BINGE EATING DISORDER

JONATHAN B. KRAMER · 2026 · Case ID: A26005136

MIXED

Summary

The Veteran, an Army veteran who served from August 1980 to August 2004, appeals decisions denying service connection for a cardiovascular disability and right ear hearing loss, and denying an increased rating for PTSD and tinnitus. The Veteran also sought service connection for an eating disorder, specifically binge eating disorder, as secondary to his service-connected PTSD. The Board granted service connection for the eating disorder as secondary to PTSD, finding the private psychologist's opinion more persuasive than the VA examiner's, which failed to address the Veteran's history of trauma and coping mechanisms. The Board denied service connection for a cardiovascular disability, noting the lack of a current diagnosis and normal objective testing, and found the Veteran's intermittent chest pain likely musculoskeletal. The Board granted an increased rating for PTSD to 70% for the period prior to January 15, 2025, finding the Veteran's symptoms, including suicidal ideation and significant social impairment, more closely aligned with the 70% criteria than the 30% rating. The claim for right ear hearing loss was denied as audiometric testing did not meet the criteria for a compensable rating. The tinnitus claim was denied as the Veteran was already receiving the maximum schedular rating. The claim for TDIU was remanded due to the RO's failure to adequately consider evidence regarding the Veteran's PTSD and its impact on his ability to secure substantially gainful employment.

Rationale

Current diagnosis of binge eating disorder established by private evaluation.; Service-connected PTSD established.; Causal link between PTSD and binge eating disorder found due to trauma's impact on eating attitudes and stress coping.

Service Branch

ARMY

Special Benefit

TDIU

Diagnostic Code

9411

Docket No.

240604-447341

Full Decision Text

Citation Nr: A26005136
Decision Date: 01/21/26 Archive Date: 01/21/26

DOCKET NO. 240604-447341
DATE: January 21, 2026

ORDER

Entitlement to service connection for an eating disorder, to include binge eating disorder, as secondary to posttraumatic stress disorder (PTSD) is granted.

Entitlement to service connection for a cardiovascular disability, including as secondary to posttraumatic stress disorder (PTSD), is denied.

Entitlement to an increased disability rating in excess of 30 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) prior to January 15, 2025, is granted.

Entitlement to a compensable rating for right ear hearing loss is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus is denied.

REMANDED

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

FINDINGS OF FACT

1. The Veteran's eating disorder, to include binge eating disorder, is caused or aggravated by his service-connected posttraumatic stress disorder (PTSD).

2. The evidence of record persuasively weighs against finding that the Veteran has had a cardiovascular disability at any time during or approximate to the pendency of the claim.

3. Resolving any reasonable doubt in favor of the Veteran, during the period on appeal, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment.

4. Veteran's right ear hearing has been manifested by hearing acuity of no worse than Level V in the right ear. As the Veteran is not service-connected for left ear hearing loss, his left ear is characterized by numeric designation Level I.

5. The Veteran is in receipt of the maximum schedular evaluation assignable for tinnitus.

CONCLUSIONS OF LAW

1. The criteria for service connection for an eating disorder as secondary to posttraumatic stress disorder (PTSD) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for a cardiovascular disability, including as due posttraumatic stress disorder (PTSD), are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for an initial disability rating in excess of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

4. The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

5. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1980 to August 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). An April 2024 rating decision denied the claims for entitlement to service connection for a cardiovascular disability, entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), entitlement to an increased disability rating for right ear hearing loss, and entitlement to an increased disability rating for tinnitus. A May 2024 rating decision denied the claims for entitlement to service connection for binge eating disorder and entitlement to a total disability rating based on individual unemployability (TDIU).

In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing Docket. Direct Review docket. The Veteran then submitted a second VA Form 10182 in February 2025 and timely elected to change his selection to the Direct Review Docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2024 and May 2024 agency of original
ear hearing loss, and entitlement to an increased disability rating for tinnitus. A May 2024 rating decision denied the claims for entitlement to service connection for binge eating disorder and entitlement to a total disability rating based on individual unemployability (TDIU).

Therefore, the Board may only consider the evidence of record at the time of the April 2024 and May 2024 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions 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.

