HIATUS HERNIA

RYAN T. KESSEL · 2026 · Case ID: 26004374

MIXED

Summary

The veteran, who served from October 1977 to October 1980, appeals the denial of service connection for a gastrointestinal disorder other than GERD, hiatal hernia, and diverticulitis, and seeks an increased rating for Meniere's syndrome with hearing loss and tinnitus prior to September 16, 2024, and a TDIU based solely on Meniere's syndrome or GERD. The Board granted service connection for hiatal hernia as secondary to service-connected GERD, and for diverticulitis as secondary to service-connected panic disorder. The Board denied service connection for any other gastrointestinal disorder, finding the evidence did not support its presence during the period on appeal. Regarding Meniere's syndrome, the Board found the evidence persuasively against a rating in excess of 30 percent prior to September 16, 2024, due to a lack of clear evidence of staggering or cerebellar gait. However, a 100 percent rating was granted effective September 16, 2024, based on updated VA examinations showing frequent vertigo and staggering. For GERD, the Board granted a 30 percent rating, finding the evidence supported persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, but not severe impairment. TDIU was denied for both Meniere's syndrome and GERD, as the veteran's inability to maintain employment was attributed to the combined effects of service-connected disabilities, particularly the 100 percent rated panic disorder, rather than solely to Meniere's syndrome or GERD.

Rationale

Secondary to GERD; Progression of GERD; September 2024 VA exam finding

Special Benefit

TDIU

Docket No.

16-35 901

Full Decision Text

Citation Nr: 26004374
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 16-35 901
DATE: April 8, 2026

ORDER

1. Service connection for hiatal hernia, as secondary to service-connected gastroesophageal reflux disease (GERD), is granted.

2. Service connection for diverticulitis, as secondary to service-connected panic disorder, is granted.

3. Service connection for a gastrointestinal disorder other than GERD, hiatal hernia and diverticulitis is denied.

4. Prior to September 16, 2024, an initial rating in excess of 30 percent for Meniere's syndrome with hearing loss and tinnitus is denied.

5. Effective September 16, 2024, a 100 percent rating for Meniere's syndrome with hearing loss and tinnitus is granted.

6. An initial 30 percent rating for GERD is granted.

7. Prior to September 16, 2024, a total disability rating based on individual unemployability (TDIU) due solely to Meniere's syndrome with hearing loss and tinnitus is denied.

8. A TDIU due solely to GERD is granted.

FINDINGS OF FACT

1. The Board finds that the medical findings obtained pursuant to the October 2023 Board remand substantially complied with the remand directives.

2. The Veteran's hiatal hernia was caused by service-connected GERD.

3. The Veteran's diverticulitis was caused by medication prescribed to treat the service-connected panic disorder.

4. The Veteran does not have a gastrointestinal disorder other than GERD, hiatal hernia and diverticulitis.

5. Prior to September 16, 2024, the Veteran's Meniere's syndrome with hearing loss and tinnitus resulted in hearing loss warranting at most a 10 percent rating, tinnitus, and attacks of vertigo causing dizziness and falling, but not staggering or cerebellar gait.

6. Since September 16, 2024, the Veteran's Meniere's syndrome with hearing loss and tinnitus resulted in hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly.

7. The Veteran's GERD results in symptoms of dysphagia, pyrosis, regurgitation, reflux, substernal chest pain, nausea, sleep impairment, dyspepsia, vomiting, and required use of medication, but not material weight loss, hematemesis, anemia, esophageal stricture, or a symptom combination productive of severe impairment of health.

8. Prior to September 16, 2024, the Veteran was not prevented from securing and following substantially gainful employment due solely to Meniere's syndrome with hearing loss and tinnitus.

9. The Veteran is not prevented from securing and following substantially gainful employment due solely to GERD.

CONCLUSIONS OF LAW

1. The criteria for service connection for hiatal hernia, on a secondary basis, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for diverticulitis, on a secondary basis, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for a gastrointestinal disorder other than GERD, hiatal hernia, diverticulitis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. Prior to September 16, 2024, the criteria for an initial rating in excess of 30 percent for Meniere's syndrome with hearing loss and tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Codes (DCs) 6204, 6205, 6260.

5. Effective September 16, 2024, the criteria for a 100 percent rating for Meniere's syndrome with hearing loss and tinnitus are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, 4.87, DCs 6204,
7; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Codes (DCs) 6204, 6205, 6260.

6. The criteria for an initial 30 percent rating for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.114, DCs 7206, 7346.

7. Prior to September 16, 2024, the criteria for a TDIU due solely to Meniere's syndrome with hearing loss and tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.16.

8. The criteria for a TDIU due solely to GERD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1977 to October 1980.

The case is on appeal from an August 2016 rating decision.

Most recently, in October 2023, the Board granted a 100 percent rating for panic disorder since December 4, 2015 and remanded the claims on appeal for additional adjudication.

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

In this regard, the Veteran's attorney representative has submitted statements, including in December 2016 and January 2021, consisting of generic boilerplate purporting to raise numerous potential VA errors in adjudicating the claims on appeal. However, the Board will not address these submissions because of the representative attorney's failure to provide specific argument regarding any error of fact or law with respect to the claims on appeal purportedly raised by these submissions renders these boilerplate submissions essentially meaningless. See Daye v. Nicholson, 20 Vet. App. 512, 517 (2006) (observing that boilerplate language is ineffective unless used with precision).

I. Service Connection

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Furthermore, service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310.

Obesity can be an intermediate step in a secondary service connection claim. See Adams v. Collins, 38 Vet. App. 273 (2025).

1. Service connection for hiatal hernia.

2. Service connection for a gastrointestinal disorder.

Facts

The Veteran's claim for service connection for hiatal hernia and a gastrointestinal disorder was received by VA in May 2016. Service connection is already in effect for the gastrointestinal disorder of GERD.

