Case A26013804

J.M. ESTES · 2026 · Case ID: A26013804

MIXED

Summary

The veteran, who served from October 2003 to April 2004 and July 2009 to July 2010, appeals a September 2024 rating decision. The veteran sought service connection for amnestic disorder due to encephalitis, PTSD, generalized anxiety disorder, and depression, as well as asthma and TDIU. The Board dismissed the claims for amnestic disorder, PTSD, anxiety, and depression as moot, noting that service connection for amnestic disorder had already been granted in a prior Board decision, rendering the current appeal for these conditions moot. Service connection for allergic rhinitis was granted, based on a presumptive link to fine particulate matter exposure during service in Djibouti, Africa, as supported by VA treatment records showing manifestation as early as August 2015. The claim for asthma was denied due to a lack of current disability, as VA treatment records and examinations were negative for asthma or related respiratory symptoms, and the veteran's lay reports were not considered probative for diagnosis. The claim for TDIU was denied because the evidence did not establish that the veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment, despite some functional limitations noted in examinations. The Board found the veteran's private medical opinion regarding total disability to be without probative weight due to lack of examination and rationale, while affording weight to VA examinations. The case was remanded for a new VA examination to determine the nature and etiology of the veteran's claimed migraine headaches, as the current record lacked clarity on whether a current disability exists and its relationship to service or service-connected encephalitis.

Special Benefit

TDIU

Docket No.

240919-475364

Full Decision Text

Citation Nr: A26013804
Decision Date: 02/13/26 Archive Date: 02/13/26

DOCKET NO. 240919-475364
DATE: February 13, 2026

ORDER

Entitlement to service connection for amnestic disorder due to encephalitis, posttraumatic stress disorder, generalized anxiety disorder, and depression, is dismissed.

Service connection for allergic rhinitis is granted.

Service connection for asthma is denied.

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

REMANDED

Entitlement to service connection for migraine headaches is remanded.

FINDINGS OF FACT

1. There is currently no case or controversy for active consideration by the Board of Veterans' Appeals (Board) on the appeal for service connection for amnestic disorder due to encephalitis, posttraumatic stress disorder, generalized anxiety disorder, and depression.

2. The Veteran's currently diagnosed allergic rhinitis is presumptively related to his acknowledged in-service exposure to fine, particulate matter coincident with his service in Djibouti, Africa.

3. At no time during the pendency of the claim does the Veteran have a current disability of asthma, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim.

4. The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment.

CONCLUSIONS OF LAW

1. As the benefit sought on appeal has been granted, the appeals for service connection for amnestic disorder due to encephalitis, posttraumatic stress disorder, generalized anxiety disorder, and depression, are dismissed. 38 U.S.C. § 7105; 38 C.F.R. §§ 4.125, 4.130, 20.104, 20.202, 3.2500(b).

2. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1119, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320.

3. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1119, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320.

4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2003 to April 2004 and July 2009 to July 2010.

This matter comes before the Board on an appeal from a September 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA). Later that same month, the Veteran timely appealed such rating decision to the Board by filing Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ).

Therefore, the Board may only consider the evidence of record at the time of the September 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. As it relates to the claims denied herein, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted
VA to consider any evidence that was submitted that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

1. Entitlement to service connection for amnestic disorder due to encephalitis.

2. Entitlement to service connection for posttraumatic stress disorder (PTSD).

Due to a convoluted procedural history, these claims must be dismissed for multiple reasons. Importantly however, the separate appeal stream for amnestic disorder has resulted in the grant of service connection extending prior to the receipt of the current claim, and thus there is no prejudice to the Veteran.

