Case A26023842

Summary

The Veteran, who served from February 1967 to April 1971, appeals the denial of service connection for cerebrovascular accident (CVA), tonic-clone seizures, anoxic brain damage, and bilateral upper extremity tremors. The Veteran also appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Board found that the Veteran's substance abuse, which caused the CVA, seizures, and anoxic brain damage, was secondary to a service-connected unspecified anxiety disorder. The Board also found that the Veteran's upper extremity tremors were due to the anoxic brain damage. The Board granted service connection for CVA, tonic-clone seizures, anoxic brain damage, and bilateral upper extremity tremors, finding them to be due to substance abuse stemming from service-connected anxiety. The Board also granted TDIU, finding that the Veteran's combined service-connected disabilities, including the newly granted conditions, preclude him from obtaining substantially gainful employment. The Board applied the benefit of the doubt in granting these claims. The Veteran's combined disability rating meets the schedular criteria for TDIU. However, the Board denied entitlement to Special Monthly Compensation (SMC) at the housebound rate, as the newly granted disabilities, while potentially leading to a 100 percent combined rating, do not meet the criteria for a single disability permanently rated at 100 percent or the separate criteria for SMC.

Full Decision Text

Citation Nr: A26023842
Decision Date: 03/17/26	Archive Date: 03/17/26

DOCKET NO. 251002-594126
DATE: March 17, 2026

ORDER

Service connection for cerebrovascular accident (CVA) is granted.

Service connection for tonic-clone seizures is granted.

Service connection for anoxic brain damage is granted.

Service connection for right upper extremity (RUE) tremors is granted.

Service connection for left upper extremity (LUE) tremors is granted.

A total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1.  Resolving all doubt in the Veteran's favor, substance abuse is due to service-connected unspecified anxiety disorder.

2.  The Veteran's CVA is due to substance abuse. 

3.  The Veteran's tonic-clone seizures are due to substance abuse.

4.  The Veteran's anoxic brain damage is due to substance abuse.

5.  The Veteran's tremors in the upper extremities are due to anoxic brain damage.

6. The evidence of record reflects the Veteran's service-connected disabilities preclude him from performing the mental and/or physical acts required to obtain or retain substantially gainful employment.

CONCLUSIONS OF LAW

1.  The criteria for service connection for CVA are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

2.  The criteria for service connection for tonic-clone seizures are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

3.  The criteria for service connection for anoxic brain damage are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

4.  The criteria for service connection for RUE tremors are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

5.  The criteria for service connection for LUE tremors are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

6.  The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from February 1967 to April 1971.

VA received the Veteran's application for TDIU in September 2022. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, VA Form 20-0995 Supplemental Claim Application. In a December 2022 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to a TDIU. In November 2023, VA received VA Form 20-0995 requesting review of the December 2022 rating decision which denied entitlement to a TDIU. A March 2024 rating decision continued denial of the claim. In August 2024, VA received the Veteran's application for compensation for anoxic brain damage, CVA, tonic-clone seizures, and bilateral upper extremity (BUE)tremors. See VA 21-526EZ, Fully Developed Claim. A November 2024 rating decision denied the claims.

In December 2024, the Board of Veterans' Appeals received VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), wherein the Veteran elected Direct Review of the March 2024 and August 2024 rating decisions. A January 2025 rating decision found a duty to assist error had occurred in the prior adjudication of the claims and remanded them for correction.

The rating decision on appeal was issued in September 2025. In October 2025, the Board of Veterans' Appeals (Board) received the Veteran's NOD, wherein he elected Evidence Review by a Veterans Law Judge. The Board may only consider the evidence of record at the time of the September 2025 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the NOD. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal
 duty to assist error had occurred in the prior adjudication of the claims and remanded them for correction.

The rating decision on appeal was issued in September 2025. In October 2025, the Board of Veterans' Appeals (Board) received the Veteran's NOD, wherein he elected Evidence Review by a Veterans Law Judge. The Board may only consider the evidence of record at the time of the September 2025 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the NOD. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Substance abuse may act as an intermediate step between a disability and service-connected disability where (1) the service-connected disability caused or aggravated the substance abuse; (2) substance abuse was a substantial factor in causing a subsequent disability, and (3) the subsequent disability would not have occurred but for the substance abuse.

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

The Veteran seeks service connection for the claimed disabilities due to substance abuse caused by service-connected anxiety disorder. Here, a March 2025 VA medical opinion found that the Veteran's substance abuse is caused by his service-connected unspecified anxiety disorder. See C&P Exam. Accordingly, substance abuse may act as an intermediate step between the Veteran's anxiety disorder and the claimed disabilities. The remaining question for the Board is whether the Veteran's claimed disabilities are due to or aggravated his substance abuse.

1.  Entitlement to service connection for CVA

2.  Entitlement to service connection for tonic-clone seizures

3.  Entitlement to service connection for anoxic brain damage

The evidence reflects that CVA, tonic-clone seizures, and anoxic brain damage are due to the Veteran's anxiety disorder with substance abuse as an intermediate step.

