DIABETES MELLITUS

Summary

The veteran, who served in the Air Force from July 1982 to March 1985, appeals the denial of service connection for bilateral pes planus and an increased rating for his psychiatric disability, as well as entitlement to TDIU. The Board granted service connection for diabetes mellitus as secondary to the veteran's service-connected psychiatric disability, citing a private medical opinion that linked the conditions through a pathway of psychiatric disability leading to weight gain and subsequent diabetes. The Board denied service connection for bilateral pes planus, finding it pre-existed service and was not aggravated beyond natural progression, despite a private opinion suggesting otherwise, which the Board found lacked probative value due to factual inaccuracies. The Board denied an increased rating for the psychiatric disability above 70 percent, finding the evidence in equipoise between the 50 percent and 70 percent criteria, and affording the veteran the benefit of the doubt to grant the 70 percent rating. The Board granted TDIU from September 17, 2020, finding the veteran's service-connected psychiatric disability precluded him from substantially gainful employment throughout the period on appeal, supported by VA examinations and SSA records. Service connection for degenerative arthritis of the bilateral feet and a back disability were remanded for further examination and clarification.

Rationale

Private medical opinion linked diabetes to psychiatric disability via weight gain and stress.; Coherent pathophysiological bridge from depression to weight gain to diabetes established.; Satisfied criteria for secondary service connection.

Full Decision Text

Citation Nr: A26010898
Decision Date: 02/05/26	Archive Date: 02/05/26

DOCKET NO. 220125-213393
DATE: February 5, 2026

ORDER

Service connection for diabetes, as secondary to a service-connected psychiatric disability, is granted. 

Service connection for bilateral pes planus is denied. 

From September 17, 2020, a rating in excess of 70 percent for a psychiatric disability is denied. 

From September 17, 2020, but no earlier, a total disability rating based on individual unemployability (TDIU) is granted.  

FINDINGS OF FACT

1. It is at least as likely as not that the Veteran's diabetes is due to or aggravated by his service-connected psychiatric disability. 

2. The bilateral pes-planus pre-existed service as it was noted on the January 1982 enlistment examination; however, the pre-existing bilateral pes planus did not worsen beyond a normal progression during service.  

3.  From September 17, 2020, the Veteran's psychiatric disability manifested in social and occupational impairment with deficiencies in most areas, but not in total social and occupational impairment. 

4. From September 17, 2020, but no earlier, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful employment.  

CONCLUSIONS OF LAW

1. The criteria for service connection for diabetes mellitus, as secondary to a service-connected psychiatric disability, have been met.  38 U.S.C. §§ 1110, 5107; 38 C.FR. §§ 3.102, 3.303, 3.304, 3.310, VAOPGCPREC 1-2017.

2. The criteria for service connection for bilateral pes planus have not been met.  38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306.

3. The criteria for a rating in excess of 70 percent for a psychiatric disability have not been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. From September 17, 2020, the criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25.  

REMANDED

Service connection for degenerative arthritis of the bilateral feet is remanded.

Service connection for a back disability is remanded. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Air Force from July 1982 to March 1985.  

This appeal is being adjudicated according to the appellate process set forth under the Appeals Modernization Act (AMA).  See 84 Fed. Reg. 138, 169 (Jan. 18, 2019); 38 C.F.R. § 19.2.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2021 and October 2021 rating decisions issued by a Regional Office of the United States Department of Veterans Affairs (VA).  

In the January 25, 2022, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on July 21, 2025.

Therefore, the Board may only consider the evidence of record at the time of the September and October 2021 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.
 the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

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

However, because the Board is remanding the claims of service connection for a bilateral foot disability, other than bilateral pes planus and service connection for a back disability, any evidence the Board could not consider will be considered by the AOJ adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).  It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied.  Lynch v. McDonough, 21 F.4th, 776 (Fed. Cir. 2021).  

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).  The analysis below focuses on what this evidence shows, or fails to show, on the claim.  