First, the appeals arise in this stream as a concurrent election. Once a claimant has filed for review under one of these options, they may not choose another lane of review with respect to the same claim or same issue contained within the claim until the higher-level review, supplemental claim, or notice of disagreement is adjudicated, or until the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn. See 38 U.S.C. § 5104C(a)(2)(A); 38 C.F.R. § 3.2500(b). Here, the AOJ issued a rating decision on September 3, 2024, denying entitlement to service connection for these issues, and on September 19, 2024, the Veteran submitted VA Form10182 appealing these issues to the Board. However, at the time VA received his supplemental claim in July 2024, both of these issues were already pending appeal at the Board, with PTSD being denied in an August 2024 Board decision and amnestic disorder granted in January 2026. Accordingly, this was an improper concurrent election.

Further, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Where the benefit sought by a claimant has already been granted in full, the issue is moot on appeal. See, e.g., Henderson v. West, 11 Vet. App. 245, 246 (1998) (per curiam order) (holding issue to be moot on appeal where service connection, the benefit sought, had been granted by the RO).

The Board, in a January 2026 decision, granted service connection for amnestic disorder due to encephalitis, for a period which covers the entirety of the current appellate period and there remains no greater benefit under any current theory of entitlement. See Concepcion-Maldonado v. Collins, 38 Vet. App. 294, 300 (2025); Johnson v. Collins, 38 Vet. App. 151, 156 (2025). Given that the Veteran's appeal had sought entitlement to service connection for amnestic disorder due to encephalitis, the Board's subsequent award of service connection for said disability constitutes a full grant of the benefit he was seeking. There is, therefore, no case or controversy remaining as to the issues of entitlement to service connection for amnestic disorder due to encephalitis. See Henderson, 11 Vet. App. at 246. As such, the issue on appeal has been rendered moot, and is dismissed. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

3. Entitlement to service connection for an anxiety disorder.

4. Entitlement to service connection for a depressive disorder.

In the instant appeal, in procedural terms only, the Board finds that the Veteran's claim for service connection for
constitutes a full grant of the benefit he was seeking. There is, therefore, no case or controversy remaining as to the issues of entitlement to service connection for amnestic disorder due to encephalitis. See Henderson, 11 Vet. App. at 246. As such, the issue on appeal has been rendered moot, and is dismissed. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

3. Entitlement to service connection for an anxiety disorder.

4. Entitlement to service connection for a depressive disorder.

In the instant appeal, in procedural terms only, the Board finds that the Veteran's claim for service connection for depression is separate claim from the amnestic disorder. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020). In this regard, as with the claim for PTSD, the Veteran separately pursued the claims for service connection for amnestic disorder and depression concurrently and through different channels, indicating a desire to separate these claims procedurally.

For anxiety, this claim was originally and has been part of the appeal for amnestic disorder. When a claimant submits a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran first sought service connection for a mental condition, generally, in his March 2011 application for benefits. In a January 2012 rating decision, the AOJ denied service connection specifically for amnestic disorder due to encephalitis, and granted service connection for treatment purposes for this disease, noting it as previously diagnosed as anxiety. Thereafter, the consideration of service connection for an amnestic disorder has included notation that it was previously diagnosed as an anxiety disorder. Thus, the claim for anxiety disorder is not a separate claim from the amnestic disorder procedurally.

In addition to the above notes, these claims are not factually distinct and therefore must be dismissed as moot as service connection for the Veteran's mental health disorder has been granted. Throughout the period on appeal, and specifically in the two VA examinations of record in the reviewable evidence, the Veteran has not been diagnosed with a separate disorder from his amnestic disorder, with the October 2021 examination diagnosing a neurocognitive disorder as a progression of the amnestic disorder.

The Veteran's treatment records on the other hand, include diagnoses of depression and generalized anxiety disorder, as well as the symptoms of each and a diagnosis of PTSD as noted above. Importantly, regardless of the diagnosis, mental health disorders are rated based upon the same criteria; the level of social and occupational difficulties caused by a veteran's disorder. Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009) (citing 38 C.F.R. § 4.130).

