ANKLE IMPAIRMENT OF

K.A. KENNERLY · 2026 · Case ID: A26027923

MIXED

Summary

The veteran, who served in the United States Air Force from June 1980 to July 2001, appeals the denial of service connection for an acquired psychiatric disability and bilateral hip and knee disabilities, as well as an increased rating for a lumbar spine disability. The Board granted service connection for a right ankle disability, noting an in-service injury and a current diagnosis of degenerative arthritis, supported by a private medical opinion. The Board also granted service connection for a left ankle disability, secondary to the right ankle, and bilateral hip and knee disabilities, secondary to the right ankle and lumbar strain, based on a private medical opinion that found compensatory mechanisms and altered biomechanics. Service connection for an acquired psychiatric disorder was granted, based on a favorable finding of adjustment disorder with mixed symptoms from the prior rating decision and a private psychological evaluation linking current PTSD, depression, anxiety, and alcohol use disorder to the traumatic loss of the veteran's daughter during service in 1999. The Board also granted entitlement to a Total Disability based on Individual Unemployability (TDIU), finding that the combined service-connected disabilities, particularly the psychiatric and physical limitations, rendered the veteran unable to sustain substantially gainful employment. The claim for an increased rating for the lumbar spine disability was remanded due to a duty to assist error, specifically the need for a VA examination to assess the disability's severity without the beneficial effects of pain medication.

Rationale

In-service injury documented; Current diagnosis of degenerative arthritis; Private medical opinion provided nexus

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

210505-157290

Full Decision Text

Citation Nr: A26027923
Decision Date: 03/27/26 Archive Date: 03/27/26

DOCKET NO. 210505-157290
DATE: March 27, 2026

ORDER

Entitlement to service connection for a right ankle disability is granted.

Entitlement to service connection for a left ankle disability, secondary to a service-connected right ankle disability, is granted.

Entitlement to service connection for a right hip disability, secondary to service-connected lumbar strain and bilateral ankle disabilities, is granted.

Entitlement to service connection for a left hip disability, secondary to service-connected lumbar strain and bilateral ankle disabilities, is granted.

Entitlement to service connection for a right knee disability, secondary to service-connected bilateral ankle disabilities, is granted.

Entitlement to service connection for a left knee disability, secondary to service-connected bilateral ankle disabilities, is granted.

Entitlement to service connection for an acquired psychiatric disability is granted.

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

REMANDED

Entitlement to a rating in excess of 40 percent for a lumbar spine disability is remanded.

FINDINGS OF FACT

1. The appellant's right ankle disability is related to his military service.

2. The appellant's left ankle disability was caused by his service-connected right ankle disability.

3. The appellant's right hip disability was caused by his service-connected lumbar strain and bilateral ankle disabilities.

4. The appellant's left hip disability was caused by his service-connected lumbar strain and bilateral ankle disabilities.

5. The appellant's right knee disability was caused by his service-connected bilateral ankle disabilities.

6. The appellant's left knee disability was caused by his service-connected bilateral ankle disabilities.

7. The appellant's acquired psychiatric disorder began during active service.

8. The appellant is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for a left ankle disability, secondary to a service-connected right ankle disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for entitlement to service connection for a right hip disability, secondary to service-connected lumbar strain and bilateral ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for entitlement to service connection for a left hip disability, secondary to service-connected lumbar strain and bilateral ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for a right knee disability, secondary to service-connected bilateral ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

6. The criteria for entitlement to service connection for a left knee disability, secondary to service-connected bilateral ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served in the United States Air Force from June 1980 to July 2001.

Procedural History

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision of the Department of Veterans Affairs' (
3.102, 3.303.

8. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served in the United States Air Force from June 1980 to July 2001.

Procedural History

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which increased the appellant's disability rating for chronic lumbar strain to 40 percent disabling effective May 31, 2019, and denied service connection for an acquired psychiatric disability, bilateral hip, and bilateral knee disabilities. The appellant's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), was received by VA in May 2021. The appellant elected the Hearing docket.