Any findings favorable to the Veteran made by the VA Regional Office in notification of a decision are binding on the Board unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.  38 C.F.R. §?20.810(a).  "Findings" means "conclusions on questions of fact and application of law to facts made by an adjudicator concerning the issue under review."  Id. 

Service connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service.  This is referred to as "service connection."  38 U.S.C. 1110, 1111, 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  When these elements are satisfied, service connection may be granted on a direct basis.  Additionally, for certain chronic diseases, including diabetes and arthritis, a presumption of service connection arises if the disease manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may also be established on a secondary basis for a disability which is due to or the result of, or aggravated by, a service-connected disability.  38 C.F.R. § 3.310
 of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may also be established on a secondary basis for a disability which is due to or the result of, or aggravated by, a service-connected disability.  38 C.F.R. § 3.310(a), (b).  Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) caused by; or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(b).  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  "Aggravation," in the context of secondary service connection, is demonstrated when there is "[a]ny increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease."  38 C.F.R. § 3.310(b).  Recently, in Spicer v. McDonough, 61 F. 4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims.  Therefore, a service=connected disability need only be a contributing cause, not the contributing cause, to establish secondary service. connection.  

Although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability.  Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020).  

In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the Veteran's obesity, or weight gain resulting in obesity, and a service-connected condition.  Garner v. Tran, 33 Vet. App. 241 (2021). 

On January 6, 2017, the General Counsel issued a precedential opinion stating that obesity could be an "intermediate step" between a service-connected disability and a current disability, thus satisfying the causal link between the two.  VAOPGCPREC 1-17.  In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability.  VAOPGCPREC 1-17.

The Court of Appeals for Veterans Claims held that proper interpretation of VA General Counsel Opinion 1-17 requires consideration of both proximate causation and aggravation in its analytical framework.  Walsh v. Wilkie, 32 Vet. App. 300 (2020).  That is, (1) whether the service-connected disability caused the veteran to become obese or aggravated the veteran's obesity; if so, (2) whether such obesity or aggravation thereof was a substantial factor in causing the current disability and, if so, (3) whether the current disability would not have occurred but for such obesity or aggravation thereof.  If these questions are answered in the affirmative, then the current disability may be service-connected on a secondary basis. 

Increased Ratings

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 for disability resulting from all types of diseases and injuries encountered as a result of or incident to compensate as far as can practicably be determined, the average impairment of earning capacity resulting from such disease and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Diagnostic codes are assigned to individual disabilities.
 these questions are answered in the affirmative, then the current disability may be service-connected on a secondary basis. 

Increased Ratings

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 for disability resulting from all types of diseases and injuries encountered as a result of or incident to compensate as far as can practicably be determined, the average impairment of earning capacity resulting from such disease and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Diagnostic codes are assigned to individual disabilities.  Diagnostic codes provide rating criteria specific to a particular disability.  If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies.  38 C.F.R. § 4.7.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Id.  

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 report 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. 

TDIU 

A request for TDIU benefits is not a separate claim for benefits but rather "is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule."  Norris v. West, 12 Vet. App. 413, 420-21 (1999).  When entitlement to TDIU is raised during the administrative appeal of the initial rating for that disability, it is "part and parcel" of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009).  Consequently, a separate formal claim for TDIU is unnecessary in the context of an appeal from an initial rating.  Id. at 454; Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating).  

"Substantially gainful employment" includes two components: a noneconomic component and economic component.  The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Ray, 31 Vet. App. at 73.  When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.  Id. 

The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a); see Ortiz v. Valles v. McDonald, 28 Vet. App. 65, 70 (2016).  "[A] veteran can establish marginal employment either by demonstrating an income less than
  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.  Id. 

The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a); see Ortiz v. Valles v. McDonald, 28 Vet. App. 65, 70 (2016).  "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case."  Ortiz-Valles, 28 Vet. App. at 71.