However, because the Board is remanding the claim for to a total disability rating based on individual unemployability (TDIU), any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Finally, the Board notes that the June 2024 VA Form 10182 also attempted to appeal multiple issues last addressed in January 2017 and April 2005 rating decisions. These rating decisions became final one year after they were issued by the RO. Therefore, these additional issues are not on appeal before the Board. If the Veteran would like VA to consider any new and relevant evidence regarding these issues, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501.

Entitlement to service connection for an eating disorder

The Veteran seeks entitlement to service connection for an eating disorder. Specifically, he contends that he has developed binge eating disorder due to his service-connected PTSD.

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).

Service connection on a direct basis generally requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability which is due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability either (a) caused, or (b) aggravated, the nonservice-connected disability. 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is
2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Turning to the evidence of record, in December 2023, the Veteran sought mental health treatment from a private psychologist and completed a questionnaire regarding his eating attitudes and behaviors. Among other behaviors, the Veteran indicated that he often went on eating binges, often engaged in dieting behaviors, and often found himself preoccupied with food. In April 2024, the private psychologist, Dr. V.C., diagnosed the Veteran with binge eating disorder. Dr. V.C. provided the following comment regarding the etiology of the condition:

The patient history of untreated post traumatic stress disorder and the history of decreased Sensory/Perceptual processing caused by possible combat trauma [...] may have left a permanent sequel in the patients functioning level and in his understanding and (unhealthy) attitudes toward eating. ln addition, these events may have pose a constant stress that affected the patient capacity to deal with his attitudes without falling into a depressive state for not being able to cope

The Veteran underwent a VA examination in April 2024. The Veteran was examined via video telehealth, and a review of the VA e-folder was noted. The examiner opined that the Veteran did not have signs, symptoms, or a diagnosis of an eating disorder. The following rationale was provided: "Medical records do not indicate that Veteran has been diagnosed with an eating disorder. Medical records (VA Form 526EZ) indicated that Veteran used food as a coping strategy to deal with the anxiety, depression and emotional distress from his PTSD condition."

Beginning with the issue of a nonservice-connected disability, the Board finds that the Veteran has a current diagnosis of binge eating disorder. While the April 2024 VA examiner declined to diagnose the Veteran with an eating disorder, the opinion did not address the December 2023 and April 2024 private psychology records, which indicate that the Veteran had been previously evaluated and diagnosed. Accordingly, the Board affords the April 2024 VA opinion no probative weight on the question of a current nonservice-connected disability. Instead, the Board relies on the April 2024 private psychological evaluation and diagnosis and finds that the first element of secondary service connection is satisfied.

Turning to the issue of a service-connected disability, the Veteran was awarded service connection for posttraumatic stress disorder (PTSD) in a January 2017 rating decision. Accordingly, the Board finds that second element of secondary service connected is satisfied.

The remaining question before the Board is whether the Veteran's binge eating disorder was either caused or aggravated by his PTSD.

The April 2024 VA examiner opined that the claimed binge eating disorder was less likely than not related to the Veteran's PTSD. However, the sole reasoning provided for the negative nexus opinion was that the medical evidence did not indicate a diagnosis of an eating disorder. While the April 2024 examiner opined that the Veteran's eating behaviors did not rise to the level of a disorder, the opinion indicates that any atypical behaviors regarding food are in fact related to his PTSD. The opinion noted that the Veteran uses "food as a coping mechanism" to cope with the "anxiety, depression, and emotional distress of his PTSD condition."

The April 2024 private opinion by Dr. V.C. also supports a causal connection between the Veteran's PTSD and his binge eating disorder. While the opinion does not explicitly state that his binge eating disorder is caused by his PTSD, in diagnosing the Veteran with binge eating disorder, Dr. V.C. indicates that the Veteran's trauma may have had permanent impacts on his "understanding and (unhealthy) attitudes toward eating" and his capacity to deal with stress.

Accordingly, the Board finds that the evidence of record persuasively weighs in favor of finding that the Veteran's binge eating disorder was caused or aggravated by his PTSD. The criteria for service connection for an eating disorder as secondary to PTSD are satisfied.