While a veteran can pursue service connection claims for separate diagnoses of the same body system or part, there must be distinguishable symptoms and impairment. Here, the Veteran is in receipt of service connection for an amnestic disorder, the rating of which considers all the reported psychiatric symptomatology, importantly discussing occupational and social impairment due to psychiatric symptoms, and neither he nor the record have raised any separate symptoms not considered in the current rating. Dollison v. Wilkie, 750 F. App'x 986, 989 (Fed. Cir. 2018) (dismissing, for lack of standing, an appeal from a Court affirmance of a Board decision that denied service connection for PTSD and granted service connection for MDD because the appellant did not "establish that he suffers from symptoms of PTSD that are not also symptoms of MDD or that a diagnosis of PTSD would result in some other greater benefit to" him); see also Wells v. McDonough, No. 22-0259, 2023 U.S. App. Vet. Claims LEXIS 760 (May 8, 2023) (mem dec) (Meredith, J.) (dismissing an appeal because the Veteran did not argue that he experienced manifestations of PTSD that are distinct from the manifestations of his diagnosed depressive disorder and generalized anxiety disorder).

Accordingly, there is no current benefit available to the Veteran and his claim is moot, as with the claims above, as the claims have been granted.

5. Entitlement to service connection for allergic rhinitis.

The Veteran contends that he currently has allergic rhinitis as a result
other greater benefit to" him); see also Wells v. McDonough, No. 22-0259, 2023 U.S. App. Vet. Claims LEXIS 760 (May 8, 2023) (mem dec) (Meredith, J.) (dismissing an appeal because the Veteran did not argue that he experienced manifestations of PTSD that are distinct from the manifestations of his diagnosed depressive disorder and generalized anxiety disorder).

Accordingly, there is no current benefit available to the Veteran and his claim is moot, as with the claims above, as the claims have been granted.

5. Entitlement to service connection for allergic rhinitis.

The Veteran contends that he currently has allergic rhinitis as a result of his military service, to include as due to exposure to burn pits, fine particulate matter, and other environmental hazards coincident with his service at Camp Lemonnier in Djibouti, Africa.

38 C.F.R. § 3.320 provides that, as relevant to the instant appeal, rhinitis and asthma shall be service-connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including noncompensable) within 10 years from the date of separation from military service that includes a qualifying period of service in Southwest Asia during the Persian Gulf War, or Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 11, 2001. Such further provides that a veteran who has such a qualifying period of service shall be presumed to have been exposed to fine, particulate matter during such service. 38 C.F.R. § 3.320(a)(1), (2).

Additionally, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) provides that service connection may also be established for a covered veteran with a respiratory disease associated with exposure to burn pits and other toxins, to include rhinitis and asthma, that was diagnosed any time after service. Under this Act, any enumerated disease becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated during active military, naval, air, or space service even though there is no record of such disease during the period of such service. 38 U.S.C. § 1120. A covered veteran means any veteran who performed active military, naval, air, or space service while assigned to a duty station in enumerated countries, including Djibouti, on or after September 11, 2001. 38 U.S.C. § 1119.

In the instant case, a May 2024 Toxic Exposure Risk Activity (TERA) Memorandum and a May 2024 Individual Longitudinal Exposure Record (ILER) reflect service in Djibouti, Africa, from August 2009 to November 2009 and from March 2010 to June 2010. Thus, the Veteran has qualifying period of service and is presumed to have been exposed to fine, particulate matter, burn pits, and other toxins coincident with such service.

In June 2024, the Veteran underwent a VA examination to assess the nature and etiology of his claimed allergic rhinitis. Following a review of the record and in-person examination, the examiner assessed that the Veteran has allergic rhinitis. While the June 2024 VA examiner assessed that the Veteran's allergic rhinitis had its onset in 2024, a thorough review of VA treatment records reflect that the Veteran was treated for rhinitis with loratadine and fluticasone as early as August 2015, and subsequent records reflect a formal diagnosis for allergic rhinitis. See e.g., June 2019 and August 2021 VA Treatment Records.

