Case 25014873

MICHAEL T. OSBORNE · 2025 · Case ID: 25014873

DENIED

Summary

The veteran, who served from March 1978 to March 1998, appeals the denial of service connection for left and right foot disabilities (pes planus, plantar fasciitis, gout) and bilateral hearing loss. The veteran also appeals the denial of an increased rating for PTSD beyond the 70% rating already granted and the denial of TDIU prior to April 8, 2022. The Board denied the foot and hearing loss claims because the veteran failed to report for scheduled VA examinations in September 2023 without good cause, violating the duty to cooperate with evidence development. For the PTSD claim, the Board found that while the veteran's PTSD resulted in occupational and social impairment consistent with a 70% rating, the evidence did not support a higher rating. The Board noted the veteran's employment as a program analyst with good work reviews and no reported problems, and the absence of severe symptoms like gross impairment in thought processes, hallucinations, or imminent suicide risk. The Board also found the veteran's lay testimony regarding his condition was outweighed by competent and credible examination and clinical reports. For the TDIU claim, the Board acknowledged the veteran met the schedular criteria prior to April 8, 2022, based on his combined 100% rating. However, the Board denied TDIU prior to that date, citing the veteran's continued employment as a program analyst with good reviews and no reported work problems, and his failure to present evidence indicating he was unable to secure or follow substantially gainful employment solely due to his service-connected disabilities. The Board found the evidence persuasively weighed against the claims, and the benefit of the doubt rule did not apply.

Special Benefit

TDIU

Docket No.

17-62 004

Full Decision Text

Citation Nr: 25014873
Decision Date: 12/15/25 Archive Date: 12/15/25

DOCKET NO. 17-62 004
DATE: December 15, 2025

ORDER

Entitlement to service connection for a left foot disability, to include pes planus, plantar fasciitis, and gout, is denied.

Entitlement to service connection for a right foot disability, to include pes planus, plantar fasciitis, and gout, is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 8, 2022, is denied.

FINDINGS OF FACT

1. The record evidence shows that the Veteran, without good cause, failed to report for multiple VA examinations scheduled in September 2023 for the purpose of determining the nature and etiology of his left and right foot disabilities and bilateral hearing loss and the current severity of his service-connected PTSD.

2. The record evidence shows that the Veteran's service-connected PTSD has not resulted in total occupational and social impairment.

3. The record evidence shows that, prior to April 8, 2022, service connection was in effect for PTSD, rated as 70 percent disabling, lumbosacral degenerative disc disease with intervertebral disc syndrome (IVDS), rated as 40 percent disabling, sciatic radiculopathy of the left and right lower extremity, each extremity rated as 20 percent disabling, chronic sinusitis, rated as 10 percent disabling, and tinnitus, rated zero percent disabling; the Veteran's combined disability evaluation for compensation was 90 percent prior to April 8, 2022.

4. The record evidence shows that the Veteran has reported having 3 years of college education and employment as a program analyst.

5. The record evidence shows that, prior to April 8, 2022, the Veteran's service-connected disabilities, alone or in combination, did not render him unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The claim for service connection for a left foot disability, to include pes planus, plantar fasciitis, and gout, is denied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.655.

2. The claim for service connection for a right foot disability, to include pes planus, plantar fasciitis, and gout, is denied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.655.

3. The claim for service connection for bilateral hearing loss is denied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.655.

4. The criteria for an initial rating greater than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411.

5. The criteria for a TDIU prior to April 8, 2022, are not met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1978 to March 1998.

As noted in the most recent Board of Veterans' Appeals (Board) remand issued in March 2025, this Legacy appeal has a long procedural history. It came before the Board on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in April and December 2014. A virtual Board hearing was held in April 2022 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record. The March 2025 Board remand directed the AOJ to send the Veteran a supplemental statement of the case (SSOC). The AOJ sent an SSOC to the Veteran in June 2025.
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Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017).

1. Entitlement to service connection for left and right foot disabilities and for bilateral hearing loss

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate 38 C.F.R. § 3.655(a). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. Id. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (emphasis added).