The Veteran's service treatment
Cir. 2004)).

Furthermore, service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310.

Obesity can be an intermediate step in a secondary service connection claim. See Adams v. Collins, 38 Vet. App. 273 (2025).

1. Service connection for hiatal hernia.

2. Service connection for a gastrointestinal disorder.

Facts

The Veteran's service treatment records (STRs) show that he was treated for gastroenteritis symptoms in January 1978 and May 1979. The Veteran completed a report of medical history prior to discharge in October 1980. He denied a history of frequent indigestion, gall bladder trouble, and stomach, liver, or intestinal trouble, but did report unrelated medical issues. The Veteran's October 1980 separation examination was marked normal for his lungs and chest, abdomen and viscera, and anus and rectum.

The Veteran's post-service private treatment records report a diagnosis of diverticulitis in July 2015. His post-service VA treatment records show that he was treated for diverticulosis related to symptoms of diarrhea and abdominal pain in February 2016. These VA treatment records also show that he note that he was obese. The Veteran's VA psychiatric treatment records show that his service-connected panic disorder was treated by Trazodone.

The Veteran was afforded VA examinations for these claims in August 2016. The examiner noted a 2011 diagnosis of colon polyps, but not diverticulitis. The examiner also reported diagnoses of GERD and hiatal hernia in the course of the GERD examination report.

Pursuant to an April 2020 Board remand, the Veteran was afforded another VA examination for the gastrointestinal disorder claim in October 2020. The examiner reported that the Veteran's colon polyps present prior to the claim on appeal were removed by polypectomy. The examiner denied the presence of current gastrointestinal conditions and symptoms.

The Veteran was afforded another VA esophageal examination in December 2020. The examiner noted diagnoses of both GERD and hiatal hernia.

In a July 2022 remand, the Board found that an October 2019 VA treatment record indicated that obesity is caused by medication.

In a November 2022 statement, the Veteran's representative claimed that the Veteran is obese due to medication used to treat his service-connected panic disorder. The representative also submitted medical research linking weight-gain to psychiatric symptoms including depression. He further submitted medical researching indicating that weight-gain can be caused by Trazodone.

Pursuant to the October 2023 Board remand, the Veteran was afforded a VA examination for the hiatal hernia claim in September 2024. The examiner reported a diagnosis of hiatal hernia. The examiner found that the hiatal hernia is a progression of the service-connected GERD.

Also pursuant to the October 2023 Board remand, the Veteran was afforded a VA examination for the gastrointestinal disorder claim in October 2024. The examiner reported that the Veteran had peptic ulcer disease and colon polyps in the 2000's. The examiner explained that an endoscopy performed prior to 2016 noted peptic ulcer disease, but that a 2016 endoscopy was negative for this condition and that there is no evidence of ulcer recurrence.

The October 2024 VA examiner provided an addendum opinion in June 2025. The examiner reported that risk factors for diverticulitis include obesity and lack of exercise.

Analysis

The Board finds that the Veteran's hiatal hernia is caused by GERD. In this regard, the September 2024 VA examiner found that this condition is a progression of the service-connected GERD. In addition, resolving reasonable doubt in the Veteran's favor, the Board also finds that the evidence is in equipoise as to whether the diagnosed diverticulitis is proximately caused by medication used to treat the service-connected panic disorder with obesity serving as the intermediate step. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The VA treatment records show diagnoses of obesity as well as diverticulitis resulting in intestinal symptoms in 2016 proximate to the claim on appeal. In addition, these records show that the panic disorder was treated by Trazodone. As noted by the Board, the obesity has been linked to medication use and the Veteran's representative has
In addition, resolving reasonable doubt in the Veteran's favor, the Board also finds that the evidence is in equipoise as to whether the diagnosed diverticulitis is proximately caused by medication used to treat the service-connected panic disorder with obesity serving as the intermediate step. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The VA treatment records show diagnoses of obesity as well as diverticulitis resulting in intestinal symptoms in 2016 proximate to the claim on appeal. In addition, these records show that the panic disorder was treated by Trazodone. As noted by the Board, the obesity has been linked to medication use and the Veteran's representative has submitted medical articles discussing a link between psychiatric symptoms and Trazodone use and weight-gain. Furthermore, the October 2024 VA examiner reported that obesity is a risk factor for developing diverticulitis. While the examiner did not attribute the Veteran's diverticulitis to the panic disorder, medication used to treat the panic disorder, or obesity related to the panic disorder, he also failed to provide a nexus opinion addressing medication use or obesity. Therefore, service connection for both hiatal hernia and diverticulitis is warranted.

However, the Board further concludes that that service connection is not warranted for a gastrointestinal disorder other than GERD, hiatal hernia or diverticulitis because the Veteran did not have such a condition during the period on appeal. The VA treatment records and examination reports indicate the Veteran was diagnosed with peptic ulcer disease and colon polyps in the early 2000's, several years prior to the claim on appeal. The Veteran was not diagnosed with or treated for these conditions at the time the claim was filed or at any time during its pendency. In addition, the October 2020 VA examiner explained that the colon polyps were removed prior to the appeal period and the October 2024 VA examiner reported that a 2016 endoscopy was negative for peptic ulcer disease and that there is no evidence of its recurrence. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Furthermore, the VA treatment records attribute symptoms of diarrhea and abdominal pain to diverticulitis. To the extent that the Veteran has claimed that he has had a gastrointestinal disorder other than diverticulitis during the period on appeal, he has not shown that he has the medical expertise or specialized training sufficient to find that he has such a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, this claim fails as Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability or functional impairment. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Saunders, 886 F.3d at 1361.