Therefore, as the Veteran's post-service treatment records reflect a manifestation of allergic rhinitis as early as August 2015, and he most recently separated from a period of military service that included a qualifying period of service in Djibouti, Africa in July 2010, the Board resolves all doubt in favor of the Veteran and finds that such disorder is presumptively related to his acknowledged in-service exposure to fine, particulate matter coincident with such period of service as provided for in 38 C.F.R. § 3.320. Thus, service connection for such disorder is warranted pursuant to such regulation.

6. Entitlement to service connection for asthma.

The Veteran contends that he currently has a respiratory as a direct result of his military service, to include as due to exposure to burn pits and fine particulate matter coincident with his service at Camp Lemonnier in Djibouti, Africa. However, as the probative evidence of record does not show a current disability at any point proximate to his July 2024 claim, service connection for a respiratory disorder
such disorder is presumptively related to his acknowledged in-service exposure to fine, particulate matter coincident with such period of service as provided for in 38 C.F.R. § 3.320. Thus, service connection for such disorder is warranted pursuant to such regulation.

6. Entitlement to service connection for asthma.

Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability").

In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.

Initially, the Veteran's STRs are negative for any complaints, treatment or diagnosis referable to a respiratory disorder, and such further reflect that the Veteran denied experiencing difficulty breathing or any other symptoms referable to asthma during a June 2010 post-deployment health screening, just prior to discharge from active duty. Furthermore, the Veteran's VA treatment records proximate to his July 2024 claim for service connection are negative for any complaints, treatment, or diagnosis referable to a respiratory disorder. In fact, the Board observes that the Veteran routinely denied experiencing shortness of breath and a history of asthma, with the latest denial or record being made at a January 2024 VA treatment appointment.

Nevertheless, in June 2024 the Veteran was afforded a VA examination to determine the nature and etiology of any respiratory conditions, to include asthma. Following a review of the Veteran's claims file and an in-person examination, the June 2024 VA examiner assessed that the Veteran does not now have, nor has he ever had, bronchial asthma, or any other respiratory disorder.

Moreover, while the Veteran is competent to report his symptoms, he is not competent as a lay person to diagnose a respiratory disorder, as such requires the administration and interpretation of clinical and diagnostic tests. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, his reports as to the presence of a disability of bronchial asthma are afforded no probative weight.

Therefore, the Board finds that the Veteran does not have a current disability of respiratory disorder at any time proximate to his claim. See McClain, supra; Romanows
Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, his reports as to the presence of a disability of bronchial asthma are afforded no probative weight.

Therefore, the Board finds that the Veteran does not have a current disability of respiratory disorder at any time proximate to his claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. Consequently, service connection for bronchial asthma is not warranted.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the weight of the probative evidence is against service connection for bronchial asthma, the benefit of the doubt doctrine is not applicable in such regard and the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

7. Entitlement to TDIU.

The Veteran contends that he is unable to work due to his service-connected disabilities. However, the most probative evidence or record shows that the Veteran is capable to secure and follow a substantially gainful occupation, and thus, a TDIU is not warranted.

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). 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). 38 C.F.R. § 4.16(b).

With respect to the award of a TDIU on extra-schedular basis, in Witkowski v. Collins, 38 Vet. App. 459 (2025), the Court overruled Bowling v. Principi, 15 Vet. App. 1, 10 (2001), wherein it was determined that the Board cannot grant a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) without first remanding the matter for referral to the Director.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The
ing Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

In the instant case, at the time of the September 2024 rating decision on appeal, the Veteran is service connected for amnestic disorder due to encephalitis, rated as 30 percent disabling from September 4, 2021; status post granulomatous meningitis with cerebritis, rated as 10 percent disabling from September 4, 2021; vertigo rated as 10 percent disabling from May 21, 2024; tinnitus, rated as 10 percent disabling from July 3, 2024; eczema rated as noncompensably disabling from July 18, 2024, and bilateral hearing loss rated as noncompensably disabling from May 21, 2024.