Marginal employment on a facts found basis includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a).  "Protected environment" is not defined by statues or VA regulations, but was most recently defined by the Court to mean "employment in a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market."  LaBruzza v. McDonough, 37 Vet. App. 111 (2024).  

In short, the economic component simply means 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, and that the non-economic component requires the Board to fully explain why it concluded a veteran as capable of such employment.  Ray, 31 Vet. App. at 73. 

The ultimate issue of whether TDIU should be awarded is not a medical issue; rather; it is a determination for the adjudicator based on all individualized facts and circumstances.  Id. at 72, 75-76.

Analyses

1. Service connection for diabetes mellitus, as secondary to a service-connected psychiatric disability, is granted. 

In its September 2021 rating decision, the Regional Office included in its favorable findings that the Veteran has a currently diagnosed disability of diabetes mellitus.  Absent clear and unmistakable error, the Board is bound by findings favorable to the Veteran made by the Regional Office.  Additionally, the evidence of record shows that the primary disability--major depressive disorder with anxious distress and cocaine use disorder-is service connected.  Accordingly, the Board finds that the first and second elements for secondary service connection are met.  The question remaining before the Board is whether the Veteran's currently diagnosed diabetes was due to or the result of, or aggravated by, his service-connected psychiatric disability.  

On careful review, the evidence of record weighs persuasively in favor of finding that the Veteran's currently diagnosed diabetes was proximately due to or the result of, or aggravated by, his service-connected psychiatric disability with obesity as an intermediate step. 

In October 2025, the Veteran submitted a medical opinion in which a private medical agent opined that the Veteran's service-connected diabetes was related to his service-connected psychiatric disability.  In support of this opinion, the private medical agent reasoned that the Veteran's psychiatric disability began in service and precipitated alcohol and marijuana abuse as well as measurable in-service weight gain that progressed to severe post-service obesity.  They explained that the Veteran underwent a sequence of depression to weight gain to diabetes, and that this temporal trajectory combined with his well-described psychiatric disability provided a coherent pathophysiological bridge to insulin resistance and diabetogenesis.  Accordingly, they opined that the Veteran's diabetes was at least as likely as not secondary to his service-connected psychiatric disability through psychiatric mediated weight gain and stress metabolic mechanisms and subsequent complications reinforcing the chronic severity of this causal chain.  

Thus, on this record, and after considering the evidence under the laws and regulations as set forth above, the Board concludes that it is at least as likely as not that the Veteran's currently diagnosed diabetes is due his service-connected psychiatric disability. 

Accordingly, service connection for diabetes as secondary to a service-connected psychiatric disability is granted.  

Service connection for pre-existing bilateral pes planus is denied. 

In its October 2021 rating decision, the Regional Office included in its favorable findings that the Veteran has a current diagnosis of bilateral pes planus.  Absent clear and unmistakable error, the Board is bound by findings favorable to the Veteran made by the Regional Office.  

A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders
 above, the Board concludes that it is at least as likely as not that the Veteran's currently diagnosed diabetes is due his service-connected psychiatric disability. 

Accordingly, service connection for diabetes as secondary to a service-connected psychiatric disability is granted.  

Service connection for pre-existing bilateral pes planus is denied. 

In its October 2021 rating decision, the Regional Office included in its favorable findings that the Veteran has a current diagnosis of bilateral pes planus.  Absent clear and unmistakable error, the Board is bound by findings favorable to the Veteran made by the Regional Office.  

A Veteran will be considered to have been 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C. § 1132.  Only such conditions are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b). 

A pre-existing injury or disease will be considered to have been aggravated by active service when 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 U.S.C. 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service.  38 C.F.R. § 3.306.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 C.F.R. § 3.306.  

In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened."  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability).  However, the increase need not be so severe as to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). 

The Board finds that the bilateral pes planus pre-existed service as it was noted on the January 1982 enlistment examination; however, the pre-existing bilateral pes planus did not worsen beyond a normal progression during service.  

