Case A26038382

RAY BARTO SLABBEKORN, JR. · 2026 · Case ID: A26038382

MIXED

Summary

The Veteran, an Army Veteran who served from September 1989 to February 1991, with subsequent National Guard service until September 1995, appeals the denial of service connection for several conditions and the denial of special monthly compensation (SMC) and total disability based on individual unemployability (TDIU). The Veteran sought service connection for PTSD, sleep apnea, hypertension, stroke with hemiplegia and neurocognitive impairment, headaches, left ankle sprain, cervical sprain, lumbar disc disease, hearing loss, and tinnitus. The Board granted service connection for PTSD, finding it was caused by an in-service stressor. Consequently, secondary service connection was granted for sleep apnea (due to PTSD), hypertension (due to PTSD and sleep apnea), stroke residuals (due to sleep apnea and hypertension), headaches (due to stroke, sleep apnea, and hypertension), and left ankle sprain (due to right ankle disability). Service connection for cervical sprain and lumbar disc disease was also granted, with onset during service. The Board denied service connection for hearing loss, citing a lack of current disability and no nexus to service, but granted service connection for tinnitus due to noise exposure. The Veteran was granted a 10 percent rating for a right ankle scar and was granted SMC(o) and SMC(r)(1). TDIU was also granted, finding the Veteran unable to secure or follow substantially gainful employment due to service-connected disabilities. The appeal for ankylosis of the right ankle and restoration of competency were withdrawn.

Service Branch

ARMY

Special Benefit

TDIU; SMC

Docket No.

200804-100774

Full Decision Text

Citation Nr: A26038382
Decision Date: 04/23/26 Archive Date: 04/23/26

DOCKET NO. 200804-100774
DATE: April 23, 2026

ORDER

The appeal as to the issue of entitlement to a rating in excess of 30 percent for ankylosis of the right ankle is dismissed.

The appeal as to the issue of entitlement to restoration of competency to handle direct disbursement of VA benefits is dismissed.

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

Entitlement to service connection for sleep apnea, secondary to service-connected PTSD, on a causation basis, is granted.

Entitlement to service connection for hypertension is granted, secondary to service-connected PTSD and sleep apnea, on a causation basis, is granted.

Entitlement to service connection for right middle cerebral artery (MCA) stroke with left-side hemiplegia and major neurocognitive impairment, secondary to service-connected sleep apnea and hypertension, on a causation basis, is granted.

Entitlement to service connection for headaches, secondary to service-connected sleep apnea and hypertension, on a causation basis, is granted.

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

Entitlement to service connection for cervical sprain is granted.

Entitlement to service connection for lumbar disc disease is granted.

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is granted.

Throughout the period on appeal, entitlement to an initial 10 percent rating, but no higher, for a right ankle scar, is granted, subject to the laws and regulations governing the payment of monetary benefits.

Throughout the period on appeal, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(o) (SMC(o)), is granted, subject to the laws and regulations governing the payment of monetary benefits.

Throughout the period on appeal, entitlement to SMC pursuant to 38 U.S.C. § 1114(r)(1) (SMC(r)(1)), is granted, subject to the laws and regulations governing the payment of monetary benefits.

Throughout the period on appeal, entitlement to SMC pursuant to 38 U.S.C. § 1114(s) is dismissed as moot.

Throughout the period on appeal, entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, is granted, subject to the laws and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. During a February 2025 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal as to the issue of entitlement to a rating in excess of 30 percent for ankylosis of the right ankle.

2. During a February 2025 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal as to the issue of entitlement to restoration of competency to handle direct disbursement of VA benefits.

3. The Veteran's PTSD was caused by an in-service stressor.

4. The Veteran's sleep apnea was caused by his service-connected PTSD.

5. The Veteran's hypertension was caused by his service-connected PTSD and sleep apnea.

6. The residuals of the Veteran's stroke were caused by his service-connected sleep apnea and hypertension.

7. The Veteran's headaches were caused by his service-connected stroke, service-connected sleep apnea, and service-connected hypertension.

8. The Veteran's left ankle sprain was caused by his right ankle disability.

9. The Veteran's cervical sprain had its onset during service.

10. The Veteran's lumbar disc disease had its onset during service.

11. The evidence of record does not reflect that the Veteran has a current hearing loss disability for VA compensation purposes, at any time during or approximate to the pendency of his claim during the period on appeal.

12. The Veteran's tinnitus is due to exposure to hazardous noise during service.

13. Throughout the period on appeal, the Veteran has a painful right ankle scar. The symptoms of the Veteran's right ankle scar have not involved the head, face, or neck, have not been associated with underlying soft tissue damage, have not involved areas of at least 144 square inches (sq. in.) (929 square centimeters (sq. cm.)), and have not had any other disabling effects at any point during the period on appeal. The Veteran has not had three or more painful or unstable service-connected scars at any point during the period on appeal.

14. Throughout the period on appeal, the symptoms of the Veteran's right MCA stroke with left-side hemiplegia and major neurocognitive impairment, more closely approximates par
the period on appeal, the Veteran has a painful right ankle scar. The symptoms of the Veteran's right ankle scar have not involved the head, face, or neck, have not been associated with underlying soft tissue damage, have not involved areas of at least 144 square inches (sq. in.) (929 square centimeters (sq. cm.)), and have not had any other disabling effects at any point during the period on appeal. The Veteran has not had three or more painful or unstable service-connected scars at any point during the period on appeal.

15. Throughout the period on appeal, the Veteran has been in need of regular of aid and attendance due to the symptoms of his right MCA stroke with left-sided hemiplegia and major neurocognitive impairment. The Veteran has not been in need of a higher level of care due to the symptoms of his right MCA stroke with left-sided hemiplegia and major neurocognitive impairment.

16. The Veteran's entitlement to SMC based on the need for regular aid and attendance is a greater benefit than an award of SMC based on being housebound.

17. The Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria are met for withdrawal of the appeal as to the issue of entitlement to a rating in excess of 30 percent for ankylosis of the right ankle by the Veteran. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.205.

2. The criteria are met for withdrawal of the appeal as to issue of entitlement to restoration of competency to handle direct disbursement of VA benefits by the Veteran. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.205.

3. The criteria are met for entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

4. The criteria are met for entitlement to service connection for sleep apnea, secondary to service-connected PTSD, on a causation basis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria are met for entitlement to service connection for hypertension is granted, secondary to service-connected PTSD and sleep apnea, on a causation basis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

6. The criteria are met for entitlement to service connection for right MCA stroke with left-sided hemiplegia and major neurocognitive impairment, secondary to service-connected sleep apnea and hypertension, on a causation basis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria are met for entitlement to service connection for headaches, secondary to service-connected stroke, sleep apnea and hypertension, on a causation basis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

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

9. The criteria are met for entitlement to service connection for cervical sprain. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

10. The criteria are met for entitlement to service connection for lumbar disc disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

11. The criteria are not met for entitlement to service connection for hearing loss. 38 U.S.C
.F.R. §§ 3.102, 3.303, 3.310.

9. The criteria are met for entitlement to service connection for cervical sprain. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

10. The criteria are met for entitlement to service connection for lumbar disc disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

11. The criteria are not met for entitlement to service connection for hearing loss. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

12. The criteria are met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

13. Throughout the period on appeal, the criteria are met for entitlement to an initial 10 percent rating, but no higher, for a right ankle scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.118, Diagnostic Code 7804.

14. Throughout the period on appeal, the criteria are met for SMC(o). 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(2).

15. Throughout the period on appeal, the criteria are met for SMC(r)(1). 38 U.S.C. § 1114(r)(1); 38 C.F.R. § 3.350(h)(2).

16. The award of SMC(r)(1), a greater benefit, renders entitlement to SMC(s) moot because the two levels of compensation cannot be awarded concurrently. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

17. The criteria for a TDU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1989 to February 1991. The Veteran also had additional service in the Army National Guard of the United States from September 1989 to September 1995, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).

In September 1998, the Veteran filed VA Form 21 526, Veteran's Application for Compensation or Pension (Disability Claim), seeking entitlement to service connection for a right ankle and foot injury. In an October 2000 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted entitlement to service connection for right ankle fracture with a noncompensable rating effective September 8, 1998. In a November 2000 VA Form 21 4138, Statement in Support of Claim (Statement), the Veteran submitted an informal notice of disagreement with the October 2000 rating decision as to the noncompensable rating assigned for a right ankle fracture. In a January 2001 statement of the case (SOC) the RO continued the noncompensable rating for a fracture of the right ankle. In a February 2001 supplemental statement of the case (SSOC), the RO granted a higher initial rating of 10 percent for residuals of a fracture of the right ankle effective September 8, 1998.

In September 2018, the Veteran submitted VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (examination for Housebound Status or Aid and Attendance). In an October 2018 rating decision, the RO denied entitlement to SMC based on aid and attendance or housebound status.

In February 2019, the Veteran submitted an examination for Housebound Status or Aid and Attendance and indicated that he was seeking entitlement to SMC.

In September 2019 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits (Disability Claim), the Veteran indicated that he was seeking entitlement to compensation for 1) bilateral ankle disabilities; 2) a lower back disability; 3) sleep apnea; 4) an acquired psychiatric disorder; 5) a cervical spine disability; 6) hearing loss; 7) tinnitus; 8) migraine headaches; and 9) a TDIU. On that same date, the Veteran filed VA Form 21-8940, Application for Increased Compensation Based on Unemployability (TDIU Application) due to his lower back disability and psychiatric disability.

In a November 2019 rating decision, the RO 1) proposed a finding of incompetency. 2) Denied entitlement to SMC based on aid and attendance. 3) Denied entitlement to SMC based on housebound criteria. 4) Increased the rating for ankylosis of the right ankle (progressed from ankle fracture with residuals, right) from a 10 percent rating to a 30 percent rating effective September 27, 2019. 5) Granted service connection for a scar of the right ankle, status post ankle surgery, with a noncompensable (0 percent) rating effective September 27, 2019. 6) Denied entitlement to a TDIU. 7) Denied entitlement to service connection for an acquired psychiatric disorder. 8) Denied entitlement to service connection for a left ankle disability. 9) Denied entitlement to service connection for a cervical spine disability. 10) Denied entitlement to service connection for hearing loss. 11) Denied entitlement to service connection for a lower back disability. 12) Denied entitlement to service connection for migraine headaches. 13) Denied entitlement to service connection for sleep apnea. 14) Denied entitlement to service connection for tinnitus.

The Veteran timely appealed the November 2019 rating decision to the Board of Veterans' Appeals (Board) in an August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and requested a hearing with a Veterans Law Judge. 38 C.F.R. §§ 20.202(b)(2); 20.302(a)(2).

In his August 2020 Notice of Disagreement, the Veteran indicated that he was seeking review of the November 2019 rating decision, as to the issues of 1) incompetency, 2) SMC based on aid and attendance, 3) SMC based on housebound status, 4) ankylosis of the right ankle, 5) scar on the right ankle status post-surgery, 6) TDIU, 7) an acquired psychiatric disorder, 8) a left ankle condition, 9) a cervical spine condition, 10) hearing loss, 11) a lower back condition, 12) migraine headaches, 13) sleep apnea, and 14) tinnitus.

