DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran, who served from June 1972 to October 1976, passed away in October 2016. His surviving spouse, substituted as appellant, appealed a November 2020 rating decision. The appeal primarily concerned the Veteran's service-connected back disability and tinnitus. The appellant sought an increased rating for the back disability and an earlier effective date for both the back disability and tinnitus. The Board dismissed the issues related to the back disability, citing a prior Board decision and the appellant's failure to properly file a motion for reconsideration or to allege clear and unmistakable error. The Board denied the appeal for an earlier effective date for tinnitus, finding the October 17, 2012 effective date already granted was the earliest possible. However, the Board granted entitlement to a Total Disability based on Individual Unemployability (TDIU) for accrued benefits. The Board found that the Veteran's service-connected back, tinnitus, and right heel injury residuals, when considered with his vocational history and the functional impact documented in medical evidence, precluded him from substantially gainful employment. A private vocational consultant's favorable opinion was given some probative value, and VA examination findings regarding the back disability's functional impact were also considered. The Board resolved all reasonable doubt in the appellant's favor for the TDIU claim.

Rationale

Appellant sought rating in excess of 40% for back disability.; Board found November 2020 decision was ministerial implementation of August 2019 Board decision.; No legal basis to adjudicate issue again; appeal dismissed.

Full Decision Text

Citation Nr: A26037451
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 210405-151273
DATE: April 22, 2026

ORDER

Entitlement to a non-initial rating in excess of 40 percent for chronic spasm and strain with degenerative changes, thoracolumbar spine (back disability), for accrued benefits purposes, is dismissed. 

Entitlement to an effective date earlier than August 1, 2015, for the restoration of a 40 percent low back disability rating for accrued benefits purposes is dismissed. 

Entitlement to an effective date earlier than October 17, 2012, for the award of service connection for tinnitus for accrued benefits purposes is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, for accrued benefits purposes only, subject to the laws and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. The November 2020 agency of original jurisdiction (AOJ) decision on appeal, with respect to the low back claim, is a ministerial decision implementing an August 2019 Board decision to restore an improper reduction; therefore, the November 2020 AOJ decision is not an appealable decision with respect to the issues of an increased rating and earlier effective date for the low back disability.

2. There is no legal basis for an effective date earlier than October 17, 2012, for the award of service connection for tinnitus.

3. Resolving all doubt in favor of the appellant as substitute claimant, the late Veteran's service-connected low back, right heel injury residuals, and tinnitus disorders prevented him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the issue of entitlement to an evaluation in excess of 20 percent for chronic spasm and strain with degenerative changes, thoracolumbar spine, for accrued benefits purposes, are met. 38 U.S.C. §§ 7104, 7105.

2. The criteria for dismissal of the issue of entitlement to an effective date earlier than August 1, 2015, for the restoration of a 40 percent rating for chronic spasm and strain with degenerative changes, thoracolumbar spine, for accrued benefits purposes, are met. 38 U.S.C. §§ 7104, 7105.

3. The criteria for entitlement to an effective date earlier than October 17, 2012, for the award of service connection for tinnitus for accrued benefits purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5110; 38 C.F.R. §§ 3.400, 3.2400, 3.2500.

4. The criteria for entitlement to a TDIU, for accrued benefits purposes only, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1972 to October 1976. The Veteran passed away in October 2016. The appellant is his surviving spouse, who was granted substitute claimant status in January 2017. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

In an April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Hearing docket. On December 11, 2024, the appellant testified at a Board hearing, and a transcript of the hearing is of record. 

Thus, the Board may only consider the evidence of record at the time of the November 2020 agency of original jurisdiction (AOJ) decision, as well as any evidence submitted by the appellant or her representative at the December 2024 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted during the period after the AOJ issued the decision on appeal and prior to the Board hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, she may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.
 as well as any evidence submitted by the appellant or her representative at the December 2024 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted during the period after the AOJ issued the decision on appeal and prior to the Board hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, she 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.

1. Entitlement to a non-initial rating in excess of 40 percent for chronic spasm and strain with degenerative changes, thoracolumbar spine (back disability), for accrued benefits purposes, is dismissed.