Accordingly, service connection is warranted for hiatal hernia and diverticulitis. However, the evidence is persuasively against service connection for another gastrointestinal disorder. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a gastrointestinal disorder other than GERD, hiatal hernia, and diverticulitis not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

II. Increased Rating

General Rating Criteria

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

As used herein, "moderate" is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. Considerable means significant or large in extent or degree. www.merriam-webster.com/dictionary/considerable. "Severe" is of a great degree. www.merriam-webster.com/dictionary/severe.

In determining when an increase is "factually ascertainable
1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010).

An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

3. An initial rating in excess of 30 percent for Meniere's syndrome with hearing loss and tinnitus.

Specific Legal Criteria

Meniere's syndrome is rated under DC 6205. Under 6205, a 30 percent rating is assigned for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is assigned for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is assigned for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, DC 6205. The Note to DC 6205 states that Meniere's syndrome is to be rated either under these criteria, or by separately rating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall rating, but do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205.

Vertigo is rated under DC 6204 for peripheral vestibular disorders. Under DC 6204, a 10 percent rating is assigned for occasional dizziness and a 30 percent rating is assigned for dizziness and occasional staggering. 38 C.F.R. § 4.87, DC 6204. The Note to DC 6204 states objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined.

Tinnitus is rated under DC 6260. The highest possible rating for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000
a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined.

Tinnitus is rated under DC 6260. The highest possible rating for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100.

In addition, for hearing loss, 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.

Facts

Prior to the claim on appeal, the Veteran was assigned a noncompensable rating for bilateral hearing loss effective October 5, 1980 and a 10 percent rating for tinnitus effective from December 8, 2009 to the date of the claim on appeal. The Veteran requested a higher rating for hearing loss as well as service connection for vertigo in the May 2016 claim on appeal.

The Veteran was afforded a VA examination for vestibular conditions in June 2016. He reported experiencing a spinning sensation after standing from a laying position accompanied by nausea multiple times per day. He also reported that he does not experience this if he is able to stand up slowly. He further reported falling due to this condition with no injuries. He denied experiencing issues driving. The examiner reported a diagnosis of Meniere's syndrome resulting in hearing impairment with vertigo more than one per week lasting less than one hour each and tinnitus more than once weekly lasting up to 24 hours. The examiner also reported a normal walking gait and denied the presence of abnormal external ear, ear canal, tympanic membrane, and limb coordination. The examiner denied that the condition results in functional impairment impacting the Veteran's ability to work.

In a December 2017 statement, the Veteran reported falling three times resulting in the need to go to the emergency room twice due to becoming dizzy when standing up too fast or looking up or down. He also reported that his tinnitus had become louder.

In a February 2019 statement, the Veteran claimed that this disability should be rated 60 percent disabling due to dizziness causing him to lose his balance and fall.

Pursuant to a December 2018 Board remand, the Veteran was afforded a VA hearing loss and tinnitus examination in September 2020. He reported experiencing difficulty understanding speech, hearing the television, and an inability to hear emergency vehicles without hearing aids. He also reported tinnitus daily that sometimes prevents him from hearing things. The audiologist reported the following pure tone thresholds, in decibels:

HERTZ

September 2020 1000 2000 3000 4000 AVG.

RIGHT 30 25 75 75 51.25

LEFT 30 20 70 75 48.75

The average pure tone threshold was 51.25 in the right ear and 48.75 in the left ear. Speech discrimination testing revealed a score of 80 percent for the right ear and 82 percent for the left ear. These test results correspond to level IV hearing loss for the right ear and level III hearing loss for the left ear. The examiner reported diagnoses of bilateral hearing loss and tinnitus.

Also pursuant to a December 2018 Board remand, the Veteran was afforded a VA ear
2020 1000 2000 3000 4000 AVG.

RIGHT 30 25 75 75 51.25

LEFT 30 20 70 75 48.75

Also pursuant to a December 2018 Board remand, the Veteran was afforded a VA ear condition examination in October 2020. The examiner reported symptoms of vertigo episodes more than once weekly lasting from one hour up to 24 hours. The examiner also reported that the Veteran's gait and limb coordination was normal. The examiner denied attacks of vertigo and cerebellar gait and staggering. The examiner stated that the condition prevents the Veteran from walking or standing unassisted or unsupported due to frequent vertigo and would prevent working as a commercial truck driver, police officer, or any other occupation requiring no vertigo episodes.

In a December 2020 rating decision, the RO granted the Veteran service connection for Meniere's syndrome with hearing loss and tinnitus with an initial 30 percent rating effective the date of the May 2016 claim on appeal.

The Veteran was afforded another VA hearing loss and tinnitus examination in July 2022. He reported experiencing difficulty understanding speech, especially in background noise. He also reported constant in both ears. The audiologist reported the following pure tone thresholds, in decibels:

HERTZ

July 2022 1000 2000 3000 4000 AVG.

RIGHT 30 30 75 80 53.75

LEFT 30 30 80 75 53.75

The average pure tone thresholds in both ears was 53.75. Speech discrimination testing revealed a score of 80 percent for the right ear and 72 percent for the left ear. These test results correspond to level IV hearing loss for the right ear and level V hearing loss for the left ear. The examiner reported diagnoses of bilateral hearing loss and bilateral tinnitus.

The Veteran was also afforded another VA ear condition examination in July 2022. The Veteran reported his Meniere's syndrome causes difficulty with balance and problems with prolonged standing with dizziness. The examiner did not provide findings as to the frequency of the Veteran's vertigo. The examiner did report function impact of difficulty with prolonged standing due to dizziness that could contribute to a decrease in work productivity if the Veteran is required to stand for an extended period.

Pursuant to the October 2023 Board remand, the Veteran was afforded another VA hearing loss and tinnitus examination on September 16, 2024. He reported experiencing worsening hearing loss. He also reported constant tinnitus daily described as static. The audiologist reported the following pure tone thresholds, in decibels:

HERTZ

September 2024 1000 2000 3000 4000 AVG.