The claim for entitlement to service
2024 private opinion by Dr. V.C. also supports a causal connection between the Veteran's PTSD and his binge eating disorder. While the opinion does not explicitly state that his binge eating disorder is caused by his PTSD, in diagnosing the Veteran with binge eating disorder, Dr. V.C. indicates that the Veteran's trauma may have had permanent impacts on his "understanding and (unhealthy) attitudes toward eating" and his capacity to deal with stress.

The claim for entitlement to service connection for an eating disorder, to include binge eating disorder, as secondary to posttraumatic stress disorder (PTSD) is granted.

Entitlement to service connection for a cardiovascular disability

The Veteran seeks entitlement to service connection for a cardiovascular disability. Specifically, he contends that he has cardiovascular disease caused by his service-connected PTSD.

The Board will begin with the question of whether the claims file contains evidence of a nonservice-connected cardiovascular disability.

Turning to the evidence of record, the Veteran's service treatment records (STRs) contain a June 1980 enlistment examination. The Veteran's heart and vascular system were evaluated as normal. The STRs are silents for complaints of cardiovascular issues. At a July 2004 retirement examination, the Veteran denied any history of chest pain or pressure, palpitation or abnormal heartbeat, or other heart trouble. The Veteran's heart and vascular system were evaluated as normal.

The post-service VA treatment records indicate that the Veteran first complained of chest pain in July 2006. The Veteran was referred to a cardiologist for an exercise stress test. The results indicated an estimated workload of 10 METs with no reproducible chest pain. No exercise-induced ischemic changes or arrythmias were noted. The Veteran was indicated to be at low risk of a cardiovascular event. In September 2016, the Veteran presented to the ER with chest pain and symptoms of possible cardiac ischemia. After undergoing a cardiovascular examination, the Veteran's heart size was found to be normal and his lungs clear. His enzymes were negative and EKGs unremarkable. He was given Toradol, which relieved the chest pain. Ultimately, the Veteran was discharged without specific diagnosis. The Veteran denied chest pain and palpitations during two examinations in October 2023 and April 2024.

The Veteran underwent a VA examination in March 2024. The Veteran reported experiencing intermittent stabbing chest pain on the right side of his chest one to three times per month since 2005. He also reported occasional dyspnea with chest pain. A review of the medical records indicated no history of myocardial infarction, arrhythmia, heart valve conditions, infectious heart conditions, pericardial adhesions, or cardiovascular procedures. The physical examination indicated a heart rate of 70 and blood pressure of 102/70, with regular rhythm, normal heart sounds, clear lungs, normal peripheral pulses, no peripheral edema, and no other pertinent physical findings. The Veteran completed an interview-based METs test and denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. His activity level was limited to 3 to 5 METs, but this limitation was due to a recent knee replacement, which impacted his mobility. The examination report noted a normal chest x-ray in September 2016, a normal echocardiogram in February 2024, and a normal exercise stress test in March 2006. The examination report indicated that the Veteran's symptoms did not impact his ability to perform any type of occupational task. Ultimately, the examination report concluded that the Veteran does not have a current diagnosis of a cardiac condition. The following rationale was provided:

The veteran has no current diagnosis of any cardiac condition. His only symptoms are intermittent non-exertional chest pain with previous emergency room work ups negative and prior stress test done in 2006 normal. He has not otherwise seen a cardiologist. Recent echocardiogram within normal limits. It was noted in previous ER records that has chest pain resolved with Toradol so musculoskeletal chest pain is a likely [etiology].

In light of the above, the Board finds that the evidence of record persuasively weighs against finding that the Veteran has had a cardiovascular disability at any time during or approximate to the pendency of the claim.

The medical evidence of record indicates that the Veteran has not been diagnosed with any cardiovascular condition, and all objective testing-including EKG, stress test, and echocardiogram-has indicated normal cardiac function. As such, the March 2024 VA examiner declined to diagnose the Veteran with a cardiovascular disability, indicating that his intermittent, non-exertional chest pain was likely musculoskeletal in
. It was noted in previous ER records that has chest pain resolved with Toradol so musculoskeletal chest pain is a likely [etiology].

The Board notes that a formal diagnosis is not necessarily required for entitlement to service connection. The U.S. Court of Appeals for the Federal Circuit has held that pain alone may be considered a disability even in the absence of a diagnosed condition. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). However, in the absence of a diagnosis, a veteran will need to show that his pain reaches the level of a functional impairment of earning capacity. Id. at 1367-68 ("We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain-to establish a disability, the veteran's pain must amount to a functional impairment").