2. Entitlement to an effective date earlier than August 1, 2015, for the restoration of a 40 percent low back disability rating for accrued benefits purposes is dismissed.

The appellant asserts entitlement to a rating in excess of 40 percent and an effective date earlier than August 1, 2015, for accrued benefits purposes, for the service-connected chronic spasm and strain with degenerative changes, thoracolumbar spine (back disability). See, e.g., April 2021 VA Form 10182. 

By way of background, the Veteran was initially granted service connection for the back disability with a 10 percent rating, effective October 23, 1976. Effective December 14, 1978, the disability rating was increased to 20 percent. From February 20, 2007, the disability was assigned a 40 percent evaluation. See November 2020 Rating Decision - Codesheet. 

In May 2015, the agency of original jurisdiction (AOJ) reduced the back disability rating from 40 percent to 20 percent, effective August 1, 2015. See, e.g., May 2015 Rating Decision. The Veteran appealed the reduction, but unfortunately, he passed away during the pendency of the appeal. The appellant, the Veteran's spouse, was properly substituted for purposes of the appeal and eventually, the Board found that the reduction of the back disability rating was improper and it restored the 40 percent rating. See August 2019 Board Decision.

In the November 2020 AOJ decision on appeal, the AOJ implemented the Board's decision to restore the improperly-reduced rating. Specifically, it restored a 40 percent rating effective August 1, 2015. See November 2020 Rating Decision. 

The appellant appealed the November 2020 rating decision with respect to the issues of the rating and effective date assigned to the back disability. See April 2021 VA Form 10182. However, an appellant may not challenge the merits of a Board decision by expressing disagreement with the AOJ's implementation of that decision. See Harris v. Nicholson, 19 Vet. App. 345 (2005).

In Encarnacion v. McDonough, the U.S. Court of Appeals for Veterans Claims (Court) discussed how the Board must address appeals of rating decisions that were issued to implement decisions of the Board. Encarnacion v. McDonough, 16 Vet. App. 194 (2023). The Court first stated that 38 U.S.C. § 7104 provides that the Board's jurisdiction is wholly derivate of the Secretary's jurisdiction, and that it establishes that "all questions in a matter under 38 U.S.C. § 511(a) shall be subject to one review on appeal to the Secretary," and "final decisions on such appeals shall be made by the Board." Id. at 9-10. The Court also noted that, pursuant to 38 U.S.C. § 511(a), a Board decision is deemed the "final and conclusive" determination of the Secretary as to any discrete issue decided in that decision. Id. at 10. With these statutory provisions in mind, the Court then found that a "pure" implementation of a Board decision cannot be regarded as a decision "affecting the provision of benefits" under 38 U.S.C. § 511(a). Such decisions are not appealable to the Board, as the Board has already rendered the Secretary's final determination on the issue in question. Id. The Court referred to such implementations as purely ministerial in nature, as opposed to decisions capable of being appealed through the filing of a notice of disagreement. Id. at 11
.C. § 511(a), a Board decision is deemed the "final and conclusive" determination of the Secretary as to any discrete issue decided in that decision. Id. at 10. With these statutory provisions in mind, the Court then found that a "pure" implementation of a Board decision cannot be regarded as a decision "affecting the provision of benefits" under 38 U.S.C. § 511(a). Such decisions are not appealable to the Board, as the Board has already rendered the Secretary's final determination on the issue in question. Id. The Court referred to such implementations as purely ministerial in nature, as opposed to decisions capable of being appealed through the filing of a notice of disagreement. Id. at 11.

Applying the Court's holding in Encarnacion to the instant case, the Board must conclude that the November 2020 decision was a purely ministerial implementation of the Board's August 2019 decision with respect to the restoration of a 40 percent rating, effective August 1, 2015, for the service-connected back disability.

Therefore, although the appellant timely appealed the matter to the Board, there is no legal basis for the Board to again adjudicate the issue of entitlement to a higher non-initial rating or earlier effective date for the low back disorder. The Board therefore has no alternative but to dismiss the appeal as to those matters. See 38 U.S.C. § 7105.