The appellant had a hearing before a Veterans Law Judge on March 27, 2025.

Applicable Evidentiary Window

As the appellant elected the Hearing docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, evidence submitted by the appellant or his representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023).

Outstanding requests

In February 2025, the appellant's representative requested a copy of the appellant's entire claims file. See VA Form 21-4138 Statement in Support of Claim, February 21, 2025. That request was acknowledged by VA in March 2025. See Correspondence, March 8, 2025. To date, it has not been fulfilled. However, in June 2025, the appellant's representative specifically waived all outstanding FOIA requests. See VA Form 21-4183 Statement in Support of Claim, June 25, 2025. In light of this waiver, the Board will proceed with adjudicating the matter.

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(a). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023)
1163, 1166-67 (Fed. Cir. 2004).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson reports a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of each veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a).

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

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

1. Entitlement to service connection for a right ankle disability

Appellant's Contentions

The appellant contends that he currently suffers from a right ankle disability as a result of his military service or secondary to his service-connected disabilities. See VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits, May 8, 2020.

Analysis

The appellant's claim for entitlement to service connection was denied on the grounds that the appellant did not have a diagnosed disability. See Rating Decision, November 25, 2020. An in-service right ankle injury was noted. Id.

With respect to the first element of service connection, the appellant's VA medical records note a diagnosis of degenerative arthritis of the medial and lateral joints. See VA Medical Records, July 6, 2021, resubmitted June 14, 2025. As such the first element of service connection is established. See Shedden, supra.

With respect to the second element of service connection, the appellant's service
Benefits, May 8, 2020.

Analysis

With respect to the second element of service connection, the appellant's service treatment records show an ankle sprain in November and December 1991. See Service Treatment Record, December 9, 1991 (noting an ankle injury on Thanksgiving day). As such the second element of service connection is satisfied. See Shedden, supra.

With respect to the final element, a nexus between the current diagnosis and the in-service injury, the appellant has submitted a private medical opinion supporting such a nexus. That report found that the appellant's right ankle injury in 1991 resulted in chronic pain which has worsened over the years and causes swelling and catching in the ankle joint and which has resulted in a limitation of range of motion and pain and stiffness. See Medical Opinion of J.S., DC, May 16, 2025. The private medical opinion concluded that the appellant's current right ankle disability is likely related to military service and the 1991 right ankle sprain. Id.

The private medical opinion is adequate, competent, and probative, as it is based on accurate medical history, and provided an explanation containing a clear conclusion and supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no contrary medical opinion of record.

Based on the foregoing, entitlement to service connection for a right ankle disability is established. See Shedden, supra.

2. Entitlement to service connection for a left ankle disability

Appellant's Contentions

The appellant contends that he currently suffers from a left ankle disability as a result of his service-connected disabilities. See Hearing Transcript, March 27, 2025.

Analysis

With respect to the first element of service connection, the private medical opinion submitted by the appellant noted that the appellant experiences tenderness, moderate limitation of dorsiflexion and moderate limitation of plantarflexion as a result of pain and stiffness in his bilateral ankle joints. See Medical Opinion of J.S., DC, May 16, 2025. As such the first element of service connection is met. See Shedden supra, 38 C.F.R. § 3.310(a)-(b).

The private medical opinion also provides a positive opinion with respect to whether the appellant's left ankle disability was caused or aggravated by his (now) service-connected right ankle disability. See Medical Opinion of J.S., DC, May 16, 2025. The private opinion noted that studies show that individuals with unilateral ankle sprain or instability often exhibit deficits in the uninjured ankle and are at risk for injury due to compensatory adaptations. Id. The private opinion concluded that the appellant's left ankle condition is likely related to his right ankle condition as a result of compensatory mechanisms and neuromuscular adaptations brought on by the right ankle injury. Id.

Based on the foregoing, entitlement to service connection for a left ankle disability, secondary to a service connected right ankle disability, is established. See 38 C.F.R. § 3.310(a)-(b).

3. Entitlement to service connection for bilateral hip disabilities

Appellant's Contentions

The appellant contends that he currently suffers from bilateral hip disabilities as a result of his service-connected disabilities. See Hearing Transcript, March 27, 2025.