RIGHT 35 30 70 70 51.25

LEFT 30 20 70 80 50

The average pure tone threshold was 51.25 in the right ear and 50 in the left ear. Speech discrimination testing revealed a score of 74 percent for the right ear and 68 percent for the left ear. These test results correspond to level V hearing loss for the both ears. The examiner reported diagnoses of bilateral hearing loss and bilateral tinnitus.

Also pursuant to the October 2023 Board remand, the Veteran was afforded another VA ear condition examination on September 16, 2024. The Veteran reported worsening symptoms of daily vertigo lasting hours with multiple falls. The examiner reported symptoms of vertigo episodes and staggering more than once weekly lasting from one hour up to 24 hours. The examiner also reported that the Veteran's gait and limb coordination was normal. The examiner stated that the condition prevents the Veteran from performing any safety-sensitive occupation or occupation requiring full level of balance including as a construction worker at height, professional truck driver, pilot, or any other occupation requiring full level of balance.

In a February 2025 rating decision, the RO granted 30 percent rating for Meniere's syndrome on its own under DC 6204 and assigned a separate 20 percent rating for hearing loss and a separate 10 percent rating for tinnitus effective September 16, 2024.

Analysis

The Board concludes that an initial rating in excess of 30 percent for this disability prior to September 16
24 hours. The examiner also reported that the Veteran's gait and limb coordination was normal. The examiner stated that the condition prevents the Veteran from performing any safety-sensitive occupation or occupation requiring full level of balance including as a construction worker at height, professional truck driver, pilot, or any other occupation requiring full level of balance.

Analysis

The Board concludes that an initial rating in excess of 30 percent for this disability prior to September 16, 2024 is not warranted. Prior to such date, the Veteran did not report and the VA treatment records and VA examination reports do indicate that he experienced Meniere's disease causing staggering or cerebellar gait. The June 2016, October 2020, and July 2022 VA examiners all completed ear condition examination reports that include sections to report the presence of staggering or an abnormal gait and did not do so. The examiners denied the presence of abnormal gait and limb coordination and also did not report staggering or cerebellar gait in the course of discussing the functional impairment caused by this disability.

The Board notes that the Veteran claimed that this disability should be rated 60 percent disabling due to dizziness causing him to lose his balance and fall in February 2019. However, as the evidence does not indicate that he experienced staggering or cerebellar gait during this period, a rating in excess of 30 percent under DC 6205 is not warranted. In addition, the assignment of separate ratings for vertigo, hearing loss, and tinnitus would not result in a higher overall evaluation. In this regard, prior to September 16, 2024, the Veteran's vertigo would have been rated 10 percent disabling based on dizziness without staggering. 38 C.F.R. § 4.87, DC 6204. His hearing loss would have been rated no more than 10 percent disabling based on no worse than level IV hearing loss for the right ear and level V hearing loss for the left ear. See 38 C.F.R. § 4.85.

In addition, the Veteran's reports of difficulty understanding speech in various situations are considered to be contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) ("the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the precisely the effects that VA's audiometric tests are designed to measure.").

The Veteran's tinnitus also would have been rated no more than 10 percent disabling because that is the maximum schedular rating for tinnitus and a higher rating is not permissible. See Smith, 451 F.3d at 1344. Therefore, as a single 30 percent rating results in a higher overall disability evaluation when combined with other disability ratings under the combined ratings table than three separate 10 percent ratings for vertigo, hearing loss and tinnitus, the Veteran's Meniere's disease with hearing loss and tinnitus is properly rated as 30 percent disabling under DC 6205 for the period prior to September 16, 2024. See 38 C.F.R. § 4.25.

The Board also concludes that a 100 percent rating for Meniere's disease with hearing loss and tinnitus is warranted since September 16, 2024. In this regard, the VA ear condition examination conducted on such date reports staggering more than once per week and the examiner did not clarify if the staggering constitutes cerebellar gait. However, as there is no evidence indicating an earlier "factually ascertainable" onset of staggering or cerebellar gait supporting an increase in the severity of the Meniere's disease prior to the September 2024 VA examination, an earlier effective date for the higher disability rating is not warranted. See Swain, 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 56. In this regard, the Veteran did not report and the treatment records and VA examination reports do not indicate the presence of staggering or cerebellar gait prior to such examination.

Accordingly, a 100 percent rating for Meniere's disease with hearing loss and tinnitus is warranted as of September 16, 2024. However, the evidence is persuasively against a rating in excess of 30 percent for this disability prior to such date. As there is not an approximate balance of positive and negative evidence, the benefit
effective date for the higher disability rating is not warranted. See Swain, 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 56. In this regard, the Veteran did not report and the treatment records and VA examination reports do not indicate the presence of staggering or cerebellar gait prior to such examination.

Accordingly, a 100 percent rating for Meniere's disease with hearing loss and tinnitus is warranted as of September 16, 2024. However, the evidence is persuasively against a rating in excess of 30 percent for this disability prior to such date. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 30 percent for Meniere's disease with hearing loss and tinnitus prior to September 16, 2024 is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

4. An initial rating in excess of 30 percent for GERD.

Specific Legal Criteria

Prior to May 19, 2024, the Veteran's GERD is rated under DC 7346. A 10 percent rating is warranted for two or more of the symptoms for the 30 percent rating of less severity; a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combination productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346.

During the pendency of this appeal, the evaluation criteria for digestive disabilities were amended effective May 19, 2024. Schedule for Rating Disabilities: The Digestive System 89 Fed. Reg. 19735, 19743, 19754 (Mar. 20, 2024). The new DC 7206 was created specifically to evaluate GERD.