While the Veteran reports subjective chest pain, the evidence of record does not indicate that the reported intermittent, non-exertional chest pain causes objective functional impairment to the extent that VA may concede a disability under Saunders. The March 2024 VA examination concluded that the Veteran's chest pain did not impact his ability to perform occupational tasks. This conclusion is supported by the medical evidence of record. The Veteran reported that his chest pain occurs approximately one to three times per month and is only occasionally accompanied by shortness of breath. The pain is not brought on by exertion and does not appear to interfere with the Veteran's daily physical activity. The Veteran has sought medical treatment for the pain only twice in approximately twenty years. At his two most recent yearly physical examinations, he denied chest pain or other cardiovascular symptoms.

In sum, the weight of the evidence is against finding that the Veteran has a qualifying cardiovascular disability resulting in objective evidence of functional impairment.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Absent proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Accordingly, the claim for entitlement to service connection for a cardiovascular disability is denied.

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch, 21 F.4th at 781; 38 C.F.R. § 3.102.

Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD), prior to January 15, 2025

The Veteran seeks an increased rating for his service-connected posttraumatic stress disorder.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

The Veteran was granted service connection for PTSD in a January 2017 rating decision on appeal. He was afforded an initial disability rating of 30 percent under Diagnostic Code 9411, with an effective date of September 21, 2016. The Board notes that, in a subsequent May 2025 rating decision under a separate appeal stream, the evaluation was increased to 70 percent, effective January 15, 2025. However, the
criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

The Veteran was granted service connection for PTSD in a January 2017 rating decision on appeal. He was afforded an initial disability rating of 30 percent under Diagnostic Code 9411, with an effective date of September 21, 2016. The Board notes that, in a subsequent May 2025 rating decision under a separate appeal stream, the evaluation was increased to 70 percent, effective January 15, 2025. However, the Board must still consider whether an increase is warranted prior to January 15, 2025.

Under the General Formula for Mental Disorders (General Formula), which includes Diagnostic Code 9411, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a).

In this regard, the United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words
Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. See Vazquez-Claudio, supra.

Turning to the evidence of record, in November 2023, the Veteran completed a mental health evaluation with a private psychologist, Dr. V.C. Among other symptoms, the Veteran reported feeling nervous or anxious and worrying nearly every day, finding it very difficult to mix comfortably with coworkers or interact with acquaintances, finding it moderately difficult to mix socially and make friends, feeling depressed nearly every day, sleep issues nearly every day, and doing things without remembering almost every day. The Veteran endorsed suicidal thoughts in the last month.

The Veteran underwent a VA examination in February 2024. The Veteran was examined in-person, and a review of the VA e-folder was noted. The Veteran reported a strained relationship with his wife and daughter. He attributed this, in part, to his poor sleep and being "on guard every day" and their inability to understand his mental health issues. The Veteran is currently unemployed due to residuals of a stroke and stated that he spends his days "laying around the house, miserable." He reported difficulty interacting with the general public, stating that he "can't be around other people" because they "irritate" him and he does not understand them. The Veteran was noted as being "casually dressed with scruffy grooming." His eye contact was appropriate, affect unrestricted and dysphoric, cognitive function within normal limits, and no evidence of acute psychotic disorder or suicidal or homicidal ideation was reported or observed. Symptoms of depressed mood, anxiety, and chronic sleep impairment were noted. The Veteran was diagnosed with PTSD in accordance with the regulatory criteria. The Veteran's overall level of impairment was assessed as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, the equivalent of a 30 percent disability.

A March 2024 private mental health treatment note indicated current suicidal ideation. The Veteran endorsed thinking that he may be better off dead and without pain. The Veteran stated that he has been unable to relax and is constantly in fear that he may not recover from his recent knee surgery and other medical issues. He also indicated that he has been struggling with increased flashbacks and nightmares. He reported that his social and family relationships are increasingly strained due to his anxiety.

Having considered the above, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the frequency, severity, and duration of the Veteran's PTSD symptoms more nearly approximate the 70 percent rating criteria, but no higher, for the period on appeal.