Analysis

With respect to the first element of service connection, the private medical opinion submitted by the appellant noted that the appellant experiences bilateral moderate limitation of range of motion and hip joint dysfunction. See Medical Opinion of J.S., DC, May 16, 2025. As such the first element of service connection is met. See 38 C.F.R. § 3.310(a)-(b).

The private medical opinion also provides a positive opinion with respect to whether the appellant's bilateral hip disability was caused or aggravated
bilateral hip disabilities

Appellant's Contentions

The appellant contends that he currently suffers from bilateral hip disabilities as a result of his service-connected disabilities. See Hearing Transcript, March 27, 2025.

Analysis

The private medical opinion also provides a positive opinion with respect to whether the appellant's bilateral hip disability was caused or aggravated by his (now) service-connected right ankle disability, and his service connected lumbar strain. See Medical Opinion of J.S., DC, May 16, 2025.

The private opinion noted that studies show that ankle injuries can lead to compensatory changes in proximal joints, including the hip. Id. The private opinion concluded that the appellant's bilateral hip disability is likely related to his service connected back and right ankle disabilities as a result of gait changes caused by chronic instability in the right ankle and gait changes caused by the low back disability; which overtime has led to joint irritation, muscle imbalance and progressive degeneration in the hips. Id.

Based on the foregoing, entitlement to service connection for a right hip disability and a left hip disability, secondary to service connected lumbar strain and right ankle disability, is established. See 38 C.F.R. § 3.310(a)-(b).

4. Entitlement to service connection for bilateral knee disabilities

Appellant's Contentions

The appellant contends that he currently suffers from bilateral knee disabilities as a result of his service-connected disabilities. See Hearing Transcript, March 27, 2025.

Analysis

With respect to the first element of service connection, the private medical opinion submitted by the appellant noted that the appellant experiences bilateral mild to moderate limitation of range of motion, moderate tenderness, aching, and stiffness in his knees. See Medical Opinion of J.S., DC, May 16, 2025. As such the first element of service connection is met. See 38 C.F.R. § 3.310(a)-(b).

The private medical opinion also provides a positive opinion with respect to whether the appellant's bilateral knee disability was caused or aggravated by his right ankle disability. See Medical Opinion of J.S., DC, May 16, 2025.

The private opinion noted that studies show a clear cause and effect relationship between ankle injuries and knee injuries due to altered lower limb biomechanics and increased stress on the knee joint after an ankle injury.. Id. The private opinion concluded that the appellant's bilateral knee disabilities are likely related to his service connected right ankle disability as a result of compensatory mechanisms and neuromuscular adaptations and changes caused by chronic instability in the right ankle. Id.

Based on the foregoing, entitlement to service connection for a right knee disability and a left knee disability, secondary to a service connected right ankle disability, is established. See 38 C.F.R. § 3.310(a)-(b).

5. Entitlement to service connection for an acquired psychiatric disorder

Appellant's Contentions

The appellant contends that he currently suffers from an acquired psychiatric disorder as a result of service. See Hearing Transcript, March 27, 2025.

Analysis

The November 2020 rating decision on appeal favorably found that the appellant had been diagnosed with adjustment disorder with mixed symptoms of depression and anxiety. See Rating Decision, November 27, 2020. The Board is bound by this favorable finding. See 38 C.F.R. §§ 3.104(c), 20.801(a). As such, the first element of service connection is met. See Shedden, supra.

Analysis

With respect to the second element of service connection the appellant testified that while he was on active duty, his daughter passed away in a motor vehicle accident. See Hearing Transcript, March 27, 2025. The appellant served from 1980 to 2001. See DD-214 Certificate of Release or Discharge from Active Duty, July 31, 2001. As such the second element of service connection is met. See Shedden, supra.