Initially, the Board observes that the Veteran does not meet the schedular threshold for an award of TDIU. However, the Board further observes that the Veteran was awarded service connection for allergic rhinitis herein, and a disability evaluation has not yet been assigned relative to said disability. Nevertheless, the Board will proceed with adjudication of entitlement to a TIDU and make a decision based on the documented functional impairment of record. To that end, as per Witkowski, supra, the Board may assign a TDIU in the first instance when the schedular thresholds of 38 C.F.R. 4.16(a) are not met, as is the case in the instant appeal.

The Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. That is, as above, whether, in light of his history, education, skill, and training, the Veteran possesses the requisite physical and mental abilities to perform the activities of substantial gainful employment.

Pertinent to the Veteran's educational history, he has a high school diploma and completed an associate's degree in automotive mechanics, with additional generator technician training before becoming too disabled to work. See March 2012 and June 2024 VA Forms 21-8940 Veteran's Application for Increased Compensation Based on Unemployability; see also October 2021 VA PTSD Examination. The Veteran's DD-214, Certificate of Discharge reflects he worked as a Power Generation Equipment Repairer (MOS 52D) but did not receive any further additional military education or training.

Turning to his work history, the Veteran reported he last worked at Wendy's from 2005 until January 2010, and the record reflects that he simultaneously served in the National Guard from May 2007 until discharged in February 2014. See June 2024 VA Form 21-8940; see also February 2014 Orders 034-506. Notably, the AOJ favorably found that Veteran is not currently working, and the Board is bound by such favorable finding in the AMA. 38 C.F.R. 3.104(c).

As to the actual impairment on
as a Power Generation Equipment Repairer (MOS 52D) but did not receive any further additional military education or training.

As to the actual impairment on earning capacity, the Veteran generally contends that all of his service-connected disabilities cause his unemployability. Turning to the relevant evidence of record, the Veteran underwent a VA rhinitis examination in June 2024 wherein he reported nasal congestion, secretion, postnasal drip, itchy eyes, redness in eyes, and headache that he treats with fluticasone propionate nasal spray and cetirizine daily. Following an interview with the Veteran and a review of the Veteran's treatment record, the June 2024 VA examiner assessed that the Veteran's allergic rhinitis, for which service connection is herein granted, does not impact his ability work.

That same month, the Veteran attended a VA ear conditions examination to assess the severity of his service-connected vertigo. The Veteran reported that he experiences episodes of dizziness and nausea that have remained the same since onset of the disorder in 2010. The examiner found that the Veteran experiences vertigo more than once a week, with episodes lasting anywhere from 1 to 24 hours. However, a physical examination of the Veteran showed no abnormalities to the Veteran's external ear, ear canal, tympanic membrane, or gait, and the Veteran tested normal on Romberg, Dix Hallpike and limb coordination tests. Moreover, no other objective findings referable to vertigo were noted on the examination. Nevertheless, the examiner opined that the Veteran's vertigo would make it difficult to concentrate on tasks.

As it relates to the Veteran's bilateral hearing loss and tinnitus, he attended an August 2024 VA examination wherein he was diagnosed with bilateral hearing loss and tinnitus. The Veteran reported that his hearing loss causes communication issues with his mother and concentration problems, and that tinnitus impacts his ability to sleep at night. The Veteran's treatment records are otherwise silent as to the functional impairment due to his impaired hearing.

Relative to the Veteran's service-connected eczema, the Veteran's treatment records reference complaints of a skin rash beginning in March 2010, with reports that such had resolved by December 2010 but reoccurred thereafter beginning in April 2012. The Veteran was afforded a VA examination relative to his eczema in November 2014, wherein he reported a skin rash on his right palm that began in service. The examiner, following a review of the record and an in-person examination, assessed that the Veteran's eczema does not impact his ability to work. In August 2015, the Veteran complained again of a rash on his right hand for the previous 2-3 months. Thereafter, the record reflects an improvement in the Veteran's eczema. In this regard, the Veteran was consistently evaluated as being negative for skin rashes, discoloration, or other symptoms referable to eczema or a skin disorder until September 2022, where he was assessed as having vitiligo (hypopigmentation) on his back and chest.