On enlistment in January 1982, the examiner documented moderate pes planus.  The Veteran denied foot trouble historically, and denied arthritis, and bone, joint, or other deformity.  A service treatment record dated January 30, 1985, documents that the Veteran's only medical problem at that time was a rash.  On separation in February 1985, the Veteran's feet were normal on examination.  The Veteran again denied foot trouble, arthritis, and bone, joint, or other deformity.  

Throughout service, the Veteran sought treatment on various occasions for other conditions to include a right knee condition, weight loss management, and back pain, but not for a foot condition of any kind.  The fact that the Veteran sought treatment for other conditions during service but not for a foot condition weighs against the credibility of any assertion that a foot condition was aggravated during  service.  See AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).  The fact that no pes planus condition was noted at separation is not particularly helpful one way or the other.  On one hand, it does suggest that the pes planus condition was not an issue for the Veteran.  On the other, it would be implausible to find that the moderate flat feet condition noted at service entry somehow magically healed by the time of his separation from service.  

The weight of the medical opinion evidence is also against the claim, with a VA examiner in August 
d 1301 (Fed. Cir. 2013) recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).  The fact that no pes planus condition was noted at separation is not particularly helpful one way or the other.  On one hand, it does suggest that the pes planus condition was not an issue for the Veteran.  On the other, it would be implausible to find that the moderate flat feet condition noted at service entry somehow magically healed by the time of his separation from service.  

The weight of the medical opinion evidence is also against the claim, with a VA examiner in August 2021 opining that the Veteran's bilateral pes planus was at least as likely as not incurred in or caused by an in-service injury event, or illness.   Additionally, a VA examiner in October 2021 opined that the Veteran's bilateral pes planus clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  They reasoned that a thorough review of the Veteran's file and medical literature failed to support that a pre-existing bilateral pes planus condition was aggravated by service.  

The Board acknowledges and has considered the Veteran's private nexus opinion submitted in October 2025 in which a private medical agent opined that the Veteran's bilateral pes planus worsened beyond natural progression.  The private medical agent reasoned that an in-service right ankle twist during a basketball tournament followed by recurrent sprains were due to worsening of the bilateral pes planus.  As discussed above, the Veteran denied foot trouble throughout service, including on his separation examination during which his feet were normal on examination.  Accordingly, the private medical agent's opinion is based on an lay statements regarding in-service injuries that the Board finds not to be credible.  Because the October 2025 private medical opinion is based on an inaccurate factual basis the Board affords it no probative weight as it pertains to service connection for bilateral pes planus.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value.").

The Board acknowledges the Veteran's assertion that his bilateral pes planus worsened beyond its normal progression during service; however, he is not competent to provide a nexus opinion as the progression of the disability involves complex medical etiological questions and requires specific medical knowledge and training that the Veteran has not been shown to possess.  

Based on the foregoing, the criteria for service connection on the basis of aggravation for the pre-existing bilateral pes planus have not been met.  

From September 17, 2020, a rating in excess of 70 percent for a psychiatric disability is denied. 

In its September 2021 rating decision, the Regional Office granted service connection for major depressive disorder, recurrent, moderate cocaine use disorder moderate (hereinafter "psychiatric disability") and assigned an initial rating of 70 percent from September 17, 2020.  

The Veteran's psychiatric disorder is rated under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130, Diagnostic Code 9434.  Under the General Formula, 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). The symptoms listed in the General Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  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?18 (Fed. Cir. 2013).

The General Formula, 38 C.F.R. § 4.130, Diagnostic Code 9434, provides, in pertinent part, as follows:

 	Rating (%)

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; memory loss for names of close relatives, own
 required for a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114?18 (Fed. Cir. 2013).

The General Formula, 38 C.F.R. § 4.130, Diagnostic Code 9434, provides, in pertinent part, as follows:

 	Rating (%)

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; memory loss for names of close relatives, own occupation, or own name.	100

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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); inability to establish and maintain effective relationships.	70

38 C.F.R. § 4.130, DC 9434 does provide for ratings lower than 70 percent.  In this case, however, the Veteran received an initial disability rating of 70 percent.  Thus, an analysis of the ratings lower than 70 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran's current rating.  See 38 C.F.R. § 3.344.

Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination.  Id.  Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The United States Court of Appeals for the Federal Circuit held that 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."  Vazquez-Claudio, 713 F.3d at 116?17.

On careful review, the Board finds that from September 17, 2020, the Veteran's psychiatric disability manifested in occupational and social impairment with deficiencies in most areas, but not in total occupational and social impairment.  

VA treatment records throughout the appeal period show that the Veteran was hospitalized for his psychiatric disability for substance dependence treatment in April 23, 2021, to May 19, 2021. He reported that he relapsed and did not go back to work as a correctional officer thereafter.  

On VA examination in August 2021, the Veteran reported being divorced from his wife and maintaining good relationships with his three adult biological children.  He was in a committed relationship that he described as going "very well," and he had a small number of friends.  The VA Examiner opined that his psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, the severity statement associated with a 50 percent rating.  

On subsequent VA examination in September 2022, the Veteran again reported good relationships with his biological children.  The VA examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, the severity statement associated with a 70 percent rating.  The Veteran reported maintaining a good relationship with his biological children.  

In a January 2023 VA examination submitted by the Veteran in October 2025, Veteran reported that he resided alone in Veteran's housing but wanted to relocate to live with his son and closer to his family.  He maintained some friendships but he did not socialize the way he used to.  He maintained contact with his family of origin on a regular basis. The VA examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, the severity statement associated with a 50 percent rating. 

The evidence of record throughout the appeal period does not show symptoms of gross impairment in thought processes or communication,
 70 percent rating.  The Veteran reported maintaining a good relationship with his biological children.  

In a January 2023 VA examination submitted by the Veteran in October 2025, Veteran reported that he resided alone in Veteran's housing but wanted to relocate to live with his son and closer to his family.  He maintained some friendships but he did not socialize the way he used to.  He maintained contact with his family of origin on a regular basis. The VA examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, the severity statement associated with a 50 percent rating. 

The evidence of record throughout the appeal period does not show symptoms of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurt self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.  Although there is a showing of intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), the Veteran's disability most closely approximate those contemplated by a 70 percent rating.  38 C.F.R. § 4.7.  

The Board finds that the evidence is in equipoise as to whether the 50 or the 70 percent criteria are warranted, with the August 2021 and January 2023 VA examiners opining that the condition essentially corresponded to the 50 percent criteria while the September 2022 VA examiner opining that the disability essentially corresponded to the 70 percent criteria. Given such, and after affording the Veteran the benefit of the doubt the Board assigns the 70 percent rating.   

That being the case, however, his service-connected psychiatric disability is not shown to result in total social and occupational impairment as evidenced by the fact that the Veteran maintains various social relationships with family and friends.

The Board notes that rating decisions issued by the Regional Office in September 2022 and September 2025 granted temporary total ratings for the Veteran's psychiatric disability from December 1, 2021, to December 31, 2021, and from August 12, 2025, to September 30, 2025.  This decision shall not in any way disturb the September 2022 and September 2025 rating decisions. 

2. From September 17, 2020, but no earlier, a TDIU is granted.

The issue of TDIU was raised in conjunction with the Veteran's appeal for a higher initial rating for his service-connected psychiatric disability, which has been continuously pursued from September 17, 2020, through the September 2021 rating decision on appeal.  Therefore, the applicable period for consideration is from September 17, 2020, the effective date of the award of service connection for an acquired psychiatric disability.  The Veteran is in receipt of TDIU benefits as of June 17, 2022.  The Veteran asserts entitlement to a TDIU prior to June 17, 2022.

Schedular Criteria

Currently, the Veteran is service-connected for major depressive disorder with anxious distress and cocaine use disorder, with an effective date of September 17, 2020.  