Turning to the third element of service connection, a nexus between the current disability and the in-service event, the appellant has submitted a private psychological evaluation supporting such a connection. See Psychological Evaluation completed by A.N., PsyD, June 23, 2025. Dr. A.N. examined the appellant in June 2025, he noted diagnoses of PTSD, unspecified depressive disorder, unspecified anxiety disorder and alcohol use disorder, mild to moderate. Id. During the examination the appellant endorsed feelings of anxiousness and depression, exhibited a flattened affect, exhibited circumstantial thought processes, and reported intrusive thoughts. Id. The appellant also endorsed past suicidal ideations, without plan or intent. Id. Dr. A.N. found that the appellant's psychological symptoms originated during the appellant's military service following the traumatic loss of the appellant's daughter in 1999. Id. The private psychological assessment also found that the appellant's psychological conditions are further exacerbated by his service connected physical disabilities, including chronic lumbar strain, paroxysmal atrial fibrillation, tinnitus, and recurrent sinusitis, which contribute to functional limitations in the areas of sleep, mobility and emotional regulation. Id. Dr. A.N. found that the appellant experiences impairment in both occupational and social functioning, including ongoing difficulty with concentration, memory, emotional stability, and social interactions. Id. The private psychological assessment concluded that the appellant's current psychological disorders likely began in or were otherwise related to the appellant's military service and that his symptoms have been chronic and continuous since the death of his daughter in 1999. Id. As such, the third element of service connection has been established. See Shedden, supra.

Based on the foregoing, entitlement to service connection for an acquired psychiatric disability is granted.

As entitlement to service connection has been granted on a direct theory, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104.

TDIU

Entitlement to a TDIU

Appellant's Contentions

The appellant contends that he is unable to secure and follow substantially gainful employment by reason of his service connected disabilities. See Hearing Transcript, March 27, 2025.

Applicable Law

A claim for TDIU is part and parcel of every claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009).

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system
be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16.

The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id.

The central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The Court defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024).

In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Analysis

The appellant's claim for a TDIU is part and parcel of the increased rating claim filed by the appellant on May8, 2020. See Rice, supra.

For the period on review, the appellant's service-connected disabilities include chronic lumbar strain, rated at 40 percent disabling; paroxysmal atrial fibrillation, rated at 30 percent disabling; tinnitus rated at 10 percent disabling; and status post fracture of nasal bone with allergic rhinitis, deviated septum and recurrent sinusitis, rated at 10 percent disabling. See Codesheet, November 25, 2020. Thus, the appellant meets the initial eligibility requirements to receive TDIU benefits. 38 C.F.R. § 4.16(a).

Additionally, the appellant is service connected for two right hand finger disabilities both rated as non-compensable and as a result of the grants herein, the appellant is also now service connected for an acquired psychiatric disorder, bilateral ankle disabilities, bilateral knee disabilities and bilateral hip disabilities, all of which have not yet been assigned a rating.

Having met the schedular criteria for a
disabling; and status post fracture of nasal bone with allergic rhinitis, deviated septum and recurrent sinusitis, rated at 10 percent disabling. See Codesheet, November 25, 2020. Thus, the appellant meets the initial eligibility requirements to receive TDIU benefits. 38 C.F.R. § 4.16(a).

Having met the schedular criteria for a TDIU, the remaining question is whether the appellant was unemployable due to his service-connected disabilities.

Upon review, and after resolving reasonable doubt in the appellant's favor, when considering the collective impact of the appellant's service-connected disabilities and the appellant's individual circumstances, to include education, training, and work history, it is found that the appellant is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

The appellant was last employed in 2012, as a corrections officer. See Hearing Transcript, March 27, 2025. The appellant testified that he took some college classes but does not have a college degree and did not undergo any vocational training. See Id. The appellant also testified that he experiences panic attacks, anxiety and depression which impact his motivation to work; that his doctors advised him to reduce stress levels at work due to his heart condition; that his tinnitus makes it difficult to communicate because it impacts his ability to hear directions or commands; that he experienced stress and anxiety at work due to concerns that his pacemaker might be damage during interactions; and that his back disability made it difficult for him to sit or stand for long periods of time. See Id.