Relative to the Veteran's neurological disorder, service connected as status post granulomatous meningitis with cerebritis, the Veteran is rated as to the residuals that he currently experiences. To that end, the Veteran has consistently reported neurological and cognitive functioning impairment, to specifically include memory impairment and epilepsy, as well as psychiatric impairment, discussed in detail below. In this regard, a submission from Dr. J.G.G.M., received by VA in May 2024, indicates that the Veteran has regained most of his neurological functions, outside of chronic epilepsy for which he is treated with antiepileptic medication.

The Board notes that the Veteran is not service-connected for seizures, and the functional limitations of non-service-connected disabilities may not be considered when adjudicating entitlement to a TDIU. 38 C.F.R. § 4.16. However, to the extent that seizures are a residual of the Veteran's granulomatous meningitis with cerebritis, a November 2014 treatment note from Dr. J.G.G.M. describes the Veteran's seizures as presented with aberrant behavior, staring then generalization. However, she indicated at that time that his last seizure event occurred two years prior. The record supports this fact, with the only recorded seizure occurring in May 2012. Furthermore, the Veteran was not hurt during the seizure, did not lose consciousness, regained strength, and was noted as being capable of performing activities of daily living. The record is thereafter negative for complaints of seizures. In this regard, a September 2023 VA treatment note indicates that the Veteran self-reported that his last seizure was "many years ago" with no further seizures and only occasional "tics."

The severity of the Veteran's service-connected acquired psychiatric disorder, rated as 30 percent disabling, was assessed during an October 2021 VA examination. As a preliminary matter, the Board notes that, while not for service-connected amnestic disorder specifically, the October 2021 VA examiner nevertheless assessed the functional impact of the Veteran's psychiatric symptomatology. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities)

The October 2021 VA examiner noted that the Veteran appeared as well-developed, well-nourished, appropriately dressed, and with adequate hygiene. He likewise noted that the Veteran was cooperative, alert, and in contact with reality, without evidence of psychomotor dysfunction, agitation, or other involuntary movements. The Veteran was evaluated as having relevant, coherent and logical thought processes, without signs of delusion, hallucinations, phobias, obsessions, panic attacks, or suicidal ideation. The examiner noted short- and long-term memory difficulties but noted that the Veteran's cognitive functions are otherwise preserved. Ultimately, the examiner assessed that the Veteran's occupational impairment, due to his psychiatric disorder, results in reduced reliability and productivity, rather than total occupational impairment, due to the Veteran's self-reported and observed depressed mood, anxiety, impairment of short- and long-term memory, disturbances of motivation, impaired impulse control, and intermittent inability to perform activities of daily living.

The Board acknowledges that the Veteran has repeatedly submitted a statement from Dr. C.M.Q., in which he lists granulomatous meningitis, cerebritis right temporal lobe, generalized seizures, generalized anxiety disorder, major depression disease, PTSD, and sleep as the Veteran's medical diagnoses and assesses that the Veteran is 100 percent disabled and unable to work as due to those disorders. The Board affords Dr. C.M.Q.'s opinion no probative weight, as there is no indication that he examined or interviewed the Veteran as part of rendering the statement; he did not review the Veteran's available treatment records; and did not include a rationale for his opinion regarding the Veteran's total occupational impairment. Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions"); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (a thorough and contemporaneous medical examination is "one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one).

Conversely, the Board affords significant probative weight to the VA examiners' opinions as such were based on examinations of the Veteran and a review of the record, to include his medical history, work history, and lay statements, as well as VA treatment records
App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions"); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (a thorough and contemporaneous medical examination is "one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one).