In Encarnacion, the Court also suggested that in cases such as this, the Board should consider whether the appeal should be construed as a Motion for Reconsideration of the Board's prior decision. In this case, the Board does not consider the April 2021 VA Form 10182 or any evidence or argument received within the applicable evidentiary window to be a Motion for Reconsideration of the August 2019 Board decision. Specifically, a Motion for Reconsideration of a Board decision must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and the date of the Board decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable Board decision or decisions, or other appropriate basis for requesting reconsideration. If the applicable Board decision or decisions involved more than one issue on appeal, the Motion for Reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. 38 C.F.R. § 20.1002.

In this case, neither the April 2021 VA Form 10182 nor the statements from the appellant or her representative during any proper evidentiary window reference, at all, the Board's August 2019 decision or set forth any alleged error or errors in that decision. Therefore, neither the April 2021 Board appeal, nor any of its accompanying correspondence, meet the above requirements for a proper filing of a Motion for Reconsideration of the Board's August 2019 decision.

The Board further finds that the underlying VA Form 10182 and the accompanying evidence/argument cannot be construed as either a motion to vacate or a motion to revise the August 2019 Board decision based on clear and unmistakable error (CUE). Neither the appellant nor her representative submitted any allegations that the appellant was denied due process of law or identified any specific error(s) in the Board's August 2019 decision, which are required for a motion to vacate or a motion to revise based on CUE, respectively. Rather, the April 2021 VA Form 10182 and the accompanying statements from the appellant and her representative present a clear objection to the restored low back disability rating and effective date assigned by the AOJ. Neither the appellant nor her representative identified an error(s) in the Board's August 2019 decision; the only decision cited in the April 2021 VA Form 10182 and correspondence was the November 2020 AOJ decision. 

For the foregoing reasons, the appeal as to the issues of a non-initial rating in excess of 40 percent for the service-connected back disability and an effective date earlier than August 1, 2015, is dismissed.

3. Entitlement to an effective date earlier than October 17, 2012, for the award of service connection for tinnitus for accrued benefits purposes is denied.

The appellant asserts entitlement to an effective date earlier than October 17, 2012, for the award of service connection for tinnitus. See April 2021 VA Form 10182. Although the November 2020 agency of original jurisdiction
 April 2021 VA Form 10182 and correspondence was the November 2020 AOJ decision. 

For the foregoing reasons, the appeal as to the issues of a non-initial rating in excess of 40 percent for the service-connected back disability and an effective date earlier than August 1, 2015, is dismissed.

3. Entitlement to an effective date earlier than October 17, 2012, for the award of service connection for tinnitus for accrued benefits purposes is denied.

The appellant asserts entitlement to an effective date earlier than October 17, 2012, for the award of service connection for tinnitus. See April 2021 VA Form 10182. Although the November 2020 agency of original jurisdiction (AOJ) decision on appeal implemented the August 2019 Board grant of service connection for tinnitus, the AOJ decided the downstream issue of assignment of the proper effective date. Thus, the matter is properly before the Board at this time. 

Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim. 38 U.S.C. § 5110(a).

Under the legacy system, an appeal consists of a notice of disagreement (NOD) that must be filed within one year of the notice of the decision being appealed, followed by a timely-filed substantive appeal to a statement of the case (SOC). 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A legacy appeal is perfected when the filing requirements are met, such as submitting a completed VA Form 9 to the Board within the time period stated in the SOC. 38 U.S.C. § 19.30. 

Pursuant to Section 506 of Public Law (PL) 112-154, codified as 38 U.S.C. § 5110(b)(2)(A), for original claims for compensation received between August 6, 2013, through August 5, 2015, the effective date can be one year prior to the date VA received a formal and complete Fully Developed Claim (FDC) for the benefit granted. 

On February 19, 2019, the modernized review system, also known as the Appeals Modernization Act (AMA), became effective. The modernized review system applies to all claims, requests for reopening of finally adjudicated claims, and requests for revision based on clear and unmistakable error for which VA issues notice of an initial decision on or after February 19, 2019, or when a claimant with a legacy claim or appeal elects to move the claim or appeal into the AMA. See 38 C.F.R. § 19.2; 38 C.F.R. § 3.2400. The Board notes that the claim at issue began within the legacy regime, but was eventually moved into the AMA system.

The Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

To fully address the appellant's contentions regarding entitlement to an earlier effective date for the award of service connection for tinnitus, the procedural history of the claim must be examined.

The Veteran first pursued service connection for tinnitus via an informal legacy claim that was denied in September 2005. See November 2005 Informal Claim; see September 2005 Rating Decision. The Veteran did not appeal the decision, and it became final. 

Approximately seven years later, the Veteran requested to reopen the claim for tinnitus service connection. See October 2012 VA Form 21-4138 (requesting to reopen the tinnitus claim). The filing was date-stamped as received by VA on October 17, 2012. See id. 

The record contains the Veteran's appeal of the tinnitus denial, which was perfected after his passing by the appellant, as substitute claimant. See, e.g., July 2014 NOD; April 2018 Supplemental Statement of the Case. 

Eventually, service connection for tinnitus for accrued benefits purposes was granted by the Board. See August 2019 Board Decision. In the November 2020 decision on appeal, the AOJ implemented the grant, including assignment of an
 claim for tinnitus service connection. See October 2012 VA Form 21-4138 (requesting to reopen the tinnitus claim). The filing was date-stamped as received by VA on October 17, 2012. See id. 

The record contains the Veteran's appeal of the tinnitus denial, which was perfected after his passing by the appellant, as substitute claimant. See, e.g., July 2014 NOD; April 2018 Supplemental Statement of the Case. 

Eventually, service connection for tinnitus for accrued benefits purposes was granted by the Board. See August 2019 Board Decision. In the November 2020 decision on appeal, the AOJ implemented the grant, including assignment of an effective date of October 17, 2012. 

As outlined above, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim. 38 U.S.C. § 5110(a).

Thus, based on the foregoing, the Board finds that the appellant is already in receipt of the earliest possible effective date for the award of service connection for tinnitus, for accrued benefits purposes. In other words, the proper effective date for the grant of service connection for tinnitus is October 17, 2012, and it may not be any earlier. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

As the disorder is already assigned an effective date of October 17, 2012, the appeal for an earlier effective date is denied. There is no doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3.

4. Entitlement to a TDIU is granted, for accrued benefits purposes only.

The Board finds that entitlement to a total disability rating based on individual unemployability (TDIU) has been raised part and parcel of the claim for increased rating herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Generally, once the Board has jurisdiction over a claim, it has the authority to address all issues related to that claim, even those not previously decided by a VA regional office (RO) or the agency of original jurisdiction (AOJ). Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (en banc); Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (citing 38 U.S.C. § 7104(a)). 

Nevertheless, the Board should obtain a waiver from a claimant or determine that no prejudice would result before adjudicating any issue not addressed by the AOJ to ensure that any procedural safeguards that come with having the AOJ adjudicate an issue first are provided. See Bernard, 4 Vet. App. at 394.

Here, the Board finds that adjudicating the issue of entitlement to a TDIU will result in no prejudice to the appellant, as the Board is granting entitlement to a TDIU for accrued benefits purposes.

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In instances in which the schedular rating is less than total, total disability ratings for compensation may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the veteran meets the schedular requirements.

Specifically, if there is only one such disability, that disability shall be ratable at 60 percent or more; if there are two or more such disabilities, there must be at least one disability that is ratable at 40 percent or more, as well as sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a).

For those claimants who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, their TDIU claim shall be referred to the Director
3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a).

For those claimants who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, their TDIU claim shall be referred to the Director of Compensation Service for consideration of an extraschedular TDIU rating. 38 C.F.R. § 4.16(b). However, the United States Court of Appeals for Veterans Claims recently clarified that the Board may consider an appeal for entitlement to a TDIU in the first instance, regardless of whether the claimant meets the schedular criteria. See Witkowski v. Collins, 38 Vet. App. 459 (2025).

"Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. An award of a TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Turning to the evidence, it is well-established in the record that the Veteran was last employed in June 2011. See, e.g., September 2011 VA Form 21-8940. After he stopped working, however, the Veteran participated in the VA Veteran Readiness and Employment (VR&E) program. As discussed further below, evidence shows that he stopped participating in the VR&E program in April 2013. 