The February 2024 examination appeared to show fewer and milder symptoms of depression, anxiety, and chronic sleep impairment, and the Veteran's overall impairment was evaluated as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Veteran's private mental health treatment records indicate more severe symptoms. Notably, the Veteran repeatedly endorsed suicidal ideation. In addition, the Veteran's anxiety appears to have increased in frequency, and the Veteran reported being on edge or worried constantly or nearly constantly. Moreover, the Veteran endorsed increased social deficits, including an inability to interact with the general public, difficulty making friends, and increasingly poor relationships with his wife and daughter.

In sum, the Veteran demonstrated some symptoms consistent with a 30 percent rating, including depressed mood, anxiety, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining effective social relationships. However, the Veteran also endorsed additional symptoms characteristic of a
efficiency and intermittent periods of inability to perform occupational tasks. However, the Veteran's private mental health treatment records indicate more severe symptoms. Notably, the Veteran repeatedly endorsed suicidal ideation. In addition, the Veteran's anxiety appears to have increased in frequency, and the Veteran reported being on edge or worried constantly or nearly constantly. Moreover, the Veteran endorsed increased social deficits, including an inability to interact with the general public, difficulty making friends, and increasingly poor relationships with his wife and daughter.

In sum, the Veteran demonstrated some symptoms consistent with a 30 percent rating, including depressed mood, anxiety, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining effective social relationships. However, the Veteran also endorsed additional symptoms characteristic of a 70 percent rating, including suicidal ideation, near-continuous anxiety affecting the ability to function effectively, difficulty in adapting to stressful circumstances, as demonstrated by his deteriorating mental health following his knee surgery, and inability to establish and maintain effective relationships. The Veteran's symptoms caused substantial impairment in his mood, thinking, and particularly in his family relationships.

Accordingly, the Board finds that the Veteran experienced occupational and social impairment with deficiencies in most areas. Therefore, a 70 percent disability rating for PTSD is warranted.

Consideration has been given to whether a higher (100 percent) rating is warranted for the entire period on appeal. However, the Board does not find that the Veteran's PTSD manifested by total occupational and social impairment. The record does not contain evidence of the more severe psychotic symptoms associated with a 100 percent evaluation. At the February 2024 examination, the Veteran's cognitive process was evaluated as normal, and no evidence of psychotic symptoms was noted. Additionally, the private mental health treatment notes contain no evidence of impaired processing, delusions or hallucinations, disorientation, or other more severe symptoms, nor does the Veteran report such symptoms.

The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation did not rise to the level contemplated by the 100 percent disability rating. The Veteran has repeatedly denied a plan or intention to act on suicidal thoughts, most recently at a March 2024 appointment. At that appointment, the Veteran was determined to be at low risk of suicide. Therefore, the Veteran did not demonstrate persistent danger of self-harm during the period on appeal.

Given the foregoing, the Board cannot conclude that the evidence demonstrates total social and occupational impairment. Therefore, a 100 percent disability rating for PTSD is not warranted.

Accordingly, the Veteran's claim for an increased disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted.

Entitlement to a compensable rating for right ear hearing loss

The Veteran seeks an increased rating for his service-connected right ear hearing loss.

The Veteran's right ear hearing loss is currently assigned a noncompensable rating with an effective date of September 1, 2004, pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100.

To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100.

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment
uity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100.

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b).

For VA compensation purposes, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a puretone audiometry test as well as a controlled speech discrimination test (Maryland CNC), without the use of hearing aids. 38 C.F.R § 4.85(a).

Turning to the evidence of record, the Veteran underwent a VA audiological examination in January 2024. The Veteran was examined in-person, and a review of the VA e-folder was noted. The Veteran reported that he continued to struggle to understand speech despite the use of hearing aids. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:

January 30, 2024 HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 25 85 80 80 68 76

LEFT 30 25 25 30 28 94

Because the average pure tone threshold in the right ear is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Board must assign the higher Roman numeral designation from either Table VI or Table VIA. Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear. Applying the results to table VIA, the findings yield a numeric designation of Level V in the right ear, the higher of the two designations. A Level I designation is utilized for the left ear, as it is not service connected. See 38 C.F.R. § 4.85(f). Entering the resulting bilateral numeric designation of Level V for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100.