In addition, the issue of entitlement to service connection for residuals of a stroke were raised by the record in connection with the Veteran's claim of entitlement to service connection and his claim of entitlement to SMC based on aid and attendance and based upon housebound status and has been added to the issues on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Specifically, in the September 2018 examination for Housebound Status and Aid and Attendance, a private physician indicated that the Veteran had cognitive deficits due to an ischemic stroke. In the February 2019 examination for Housebound Status or Aid and Attendance, a VA physician noted that the Veteran had a diagnosis of right MCA stroke combined with left side paraplegia, confinement to a wheelchair and lower extremity weakness. The physician noted that the Veteran's speech and cognition were slow secondary to a stroke. In the September 2019 Disability Claim and TDIU application, the Veteran indicated that he was seeking entitlement to service connection for an acquired psychiatric disorder and entitlement to a TDIU due in part to his psychiatric disorder.

The Veteran appeared and testified at a hearing before the undersigned Veterans Law Judge in February 2025. A transcript
Veteran had cognitive deficits due to an ischemic stroke. In the February 2019 examination for Housebound Status or Aid and Attendance, a VA physician noted that the Veteran had a diagnosis of right MCA stroke combined with left side paraplegia, confinement to a wheelchair and lower extremity weakness. The physician noted that the Veteran's speech and cognition were slow secondary to a stroke. In the September 2019 Disability Claim and TDIU application, the Veteran indicated that he was seeking entitlement to service connection for an acquired psychiatric disorder and entitlement to a TDIU due in part to his psychiatric disorder.

The Veteran appeared and testified at a hearing before the undersigned Veterans Law Judge in February 2025. A transcript is associated with the record.

As an appeal in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issues on appeal on appeal, evidence submitted by the appellant or his representative at the hearing, to include testimony provided at the hearing, and evidence submitted by the Veteran or his representative within 90 days following the hearing. 38 C.F.R. § 20.302(a).

In June 2020 and April 2021, the Veteran submitted additional examinations for Housebound Status or Aid and Attendance. In November 2022, a statement was also submitted from the Veteran's wife. In an August 2023 Disability Claim, the Veteran also submitted additional evidence regarding his psychiatric disorder, sleep apnea, right ankle scar, lower back, and tinnitus. As this evidence was submitted outside of the evidentiary window, it has not been considered.

In addition, VA treatment records and examinations were also added to the file outside of the evidence window. To the extent that the treatment records and examinations were generated outside of the evidence window, they have not been considered. Specifically, the Veteran underwent a VA examination of his right ankle scar in February 2024. As this evidence was generated outside of the evidentiary window, it has not been considered.

Withdrawal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205.

1. Entitlement to a rating in excess of 30 percent for ankylosis of the right ankle

2. Entitlement to restoration of competency to handle direct disbursement of VA benefits

In the present case, the Veteran has withdrawn his appeal as to the issues of entitlement to a rating in excess of 30 percent for ankylosis of the right ankle and entitlement to restoration of competency to handle direct disbursement of VA benefits. During the February 2025 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the appeal as to the issues of entitlement to a rating in excess of 30 percent for ankylosis of the right ankle and entitlement to restoration of competency to handle direct disbursement of VA benefits is requested. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the issues are dismissed.

Service Connection

Service connection is warranted where the facts, shown by evidence, establish that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection is warranted "for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." 38 C.F.R. § 3.303(d).

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 disability 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) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364. For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability. Id.

In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (also interpreting 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes). In the absence of a present disability, the claim cannot meet the criteria for compensation. In determining whether the requirement of a current disability has been met, the entire claim period must be considered, as well as the period preceding it, and whether there have been symptoms causing impairment in earning capacity or a different but related disorder diagnosed during this period. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (the current disability threshold is met where a disability existed at the time a claim was filed, even if the disability resolves prior to adjudication of the claim); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim). In addition, where pain causes functional impairment, a disability for purposes of VA compensation exists, even if there is no underlying diagnosis. See Saunders at 1367-68; see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (pain constitutes functional loss where it affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (claims should be read sympathetically and construed "based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.").

Lay statements may be competent to support a claim for service connection by establishing the occurrence of lay-observable events, the presence of disability or symptoms of disability, and the presence of continuous symptoms after separation from service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) ("38 U.S.C. § 1154(a) requires that the VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim to disability or death benefits"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) ("finder of fact must consider the credibility and weight of the [veteran's] statements, and any other competent lay or medical evidence submitted, to determine whether [the veteran] is entitled to service connection based on continuity of symptomatology"); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ("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 is reporting a contemporaneous medical diagnosis,
' in evaluating a claim to disability or death benefits"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) ("finder of fact must consider the credibility and weight of the [veteran's] statements, and any other competent lay or medical evidence submitted, to determine whether [the veteran] is entitled to service connection based on continuity of symptomatology"); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ("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 is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (lay evidence concerning the onset of symptoms and continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).

Due consideration "shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence..." 38 U.S.C. § 1154(a).

All favorable findings towards claimants are binding upon all subsequent adjudicators, unless clear and unmistakable evidence is shown to the contrary to rebut such favorable findings. 38 U.S.C. §§ 5104(b)(4), 5104A; 38 C.F.R. § 20.801(a).

"When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). Thus, the benefit-of-the-doubt doctrine applies "if the competing evidence is in 'approximate balance,'" and when "the evidence is not in equipoise but nevertheless is in approximate balance." Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). A "low standard of proof" must be employed to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). "Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits." Id. Thus, an absolutely "accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology." See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing 38 U.S.C. § 5107(b)). However, "the benefit-of-the-doubt rule does not apply" when "the evidence is not in 'approximate balance' or 'nearly equal,'" and "the evidence persuasively favors one side or the other." Lynch at 781-82.

3. Entitlement to service connection for an acquired psychiatric disorder

Factual Considerations

An August 1989 Report of Medical Examination for enlistment in the Army National Guard reflects that a clinical evaluation of the neurologic system was normal. The corresponding Report of Medical History reflects that the Veteran reported a history of sinusitis and a prior head injury. The clinician noted that the Veteran sustained a head injury in 1972 when he was hit by a car, however, it was not considered disabling.

Military personnel records indicate that the Veteran's military occupation specialty (MOS) during service was 62E10 Heavy Construction Equipment Operator.

In addition, in September 2018, the Veteran submitted an examination for Housebound Status or Aid and Attendance from a private physician, which reflects a diagnosis of ischemic stroke. The physician indicated that the symptoms of the Veteran's left hemiplegia, dysphonia and cognitive deficits restricted his activities and functions.

In February 2019, the Veteran submitted an examination for Housebound Status or Aid and Attendance from a VA physician, which reflects a diagnosis of right MCA stroke combined with left side paraplegia, confinement to a wheelchair and lower extremity weakness. The physician noted that the Veteran's speech and cognition were slow secondary to his stroke.

In September 2019, the Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder.

In the September 2019 TDIU application, the Veteran indicated that he
a private physician, which reflects a diagnosis of ischemic stroke. The physician indicated that the symptoms of the Veteran's left hemiplegia, dysphonia and cognitive deficits restricted his activities and functions.

In September 2019, the Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder.

In the September 2019 TDIU application, the Veteran indicated that he was seeking entitlement to a TDIU due in part to his psychiatric disorder.

The Veteran was afforded a VA examination in December 2023, which reflects diagnoses of chronic PTSD, severe recurrent major depressive disorder (MDD), and major neurocognitive impairment. As to the Veteran's neurocognitive impairment, the examiner noted that records indicated that the Veteran had several strokes that were due to vascular issues. In addition, the records indicate that dementia was an issue in the Veteran's cognitive decline. The examiner indicated that the Veteran had more than one mental disorder diagnosed and stated that it was not possible to differentiate which symptoms were attributable to each diagnosis because the disorders overlapped significantly, although the stroke and dementia had led to cognitive decline. The Veteran's reported stressors were related to deployment to Kuwait and the Los Angeles riots, which the examiner opined met Criterion A for PTSD and was related to fear of hostile military or terrorist activity. The examiner noted that the Veteran lost friends to combat, experienced firefights and mortar attacks, had to remain on guard at all times and continued to have nightmares and intrusive thoughts related to this period. The examiner noted that the Veteran had been bed bound and participated minimally in the examination due to cognitive issues, with his wife providing most of the history.

The examiner opined that the Veteran's claimed depression was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran had current diagnoses of chronic PTSD, severe recurrent MDD, and major neurocognitive impairment. In support of the opinion, the examiner noted that the Veteran served in the Army and his stressor statement indicated exposure to combat-like activities while on deployment. The examiner opined that the Veteran's experiences in Kuwait created his present PTSD. The examiner noted that records from Megan Sailors in 2023 indicated that the Veteran struggled with PTSD due to military service. In addition, the examiner opined that the Veteran's major depressive disorder was secondary to chronic PTSD. The examiner also opined that the Veteran's claimed anxiety condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran served in the Army and had a stressor statement indicating that he lost people to combat, firefights, and mortar exposure while on deployment. The Veteran has a diagnosis of PTSD, chronic, due to this event. The examiner noted that PTSD was an anxiety disorder, and PTSD was the best explanation of the Veteran's issues. In addition, the examiner noted that the Veteran also had a diagnosis of severe and recurrent major depressive disorder, which he tried to mask during his lifetime through gambling. The Veteran also experienced a cerebrovascular accident (CVA) in 2017, which had now created dementia, cognitive decline, and major neurocognitive impairment. The Veteran now needed 24/7 care and was no longer independent, but homebound. The examiner noted that these problems also impacted his PTSD and depression, as he had poor motivation to deal with life now.

The Veteran was afforded a VA examination in January 2024, which reflects diagnoses of PTSD and unspecified cerebrovascular disease. The examiner opined that the Veteran met the DSM-5 criteria for PTSD and noted that these symptoms, along with the residual effects of his CVA, significantly impaired his occupational and social functioning. In the medical opinion, the examiner opined that the claimed condition of generalized anxiety disorder was less likely than not caused by ankylosis of the right ankle and right knee joint osteoarthritis. The examiner further opined that the Veteran's psychiatric disability should be acknowledged as PTSD and stated that it was at least as likely as not that PTSD resulted from the claimed in-service injury and should be considered for direct service connection. The examiner explained that the Veteran exhibited symptoms consistent with PTSD under DSM-5 criteria and attributed the onset of PTSD to combat-related events during deployment in Iraq, where sustaining a gunshot wound to the right leg qualified as a significant stressor. The examiner opined that no other stress
occupational and social functioning. In the medical opinion, the examiner opined that the claimed condition of generalized anxiety disorder was less likely than not caused by ankylosis of the right ankle and right knee joint osteoarthritis. The examiner further opined that the Veteran's psychiatric disability should be acknowledged as PTSD and stated that it was at least as likely as not that PTSD resulted from the claimed in-service injury and should be considered for direct service connection. The examiner explained that the Veteran exhibited symptoms consistent with PTSD under DSM-5 criteria and attributed the onset of PTSD to combat-related events during deployment in Iraq, where sustaining a gunshot wound to the right leg qualified as a significant stressor. The examiner opined that no other stressor contributed to the current PTSD and that the military-related traumatic event continued to profoundly influence the Veteran's thoughts and mood.