The Veteran's combined disability ratings for the claim period are as follows: 

"	70 percent from September 17, 2020

"	100 percent from December 1, 2021

"	70 percent from January 1, 2022

"	100 percent from August 12, 2025

"	70 percent from October 1, 2025

The evidence of record establishes that the Veteran met the schedular criteria for entitlement to a TDIU benefit on a schedular basis throughout the entirety of the claim period.  The Board now turns to whether the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment throughout the period on appeal. 

Substantially gainful employment

Economic Component

The Veteran reports that he last worked in 2020-2021 and has reported no income since that date.  Thus, the economic component is met.  

Non-economic Component

In an August 2021 VA psychiatric examination, the Veteran reported that he graduated from high school in 1982.  While in the Air Force he worked as an Air Traffic Controller until his discharge for substance use.  Subsequent to service the Veteran reported working as a juvenile caseworker, and that he had a long history of leaving jobs or being laid off due to his cocaine use.  He reported last working in 2020.  The Veteran did not indicate any additional educational or occupational history. 

The Board now turns to the physical and mental capability of the Veteran associated with the Veteran's service-connected disabilities.  

The evidence weighs persuasively in favor of finding that the Veteran's service-connected psychiatric disability
  

Non-economic Component

In an August 2021 VA psychiatric examination, the Veteran reported that he graduated from high school in 1982.  While in the Air Force he worked as an Air Traffic Controller until his discharge for substance use.  Subsequent to service the Veteran reported working as a juvenile caseworker, and that he had a long history of leaving jobs or being laid off due to his cocaine use.  He reported last working in 2020.  The Veteran did not indicate any additional educational or occupational history. 

The Board now turns to the physical and mental capability of the Veteran associated with the Veteran's service-connected disabilities.  

The evidence weighs persuasively in favor of finding that the Veteran's service-connected psychiatric disability precluded him from working for the entire period on appeal, to include sedentary employment.  

VA treatment records from April 2021 document the Veteran's report of residing in a Veteran's village since 2018.  He reported that in 2020 he experienced relapse and did not thereafter return to work as a corrections officer.  

At an August 2021 VA examination, the VA examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity.  

On subsequent VA examination in September 2022, the VA examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with deficiencies in most areas.

Records obtained from the Social Security Administration document that the Veteran has been unable to work due in part to his psychiatric disability since April 6, 2020.  

On careful review of all relevant evidence, the Board finds that the Veteran's service-connected psychiatric disability precluded him from working for the entire period on appeal, to include sedentary employment.  Sedentary employment is the common meaning in society of non-physical, white collar, office-type work employment.  His psychiatric disability limited his ability to establish and maintain good working relationships with coworkers and supervisors, to maintain appropriate workplace hygiene, to attend work regularly.

As a result of these work limitations caused by his service-connected psychiatric disability, the Veteran is unable to secure or follow substantially gainful employment, and his claim for a TDIU is granted.

REASONS FOR REMAND

Service connection for degenerative arthritis of the bilateral feet is remanded.

The Veteran additionally seeks service connection for a degenerative arthritis disability of the bilateral feet.  

The Veteran was afforded a VA examination in August 2021 in which the VA examiner rendered a diagnosis of bilateral degenerative arthritis.  The VA examiner documented the Veteran's report that he started having episodic pain in both feet during sports approximately in 1983.  The VA examiner opined that the Veteran's bilateral pes planus with degenerative arthritis was at least as likely as not incurred in or caused by an in-service injury, event, or illness.  The VA examiner reasoned that the Veteran's bilateral pes planus was present in service and that he was diagnosed with degenerative arthritis in 2019, thus it was at least as likely as not that the currently diagnosed bilateral pes planus and degenerative arthritis incurred in or were caused by service.  