Turning to the appellant's service-connected disabilities, evidence indicates that the appellant's acquired psychiatric disorder causes him to avoid social situations and limits his desire to be around others. See Private Psychological Evaluation, June 24, 2025. The private psychological evaluation also found that the appellant experiences nighttime sleep difficulties that result in him falling asleep during the day; and he also experiences memory difficulties which cause him to lose his train of thought while speaking. Id. Further, the private psychological evaluation found that the appellant's physical disabilities contribute to functional limitations in the areas of sleep, mobility and emotional regulation and that those functional limitations along with difficulties in concentration, memory, emotional stability, and social interaction impair occupational functioning. Id.

The private psychological evaluation concluded that it was likely that the appellant could not sustain substantially gainful employment due to the severity and chronicity of his mental health conditions. Id. Specifically, the evaluation found that the appellant's frequent intrusive thoughts, flattened affect, impaired impulse control, and difficulties managing anger would hinder performance in most occupational settings and that daytime drowsiness and reduced cognitive efficiency would limit his capacity to meet the demands of sedentary or low-stress jobs. Id. In conclusion, the private evaluation found that the appellant's psychiatric condition alone prevents him from engaging in and sustaining gainful employment in a competitive work environment. See Id.

After review, significant probative value is assigned to the private psychological opinion. Such report was thorough and well-reasoned, based upon review of the appellant's claim file and an interview with the appellant and was prepared by someone with relevant subject matter expertise. While "applicable regulations place responsibility for the ultimate TDIU determination on the VA," the private psychological evaluation is found to be particularly probative evidence in support of the appellant's TDIU claim. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

Additionally, a separate private medical opinion submitted by the appellant noted that the appellant's limitations as a result of his lumbosacral spine, hips, knees and ankles have rendered him unable to stand or walk for any substantial period of time and have also rendered him unable to adequately lift or perform repetitive tasks. See Medical Opinion of J.S., DC, May 16, 2025. These physical limitations would further impact the appellant's ability to sustain gainful employment.

Overall, the evidence indicates that the appellant's service connected disabilities would impact his ability to secure or follow, essentially, any type of substantially gainful occupation. As such, and after resolving reasonable doubt in the appellant's favor, it is found that the appellant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities and that, accordingly, a TDIU is warranted.

Based on these findings, the criteria for entitlement to a TDI
for any substantial period of time and have also rendered him unable to adequately lift or perform repetitive tasks. See Medical Opinion of J.S., DC, May 16, 2025. These physical limitations would further impact the appellant's ability to sustain gainful employment.

Based on these findings, the criteria for entitlement to a TDIU have been met, and, to this extent, the appellant's claim is granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS FOR REMAND

The appellant seeks an increased rating for his lumbar spine disability. See Hearing testimony, March 27, 2025.

Under the AMA, VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct a pre-decisional duty to assist error discussed below.

The record shows the appellant takes pain medication for his lumbar spine disability. See Back Conditions Disability Benefits Questionnaire (DBQ), August 7, 2020. However, the DBQ does not address and discount any beneficial effects of medication, nor do they evaluate the baseline severity of his disability without the benefit of medication. See Ingram v. Collins, 38 Vet. App. 130, 139 (2025) (finding the Board must discount beneficial medication effects when assigning a disability rating when the relevant rating criteria do not explicitly contemplate medication use, including musculoskeletal disabilities).

As such remand is required for an opinion which addresses the severity of the appellant's lumbar spine disability without the beneficial effects of medication.

The matters are REMANDED for the following action:

1. Schedule a VA examination with an appropriate clinician to assess the current severity of the appellant's lumbar spine disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria.

The clinician must test the appellant's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training).

The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the clinician should provide an estimate, if at all possible, of the additional impairment due to flare-ups, and with repeated use over time based on the other evidence of record and the appellant's statements.

The clinician must also address the ameliorating effects of any medication taken by the appellant for these disabilities. Specifically, the clinician should discount beneficial medication effects when assigning an evaluation.

If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training).

2. After the above development, and any other development deemed necessary, readjudicate the claim.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jennifer Sullivan-Brief

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