In March 2024, the examiner provided an addendum opinion regarding the January 2024 examination. The examiner stated that during the January 2024 examination, the Veteran exhibited symptoms that did not fully meet the criteria for generalized anxiety disorder (GAD) under DSM-5 but displayed symptoms consistent with PTSD. The examiner noted that the Veteran attributed the development of PTSD to traumatic events during deployment in Iraq, including sustaining a gunshot wound to the right leg, which qualified as a significant stressor under PTSD criteria. The examiner opined that the claimed condition of GAD was less likely than not caused by the Veteran's service-connected condition, as PTSD was a more accurate diagnosis for the Veteran's symptoms. The examiner further opined that PTSD was at least as likely as not caused by the claimed in-service injury and should be considered for direct service connection, explaining that the military-related traumatic event continued to profoundly influence the Veteran's thoughts and mood.

In a July 2024 rating decision, the RO granted entitlement to service connection for PTSD, claimed as generalized anxiety disorder, with a 70 percent rating effective October 26, 2023. The RO indicated the grant of service connection was based upon review of the December 2023, January 2024, and March 2024 VA examinations and opinions.

Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that the Veteran's PTSD resulted from an in-service stressor.

A current diagnosis of PTSD has been established, including in the December 2023 and January 2024 VA examinations.

Despite the RO's July 2024 grant of entitlement to service connection for PTSD, the Board is nonetheless obligated to decide the Veteran's appeal of entitlement to service connection for PTSD, which was denied in the November 2019 rating decision. See Warren v. McDonald, 28 Vet. App. 214 (2016) (holding that a subsequent AOJ decision cannot divest the Board of jurisdiction over the prior appeal; therefore, an AOJ grant of service connection cannot finally decide the claim of service connection already on appeal to the Board).

Further, the favorable findings of the July 2024 rating decision are binding upon all subsequent adjudicators. 38 U.S.C. §§ 5104(b)(4), 5104A; 38 C.F.R. § 20.801(a). As noted, in the July 2024 rating decision, the RO granted entitlement to service connection for PTSD based upon the review of the December 2023, January 2024, and March 2024 VA examinations and opinions. As such, although the December 2023, January 2024, and March 2024 VA examinations and opinions were generated outside of the evidentiary window, in light of the favorable finding in the July 2024 rating decision, the examinations have been essentially incorporated by reference as part of the favorable findings of the July 2024 rating decision. See Bolds v. McDonough, No. 22-2484, 2024 U.S. App. Vet. Claims LEXIS 1067, at *16-17 (Vet. App. July 11, 2024) (the evidence submission limits in 38 U.S.C. § 7113(b) and § 20.302(a) are claims - processing rules that are subject to waiver by the Secretary and do not carry jurisdictional consequences). Thus, this decision also reflects consideration of aforementioned December 2023, January 2024, and March 2024 VA examinations and opinions. Cf. Voracek v. Nicholson, 421 F.3d 1299, 1303 (Fed. Cir. 2005) (consideration of new and material evidence applies to both newly submitted evidence as well as "evidence incorporated therein by reference").

Probative weight is given to the Veteran's competent and credible statements that indicate that he lost people to combat, firefights, and mortar
§ 7113(b) and § 20.302(a) are claims - processing rules that are subject to waiver by the Secretary and do not carry jurisdictional consequences). Thus, this decision also reflects consideration of aforementioned December 2023, January 2024, and March 2024 VA examinations and opinions. Cf. Voracek v. Nicholson, 421 F.3d 1299, 1303 (Fed. Cir. 2005) (consideration of new and material evidence applies to both newly submitted evidence as well as "evidence incorporated therein by reference").

Probative weight is given to the Veteran's competent and credible statements that indicate that he lost people to combat, firefights, and mortar exposure during service. Jandreau, supra; Buchanan, supra.

Significant probative weight is given to the December 2023, January 2024, and March 2024 VA opinions indicating that the Veteran's PTSD resulted from an in-service stressor. The examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record.

4. Entitlement to service connection for sleep apnea

5. Entitlement to service connection for migraine headaches

6. Entitlement to service connection for residuals of a stroke

7. Entitlement to service connection for hypertension

Factual Considerations

In addition to the evidence as outlined above, the August 1989 Report of Medical Examination for enlistment in the Army National Guard reflects a normal clinical evaluation of the head and neurologic system. The corresponding Report of Medical History reflects that the Veteran reported a history of sinusitis and a prior head injury. The clinician noted that the Veteran had sinusitis that was not considered disabling, and a head injury in 1972 when he was hit by a car that was not considered disabling.

A January 1990 service treatment record reflects an assessment of rule out sinusitis. During the clinical visit, the Veteran complained of sinus problems, including severe burning when breathing cold air and difficulty breathing in the evening. The Veteran stated that he had been having his sinuses drained every six months for two years. A January 1990 service treatment record reflects a diagnosis of probable sinus congestion and cephalgia. A January 1990 service treatment record reflects that a sinus series was performed. The Veteran reported a 13-year history of sinus problems and complained of frontal sinus pain. The treatment record notes that there was no evidence of acute sinusitis. The clinician observed a suggestion of very minimal mucoperiosteal thickening at the base of the left maxillary sinus; however, in discussion with the clinician, the Veteran was asymptomatic in this area, and this was not considered a definitive finding on the films. A November 1990 service treatment record reflects that the Veteran complained of chills and nausea for two days. The treatment record reflects a diagnosis of possible upper respiratory infection (URI).

An August 2001 VA neurology consult reflects diagnoses of left sided discomfort, chest pain, and probable cardiac ischemia. During the clinical visit, the Veteran complained of left sided weakness and chest pain. The clinician noted that the symptoms were likely referred pain from probable cardiac ischemia, as suggested by T wave flattening, accompanying nausea and diaphoresis in the setting of activity, and the resolution of left arm symptoms with the resolution of chest pain. The clinician recommended a thorough cardiac evaluation because troponin levels may not peak for eight to twelve hours and creatine kinase heart muscle and brain (MB) levels may not peak for twenty four hours and noted that T wave flattening could be indicative of ischemia even in the absence of infarction. The clinician advised evaluation for cardiac risk factors, including hypertension, type II diabetes mellitus (diabetes), and a lipid panel, noting that these were also stroke risk factors, and recommended aspirin (ASA) for primary prevention. The treatment record notes that the clinician discussed concerns for a possible cardiac etiology with another physician.

During a December 2001 VA clinical visit, the Veteran complained of having a headache for two days that was getting progressively worse. The Veteran reported that there was a pain in the center of his forehead radiating to both temples, with constant pressure, intermittent sharp throbbing exacerbations, some nausea; white spots in vision, problems judging distance, and sensitivity to light and sound. The Veteran reported that he had been having increased stress lately, due to work and finances. He also felt knots all over his body. The clin
noting that these were also stroke risk factors, and recommended aspirin (ASA) for primary prevention. The treatment record notes that the clinician discussed concerns for a possible cardiac etiology with another physician.

During a December 2001 VA clinical visit, the Veteran complained of having a headache for two days that was getting progressively worse. The Veteran reported that there was a pain in the center of his forehead radiating to both temples, with constant pressure, intermittent sharp throbbing exacerbations, some nausea; white spots in vision, problems judging distance, and sensitivity to light and sound. The Veteran reported that he had been having increased stress lately, due to work and finances. He also felt knots all over his body. The clinician noted that the Veteran had been diagnosed with hypertension in the past but had been taken off his medications as something was making him sick. A December 2001 VA treatment record reflects a diagnosis of tension headaches versus migraine headaches. The Veteran had been complaining of a headache for the past few days, which had significantly improved.

A January 2002 VA treatment record reflects a diagnosis of tension headaches versus migraines with no further episodes. The clinician noted that the Veteran needed to be monitored for recurrence. The clinician noted that the Veteran had been recently evaluated by cardiologists in January 2002 for a history of recurrent left-sided chest discomfort, shortness of breath, left arm and leg paresthesias, and palpitations varying in durations for up to 20 minutes. The clinician noted that the Veteran also had a recent emergency room visit for a headache. The Veteran was treated successfully with nonsteroidal anti-inflammatory drugs (NSAIDs). The clinician noted that the Veteran reportedly had a history of being a workaholic. He formerly had 2 jobs at a department store and as security systems analyst but was currently on personal leave of absence related to health problems. The Veteran was currently on personal leave from his job as a security system installer. The Veteran stated that he had walked 2 miles 3 times a week but admitted that he had recently walked 20 miles after getting upset.

An August 2002 VA treatment record indicates that the Veteran had a highly suggestive history for obstructive sleep apnea. The Veteran reported the he fell asleep frequently throughout the day and had fallen asleep while talking to his wife. He reported that he did not feel refreshed in the morning and he occasionally had headaches in the morning. He indicated that his wife stated that he was a loud snorer and she had witnessed apneic episodes. The clinician noted that the Veteran had increased weight gain over the last year.

An October 2002 VA treatment record reflects a diagnosis of severe obstructive sleep apnea and hypopnea, that was worse in a supine position.

During an August 2005 VA clinical visit, the Veteran complained of headaches when standing for a week and documented high blood pressure readings at home. The clinician noted that the Veteran had been taking hypertension medications for the past 2 years but reported non-compliance with an unspecified medication that was causing muscle aches. The clinician noted that the Veteran also complained of fatigue and constipation. The clinician noted that continued questioning revealed that the Veteran had been diagnosed with obstructive sleep apnea, but he did not wear his mask because it would blow too much pressure. The Veteran indicated that he was willing to wear the mask if it could be adjusted properly. The Veteran reportedly worked as a driver and reported excessive daytime sleepiness. The clinician noted that the Veteran was also observed in an emergency room snoring loudly. The clinician noted that the Veteran was known to have obstructive sleep apnea and had been non-compliant with his continuous positive airway pressure (C-PAP) therapy.

A November 2006 VA treatment record reflects that the clinician noted the Veteran had obstructive sleep apnea.

During a December 2006 VA clinical visit, the Veteran reported that he had fallen earlier that morning. He complained of having a throbbing frontal headache with blurry vision. He could not recall if he had loss of consciousness.