Aside from the above, there are no other audiological evaluations of record relevant to the period on review.

Based on the evidence above, the Board finds that a compensable rating for the Veteran's right ear hearing loss is not warranted.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports that he continues to have difficulty understanding speech. However, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). No audiogram of record reflects hearing loss severe enough to warrant a compensable rating.

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

Accordingly, the claim for a compensable rating for right ear hearing loss is denied.

Entitlement to a disability rating in excess of
Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

Accordingly, the claim for a compensable rating for right ear hearing loss is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus

The Veteran seeks an increased disability rating for service-connected tinnitus.

The Veteran's tinnitus is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, with a 10 percent rating effective September 1, 2004.

Diagnostic Code 6260 pertains to recurrent tinnitus and provides for only one rating: 10 percent, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

In this case, the Veteran is currently receiving the maximum possible rating under DC 6260. A higher rating is not available under any other DC in the rating schedule for tinnitus symptoms.

The Veteran has not identified any additional symptoms that are not contemplated by the rating schedule. The Veteran underwent a January 2024 VA examination and described his tinnitus as "annoying." He did not identify any additional symptoms that would warrant separate ratings.

In short, the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).

REASONS FOR REMAND

Entitlement to a total disability rating based on individual unemployability is remanded

The Veteran seeks entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

Although the Board regrets the additional delay, there is a pre-decisional failure to follow a statutory or regulatory duty that must be corrected before the Board may decide the issue on the merits.

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

Where the percentage requirements for a TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b).

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

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

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

At the time that the rating decision on appeal was issued, the Veteran had the following service-connected disabilities: PTSD (rated at 30 percent, from December 2023); tinnitus (rated 10 percent from September 2004); right knee degenerative arthritis (rated 10 percent from July 2011; right ankle disability (rated 10 percent from July 2011); left knee degenerative arthritis (rated 10 percent from August 2016); right ear hearing loss (noncompensable rating from September 2004).

Therefore, at the time that the rating decision on appeal was issued, the Veteran did not meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a).

However, the Veteran remained eligible for an award of TDIU on an extraschedular basis. Therefore, the RO was required to properly consider whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities during the period on appeal.

In the May 2024 rating decision on appeal, the RO found that "the evidence does not demonstrate that you are unable to secure or follow substantially gainful occupation solely due to service-connected conditions."

However, the list of evidence included with the decision indicates that the RO did not consider several pieces of evidence regarding the Veteran's PTSD. This evidence includes the February 2024 Posttraumatic Stress Disorder Disability Benefits Questionnaire and March 2024 to April 2024 private mental health treatment notes from Dr. V.C. This evidence indicates that the Veteran's PTSD impacts his ability to complete daily errands because he "can't be around other people," hinders his ability to interact with coworkers and people in authority positions, such as supervisors, and has in the past caused him to be so irritable that he shouted at people or started fights.

In sum, the RO did not adequately consider the evidence regarding whether the Veteran's PTSD prevented him from securing or following substantially gainful employment. As a result, despite significant evidence that he may have been unable to obtain and maintain gainful employment as a result of his service-connected disabilities, the Veteran's claim was not referred to the Director of Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b).

This failure to review significant probative evidence when applying statutory criteria constitutes a pre-decisional failure to follow a statutory or regulatory duty. 38 C.F.R. § 20.802

As such, the Board also concludes that a remand of the claim is necessary for the AOJ to readjudicate the claim,
prevented him from securing or following substantially gainful employment. As a result, despite significant evidence that he may have been unable to obtain and maintain gainful employment as a result of his service-connected disabilities, the Veteran's claim was not referred to the Director of Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b).

This failure to review significant probative evidence when applying statutory criteria constitutes a pre-decisional failure to follow a statutory or regulatory duty. 38 C.F.R. § 20.802

As such, the Board also concludes that a remand of the claim is necessary for the AOJ to readjudicate the claim, taking into consideration all relevant and probative evidence of record.

The matters are REMANDED for the following action:

After completing any further development deemed necessary, readjudicate the Veteran's TDIU claim, taking into consideration all of the evidence of record.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Utter, Margaret 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.

Analyze in VA Law Explorer