Unfortunately, as the August 2021 VA examination pertains to bilateral degenerative arthritis, the Board finds it inadequate to make a fully formed decision on the claim.  As discussed above, the Veteran's bilateral pes planus pre-existed service. The August 2021 VA examiner in essence concludes that since he had bilateral pes planus in service in the 1980's, his 2019 degenerative arthritis was caused by service.  There is no rationale provided explaining how or why they came to this conclusion.   

On subsequent VA examination in October 2021, the VA examiner documented review of the Veteran's VA e-folder in combination with medical literature and opined that the Veteran's bilateral pes planus clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  The VA examiner reasoned that based on a thorough review of the file and the medical literature, there was no evidence to support that the Veteran's pre-existing bilateral pes planus was permanently aggravated by service.  The VA examiner did not provide opinion regarding the Veteran's bilateral degenerative arthritis.

The Board additionally finds the October 2021 VA examinations are inadequate to make a fully informed decision on the claim as it pertains to service connection for degenerative arthritis. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Service connection for a back disability is remanded. 

In its September 2021 rating decision, the Regional Office denied the Veteran's claim for service connection for a back disability because the evidence did not show a currently diagnosed disability. 

VA treatment records throughout the appeal period document the Veteran's November 2020 report of back pain for several
 pes planus was permanently aggravated by service.  The VA examiner did not provide opinion regarding the Veteran's bilateral degenerative arthritis.

The Board additionally finds the October 2021 VA examinations are inadequate to make a fully informed decision on the claim as it pertains to service connection for degenerative arthritis. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Service connection for a back disability is remanded. 

In its September 2021 rating decision, the Regional Office denied the Veteran's claim for service connection for a back disability because the evidence did not show a currently diagnosed disability. 

VA treatment records throughout the appeal period document the Veteran's November 2020 report of back pain for several years.  The Court of Appeals for the Federal Circuit found that pain alone can constitute a "disability" under § 1110, because pain can cause functional impairment of earning capacity.  Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  In light of Saunders, the Board finds that the Veteran's reports of back pain may indicate chronic pain and/or a persistent disability.  As such, the Board finds that remand is necessary so that an in-person VA examination may be conducted to establish whether the Veteran has a current back disability, or in the alternative, symptoms including pain which reaches the level of functional impairment of earning capacity.  

The matters are REMANDED for the following action: 

1. Schedule the Veteran for examination regarding the nature and likely etiology of his bilateral degenerative arthritis.  The examiner is reminded that while bilateral pes planus was documented on entry, bilateral degenerative arthritis was not, thus the degenerative arthritis should not be regarded as a pre-existing condition. Instead, they should be considered two separate disabilities.  Your focus should solely address the degenerative arthritis of the feet.  The examiner is asked to opine[: 

(a)	Whether the Veteran's bilateral degenerative arthritis at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), was caused by an in-service injury, event, or disease.

2. Schedule the Veteran for an examination regarding his claim for service connection for a back disability.  The entire claims file, including a copy of this remand, should be made available to a qualified examiner, who should review it and note that review in the report. 

The examiner is asked to answer the following questions: 

(a)	The VA examiner is asked to clarify whether the Veteran has a current back disability.  The examiner should state whether there is any functional impairment caused by the Veteran's reported pain.  Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes.  If the Veteran does not have a current diagnosis associated with his reported back pain, the examiner should state this with a fully reasoned explanation. 

(b)	If there is a diagnosis of a back disability, then is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by an in-service injury, event, or disease in service? 

The examiners are reminded to consider the Veteran's lay statements regarding the nature and onset of his disabilities, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences.  

The examiner must not opine on the credibility of the Veteran.  The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions. 

A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board.  Please do not simply list the facts on which you relied. 

If the examiner relies on medical treatises, the examiner should identify and discuss the treatises.  

If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather than providing a conclusory opinion.  For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statement, if any, affect the conclusion? 

If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training).  The examiner should identify what evidence is necessary to offer an opinion and why such evidence cannot be obtained.  The examiner should review the record prior to the examination and elicit from the Veteran a detailed medical history.

 

 

M. Tenner

Veterans Law Judge

Board of