Based on the foregoing, the Board finds the probative evidence described above does not show that the Veteran's service-connected disabilities, singularly or jointly, were of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history at any point during the appeal period.

In this regard, as to the Veteran's physical limitations, the record does not reflect physical limitations from his service-connected disabilities to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by his past occupations, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, and visual acuity not being severely limited. To the extent that the Veteran indicated he experiences "occasional tics" and "convulsions" that prohibit him from driving, the record reflects that the Veteran was routinely assessed as having no tics, tremors or other involuntary movements. See e.g., April 2024 VA Treatment Note. Moreover, the record reflects that he is capable of completing activities of daily living, house chores, and more physically demanding tasks that would be required of substantially gainful employment. In this regard, the Veteran self-reported completing chores around the house and a third-party report from the Veteran's mother, given in conjunction with the Veteran's claim for SSA disability, reflects that the Veteran was responsible for, and successfully completed, cutting the grass at his family's home once a month and can walk up to a mile. Notably, there is no indication in the record that the Veteran's conditions have progressed during the period on appeal so as to affect his physical abilities.

As to the Veteran's mental limitations, although the Veteran clearly experiences functional impairment, to specifically include difficulty concentrating, difficulty sleeping/insomnia, impairment of long- and short-term memory, anxiety, depression, and disturbances of motivation and mood, such does not result in total occupational impairment. Specifically, none of the aforementioned VA examiners found that the Veteran's service-connected disabilities, physical or psychiatric, completely precluded employment due to the mental limitations they impose.

As the record specifically relates to reports of impaired concentration, the Board finds that such is not of such severity that it precludes all employment, and that such impairment could be easily accommodated by, for example, breaks. While it is documented in VA treatment records that the Veteran's concentration level is lower than expected, there is no indication from the VA examinations or treatment records that he is, or would be, unable to concentrate for any specific periods of time. In this regard, the record reflects the Veteran has the ability to concentrate while watching tv for extended periods of time as well as completing word searches, attending sporting events, shows, and church services. Furthermore, none of the Veteran's treatment providers have indicated a deficiency in concentration severe enough to limit the Veteran's employability. Rather, the Veteran's ability to focus and concentrate was routinely labeled as moderate throughout his treatment with the VA. See e.g., San Juan VA Medical Center Treatment Records.

Relative to the Veteran's report that he has insomnia and poor sleep hygiene, the Board observes that he has not reported associated daytime hypersomnolence or fatigue. In fact, records from the Veteran's claim for disability benefits from the Social Security Administration (SSA) reflect third party reports by the Veteran's mother that the Veteran "hardly sleeps" more than 12 to 3 hours before getting up and watching TV because "he is not sleepy anymore." See SSA Function Report. An April 2023 VA treatment note reflects that the Veteran reported that he, in fact, sleeps well.

The Veteran, admittedly, has limitations with his memory, as evidenced by VA examinations reports and lay statements of record. In this regard the Veteran avers that he requires things be explained multiple times, or shown to him, and that he forgets things he once knew. However, the Board finds that such is also easily corrected with accommodations such as written directions, instructions and/or
the Social Security Administration (SSA) reflect third party reports by the Veteran's mother that the Veteran "hardly sleeps" more than 12 to 3 hours before getting up and watching TV because "he is not sleepy anymore." See SSA Function Report. An April 2023 VA treatment note reflects that the Veteran reported that he, in fact, sleeps well.

The Veteran, admittedly, has limitations with his memory, as evidenced by VA examinations reports and lay statements of record. In this regard the Veteran avers that he requires things be explained multiple times, or shown to him, and that he forgets things he once knew. However, the Board finds that such is also easily corrected with accommodations such as written directions, instructions and/or reminders. Additionally, such limitations would not preclude unskilled labor, in jobs that do not require the Veteran to understand complex instructions or remember information. While these concentration and memory issues would cause difficulty with performing the tasks required of employment, this difficulty is considered in his assigned disability rating, and such employment is not precluded.