Under DC 7206, a noncompensable rating is assigned for documented history without daily symptoms or requirement for daily medications; a 10 percent rating is warranted for documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptomatic; a 30 percent rating is warranted for documented history of recurrent esophageal strictures causing dysphagia which requires dilatation no more than two times per year; a 50 percent rating is warranted for documented history of recurrent or refractory esophageal stricture causing dysphagia which requires at least one of the following: dilatation three or more times per year, dilatation using steroids at least one time per year, or esophageal stent placement; and an 80 percent rating is assigned for documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: aspiration, undernutrition, or substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction of esophageal stricture(s) or PEG tube. 38 C.F.R. § 4.114, DC 7206.

Note 1 states findings must be documented by barium swallow, computerized tomography, or esophagogastroduodenoscopy. Note 2 states that non-gastrointestinal complications of procedures should be rated under the appropriate system. Note 3 states that this diagnostic code applies, but is not limited to, esophagitis, mechanical or chemical; Mallory Weiss syndrome (bleeding at junction of esophagus and stomach due to tears) due to caustic ingestion of alkali or acid; drug-induced or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy. Note 4 states that recurrent esophageal stricture is defined as the inability to maintain target esophageal diameter beyond 4 weeks after the target diameter has been achieved. Note 5 states refractory esophageal stricture is defined as the inability to achieve target esophageal diameter despite receiving no fewer than 5 dilatation sessions performed at 2-week intervals.

The Board also notes that, as the rating criteria change did not specify that it was to have a retroactive effect
opathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy. Note 4 states that recurrent esophageal stricture is defined as the inability to maintain target esophageal diameter beyond 4 weeks after the target diameter has been achieved. Note 5 states refractory esophageal stricture is defined as the inability to achieve target esophageal diameter despite receiving no fewer than 5 dilatation sessions performed at 2-week intervals.

The Board also notes that, as the rating criteria change did not specify that it was to have a retroactive effect, the prior criteria and the new criteria will both be considered for the period since May 19, 2024 and the rating assigned based on the criteria most favorable to the Veteran. However, an award warranted under the revised criteria cannot be effective prior to May 19, 2024. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Facts

The May 2016 claim on appeal, the Veteran requested service-connection for GERD.

The Veteran attended a VA psychiatric examination in April 2016. The Veteran reported experiencing anxiety and panic attacks. He also reported getting good sleep some nights, but more often than not sleeping poorly.

The Veteran was afforded a VA esophageal examination in July 2016. The Veteran reported experiencing acid reflux and using Pantoprazole for treatment. The examiner reported a diagnosis of GERD with symptoms of pyrosis and reflux. The examiner found that this denied that the condition results in functional impact.

The Veteran was also afforded a VA sleep apnea examination

In the August 2016 rating decision on appeal, the RO granted service connection for GERD and assigned a noncompensable rating effective the claim on appeal.

In a January 2019 statement, the Veteran stated that he believes he experiences a 10 percent rating for GERD is supported by the evidence of record and that in the absence of medication a rating of 30 percent or higher is warranted.

The Veteran was afforded another VA psychiatric examination in September 2020. The examiner reported a diagnosis of panic disorder resulting in symptoms of anxiety, panic attacks more than once per week, and chronic sleep impairment.

Pursuant to a December 2018 Board remand, the Veteran was afforded another VA examination for this claim on October 15, 2020. The Veteran reported experiencing worsening symptoms with pain in chest and regurgitation and taking Prilosec for treatment. The examiner reviewed the claims file. The examiner reported the presence of GERD symptoms of reflux, regurgitation, and substernal pain. The examiner also reported the presence of sleep disturbance caused by GERD four or more times per year lasting between one and nine days. The examiner denied the presence of episodes of epigastric distress, dysphagia, pyrosis, vomiting, material weight loss, nausea, hematemesis, melena with moderate anemia, esophageal stricture, and spams of esophagus. The examiner also denied the presence of symptoms productive of considerable or severe impairment of health by expressly not checking boxes for these symptoms that are located on the form in the section of symptoms that he did mark as present. However, the examiner further stated that the GERD results in functional impact of considerable impairment of health as it affects his sleep and in turn his level on concentration and ability to work reliably and regularly with full attention to detail at work. The examiner claimed that this prohibits even sedentary work.

In a December 2020 rating decision, the RO granted a 30 percent rating for GERD as of October 15, 2020.

The Veteran was afforded another VA examination for this claim later in December 2020. The Veteran reported experiencing bile reflux with blood and nausea during service and taking Pantoprazole for GERD. The Veteran also reported that his physician told him his severe panic attacks could have been part of the cause of the in-service symptoms. The examiner reported GERD symptoms of infrequent episodes of epigastric distress, pyrosis, regurgitation, and nausea. The examiner denied the presence of persistently recurrent epigastric distress, dysphagia, reflux, pain, sleep disturbance, vomiting, material weight loss, nausea, hematemesis, melena with moderate anemia, esophageal stricture, and spams of esophagus. The examiner found that the Veteran's GERD does not result in functional impairment.

The Veteran was again afforded a VA examination for this claim in October 2021. The Veteran reported experiencing worsening symptoms
physician told him his severe panic attacks could have been part of the cause of the in-service symptoms. The examiner reported GERD symptoms of infrequent episodes of epigastric distress, pyrosis, regurgitation, and nausea. The examiner denied the presence of persistently recurrent epigastric distress, dysphagia, reflux, pain, sleep disturbance, vomiting, material weight loss, nausea, hematemesis, melena with moderate anemia, esophageal stricture, and spams of esophagus. The examiner found that the Veteran's GERD does not result in functional impairment.