A December 2006 VA treatment record from the emergency department reflects an initial impression of a fall secondary to insomnia and exhaustion associated with untreated obstructive sleep apnea, fall with head trauma without loss of consciousness, and elevated glucose due to untreated diabetes. The treatment record notes that a head computed tomography (CT) scan ruled out intracranial bleeding secondary to the fall. The clinician noted that the Veteran's medical history included hypertension, diabetes, hyperlipidemia, and obstructive sleep apnea. During the visit, the Veteran complained of a headache and blurred vision after falling and hitting the back of his head early in the morning. He stated that he woke up at approximately 3:45 a.m. to urinate but did not need to and then fell and hit the back of his head against a wall. He was unable to recall what he was doing or feeling immediately prior to the fall but believed he was returning to bed. He did not remember whether he experienced a loss of consciousness. About an hour later, at approximately 4:45 a.m., he reported dry heaving but denied vomiting. When he woke up to get ready for work at approximately 6:00 a.m., he experienced blurred vision and transient dizziness. He also reported a frontal headache, which was not at the site of impact. The clinician noted that the Veteran had been without his C-PAP machine for approximately four months because it was broken and was being repaired. He reported that he had not had restful sleep during that time and rarely obtained more than four to five hours of cumulative sleep per night. He stated that he woke up frequently and saw every hour on the clock and that he was always tired during the day and fell asleep easily.

During an October 2007 VA clinical visit, the Veteran complained of a headache. The clinician noted that the Veteran had a history of noncompliance of diabetes, hypertension and obstructive sleep apnea. The clinician noted that the Veteran had come to see his primary care physician when he was noted to be very hypertensive and was sent to the emergency room. The Veteran reported that he had been out of his blood pressure medications for one week. The clinician noted that the Veteran's 3 antihypertensives medications were refilled.

A January 2010 VA treatment record indicates that the Veteran had high blood pressure and a headache. The Veteran was taken to a procedure room for Clonidine. During a follow up visit, it was noted that the Veteran's blood pressure had been high for the last few days. The Veteran had complained of headache for 3 days. The Veteran reported that he was taking all his blood pressure medications.

A January 2010 VA treatment record reflects diagnoses of medication noncompliance, diabetes, hypertension, obstructive sleep apnea, hyperlipidemia, and cardiovascular risk factors. During the clinical visit, the clinician noted that although the Veteran had insight, he demonstrated poor judgment, and the clinician warned him about the risks of untreated hypertension and diabetes. The treatment record notes that his most recent hemoglobin A1C was greater than 9 percent. The treatment record reflects that the Veteran's blood pressure was elevated. The clinician urged the Veteran to lose weight, follow a low salt diet, and exercise, and referred him back to the sleep clinic due to untreated obstructive sleep apnea. The clinician educated him regarding the importance of managing his obstructive sleep apnea and its implications for worsening blood pressure control and the development of heart failure, encouraged weight loss, and placed a referral to the sleep clinic. The clinician noted that the Veteran had multiple uncontrolled cardiovascular risk factors and poor functional status and referred the Veteran for an exercise treadmill test and transthoracic echocardiogram. During the clinical visit, the Veteran reported compliance with his medications; however, the clinician noted that the Veteran ate a high salt diet, did not exercise, and was obese.

A January 2010 VA treatment record reflects a diagnosis of severe obstructive sleep apnea. The clinician noted that obstructive sleep apnea was identified on a previous sleep study conducted in 2002. The clinician noted that the Veteran was not currently using his C-PAP therapy at that time. The clinician noted that the Veteran was encouraged to lose weight.

A February 2010 VA treatment record notes that the Veteran had a history of severe obstructive sleep apnea, which had been managed with a C-PAP machine. The clinician noted that the Veteran returned for follow-up after being referred back to sleep medicine because his C-PAP device was damaged approximately 10 months earlier. Since then, he had been off of C-PAP therapy and continued to
of severe obstructive sleep apnea. The clinician noted that obstructive sleep apnea was identified on a previous sleep study conducted in 2002. The clinician noted that the Veteran was not currently using his C-PAP therapy at that time. The clinician noted that the Veteran was encouraged to lose weight.

A December 2010 VA treatment record reflects an assessment of multiple uncontrolled chronic conditions, including diabetes, hypertension, hyperlipidemia, and obstructive sleep apnea. The clinician noted that the Veteran was not using his C-PAP machine and returned for follow-up care. The clinician noted that the Veteran's blood pressure was elevated. The Veteran reported compliance with medications but admitted to a high-salt diet, lack of exercise, and poor dietary habits. The clinician noted that the Veteran's diabetes mellitus was poorly controlled. The clinician observed that the Veteran had insight but poor judgment regarding medication compliance and warned him about the risks of untreated hypertension and diabetes. The clinician referred the Veteran back to sleep medicine for management of untreated obstructive sleep apnea and educated him on its implications for worsening blood pressure control and the development of heart failure. The Veteran was urged to lose weight, follow a low-salt diet, exercise, and was referred for a sleep study. Given the Veteran's multiple uncontrolled cardiovascular risk factors and poor functional status, the clinician referred the Veteran for an exercise treadmill test and transthoracic echocardiogram.

During a March 2013 VA clinical visit, the Veteran reported he had a slight headache with blurred vision. The Veteran also complained of chronic pain to his back and tail bone. The clinician noted that blood pressure patient education was reinforced regarding medication adherence, diet, and exercise.

A July 2015 VA stroke consultation note from a neurologist reflects diagnoses of stroke, hypertension, dyslipidemia, diabetes, obesity, obstructive sleep apnea, and cerebrovascular disease. During the consultation, the Veteran reported that he was hospitalized for four days after suffering a stroke in April 2015, and that he experienced visual impairment on the right but did not have weakness, numbness, or chest pain. He stated that after receiving treatment, possibly with tissue plasminogen activator, he recovered normal function within a few hours and had been normal since. The treatment record reflects that his stroke risk factors included hypertension, diabetes, dyslipidemia, being overweight, obesity, low exercise, and obstructive sleep apnea. During the consultation, the neurologist advised him to continue lisinopril, atorvastatin, hydrochlorothiazide, and amlodipine as stroke protective medications. The treatment record notes that several of his stroke related goals were not met, including systolic blood pressure less than 130, low density lipoprotein (LDL) cholesterol between 50 and 70, a body mass index (BMI) less than 25, and a hemoglobin A1C less than 5.9 percent. During the consultation, the neurologist emphasized to another physician the urgency of aggressive treatment and control of the Veteran's diabetes and stressed to the Veteran the importance of weight loss. The neurologist provided stroke prevention education, including a review of warning signs such as sudden numbness or weakness of the face, arm, or leg; confusion; trouble speaking or understanding; trouble seeing in one or both eyes; sudden trouble walking, dizziness, loss of balance or coordination; and sudden severe headache. During the clinical visit, the Veteran was instructed to call emergency services should he experience symptoms of a stroke and was advised of the importance of being evaluated in an emergency room within one hour of symptom onset.

An August 2015 VA treatment record reflects a diagnosis of a CVA without residual deficits in April 2015 status-post tissue plasminogen activator (TPA) at a hospital. The Veteran was seen by the neurology stroke clinic in July 2015 and was started on aspirin. The clinician noted that the Veteran was to continue with aspirin and Atorvastatin. The Veteran's blood pressure goal was less than 130, his LDL goal was 50 to 70 and his A1C goal was less than 5.9 percent.

During a November 2015 VA clinical visit,
was advised of the importance of being evaluated in an emergency room within one hour of symptom onset.

During a November 2015 VA clinical visit, the Veteran reported that he had been having high blood pressure at work and was told by his boss to go to VA to have it checked. The clinician noted that the Veteran did not have symptoms of dizziness or headaches that would have indicated his blood pressure was high. The Veteran reported that he had been diligently taking his medications as ordered.

A March 2016 VA treatment record reflects diagnoses of an April 2015 CVA without residual deficits, hypertension, non obstructive coronary artery disease, morbid obesity, obstructive sleep apnea, and diabetes. The clinician noted that the Veteran also had a diagnosis of hyperlipidemia (HLD) in the setting of diabetes and a prior CVA and noted an atherosclerotic cardiovascular disease ten year risk of 21 percent. The clinician noted that the Veteran's hypertension was poorly controlled and resistant despite four medications, and the Veteran reported compliance with his medications and stated that he used a C-PAP machine for his obstructive sleep apnea. The clinician noted that the Veteran declined participation in the MOVE! program on multiple occasions. The clinician noted that the Veteran had a more than 15 year history of diabetes with poorly controlled blood sugars, with a hemoglobin A1C values of 11.2 percent in December 2015, 11.7 percent in August 2015, and 13.0 percent in July 2015. He reported checking his blood sugars four times daily but did not bring a log and stated that his fasting blood sugars were typically in the low 200s, his mealtime blood sugars were in the 280s or higher, and his evening blood sugars were also in the 200s. He described his diet as including waffles, pork sausage, eggs, and cheese for breakfast; three pieces of fried chicken for lunch; and steak with potatoes, onions, carrots, and broccoli for dinner. During the clinical visit, his blood pressure was recorded as 165/101 and 144/95. He reported that he took all of his prescribed blood pressure medications and denied chest pain, shortness of breath, headaches, or vision changes. During the clinical visit, the Veteran reported that he used C-PAP therapy nightly.

A February 2017 VA treatment record reflects a diagnosis of CVA with no residual deficits in April 2015 with a possible history of a transient ischemic attack (TIA) in August 2016 status-post TPA at a hospital. A September 2016 CT scan of the Veteran's head was suggestive of possible right posterior corona radiata infarct. The Veteran reported that he had been admitted to a private medical center in August 2016 for a mini stroke with sudden dizziness and right arm numbness which resolved after 5 minutes for 2 days. The Veteran did not have residual symptoms and he denied focal weakness, numbness or tingling.

A January 2018 VA treatment record indicates that the Veteran's wife reported that the Veteran had been hospitalized with one complaint and ended up having a massive stroke. He had since left the hospital and was sent to a rehabilitation facility.

In September 2018, the Veteran submitted an examination for Housebound Status or Aid and Attendance seeking entitlement to SMC. The private physician noted that the Veteran had a diagnosis of ischemic stroke and that symptoms of his disability restricted listed activities and functions due to left hemiplegia, dysphagia, and cognitive deficits. The physician stated that the Veteran required nursing care due to deficits from the stroke, required medication management, and could not manage his own financial affairs due to cognitive deficits.

A December 2018 VA skilled nursing report indicated that the Veteran lived with his wife at home. The nurse noted that the Veteran had been admitted to a hospital in December 2017 and was diagnosed with status post stroke with left-sided hemiplegia due to hypertension with other diagnoses like diabetes and obesity. The nurse recommended that the Veteran receive skilled nursing service daily for one week to monitor his blood pressure and blood sugar and then two times a week or as needed.

In
and functions due to left hemiplegia, dysphagia, and cognitive deficits. The physician stated that the Veteran required nursing care due to deficits from the stroke, required medication management, and could not manage his own financial affairs due to cognitive deficits.

In February 2019, the Veteran submitted an examination for Housebound Status or Aid and Attendance seeking entitlement to SMC. The VA physician diagnosed the Veteran with right MCA stroke complicated by left-sided paraplegia. The physician noted that the Veteran did not have mental capacity to manage benefits payments, that speech and cognition were slow secondary to stroke, and that communication was limited to short sentences with unclear understanding of all questions.