In a March 2023 decision, the Board, in pertinent part, reopened claims for service connection for left and right foot disabilities and bilateral hearing loss. Pursuant to a Board remand issued in conjunction with this decision, the AOJ scheduled the Veteran for VA examinations in September 2023 to address these reopened claims. The record reflects that, despite affording the Veteran notice of these examinations at his most recent address of record, he failed to attend these examinations. Notice for these examinations was not returned as undeliverable. And the Veteran has not identified or submitted any evidence or argument demonstrating "good cause" for his failure to attend the September 2023 VA examinations. The Court has held in this regard that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he [or she] cannot passively wait for it in those circumstances where he [or she] may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Applicants for benefits such as this Veteran are obligated to cooperate and assist VA in developing evidence. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A Veteran ultimately still bears some burden of producing evidence supporting his or her claim. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). Under these circumstances, the Board finds that the claims for service connection for left and right foot disabilities and bilateral hearing loss disease must be denied for failure to report to a VA examination as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

2. Higher Initial Rating for PTSD

Legal Criteria

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The General Rating Formula for Mental Disorders provide a 70 percent rating for occupational
See Sabonis v. Brown, 6 Vet. App. 426 (1994).

2. Higher Initial Rating for PTSD

Legal Criteria

The General Rating Formula for Mental Disorders provide a 70 percent rating for 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 that is 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. The symptoms recited in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443.

Analysis

The Board notes initially that the Veteran failed to attend a VA examination to assess the severity of his PTSD schedule for September 2023. The Court again has held in this regard that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he [or she] cannot passively wait for it in those circumstances where he [or she] may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. Applicants for benefits such as this Veteran are obligated to cooperate and assist VA in developing evidence. Wamhoff, 8 Vet. App. at 522. A Veteran ultimately still bears some burden of producing evidence supporting his or her claim. 38 U.S.C. § 5107(a); Cromer, 455 F. 3d at 1346. Because this appeal is based on disagreement with the initial rating assigned for PTSD following the grant of service connection in the April 2014 rating decision, however, this claim is considered an "original compensation claim" and will be adjudicated on the evidence of record. See 38 C.F.R. § 3.655(b).

The examiner who conducted the March 2014 VA psychiatric examination (which ultimately provided the basis for the 70 percent rating assigned for PTSD in the April 2014 rating decision) concluded that the Veteran's PTSD resulted in "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood" which matches the criteria for a 70 percent rating under the General Rating Formula for Mental Disorders. While the above is not dispositive of this appeal pursuant to the guidelines of Mauerhan, as the evidence otherwise is persuasively against finding that the Veteran's service-connected PTSD results in total occupational and social impairment, the Board concludes that a 100 percent rating for PTSD is not warranted. Weighing against the assignment of a 100 percent rating for the service-connected PTSD also is the fact that, at the March 2014 psychiatric examination, the Veteran noted that he currently was working at night for an aerospace firm as a computerized maintenance program analyst. He also noted that he had "pretty good" reviews of his work performance and no "problems" with work. Moreover, psychiatric symptoms at the March 2014 VA psychiatric examination specifically did not include gross
of this appeal pursuant to the guidelines of Mauerhan, as the evidence otherwise is persuasively against finding that the Veteran's service-connected PTSD results in total occupational and social impairment, the Board concludes that a 100 percent rating for PTSD is not warranted. Weighing against the assignment of a 100 percent rating for the service-connected PTSD also is the fact that, at the March 2014 psychiatric examination, the Veteran noted that he currently was working at night for an aerospace firm as a computerized maintenance program analyst. He also noted that he had "pretty good" reviews of his work performance and no "problems" with work. Moreover, psychiatric symptoms at the March 2014 VA psychiatric examination specifically did not include gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or such severe memory loss as to involve the names of close relatives or for the Veteran's own occupation or name. While the Veteran reported that he "thought about" suicide once or twice and sat next to a loaded gun on occasions, he informed the March 2014 VA examiner that he had no imminent plan to commit suicide and just kept an old gun which his grandfather left him. Moreover, the VA mental health professional concluded in the March 2014 examination that that there was no immediate threat of suicide.

The evidence dated since the March 2014 VA examination, to include VA treatment records dated through May 2024, reveals no evidence of a suicide attempt or active suicidal ideation. In this regard, a March 2021 VA mental hygiene clinic note reflects that the Veteran was not a high risk for suicide and a suicide screen conducted at a VA medical facility in July 2022 was negative.