The Veteran was again afforded a VA examination for this claim in October 2021. The Veteran reported experiencing worsening symptoms of acid reflux, pyrosis, and excessive gas symptoms. He reported using Pantoprazole for treatment. The examiner reported GERD symptoms of pyrosis, regurgitation, substernal pain, sleep disturbance four or more times per year lasting less than one day, and nausea. The examiner denied the presence of infrequent and persistently recurrent epigastric distress, dysphagia, reflux, pain, sleep disturbance, vomiting, material weight loss, hematemesis, melena with moderate anemia, esophageal stricture, and spams of esophagus. The examiner found that the Veteran's GERD does not impact his ability to work.

The Veteran was afforded another VA examination for this claim in July 2022. The Veteran reported experiencing worsening symptoms of acid reflux, pyrosis, difficulty sleeping and regurgitation. He reported using Protonix treatment. The examiner reported GERD symptoms of reflux, regurgitation, substernal pain, sleep disturbance four or more times per year lasting less than one day, and nausea. The examiner denied the presence of infrequent and persistently recurrent epigastric distress, dysphagia, reflux, pain, sleep disturbance, vomiting, material weight loss, hematemesis, melena with moderate anemia, esophageal stricture, and spams of esophagus. The examiner found that the Veteran's GERD does not impact his ability to work.

The Veteran was again afforded a VA examination for this claim in February 2023. The Veteran reported symptoms of pyrosis, difficulty swallowing, regurgitation, chest pain, abdominal pain, and that he sleeps in an elevated bed due to regurgitation. experiencing worsening symptoms of acid reflux, pyrosis, difficulty sleeping and regurgitation. He reported using Pantoprazole treatment. The examiner reported GERD symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance four or more times per year lasting less than one day. The examiner denied the presence of infrequent and persistently recurrent epigastric distress, reflux, pain, sleep disturbance, vomiting, material weight loss, nausea, hematemesis, melena with moderate anemia, esophageal stricture, and spams of esophagus. The examiner found that the Veteran's GERD does not impact his ability to work.

In the October 2023 remand, the Board requested another GERD examination to include an endoscopy or other testing necessary to determine if the Veteran has a hiatal hernia and the severity of the GERD.

Pursuant to the October Board remand, the Veteran was again afforded a VA examination for this claim in September 2024. The Veteran reported worsening reflux symptoms treated by Pantoprazole. The examiner reported GERD symptoms of dysphagia requiring daily medication, constant daily pyrosis, regurgitation, reflux, substernal chest pain, nausea, and dyspepsia. The examiner denied the presence of esophageal stricture, required dilatation or esophageal stent placement, under nutrition, substantial weight loss, treatment by surgery or PEG tube, Barrett's esophagus, vomiting, watery bowl movements, and nausea. The examiner found that the Veteran's GERD does not impact his ability to work. This examination was conducted by the examiner that conducted October 15, 2020 VA examination.

The Veteran was also afforded a VA hematologic condition examination in September 2024. The examiner found that the Veteran does not have anemia.

Analysis

Based on the foregoing, the Board concludes that an initial 30 percent rating for GERD is warranted. The evidence indicates that throughout the period on appeal the Veteran has experienced GERD symptoms resulting in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. However, the Veteran's GERD did not result in symptoms of pain, vomiting, material
This examination was conducted by the examiner that conducted October 15, 2020 VA examination.

The Veteran was also afforded a VA hematologic condition examination in September 2024. The examiner found that the Veteran does not have anemia.

Analysis

Based on the foregoing, the Board concludes that an initial 30 percent rating for GERD is warranted. The evidence indicates that throughout the period on appeal the Veteran has experienced GERD symptoms resulting in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. However, the Veteran's GERD did not result in symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or another symptom combination productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346.

In this regard, the Veteran has not claimed and the evidence does not indicate that the GERD resulted in material weight loss, hematemesis, or anemia. In addition, the medical evidence does not indicate that his GERD would result in such symptoms or a combination of symptoms productive of severe impairment of health even in the absence of the ameliorative effects of medication. The Board notes that the October 2020 examiner stated that the GERD affects his sleep and in turn his level on concentration and ability to work reliably and regularly with full attention to detail at work. However, this examiner concluded based on the Veteran's statements, treatment records, and his examination that the GERD symptoms result in considerable impairment of health, which means a significant or large degree of impairment, rather than severe impairment of health, which means a great degree of impairment. In addition, this VA examiner's assessment of the severity of the functional impairment is based largely on sleep disturbance.

Throughout the period on appeal the Veteran is assigned a 100 percent rating for panic disorder rated under 38 C.F.R. § 4.130 pursuant to the General Rating Formula for Mental Disorders. This rating contemplates symptoms of chronic sleep impairment and the medical evidence of record shows that the Veteran experiences chronic sleep impairment due to panic disorder. Furthermore, since May 2023, the Veteran is assigned a 50 percent rating for obstructive sleep apnea. Thus, assigning a higher or separate rating for sleep disturbance due to GERD is not warranted as it would constitute pyramiding. See 38 C.F.R. § 4.14. The Veteran also does not claim and the medical evidence does not indicate that his GERD has resulted in esophageal stricture to support a rating in excess of 30 percent under DC 7206, which contemplates the ameliorative effects of medication. 38 C.F.R. § 4.114, DC 4206.

The Board notes that the October 2023 Board remand requested a VA examination with additional diagnostic testing such as an upper endoscopy or esophageal manometry to determine whether the Veteran has a hiatal hernia and the severity of the service-connected GERD. While the September 2024 examination reports do not include upper endoscopy or esophageal manometry testing, the examiner reported a diagnosis of hiatal hernia and directly addressed whether Veteran's GERD symptoms result in material weight loss, hematemesis, anemia, and epigastric stricture based on examinations of the Veteran and a review of his treatment records. Therefore, the Board finds that the RO substantially complied with the October 2023 Board remand's request to obtain another VA examination for this condition to determine whether the Veteran has a hiatal hernia and the severity of the service-connected GERD. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Therefore, a remand to obtain another VA examination is not warranted.