Thus, the remaining question for the Board is whether the service-connected disabilities precluded the Veteran from obtaining or engaging in substantially gainful employment, such that an award of a TDIU for accrued benefits purposes may be granted. 

Evidence shows that the Veteran served as an aircraft mechanic during service. See, e.g., DD Form 214. After service, the Veteran worked in a grocery store warehouse for one month, built mobile homes for two months, and worked as a janitor for a time. See December 1978 VA Report. Subsequently, he worked for nearly thirty years as a mechanic for the United States Postal Service. See, e.g., September 2011 VA Form 21-8940. For a period after his USPS retirement, the Veteran was enrolled in and pursuing training through the VA VR&E program. As part of his VR&E participation, the Veteran was in receipt of a subsistence allowance, but records indicate that the Veteran stopped attending VR&E-related training and the subsistence allowance was terminated effective April 10, 2013. See, e.g., April 2012 VA Form 28-1905 (indicating that the Veteran was enrolled in and attending computer classes); April 2013 VA Letter (notifying the Veteran that Vocational Rehabilitation subsistence allowance payments would end on April 10, 2013, as that was the date his attendance stopped). 

Review of the record supports that the service-connected disabilities contributed to impairment of body that was sufficient to render it impossible for the late Veteran to follow a substantially gainful occupation given his level of education, special training, and previous work experience.

During the post-hearing evidence window, the appellant submitted a favorable vocational assessment authored by a private vocational consultant. The private consultant opined, based on the evidence, that it is more likely than
 2012 VA Form 28-1905 (indicating that the Veteran was enrolled in and attending computer classes); April 2013 VA Letter (notifying the Veteran that Vocational Rehabilitation subsistence allowance payments would end on April 10, 2013, as that was the date his attendance stopped). 

Review of the record supports that the service-connected disabilities contributed to impairment of body that was sufficient to render it impossible for the late Veteran to follow a substantially gainful occupation given his level of education, special training, and previous work experience.

During the post-hearing evidence window, the appellant submitted a favorable vocational assessment authored by a private vocational consultant. The private consultant opined, based on the evidence, that it is more likely than not that the Veteran was unable to secure or follow any substantially gainful employment due to his service-connected conditions. See March 2025 Private Vocational Assessment. The Board assigns some probative value to this opinion. 

Other evidence, including objective medical evidence, indicates that the Veteran's service-connected back, tinnitus, and ankle injury residuals disorders caused functional impairment. 

Regarding the functional impact of the service-connected back disorder, although a VA examiner who completed two separate VA examination reports indicated that the Veteran's back disability did not impact his ability to work, that examiner also noted that in addition to limited range of motion (ROM), the back disability caused less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The examiner also noted that the Veteran regularly used a cane for locomotion and occasionally used a walker. See May 2014 and February 2015 VA Examination Reports. 

Regarding the functional impact of the service-connected tinnitus disorder, a July 2013 VA examiner indicated that the disorder impeded social interactions, as it made distinguishing the voices of individuals speaking in group settings difficult. The examiner also noted that the disorder sometimes delayed the Veteran's ability to fall asleep. See March 2024 VA Examination Report.

Regarding the functional impact of the service-connected right heel injury residuals, VA records indicated symptoms that included trace edema in the ankle. See June 2009 VA Medical Records; see also April 2012 Rating Decision (increasing the rating for right ankle injury residuals to 10 percent for moderate symptoms based on the medical evidence, including the VA medical records). 

Based on the foregoing and resolving all reasonable doubt in favor of the appellant as substitute claimant, and giving due consideration to the functional effects of the service-connected disabilities as those disorders relate to the late Veteran's occupational experience, the Board finds that he was unable to secure and follow a substantially gainful occupation by reason of the service-connected back, tinnitus, and right ankle injury residuals disorders. 

Accordingly, the criteria having been met, entitlement to a TDIU is granted for accrued benefits purposes only, subject to the laws and regulations governing the payment of monetary benefits. See 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Board does not make any determination as to the effective date for this award; the assignment of that downstream element is properly left to the AOJ in the first instance. See, e.g., Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

 

 

J. NICHOLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C.Z. Noh

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.