A March 2019 VA treatment record for stroke education reflects a history of a right MCA stroke with malignant edema status post craniectomy in December 2017, with residual left-sided weakness and spasticity. The pharmacy neurologist noted that the Veteran's past medical history was significant for diabetes, obesity, hypertension, obstructive sleep apnea, and arthritis of the knee. The clinician indicated that the risk factors for a stroke included high blood pressure, high cholesterol, diabetes, obesity, and a sedentary lifestyle. The clinician noted that the goals for stroke prevention included maintaining systolic blood pressure below 130 and LDL cholesterol below 70, increasing high-density lipoprotein (HDL) cholesterol above 40, reducing BMI below 25, maintaining hemoglobin A1C below 7.0, and engaging in regular exercise.

In the September 2019 TDIU Application, the Veteran indicated that his lower back disability and psychiatric disability prevented him from securing or following any substantially gainful occupation.

In the November 2019 rating decision, the RO denied entitlement to service connection for migraine headaches essentially based on a finding that the medical evidence of record failed to show that this disability had been clinically diagnosed. The RO also denied entitlement to service connection for sleep apnea, essentially based on a finding that the medical evidence of record failed to show that the Veteran's sleep apnea occurred in or was caused by service. The RO favorably found that the Veteran had a current diagnosis of sleep apnea.

In May 2025, a private psychologist noted that the symptoms of the Veteran's PTSD included nightmares, hypervigilance, intrusive thoughts, emotional detachment, and sleep disturbances. The psychologist stated that the symptoms were not only persistent but were disruptive to the Veteran's psychological stability and daily functioning. The Veteran's clinical history, supported by both medical records and statements from his wife, indicate a longstanding pattern of emotional dysregulation, paranoia, avoidance behaviors and social withdrawal. The manifestations severely limited his ability to interact appropriately with others, follow instructions, sustain attention, or manage workplace stress. In particular, the Veteran's hypervigilance, distrust of others, and chronic sleep deprivation posed significant barriers to maintaining concentration and consistent behavior in even minimally demanding work environments.

The private psychologist noted that the Veteran had a diagnosis of obstructive sleep apnea and had been prescribed C-PAP therapy, though adherence had been inconsistent, especially after his stroke. During the evaluation, the Veteran's wife reported that the Veteran would frequently remove the C-PAP mask and had ongoing trauma-related sleep disturbances, including fear of sleep, checking behaviors, and night awakenings. The clinician noted that mental health providers, as well as the Veteran's wife reported that the Veteran experienced persistent trauma symptoms that interfered with sleep, social engagement, daily functioning and emotional regulation. The examiner also noted that Veteran had a documented history of PTSD symptoms, including nightmares, hypervigilance, and insomnia, which were known to disrupt sleep architecture and contribute to sleep-disordered breathing. Research indicated a strong association between PTSD and obstructive sleep apnea. For example, a study involving 195 Iraq and Afghanistan veterans found that 69.2 percent were at a high risk for obstructive sleep apnea, with the risk increasing alongside PTSD symptom severity. Furthermore, the psychologist noted that VA acknowledged that obstructive sleep apnea was more prevalent among individuals with PTSD than in the general population. The interplay between PTSD-induced hyperarousal and sleep fragmentation could exacerbate or even precipitate obstructive sleep apnea symptoms. The psychologist opined that in the Veteran's case, the chronic sleep disturbances stemming from PTSD
, and insomnia, which were known to disrupt sleep architecture and contribute to sleep-disordered breathing. Research indicated a strong association between PTSD and obstructive sleep apnea. For example, a study involving 195 Iraq and Afghanistan veterans found that 69.2 percent were at a high risk for obstructive sleep apnea, with the risk increasing alongside PTSD symptom severity. Furthermore, the psychologist noted that VA acknowledged that obstructive sleep apnea was more prevalent among individuals with PTSD than in the general population. The interplay between PTSD-induced hyperarousal and sleep fragmentation could exacerbate or even precipitate obstructive sleep apnea symptoms. The psychologist opined that in the Veteran's case, the chronic sleep disturbances stemming from PTSD likely contributed to the development or worsening of obstructive sleep apnea. Given that the Veteran's consistent PTSD symptoms and the established link between PTSD and obstructive sleep apnea, it was reasonable to conclude that the Veteran's sleep apnea was at least as likely as not aggravated by his-service connected PTSD.

The private psychologist also noted that he had been asked to provide an opinion as to whether the Veteran's migraines were secondary to his PTSD or not. The psychologist noted that the Veteran did not have a formal diagnosis of migraines in the available medical records. The psychologist noted that the Veteran reported experiencing frequent and distressing headaches, approximately two to three times per week. Neurology providers had characterized his symptoms as consistent with post-craniotomy neuropathic pain or tension type headaches, rather than migraines. In addition, clinical notes indicate that the Veteran's headaches may have been influenced by multiple overlapping medical factors, including his history of strokes, poor sleep and possible nonadherence to C-PAP therapy for obstructive sleep apnea. Specifically, the psychologist noted that while migraine features were rule out by neurology providers, his symptoms have been attributed to post-craniotomy neuropathic pain and tension-type headaches, worsened by sleep disruption and other health issues. However, given the lack of a definitive diagnosis of migraine and the absence of neurological documentation clearly attributing his headache symptoms to a specific etiology, the psychologist was unable to render an opinion as to whether the Veteran's headaches were secondary to or aggravated by his service-connected psychiatric conditions, including PTSD. The psychologist noted that this limitation did not discount the Veteran's reported symptoms or their impact on his function but rather reflects the clinical standard that a nexus opinion requires a clearly defined diagnosis to assess causation or aggravation.

In May 2025, the Veteran's wife submitted a statement indicating that since 2007 the Veteran has had difficulties in the working environment due to his psychiatric disorder. Specifically, she noted that there were instances where she thought he was at work and found out that he had not been to work for about a week. She wrote that she learned that he was going fishing and staying at casinos all day. When she asked him why, he would tell her that he felt he just could not take being stressed about working and that he had been having war nightmares and needed to feel relaxed and fishing and gambling let him escape. She reported that the Veteran became more paranoid at work and believed that his boss and co-workers were all against him, so he began missing his medications and his blood sugar began to rise so high that the machine would not give a number. He became more self-destructive, eating things to the point where he would begin to lose consciousness because his blood sugar would be so high. The more she tried to encourage him to monitor his blood sugar and blood pressure and take his medications and mention things to the doctor, the more he would become annoyed with her. She continued to push to make sure that he would take his medications and mention things to his doctors. The Veteran later insisted that she no longer accompany him to any doctor's appointments. In addition, she reported that she had been concerned about his sleep apnea and she would make him use his C-PAP machine, and he would throw it off during the night. He began to have more war nightmares and would wake up pouring with sweat. He reported that sometimes he would leave in the middle of the night for the casino because he did not want to sleep and was having nightmares. He would come back early in the morning to go to work, exhausted, which became increasingly prevalent over the years. She stated that before his stroke he became angrier and would have fits of anger with her if the laundry was not perfectly folder or if dinner had not been ready at a certain time. The more he had fits of anger, the higher the blood pressure and blood sugar became. She continued to make him take his medications. She also discovered that because he was having extreme pain in his ankle, knees and back he was taking heavy doses of Ibuprofen which resulted in extreme constipation and
sometimes he would leave in the middle of the night for the casino because he did not want to sleep and was having nightmares. He would come back early in the morning to go to work, exhausted, which became increasingly prevalent over the years. She stated that before his stroke he became angrier and would have fits of anger with her if the laundry was not perfectly folder or if dinner had not been ready at a certain time. The more he had fits of anger, the higher the blood pressure and blood sugar became. She continued to make him take his medications. She also discovered that because he was having extreme pain in his ankle, knees and back he was taking heavy doses of Ibuprofen which resulted in extreme constipation and then taking Citrate magnesium for that, which has resulted in him having chronic constipation and he had to have tap-water enemas and heavy laxatives to have bowel movement. She wrote that she believed all of this contributed to the massive strokes that happened to the Veteran.

Sleep Apnea Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that the Veteran's sleep apnea was caused by his service-connected PTSD.

A current diagnosis of sleep apnea has been established.

Significant probative weight is given to the May 2025 private psychologist's opinion that chronic sleep disturbances stemming from PTSD likely contributed to the development or worsening of obstructive sleep apnea. The psychologist explained the reasons for the conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez, supra. Moreover, there is no contrary medical opinion in the evidence of record.

Residuals of a Stroke Analysis including Hypertension

The likelihood is approximately evenly balanced, if not higher, that residuals of a stroke were caused by the Veteran's service-connected disabilities including his PTSD and sleep apnea and hypertension, which was also caused by his service-connected PTSD and sleep apnea. Thus, entitlement to service connection for residuals of a stroke and hypertension are warranted.

A current diagnosis of hypertension has been established, including the July 2015 and March 2016 VA treatment records. A current diagnosis of right MCA stroke with left-sided hemiplegia and major neurocognitive impairment has also been established, including in the December 2018 VA treatment records and the December 2024 VA examination.

Probative value is afforded to the competent and credible statements of the Veteran's wife indicating that as the symptoms of the Veteran's psychiatric disorder worsened, including his anger, he engaged in more self-destructive activities, including overeating, missing his medications, and failing to use his C-PAP machine regularly. See Jandreau, supra.; Buchanan, supra.

The statements of the Veteran's wife are corroborated by the January 2010, December 2010 and March 2016 VA treatment records indicating that the Veteran demonstrated poor judgement in the face of repeated advice from clinicians regarding the necessity of medication compliance, the risks of untreated hypertension and diabetes mellitus, and the risk of untreated obstructive sleep apnea and its implications for worsening blood pressure control and the development of heart failure. Notably, the March 2016 VA clinician indicated that although the Veteran had experienced a CVA in April 2015 and he currently had poorly controlled hypertension that was resistant despite four medications and poorly controlled blood sugars, the Veteran described his diet as including waffles, pork sausage, eggs, and cheese for breakfast; three pieces of fried chicken for lunch; and steak with potatoes, onions, carrots, and broccoli for dinner.

As such, the January 2010, December 2010 and March 2016 VA treatment records indicating that the Veteran demonstrated poor judgement in the face of repeated advice from clinicians regarding the necessity of medication compliance, the risks of untreated hypertension and diabetes mellitus, and the risk of untreated obstructive sleep apnea and its implications for worsening blood pressure control and the development of heart failure coupled with the other evidence of record, including the May 2025 opinion from the private psychologist indicating that the symptoms of the Veteran's psychiatric disorder were disruptive to the Veteran's daily functioning and severely limited his ability to follow instructions, can be interpreted as supporting the necessary nexus relationships between the Veteran's hypertension and his service-connected PTSD and sleep apnea. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," does not render the examination inadequate).

In addition, the December 2018 VA treatment record indicating that the Veteran's December
his ability to follow instructions, can be interpreted as supporting the necessary nexus relationships between the Veteran's hypertension and his service-connected PTSD and sleep apnea. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," does not render the examination inadequate).