Notwithstanding the above, the applicable rating criteria were not considered an exhaustive list of symptoms pursuant to Mauerhan but rather as examples of the type and degree of the symptoms or effects that would justify a particular rating. The undersigned has not required the presence of a specified quantity of symptoms in the rating schedule in order to assign an initial rating greater than 70 percent for PTSD. And the undersigned also considered all symptoms of this disability which affected the level of the Veteran's occupational and social impairment.

The Board notes that, in adjudicating the higher initial rating claim for PTSD, the competence and credibility of the Veteran must be considered, to include his testimony at the April 2022 hearing. At that hearing, the Veteran detailed his difficulty with sleeping due to nightmares associated with his service-connected PTSD. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Any competent and credible belief by the Veteran that his service-connected PTSD is worse than currently and initially evaluated is outweighed, however, by competent and credible examination and clinical reports which evaluated the true extent of impairment based on objective data coupled with his lay complaints. The Board next notes that VA clinicians have the training and expertise necessary to determine the degree of the impairment associated with a Veteran's complaints. The Veteran has not demonstrated that he has this expertise. For these reasons, the Board places greater evidentiary weight on the examination and clinical findings than on the Veteran's lay statements and hearing testimony. The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In summary, the Board finds that the criteria for an initial rating greater than 70 percent for PTSD have not been met.

3. TDIU prior to April 8, 2022

Legal Criteria

When the schedular rating is less than total, TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities of one or both upper or lower extremity and disability resulting from a common etiology are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to
disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities of one or both upper or lower extremity and disability resulting from a common etiology are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including her employment and educational history. 38 C.F.R. § 4.16(b).

Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a).

Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component 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 the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. Id. In Ray, the Court also provided a list of factors for VA to consider in evaluating whether a Veteran is capable of substantial gainful employment. Id. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one but adetermination for the adjudicator. See Gleib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013).

Analysis

While the Veteran's service connected disabilities are rated a combined 100 percent disabling effective April 8, 2022, there still is the matter of entitlement to a TDIU prior to that date. Prior to April 8, 2022, service connection was in effect for PTSD, rated as 70 percent disabling, lumbosacral degenerative disc disease with IVDS, rated as 40 percent disabling, sciatic radiculopathy of the left and right lower extremity, each extremity rated as 20 percent disabling, chronic sinusitis, rated as 10 percent disabling, and tinnitus, rated as zero percent disabling. The Veteran's combined disability evaluation for compensation was 90 percent prior to April 8, 2022. As such, the schedular criteria for TDIU were met prior to April 8, 2022. See 38 C.F.R. § 4.16(a).

In a VA Form 21-8940 "Veteran's Application for Increased Compensation Based on Unemployability" received in June 2014, the Veteran reported that he was in fact working at that time and responded "
iculopathy of the left and right lower extremity, each extremity rated as 20 percent disabling, chronic sinusitis, rated as 10 percent disabling, and tinnitus, rated as zero percent disabling. The Veteran's combined disability evaluation for compensation was 90 percent prior to April 8, 2022. As such, the schedular criteria for TDIU were met prior to April 8, 2022. See 38 C.F.R. § 4.16(a).

In a VA Form 21-8940 "Veteran's Application for Increased Compensation Based on Unemployability" received in June 2014, the Veteran reported that he was in fact working at that time and responded "N/A" to the questions posed on this form as to the date when he last worked full time and the date when he became too disabled to work. He reported on this application that he had education through three years of college and employment as a program analyst with an aerospace company. As noted above, the March 2014 VA PTSD examination noted that the Veteran had "pretty good" reviews of his work performance in this position and had no "problems" with work. This examination also indicated that the Veteran had been working for the same aerospace company for 16 years.

The record reflects some impact upon employment prior to April 8, 2022, due to the Veteran's reported difficulty in interacting with others due to PTSD. Nevertheless, he has not identified or presented any evidence indicating that he was unable to secure or follow all substantially gainful employment solely due to his service-connected disabilities prior to April 8, 2022. The record evidence also does not support finding that his service-connected PTSD, alone or in combination with other service-connected disabilities, precluded him securing or following a substantially gainful occupation prior to April 8, 2021. It is unfortunate that the Veteran, without good cause, did not report for VA examination in September 2023. The Board notes in this regard that a Veteran must be prepared to meet his or her obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. See Lynch, 21 F.4th at 776. In summary, the Board finds that the criteria for a TDIU prior to April 8, 2022, have not been met. The appeal is denied.

Michael T. Osborne

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Ahlberg, Andrew

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.

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