoms worse.  His spouse thought he had obsessive compulsive disorder as he rewashed his hands and wanted things a certain way.

The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, irritable behavior and angry outbursts, hypervigilance, and exaggerated startle response.  He was casually dressed.  The Veteran was agitated and requested the examiner to walk in front of him down the hallway as opposed to behind him.  He was currently at risk of suicidal ideation.

A June 2016 VA medical record noted that the Veteran worked in construction and had multiple low back and knee surgeries.  He also drove a truck for a couple of years and had a stroke in 2007 and developed a seizure disorder in 2008.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. � 4.16.  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. �� 3.340(a)(1), 4.15.

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal employment shall not be considered substantially gainful employment."  38 C.F.R. � 4.16(a).

In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. �� 3.341, 4.16, 4.19.

A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more.  38 C.F.R. � 4.16(a).

During the pendency of the appeal, the Veteran was service connected for PTSD rated at 50 percent.  Therefore, he had not met the schedular rating criteria for entitlement to TDIU prior to April 6, 2016.  Nevertheless, for the reasons discussed below, the record does not establish that entitlement to a TDIU is warranted.

After a review of the evidence of record, the Board finds that the Veteran's service-connected PTSD did not prevent him from securing or maintaining substantially gainful employment.  The Board recognizes the Veteran's lay statements that he stopped working due to his PTSD symptoms.  However, the evidence of record shows that he stopped working due to disabilities for which he was not service-connected during the appeal period, including due to a lumbar spine disability, left knee disability, seizure disorder, and COPD.  In making this determination, the Board finds the Veteran's omission of a psychiatric disorder at the time he filed for SSA benefits in 2010 particularly probative as to the impairments which had caused him to be unable to work at that time.  VA medical records also show that through October 2012 he was not found to have any obvious or reported cognitive difficulty in employment, social, or daily living situations.  The Board further notes that the Veteran is not service connected for a lumbar spine disability, a left knee disability, or COPD.  He was not granted service connection for epilepsy with seizures until October 18, 2016, which is after the period on appeal.

Therefore, the Board finds the Veteran's subsequent April 2015 report that he stopped working due to his PTSD symptoms less probative as it is contradicted by his prior reporting.

Accordingly, the Board finds the September 2015 VA examination report the most probative evidence of record with regard to the functional impact of the Veteran's service-connected PTSD.  During that examination the Veteran reported that his cognitive functioning was normal.  He additionally reported that he had stopped working due to his seizure disorder and the examination does not show that he attributed his unemployment due to his PTSD symptoms.  Based on his reported symptoms, and symptoms recorded during the examination, the examiner concluded that his PTSD was manifested by occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily.  The VA examiner has training, knowledge, and expertise which was relied to form a medical finding as to occupational impairment.

While his service-connected psychiatric disorder affected his ability to perform certain functions including during times of significant stress, prior to April 6, 2016, the evidence does not show that it prevented his ability to work, and, therefore, is not shown to have rendered him unable to secure and follow a substantially gainful occupation during that time period.

The Board recognizes the representative's December 2020 brief, which asserts that the Veteran's PTSD symptoms had caused him to leave his job as a truck driver.  However, as noted above, the evidence of records does not show that his PTSD was cited as a disability that impacted his ability to work, and the September 2015 VA examiner did not find that his PTSD had resulted in total occupational impairment.

Importantly, the record contains no medical evidence that the Veteran's service-connected PTSD on its own had rendered him unable to secure and maintain employment prior to April 6, 2016.  Accordingly, based on the evidence of record, the functional effects of the Veteran's service-connected PTSD is not shown to have rendered him unable to secure and follow a substantially gainful occupation prior to April 6, 2016, and entitlement to a TDIU is not warranted during that time period.  The claim is denied.

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lamb, Christopher

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.