In addition, the December 2018 VA treatment record indicating that the Veteran's December 2017 stroke with left-sided hemiplegia was due to hypertension with other diagnoses like diabetes mellitus and obesity, coupled with the other evidence of record can be interpreted as supporting the necessary nexus relationships between the Veteran's strokes and his service-connected PTSD, sleep apnea and hypertension. See Acevedo, supra.; Monzingo, supra. Specifically, the July 2015 VA stroke consultation note indicated that the Veteran had a stroke in April 2015 and continued to have risk factors for another stroke, which included his hypertension, diabetes mellitus, and his obstructive sleep apnea. The March 2016 VA clinician indicated that although the Veteran had experienced a CVA in April 2015 and he currently had poorly controlled hypertension that was resistant despite four medications and poorly controlled blood sugars, the Veteran described his diet as including waffles, pork sausage, eggs, and cheese for breakfast; three pieces of fried chicken for lunch; and steak with potatoes, onions, carrots, and broccoli for dinner. Notably, three months after the May 2016 VA clinical visit, the Veteran had a TIA in August 2016, and eight months later, the Veteran had the large right MCA stroke in December 2017.

Headaches Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that the Veteran's headaches were caused by his service-connected sleep apnea and hypertension. Thus, entitlement to service connection for headaches is warranted.

A current diagnosis of tension headaches and hypertension have been established.

The May 2025 private psychologist's statement that the Veteran's headaches may have been influenced by multiple overlapping medical factors, including his history of strokes, poor sleep and possible nonadherence to C-PAP therapy for obstructive sleep apnea, coupled with the other evidence of record, including the November 2015 VA treatment record, can be interpreted as supporting the necessary nexus relationships between the Veteran's headaches and his service-connected sleep apnea and hypertension. See Acevedo, supra.; Monzingo, supra. Specifically, in the November 2015 VA treatment record, a clinician noted that the Veteran did not have symptoms of dizziness or headaches that would have indicated his blood pressure was high. In addition, VA treatment records, including in December 2001, January 2002, August 2005, October 2007, and January 2010 indicate that the Veteran complained of headaches when he also had elevated blood pressure readings.

8. Entitlement to service connection for a left ankle condition

Factual Considerations

In addition to the evidence as outlined above, September 2009 and June 2010 VA treatment records indicate that an x-ray of the left foot revealed a small inferior calcaneal spur of the left foot.

The Veteran was afforded a VA examination for his right ankle disability in September 2019. The examiner noted that the Veteran fractured his right ankle jumping off of a truck in 1989. The examiner noted that the Veteran had a stroke in December 2017 and was unable to answer questions. He spoke with barely an audible whisper. In addition, he had been wheelchair bound with left-sided hemiparesis. The Veteran's left ankle could not be tested because the Veteran had left sided hemiparesis from a stroke with muscle contracture of the left lower extremity and the Veteran was unable to straighten his left leg and had ankyloses of the left ankle in neutral position.

In the November 2019 rating decision, the RO denied entitlement to service connection for a left ankle condition essentially based on a finding that the medical evidence of record failed to show that a disability had been clinically diagnosed.

During the February 2025 hearing, the Veteran's wife confirmed that she had seen the Veteran shifting his weight or overcompensating with the left side of his body due to his right lower extremity injuries and that he required a cane for ambulation.

An April 2025 private medical evaluation from a chiropractor reflects a diagnosis of left ankle sprain and strain. The clinician noted that a June 2010 x-ray of
straighten his left leg and had ankyloses of the left ankle in neutral position.

An April 2025 private medical evaluation from a chiropractor reflects a diagnosis of left ankle sprain and strain. The clinician noted that a June 2010 x-ray of the left foot revealed dorsal soft tissue swelling and small plantar calcaneal spur. The clinician noted that during a phone interview, the Veteran's wife stated that she met the Veteran in 1992, reconnected in 2001, and married him in 2005. She stated that the right ankle worsened over time, that by 2005 he was using a cane, and that he walked with a "penguin walk." She stated that he had trouble standing, and that he had to bring a chair to sit because of pain from standing. She stated that she believed the symptoms of the Veteran's left ankle were due to compensating for not using a cane at work and difficulty walking from the right ankle injury. She stated that during service both of the Veteran's ankles were bothering him as a result of jumping out of trucks, which bothered his back, ankles, and knees, and that he had knee and back pain from the time she met him and especially after reconnecting. The clinician noted that service records from the 1990s reflected status post right ankle reconstruction in July 1992, an avulsion fracture of the right talus in 1990 from jumping off a vehicle, and a CT scan confirming the fracture. Records reflected right ankle reconstruction surgery in 1991 and a second surgery in 1994 for hardware removal. The clinician opined that it was more likely than not that the Veteran's left ankle disability was service-connected based on shifting of weight and antalgic gait due to the right ankle injury.

Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that the Veteran's left ankle sprain and strain was caused by the Veteran's service-connected right ankle disability.

A current diagnosis of left ankle sprain and strain has been established.

Probative weight is given to the statements of the Veteran's wife that she witnessed the Veteran walking with an altered gait while using a cane. Jandreau, supra.; Buchanan, supra.

Significant probative weight is given to the April 2025 private chiropractor's opinion that the Veteran's left ankle disability was caused by the Veteran's right ankle disability. See Nieves-Rodriguez, supra.

9. Entitlement to service connection for a cervical spine condition

10. Entitlement to service connection for a lower back condition

Factual Considerations

In addition to the evidence as outlined above, an August 28, 1989 Report of Medical Examination for enlistment in the Army National Guard reflects a normal clinical evaluation of the spine. A corresponding Report of Medical History reflects that the Veteran reported a history of a prior head injury. The clinician noted that the Veteran sustained a head injury in 1972, when he was hit by a car, which the clinician noted was not considered disabling.

Military personnel records indicate that the Veteran began his active-duty service in the United States Army in September 1989.

An October 1989 service treatment record reflects a diagnosis of muscle strain. During the clinical visit, the Veteran complained of lower back pain for five days.

A January 1990 service treatment record reflects a diagnosis of mechanical back pain. During the clinical visit, the Veteran complained of low back pain for two days following a twisting motion. The Veteran reported that he was seen in the emergency room for this issue. The clinician also noted that the Veteran had a history of falling off a ladder prior to service, which existed prior to service.

A January 1990 physical therapy treatment record reflects a diagnosis of mechanical low back pain and mid-back pain probably secondary to scoliosis with exacerbation of symptoms secondary to direct trauma. During the clinical visit, the Veteran complained of back pain for one week after falling approximately five feet during advanced individual training (AIT). He was seen in the emergency room, and no x-rays were taken. The treatment record notes that the Veteran was referred for physical therapy. The Veteran also reported a history of back pain dating to February 1988 when he fell off a ladder in a work-related incident and was treated by a chiropr
also noted that the Veteran had a history of falling off a ladder prior to service, which existed prior to service.

A January 1990 physical therapy treatment record reflects a diagnosis of mechanical low back pain and mid-back pain probably secondary to scoliosis with exacerbation of symptoms secondary to direct trauma. During the clinical visit, the Veteran complained of back pain for one week after falling approximately five feet during advanced individual training (AIT). He was seen in the emergency room, and no x-rays were taken. The treatment record notes that the Veteran was referred for physical therapy. The Veteran also reported a history of back pain dating to February 1988 when he fell off a ladder in a work-related incident and was treated by a chiropractor. Physical examination revealed tenderness to palpation of thoracolumbar spine.

During a January 1991 clinical visit, the Veteran complained of back pain for one week.

A February 2001 VA treatment record reflects a diagnosis of right ankle pain secondary to osteoarthritis from previous trauma and surgeries. During the clinical visit, the Veteran reported that medications he was taking for his back pain seemed to help his ankle more than other treatments.

A December 2001 VA treatment record reflects a diagnosis of tension headaches versus migraine headaches. During the clinical visit, the Veteran reported that his headache had significantly improved, as did the knots all over his body. The Veteran reported that his neck pain had been unchanged from baseline.

A February 2003 VA treatment record reflects a diagnosis of neck pain likely related to muscle spasm.

In the November 2019 rating decision, the RO denied entitlement to service connection for a left ankle condition and a cervical spine condition essentially based on a finding that the medical evidence of record failed to show that the disabilities had been clinically diagnosed. In addition, the RO denied entitlement to service connection for a lower back condition essentially based on a finding that his back condition did not occur in nor was caused by service. The RO favorably found that the Veteran had a current diagnosis of a lower back disability. In addition, lower back pain was noted in an October 1989 National Guard Service treatment record. Referencing 38 C.F.R. § 3.7, the RO, however, noted that National Guard service was not qualifying service under current law.

During the February 2025 hearing, the Veteran's wife confirmed that the antalgic gait resulting from his service-connected right ankle and right knee disabilities were causing issues with his lower back and neck. She confirmed that, based on her conversations with the Veteran and her observations, his lower back and cervical spine disabilities were at least being aggravated by the already service-connected right ankle and right knee disabilities. She confirmed that the Veteran noticed his neck pain became aggravated after periods of standing or walking for long durations. She confirmed that the shifting of weight over the years and the use of a cane further deteriorated his lower back disability.

The April 2025 private medical evaluation from a chiropractor reflects a diagnosis of lumbar disc disease. The clinician noted that a February 2016 x-ray of the lumbar spine revealed anterolisthesis and moderate degenerative disc disease, and a November 2015 MRI of the lumbar spine revealed mild bulging and disc narrowing with significant degenerative facet joint disease. The clinician noted that during a phone interview, the Veteran's wife stated that she met the Veteran in 1992, reconnected in 2001, and married him in 2005. She stated that during service the Veteran had to jump out of trucks, which bothered his back, and that he had back pain from the time she met him and especially after reconnecting. The clinician noted that VA records from 2005 to 2025 reflected a problem list including acute lower back pain. The clinician opined that it was more likely than not that the Veteran's lower back condition was service-connected based on antalgic gait and shifting weight due to the right ankle injury, which the clinician noted was supported by imaging showing lumbar disc disease.

The April 2025 private medical evaluation reflects a diagnosis of cervical sprain and strain. The chiropractor noted that the x-ray of the cervical spine was essentially normal. During the phone interview, the Veteran's wife stated that his neck was always painful and that she had to massage his shoulders frequently, and that the Veteran thought his neck pain was due to lifting heavy equipment in service. The clinician noted that VA records noted limited neck range of motion in February 2024. The clinician noted that it was more difficult to comment on the Veteran's neck condition because there were no service records available that mention the cervical spine and the only mention in the medical records was the reference to limited neck range of motion in 2024, which make the mention of the
evaluation reflects a diagnosis of cervical sprain and strain. The chiropractor noted that the x-ray of the cervical spine was essentially normal. During the phone interview, the Veteran's wife stated that his neck was always painful and that she had to massage his shoulders frequently, and that the Veteran thought his neck pain was due to lifting heavy equipment in service. The clinician noted that VA records noted limited neck range of motion in February 2024. The clinician noted that it was more difficult to comment on the Veteran's neck condition because there were no service records available that mention the cervical spine and the only mention in the medical records was the reference to limited neck range of motion in 2024, which make the mention of the cervical to be quite remote from the Veteran's time in service. As such, the clinician opined that the Veteran's cervical spine condition was as likely as not service connected.

Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that the Veteran's lumbar disc disease and cervical sprain and strain had their onset during active military service.

Current diagnoses of lumbar disc disease and cervical sprain and strain have been established.

Probative weight is given to the competent and credible statements of Veteran's wife indicating that based upon her conversations with the Veteran and her observations of the Veteran he would jump out of trucks during service, which bothered his back. Jandreau, supra.; Buchanan, supra.

The statements of the Veteran's wife that he had back pain when she met him in 1992 are consistent with the circumstances of the Veteran's service as shown by active-duty service treatment records showing complaints of back pain from at least October 1989. Complaints of low back and midback pain after a fall during AIT in January 1990. In addition, military personnel records show that the Veteran's MOS during service was 62E10 Heavy Construction Equipment Operator. See 38 U.S.C. § 1154(a).

Similarly, the statements of the Veteran's wife that he continued to have back pain when she reconnected with him in 2001 are consistent with post service treatment records showing that the Veteran had been taking medication for his back pain from at least 2001. The statements of the Veteran's wife that his neck was always painful and that she had to massage his shoulders frequently is consistent with the post service treatment records showing that the Veteran complained of neck pain from at least February 2003.

In addition, probative weight is given to the April 2025 private clinician's opinion that it was more likely than not that the Veteran's lower back condition was service-connected based on antalgic gait and shifting weight due to the right ankle injury. There is no contrary medical opinion in the evidence of record.

Less probative value is given to the April 2025 private clinician's opinion that the Veteran's cervical spine condition was as likely as not service connected. As noted, the clinician noted that it was more difficult to comment on the Veteran's neck condition because there were no service records available that mention the cervical spine and the only mention in the medical records was the reference to limited neck range of motion in 2024. The clinician did not appear to consider the Veteran's complaints of neck pain during the February 2003 clinical visit.

The statements of the Veteran's wife, coupled with the other evidence of record, including the service treatment records and post service-treatment records supports a finding that the Veteran's low back disability and neck disability had their onset during service.

11. Entitlement to service connection for hearing loss

12. Entitlement to service connection for tinnitus

Factual Considerations

In addition to the evidence as outlined above, military personnel records indicate that the Veteran's MOS during service was 62E10 Heavy Construction Equipment Operator.

The August 1989 Report of Medical Examination for enlistment revealed a normal clinical evaluation of the Veteran's ear. Audiometric evaluation revealed pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 0 0 5 5 0

LEFT 5 5 5 0 0

The Veteran was afforded a VA examination in November 2019, which reflects a diagnosis of bilateral sensorineural hearing loss and tinnitus. The examiner noted that high frequency hearing loss was noted on examination. Specifically, audiometric, pure tone thresholds at 6000 hertz were 35 decibels in the right ear and 30 decibels in the left ear. The examiner opined that the Veteran's hearing loss did not impact the ordinary conditions of daily life, including his ability to work. The Veteran's tinnitus interfered with the Veteran's hearing during ordinary conditions of daily life
0

RIGHT 0 0 5 5 0

LEFT 5 5 5 0 0

HERTZ

500 1000 2000 3000 4000

RIGHT 20 20 20 25 20

LEFT 25 20 25 25 25

During the examination, the Veteran reported serving in the Army National Guard for a total of eight years from September 1989 to September 1997 and stated that he participated in combat activity during Operation Garden Shield. The examiner noted that the DD Form 214 verified the length and dates of service and the occupation as heavy construction equipment operator. The examiner stated that an enlistment hearing test dated August 1989 indicated normal hearing bilaterally and that there were no further hearing tests in the service records. The examiner noted that medical notes dated February 2019 indicated that the Veteran denied having tinnitus. The examiner observed that the Veteran had normal hearing up to 4000 Hertz and mild hearing loss at 6000 to 8000 Hertz bilaterally, with excellent speech discrimination. The examiner stated that hearing acuity decreased due to presbycusis and aging and that presbycusis or aging could not be ruled out as a cause for the current hearing loss. Based on review of medical records, the current examination, and professional expertise, the examiner opined that the current hearing loss was less likely than not the result of military noise exposure. The examiner noted that although the Veteran had clinical hearing loss, he did not have hearing loss per VA standards.

During the examination the Veteran reported tinnitus that began during active duty while shooting weapons. The Veteran stated that the tinnitus was constant and affected the left ear. The examiner opined that the tinnitus was less likely than not caused by or a result of military noise exposure. The examiner explained that although the Veteran reported the onset of tinnitus in service, he did not mention tinnitus during service, and medical notes dated February 2019 indicated that the Veteran denied having tinnitus. Therefore, the examiner concluded that the Veteran's tinnitus was less likely than not caused by or the result of an event in military service.

Hearing Loss Analysis

The most recent VA examination shows that the Veteran does not have a current hearing loss disability for VA compensation purposes, as the auditory threshold for his hearing loss was not 40 decibels or greater in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 for either his right ear or left ear and the auditory thresholds for his hearing loss was not 26 decibels or greater for at least three of those frequencies for either his right ear or left ear, and his speech recognition scores using the Maryland CNC Test were not less than 94 percent for either his right ear or left ear. 38 C.F.R. § 3.385.

Thus, entitlement to service connection for a hearing loss disability is not warranted because the first criterion for the award of service connection, evidence of a current disability upon which to predicate such an award has not been met. See 38 C.F.R. § 3.385.

For the above reasons, the likelihood is neither evenly balanced, nor approximately so, with regard to whether entitlement to service connection for a hearing loss disability is warranted. Rather, the evidence persuasively weighs against the Veteran's claim. The benefit of the doubt doctrine is therefore not for application. Lynch, supra.

While the Board must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, it is bound by the laws and regulations that apply to veterans' claims. 38 C.F.R. § 7104(c); 38 C.F.R. §§ 3.103(a), 20.105. For the above reasons, application of the law to the facts of this case reflects that the evidence is neither evenly balanced nor approximately so with
so, with regard to whether entitlement to service connection for a hearing loss disability is warranted. Rather, the evidence persuasively weighs against the Veteran's claim. The benefit of the doubt doctrine is therefore not for application. Lynch, supra.

While the Board must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, it is bound by the laws and regulations that apply to veterans' claims. 38 C.F.R. § 7104(c); 38 C.F.R. §§ 3.103(a), 20.105. For the above reasons, application of the law to the facts of this case reflects that the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a hearing loss disability is warranted. Rather, the evidence persuasively weighs against service connection for a hearing loss disability. The benefit of the doubt doctrine is therefore not for application as to this claim. Lynch, supra.

Tinnitus Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that the Veteran's tinnitus had its onset during active military service.

As noted, the Veteran's MOS was Heavy Construction Equipment Operator, which has been shown to have a "highly probable" probability of exposure to hazardous noise. Thus, excessive noise exposure is consistent with the places, types, and circumstances of his active military service, and it is conceded that the Veteran was exposed to hazardous noise during active military service. See 38 U.S.C. § 1154(a).

Probative weight is given to the Veteran's competent and credible statements that he began experiencing ringing in his ears after firing weapons during service, which has continued since separation from service. Jandreau, supra.; Buchanan, supra.

The Veteran is competent to report tinnitus because ringing in the ears is capable of lay observation and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Dorland's Illustrated Medical Dictionary 1900 (31st ed. 2007) (tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking").

The Veteran's statements that he began experiencing ringing in his ears during service, which continued following separation from service, supports a finding that the Veteran's tinnitus had its onset during active military service.

The November 2019 VA examiner's opinion is of limited probative value because the examiner apparently relied on the absence of "objective" evidence and did not discuss whether the Veteran's statements that he began experiencing ringing in his ears during service was sufficient to support a finding that the Veteran's tinnitus had its onset during service. Buchanan at 1336, n. 1 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").

Despite the inadequacies of the November 2019 opinion, a remand is not necessary, because the evidence of record is sufficient to support a finding that the Veteran's tinnitus had its onset during active military service.

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In addition, all potentially applicable diagnostic codes must be considered. Schafrath at 593.

13. Entitlement to a compensable rating for right ankle scar status post ankle surgery

Ratings Criteria

The Veteran's right ankle scar is currently rated with a noncompensable rating under Diagnostic Code 7802, effective September 27, 2019. 38 C.F.R. § 4.118.

As the scar does not involve the head, face
that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In addition, all potentially applicable diagnostic codes must be considered. Schafrath at 593.

13. Entitlement to a compensable rating for right ankle scar status post ankle surgery

Ratings Criteria

The Veteran's right ankle scar is currently rated with a noncompensable rating under Diagnostic Code 7802, effective September 27, 2019. 38 C.F.R. § 4.118.

As the scar does not involve the head, face, or neck, Diagnostic Code 7800, which provides ratings for scars, involving the head, face or neck and having at least one characteristic of disfigurement is not for application in this case.

Under Diagnostic Code 7801, which provides ratings for scars associated with underlying soft tissue damage, a 10 percent rating is warranted for scarring affecting an area or areas of at least 6 sq. in. (39 sq. cm.); a 20 percent rating is warranted for scarring affecting an area or areas of at least 12 sq. in. (77 sq. cm.), but less than 72 sq. in. (465 sq. cm.); a 30 percent rating is warranted for scarring affecting an area or areas of at least 72 sq. in. (465 sq. cm.), but less than 144 sq. in. (929 sq. cm.); and a 40 percent rating is warranted for scarring affecting an area or areas of 144 sq. in. (929 sq. cm.) or greater. Id.

Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for scars not associated with underlying soft tissue damage affecting an area or areas of 144 sq. in. (929 sq. cm.) or greater. Id.

For the purposes of Diagnostic Codes 7801 and 7802, multiple scars are characterized by 6 body zones, which are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Id. at Note (1). A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones. The separate evaluations are to be combined under 38 C.F.R. § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under Diagnostic Codes 7801 or 7802. Id. at Note (2).

Diagnostic Code 7804 provides that a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is defined as a scar where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118.

Under Diagnostic Code 7805, a rating is assigned on the basis of any disabling effects not considered in a rating provided under Diagnostic Codes 7800 to 7804 under another appropriate diagnostic code. Id.

Factual Considerations

A January 2001 VA examination revealed evidence of a non-disfiguring 7 cm. scar on the right lateral malleolus. The scar was elevated and pale. The examination reflected no evidence of adherence, drainage, or exudates. The scar was soft and nontender, with no evidence of keloid formation or functional impairment.

A September 2019 VA examination reflected evidence of a scar on the right lateral malleolus measuring approximately 8 cm by 0.2 cm. The treatment record noted the scar's location and dimensions but did not indicate any associated symptoms or functional impairment.

During the May 2025 hearing, the Veteran's wife acknowledged that the Veteran's right ankle scar caused him discomfort. He was unable to wear socks and was forced to wear slippers or flip flops. He avoided certain clothing such as pants and would try to wear shorts when he could. He also had been issued a corticosteroid topical ointment for the pain associated with his right ankle scar.