Therefore, based on the foregoing, the Board finds the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim for a TDIU, the benefit of the doubt doctrine is not applicable and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for migraine headaches.

The Veteran generally contends he has migraine headaches that are related to his military service. Upon review of the record, the Board finds that a remand is necessary in order obtain a VA examination and opinion addressing the etiology of any current headache disorder.

Turning to the medical evidence of record, the Veteran's STRs are negative for any complaints, treatment, or diagnoses referable to a headache disorder. In this regard, a June 2010 post-deployment health assessment reflects that the Veteran denied experiencing headaches.

Post-service treatment records reflect that the Veteran was diagnosed with and treated for encephalitis in December 2010, and, at the time of treatment for encephalitis, the Veteran presented with symptoms that included, as relevant, headaches. Such post-service treatment records also reflect that he was diagnosed with headaches that same month. However, VA treatment records reflect that he thereafter intermittently reported headaches in treatment. Additionally, VA treatment records further reflect that the Veteran frequently assessed as being negative for symptoms referable to headaches, while still including such on a problem list.

The Veteran submitted a statement from Dr. J.G.G.M., a board-certified neurologist, who indicated that the Veteran has been a patient under her care since "the early 200[0]'s," after being in the critical care unit following an "intracranial hemorrhage of the temporal lobes", related to herpes encephalitis. In her undated letter, received by VA in April 2024, Dr. J.G.G.M. stated that, "After prolonged hospitalization patient remained with amnestic disorder, behavioral disorder, headaches, and intractable epilepsy for a number of years." However, Dr. J.G.G.M. did not opine that the headaches remained constant to the present, indicating that "Up to this date the patient has regained most of his neurological functions, but has chronic epilepsy" without mentioning current headaches.

The Veteran has not undergone VA examination and no corresponding medical opinion relative to his claim for service connection for migraine headaches has been offered. The record is clear that the Veteran experienced severe headaches with the encephalitis, which continued for an indeterminate period of time. However, the record is unclear as to whether he has a current headache disability, and if so, whether it is a result or residual of the encephalitis. Additionally, if he has a current headache disorder, he has a recognized TERA based on his service in Djibouti, Africa, and if the headache disorder is not due to the service-connected encephalitis, an opinion is needed to determine whether the TERA could have caused any headaches, if a current disability, in fact, exists. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability).

The matters are REMANDED for the following action:

1. Afford the Veteran an appropriate VA examination so as to determine the nature and etiology of
has a recognized TERA based on his service in Djibouti, Africa, and if the headache disorder is not due to the service-connected encephalitis, an opinion is needed to determine whether the TERA could have caused any headaches, if a current disability, in fact, exists. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability).

The matters are REMANDED for the following action:

1. Afford the Veteran an appropriate VA examination so as to determine the nature and etiology of his claimed migraine headaches. After eliciting a history from the Veteran regarding his in-service and post-service symptoms, the examiner is asked to opine whether it least as likely as not that any currently diagnosed migraine headache disability had its onset in, or is otherwise related to his military service, to include his acknowledged in-service TERA of pertaining to exposure to environmental hazards coincident with his service in Djibouti, after considering the total potential exposure through all applicable military deployments and the synergistic, combined effect of all such toxic exposure risk activities.

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The examiner should also offer an opinion as to whether it is at least as likely as not that that the Veteran's migraine headaches are due to or aggravated by his service-connected recurrent granulomatous meningitis with cerebritis and encephalitis residuals.

In offering such opinion, the examiner must consider the evidence of experiencing headaches coincident with seeking treatment for herpes encephalitis in December 2010, Dr. J.G.G.M.'s report that the Veteran has had headaches for many years following hospitalization for herpes encephalitis, and subsequent reports of headaches in January 2017.

A rationale for any opinion offered should be provided.

J.M. ESTES

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Deal, Katie

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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