Accordingly, while an initial 30 percent rating is warranted for GERD, the evidence is persuasively against a higher rating for this disability throughout the appeal period. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 30 percent for GERD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

III. TDIU

5. A TDIU due solely to Meniere's syndrome with hearing loss and tinnitus prior to September 16, 2024.

6. A TDIU due solely to GERD.

Legal Criteria

VA has a
warranted for GERD, the evidence is persuasively against a higher rating for this disability throughout the appeal period. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 30 percent for GERD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

III. TDIU

5. A TDIU due solely to Meniere's syndrome with hearing loss and tinnitus prior to September 16, 2024.

6. A TDIU due solely to GERD.

Legal Criteria

VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). For the purpose of meeting these schedular criteria, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. Id.

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to:

The veteran's history, education, skill, and training;

Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., 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

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 work-place stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

In addition, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). However, the Board is not required to refer assertions of extraschedular TDIU to the Director, Compensation Service. The Board may address the arguments as jurisdiction otherwise permits. See Witkowski v. Collins, 38 Vet. App. 459 (2025).

In general, marginal employment shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a fact found basis when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See Cantrell v. Shulkin, 28 Vet. App. 382, 388 (2017). In other words, "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 particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if [his or her] service-connected disabilities are the cause of that incapability." Id. A TDIU is not warranted where a veteran's employment was more than marginal unless the work was in a protected environment.

Employment is not "in a protected environment" simply because a veteran receives workplace accommodations for service-connected disabilities or remains employed despite being occupationally impaired. See LaBruzza v. McDonough, 37 Vet. App. 111 (2024). The meaning of "employment in a protected environment" unambiguously means 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. Id. Evidence of an employer's benevolent intent or motivation for hiring, promoting, or continuing to employ a veteran is a factor to consider, but is not decisive. An individual who was hired for a charitable, rehabilitative, or therapeutic purpose is more likely to be employed in a position with the requisite shielding than a veteran whose employment is based on skillset, training, certification, experience, or other qualifications alone. Id.

A non-exhaustive list of factors includes:

The first factors concern the employee in the job itself.

The type and extent of accommodations that a veteran receives from an employer may be relevant to determining whether employment is in a protected environment.

Evidence that a veteran requires substantial accommodations to effectively perform duties suggests a protected environment; evidence of few or less extensive accommodations may weigh against such a finding.

Similarly, the magnitude of job responsibilities may bear on that analysis, since some employment is by its very nature inconsistent with a finding of a protected employment.

The second group of factors relates to the employer.

Employer behavior or intent toward the veteran and employer classification of the position may be relevant considerations.

Employer behavior, for example, may indicate that the veteran is shielded from consequences of nonperformance or poor performance of job duties.

An employer's benevolent intent in hiring and promoting a veteran may be relevant, but because there may be reasons other than benevolence for providing a protected environment, employer intent is not dispositive.

Evidence that the veteran works for an institutional employer who traditionally provides sheltered employment may indicate a protected environment. For example, an employer like a hospital, VA domiciliary, or long-term care institution, where the goal of employment is principally charitable or rehabilitative, is more likely to offer employment in a protected environment than other enterprises that are profit-motivated.

The third factor is economic.

Although income above the poverty threshold is not determinative, high income may counter against a protected environment while income that only marginally exceeds the poverty threshold may indicate a protected environment.

Arline v. McDonough, 34 Vet. App. 238, 260-61 (2021).

Facts

These issues are on appeal pursuant to the May 19, 2016 higher initial Meniere's syndrome with hearing loss and tinnitus and GERD rating claims. In a June 2016 statement, the Veteran reported working in sales, but being unable to hold a job for more than three years due to panic disorder. He also reported working as a deputy sheriff from 1980 to February 1981 and then working many jobs lasting from a few months to three years at the longest, almost exclusively in sales. He further reported working for his current employer in sales since September 2015. In a December 2017 statement, the Veteran reported experiencing daily panic attacks that sometimes result in an inability to leave his home and result in diarrhea and
appeal pursuant to the May 19, 2016 higher initial Meniere's syndrome with hearing loss and tinnitus and GERD rating claims. In a June 2016 statement, the Veteran reported working in sales, but being unable to hold a job for more than three years due to panic disorder. He also reported working as a deputy sheriff from 1980 to February 1981 and then working many jobs lasting from a few months to three years at the longest, almost exclusively in sales. He further reported working for his current employer in sales since September 2015. In a December 2017 statement, the Veteran reported experiencing daily panic attacks that sometimes result in an inability to leave his home and result in diarrhea and upset stomach. He also reported that his vertigo had caused him to fall three times in the prior year, becoming dizzy when looking up, looking down, or standing up too fast, and experiencing panic attacks using stairs, elevators, and escalators. In a February 2019 statement, the Veteran reported his panic disorder results in impaired memory, poor judgment, lack of motivation, delusions and hallucinations, nightmares, trouble sleeping, and difficulty maintaining employment. He reported that he worked in sales because he could not stand being in an office because he felt trapped.

The Veteran filed a TDIU application form in November 2021. He reported working in sales, last working fulltime in October 2015, and becoming too disabled to work in June 2021. He claimed that he is unable to work due to panic disorder, Meniere's syndrome, and GERD. In another TDIU form submitted at this time in which he reported that he is not working due to being unable to breath when outside and panic disorders. In a third TDIU form submitted at this time, the Veteran reported working parttime in sales positions from November 2018 to June 2021. He stated that he set his own appointments and work hours during this time and missed three months of work due to disability during this employment period.