VA treatment records reflect the Veteran had a CVA with isolated seizure due to the use of street cannabis/THC laced with spice in 2019. See CAPRI at 35 (May 2020). A December 2021 emergency room report reflects the Veteran was hospitalized for seizure following use of street cannabis/THC. See CAPRI at 21-26, 40, 46 (August 2022). In December 2022, the Veteran was again hospitalized for seizures. See CAPRI at 572 (February 2024). At a May 2023 neurology appointment, the Veteran reported doing roughly 150 "whippets" and possibly some ecstasy prior to hospitalization in December 2022. Id at 439. The neurologist diagnosed seizures, anoxic brain damage caused by the liquid ingestion. Id at 442. 

A November 202
. See CAPRI at 35 (May 2020). A December 2021 emergency room report reflects the Veteran was hospitalized for seizure following use of street cannabis/THC. See CAPRI at 21-26, 40, 46 (August 2022). In December 2022, the Veteran was again hospitalized for seizures. See CAPRI at 572 (February 2024). At a May 2023 neurology appointment, the Veteran reported doing roughly 150 "whippets" and possibly some ecstasy prior to hospitalization in December 2022. Id at 439. The neurologist diagnosed seizures, anoxic brain damage caused by the liquid ingestion. Id at 442. 

A November 2024 VA medical opinion reflects the Veteran's seizures had "typically been provoked by illicit drug and alcohol use," and therefore, were more likely caused by substance abuse. See C&P Exam. 

Based on the foregoing, the Board finds that the most probative evidence of record reflects the Veteran's CVA, tonic-clone seizures, and anoxic brain damage are due to substance abuse resulting from service-connected anxiety disorder. The Board acknowledges the negative VA medical opinions associated with the record but assigns more weight to the conclusions reached by the Veteran's treating providers.

Accordingly, service connection for CVA, tonic-colonic seizures, and anoxic brain damage is granted.

4.  Entitlement to service connection for RUE tremors

5.  Entitlement to service connection for LUE tremors

In May 2023, a VA neurologist diagnosed tremors due to anoxic injury. Id at 442. A VA medical opinion found tremors were due to anoxic brain damage caused by the Veteran's December 2022 substance abuse. See C&P Exam (November 2024).

As the evidence reflects RUE and LUE tremors are due to service-connected anoxic brain damage, the claims are granted.

Unemployability

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of substantial, gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.

If the Veteran has only one service-connected disability, it must be rated at 60 percent or more; if he has two or more service-connected disabilities, at least one must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id. Where several disabilities result from common etiology or single accident, they may be considered as one for the purpose of determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a).

6.  Entitlement to TDIU

The Veteran's combined disability rating is 80 percent from September 2016 and meets the schedular criteria of a TDIU for the entire period under consideration. 38 C.F.R. §§ 4.16, 4.25, 4.26.

The question that remains, then, is whether the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The evidence reflects the Veteran has been out of work since August 2015. His relevant work history was as a graphic artist. The Board finds that the evidence clearly demonstrates that his service-connected disabilities preclude employment. A May 2023 VA treatment record reflects that anoxic brain damage results in memory impairment, tremors, and emotional lability. See CAPRI at 442 (February 2024). A November 2024 VA examination reflects the Veteran's CVA caused abnormal gait, cognitive impairment, left-sided weakness, and incoordination; tremors had worsened following the 2022 anoxic brain injury. See C&P exam at 6, 10. This evidence tends to show that he is precluded from obtaining employment due to his service-connected disabilities.

Based on the foregoing, the Board affords the Veteran the benefit of the doubt and finds that he is unable to obtain and maintain any form of substantially gainful employment due to his service-connected disabilities. The criteria for a TDIU are met. 38 C.F.R. §§ 3.340, 
 CAPRI at 442 (February 2024). A November 2024 VA examination reflects the Veteran's CVA caused abnormal gait, cognitive impairment, left-sided weakness, and incoordination; tremors had worsened following the 2022 anoxic brain injury. See C&P exam at 6, 10. This evidence tends to show that he is precluded from obtaining employment due to his service-connected disabilities.

Based on the foregoing, the Board affords the Veteran the benefit of the doubt and finds that he is unable to obtain and maintain any form of substantially gainful employment due to his service-connected disabilities. The criteria for a TDIU are met. 38 C.F.R. §§ 3.340, 4.16.

In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. See also 38 U.S.C. § 1114(s).

VA has a "well-established duty" to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley, 22 Vet. App. at 280. This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294. Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. Id.

SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition, (1) has a 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).

For the purposes of this specific appeal, while the newly granted claims may result in a 100 percent combined disability rating, the newly granted disability claims are discrete disabilities that would not combine to provide the Veteran one disability permanently rated at 100 percent. Therefore, he does not meet the criteria for SMC. As such, he does not qualify for the further consideration for SMC under Bradley. 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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Edwards, Counsel