From May 19, 2016 to February 1, 2023, the Veteran is service-connected for panic disorder with other specified trauma and stressor related disorder rated 100 percent disabling since December 4, 2015; Meniere's syndrome with hearing loss and tinnitus rated 30 percent disabling; GERD rated 30 percent disabling. Thereafter, the Veteran is service-connected for additional disabilities and, based on the 100 percent rating for panic disorder and a combined rating in excess of 60 percent for the additional service-connected disabilities, he is assigned SMC based on housebound since February 2, 2023. However, from May 19, 2016 to February 1, 2023, the combined Meniere's syndrome with hearing loss and tinnitus and GERD ratings do not result in a combined 60 percent evaluation to support entitlement to SMC based on housebound. See 38 C.F.R. § 4.25.

Therefore, the Veteran would receive SMC based on housebound prior to February 2, 2023 if he was unable to work solely due to either Meniere's syndrome with hearing loss and tinnitus or GERD. See Buie, 24 Vet. App. at 250; Bradley, 22 Vet. App. (finding that SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim); see also 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Although these disabilities do not meet the schedular criteria for a TDIU during the relevant time period, the Board may address the whether an extraschedular TDIU is warranted for either disability on the merits. See Witkowski, 38 Vet. App. at 459. The Veteran's functional impairment due to these disabilities during the period no appeal is addressed above.

Analysis

The Board finds that, prior to September 16, 2024, the Veteran was not unable to secure or follow a substantially gainful occupation solely as a result of Meniere's disease with hearing loss and tinnitus prior to September 16, 2024. The Veteran's statements indicate that he became unable to work fulltime due to the symptoms of the service-connected panic disorder, which is rated 100 percent disabling throughout the period on appeal. Prior to September 16, 2024, the Veteran's statements and the medical evidence does not indicate that he was unable to work a fulltime sales position that did not require him to drive or regularly move in a manner that would trigger his vertigo. This could be accomplished working in sales in an office environment where he would primarily be seated and interacting with clients on the telephone or
secure or follow a substantially gainful occupation solely as a result of Meniere's disease with hearing loss and tinnitus prior to September 16, 2024. The Veteran's statements indicate that he became unable to work fulltime due to the symptoms of the service-connected panic disorder, which is rated 100 percent disabling throughout the period on appeal. Prior to September 16, 2024, the Veteran's statements and the medical evidence does not indicate that he was unable to work a fulltime sales position that did not require him to drive or regularly move in a manner that would trigger his vertigo. This could be accomplished working in sales in an office environment where he would primarily be seated and interacting with clients on the telephone or the internet. While the Veteran reported difficulty with speech due to hearing loss and tinnitus, he did not claim and the evidence does not indicate he was prevented from interacting with clients or co-workers by telephone with a hearing aid.

In addition, to the extent that such work would result in vertigo triggering a panic attack, his inability to maintain employment is due to the combined effects of the Meniere's syndrome and panic disorder rather than Meniere's disease with hearing loss and tinnitus alone. The Board notes that the October 2020 VA examiner claimed that the Veteran's vertigo prevents him from walking or standing unassisted or unsupported due to frequent vertigo. However, the Veteran's treatment records and subsequent VA Meniere's syndrome examinations prior to September 16, 2024, do not indicate that the condition was so severe it prevents him from walking or standing unassisted or that he uses assistive devices for standing or walking. Thus, the Board finds that the October 2020 examiner's claim that the Veteran was prevented from walking or standing unassisted is outweighed by the other evidence of record. Therefore, prior to September 16, 2024, the Veteran was not prevented from securing and maintaining a sales position that would not require him to regularly climb stairs, use elevators, or repeatedly standup quickly solely due to Meniere's disease with hearing loss and tinnitus.

The Board also finds the Veteran is not unable to secure or follow a substantially gainful occupation solely as a result of GERD. As discussed above, the evidence of record shows that the GERD results in symptoms of dysphagia, pyrosis, regurgitation, reflux, substernal chest pain, nausea, sleep impairment, dyspepsia, vomiting, and required use of medication, but not material weight loss, hematemesis, anemia, esophageal stricture, or a symptom combination productive of severe impairment of health. The nature and severity of the documented symptoms do not indicate functional impairment that would prevent the Veteran from securing and maintaining gainful employment in sales. The Board notes that the October 2020 VA examiner claimed that the Veteran's GERD prohibits even sedentary work by causing sleep impairment that prevents concentration and an ability to work reliably and regularly with full attention to detail at work.

However, as explained above, the Veteran's statements and medical evidence documents that he experiences sleep impairment due to the service-connected panic disorder. To the extent that the October 2020 VA examiner's opinion indicates that sleep impairment solely due to GERD would prevent the Veteran from working, the other VA examinations of record did not find that GERD results in functional impairment, including the assessment of the December 2020 VA examiner provided two months later. In addition, the October 2020 VA examiner also performed the September 2024 VA GERD in which he denied that the condition results in functional impairment. Therefore, the Board finds that to the extent that the October 2020 VA examination report indicates that sleep impairment solely due to GERD would prevent him from working, it is outweighed by the other medical evidence of record.

The Board is sympathetic to the Veteran's assertions regarding the impact these disabilities have on him, both professionally and personally. However, the limitations caused by the service-connected disabilities are compensated by the schedular ratings for such disabilities. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In addition, while the relevant disabilities cause some economic impairment, the assigned disability ratings contemplate the level of occupational impairment for the conditions. A TDIU claim is not a purely medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence, including work history and lay statements.

The Board notes that the Veteran is granted service connection for additional disabilities herein. However, the potential for SMC based on these benefit grants is a downstream issue based on the RO's assigning of initial ratings for these conditions.

Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence
4 Vet. App. 361 (1993). In addition, while the relevant disabilities cause some economic impairment, the assigned disability ratings contemplate the level of occupational impairment for the conditions. A TDIU claim is not a purely medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence, including work history and lay statements.

Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a TDIU based solely on Meniere's syndrome with hearing loss and tinnitus prior to September 16, 2024 or based solely on GERD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Jimerfield

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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