Analysis

The evidence is at least evenly balanced, if not higher, that the Veteran's right ankle scar warrants a 10 percent rating, but no higher, under Diagnostic Code 7804 for one scar that was painful. As noted, the Veteran's wife confirms that
not indicate any associated symptoms or functional impairment.

Analysis

The evidence is at least evenly balanced, if not higher, that the Veteran's right ankle scar warrants a 10 percent rating, but no higher, under Diagnostic Code 7804 for one scar that was painful. As noted, the Veteran's wife confirms that the Veteran's right ankle scar was sensitive to clothing.

The evidence is neither evenly balanced, nor approximately so, that at any point during the period on appeal that the Veteran's right ankle scar warrants a rating in excess of 10 percent. The evidence of record does not indicate that the Veteran's right ankle scar, involved the head, face, or neck, was associated with underlying soft tissue damage, involved an area or areas of at least 144 sq. in. (929 sq. cm.), or had any other disabling effects. Nor does the evidence of record indicate that the Veteran has three or more service-connected scars that are painful or unstable. 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805.

14. Entitlement to SMC pursuant to 38 U.S.C. § 1114(o)

15. Entitlement to SMC pursuant to 38 U.S.C. § 1114(r)(1) based on the need for regular aid and attendance

Ratings Criteria

SMC is a monetary benefit that is paid for service-connected disabilities which result in impairment of the senses, loss or loss of use (of the extremities, creative organ, breast, or buttocks), or which render the veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the "k" and "r" rates are paid in addition to any other SMC rates, with certain monetary limits. Id. The rate of SMC "varies according to the nature of the veteran's service-connected disabilities." Moreira v. Principi, 3 Vet. App. 522, 524 (1992).

SMC at the rate provided under 38 U.S.C. § 1114(k) is payable when a veteran due to a service-connected disability has, in relevant part, suffered the anatomical loss or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks, or blindness of one eye, having only light perception, has suffered complete organic aphonia with constant inability to communicate by speech, or deafness of both ears, having absence of air and bone conduction. 38 U.S.C. § 1114(k), 38 C.F.R. § 3.350(a).

SMC at the rate provided under 38 U.S.C. § 1114(l) is payable when a veteran due to a service-connected disability has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

SMC under 38 U.S.C. § 1114(m) is payable when a veteran due to a service-connected disability has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F. R. § 3.350(c).

SMC under 38 U.S.C. § 1114(n) is payable when a veteran due to a service-connected disability has suffered the anatomical loss or loss of use of both arms with factors
use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F. R. § 3.350(c).

SMC under 38 U.S.C. § 1114(n) is payable when a veteran due to a service-connected disability has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d).

SMC under 38 U.S.C. § 1114(o) is payable when a Veteran due to a service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided under 38 U.S.C. § 1114(l) through 38 U.S.C. § 1114(n), no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 20/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms with factors that prevent the use of prosthetic appliances. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e).

Paraplegia with paralysis of both lower extremities together with loss of anal and bladder sphincter control warrant a maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2).

Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate under 38 U.S.C. § 1114(o) on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e)(3).

The maximum rate under 38 U.S.C. § 1114(o) as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 C.F.R. § 3.350(e)(4).

SMC at the rate provided under 38 U.S.C. § 1114(s) is payable when a veteran has a service-connected disability rated as total, and (1
)(3).

SMC at the rate provided under 38 U.S.C. § 1114(s) is payable when a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. For the purposes of 38 U.S.C. § 1114(s)(1), the additional service-connected disability or disabilities ratable at 60 percent must be separate and distinct from the 100 percent service-connected disability and involve different anatomical segments of bodily systems. 38 C.F.R. § 3.350(i).

SMC under 38 U.S.C. § 1114(r) is payable for veterans receiving the maximum rate under 38 U.S.C. § 1114(o) or (p), who are in regular need of aid and attendance or a higher-level care, during periods he is not hospitalized at the United States Government expense. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h)(1).

SMC under 38 U.S.C. § 1114(r) is also payable for veterans receiving compensation at the intermediate rate between 38 U.S.C. § 1114(n) and (o), plus special month compensation under 38 U.S.C. § 1114(k), who establishes a factual need for regular aid and attendance or a higher level of care, during periods he is not hospitalized at the United States Government expense. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h)(2).

The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2). The higher-level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). 38 C.F.R. § 3.350(h)(3).

Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of a veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers inherent in his daily environment. Bedridden will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a).

The need for a higher level of care shall be considered to be needed for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. 38 C.F.R. § 3.352
is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a).

The need for a higher level of care shall be considered to be needed for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. 38 C.F.R. § 3.352(b)(3). A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b)(5).

The requirement of permanently housebound will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(b).

Loss of use of the hand or foot means that no effective function remains other than that which would be equally well-served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(a)(2), 4.63; Tucker v. West, 11 Vet. App. 369, 373 (1998). The determination will be made based on whether the actual remaining function-such as, in the case of a hand, the acts of grasping or manipulation, and in the case of a foot, the acts of balancing and propelling-could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). Loss of use of the feet does not require a finding that the Veteran has no remaining effective function of the feet, but instead that the Veteran has been deprived of the use of the lower extremities to such a degree that locomotion was precluded. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017).

Examples that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity 3.5 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. 38 C.F.R. §§ 3.350, 4.63.

Factual Considerations

In addition to the evidence as outlined above, the September 2018 examination for Housebound Status or Aid and Attendance reflects a diagnosis of ischemic stroke. The private physician noted that the Veteran's disabilities restricted listed activities and functions due to left hemiplegia, dysphagia, and cognitive deficits. The physician indicated that the Veteran could not feed himself, could not prepare his own meals, and needed assistance with bathing and other hygiene needs due to left hemiplegia and cognitive deficits. The physician stated that the Veteran required nursing care due to deficits from the stroke, required medication management, and could not manage his own financial affairs due to cognitive deficits. The physician noted that the left arm was hemiplegic with spasticity and that the Veteran was unable to use the left arm for any activities of daily living. The physician noted that the right arm was functional but limited by endurance and cognition. The physician stated that the left leg was spastic and hemiplegic, that the Veteran was able to stand only with support from two to three therapists, and that there was increased tone at the hip, knee, and ankle. The physician noted bowel and bladder incontinence, severe cognitive deficits, and dysphonia. The physician stated that the Veteran needed 24-hour caregiver support, would likely spend the day in a wheelchair or bed except for medical appointments and continued rehabilitation, was able to leave home or the immediate premises only with assistance, was unable to ambulate, and needed trunk and neck support with a
any activities of daily living. The physician noted that the right arm was functional but limited by endurance and cognition. The physician stated that the left leg was spastic and hemiplegic, that the Veteran was able to stand only with support from two to three therapists, and that there was increased tone at the hip, knee, and ankle. The physician noted bowel and bladder incontinence, severe cognitive deficits, and dysphonia. The physician stated that the Veteran needed 24-hour caregiver support, would likely spend the day in a wheelchair or bed except for medical appointments and continued rehabilitation, was able to leave home or the immediate premises only with assistance, was unable to ambulate, and needed trunk and neck support with a high-back wheelchair.

In the October 2018 rating decision, the RO found that the Veteran's non-service-connected ischemic stroke rendered the Veteran housebound and or in regular need of aid and attendance of another person.

The December 2018 VA treatment record reflects a diagnosis of large right MCA stroke status-post craniectomy on December 2017 with residual left-sided hemiplegia and replacement of bone in May 2018, diabetes, hypertension, and hyperlipidemia. The clinician noted that the Veteran had been admitted to a private treatment facility on December 28, 2017 for right-sided facial droop, and left arm weakness. TPA was not given because the Veteran's symptoms were rapidly improved, and he underwent a right guided angioplasty and stent on December 28, 2017. The clinician noted that it seemed that the occluded, and the Veteran developed acute worsening of his symptoms and had new infarct in the right MCA territory status post right frontotemporoparietal decompressive hemicraniectomy on January 1, 2018. The course was complicated by acute hypoxic respiratory failure secondary to methicillin-sensitive staphylococcus aureus (MSSA) peptide nucleic acid (PNA), status post tracheostomy and percutaneous endoscopic gastrotomy (PEG). He was discharged to a long-term acute care (LTAC) treatment facility on January 19, 2018. He was readmitted for cranioplasty in May 2018. The clinician noted that the tracheostomy decannulated during that hospitalization. The clinician noted that the May 2018 hospitalization was complicated by urinary retention, but they were able to wean the Veteran off of intermittent catheterization over the summer. The Veteran had an episode of unresponsiveness on May 30, 2018. Per the documentation, the clinicians favored a syncope versus a seizure, but the Veteran was started on Keppra at that time. The Veteran was at a private facility for acute rehabilitation until about August 2018, when the Veteran's insurance no longer paid for his acute rehabilitation and the Veteran was discharged home for about month. However, the Veteran's home course was complicated by multiple emergency room (ER) visits. The Veteran was admitted to a skilled nursing facility (SNF) until about 3 weeks prior to the clinical visit. The Veteran's wife was concerned about deconditioning at the SNF. She reported that the Veteran had been previously standing with assistance at a private facility but was not being mobilized regularly at the SNF and she felt that he had declined functionally. Specifically, the Veteran was not moving his left upper and lower extremities and he was confined to a bed or wheelchair. The Veteran's wife hired a home health aide but she needed additional assistance at home. The Veteran's other issues included pain around his penis. Specifically, the clinician noted that the Veteran had urinary tract infections (UTIs) in the past and had catheters in the past. Currently the Veteran had pain with retraction of the skin around penis. The Veteran was still urinating using a diaper. In addition, the Veteran was eating at home, but he still had a gastrostomy tube (G tube) in case his appetite was poor and also for the administration of medications.

A December 2018 VA skilled nursing report indicated that the Veteran lived with his wife at home. The Veteran was obese, bedridden and awake, but had his eyes closed during the nursing process. The Veteran's cognitive status was alert and oriented x2, forgetful, and had seizure/tremors. The Veteran had poor vision, spoke timidly with seizure maintenance medicine, and had pain on the left side of his body. The nurse noted that the Veteran had been admitted to a hospital on December 8, 2017, and was diagnosed with status post stroke with left-sided hemiplegia due to hypertension with other diagnoses like diabetes and obesity. Since then, the Veteran had become incontinent of both urine and stool and had a diaper rash. The Veteran was also constipated; however, he was refusing stool softeners as he did not want to get soiled in the bed. The clinician noted that the Veteran did not and had never walked again since he was discharged from the hospital. The nurse recommended that the Veteran receive skilled nursing service daily for one week to monitor his blood pressure and blood sugar and then two times a week or as needed.

A February 2019 VA treatment record reflects a diagnosis of large right MCA stroke with residual left-sided weakness/spasticity. The clinician noted that the Veteran currently had significant left spastic hemiparesis and cognitive deficits. The clinician noted that the Veteran was minimally verbal, but his cognition was mostly intact. The Veteran was currently non-ambulatory and had significant pain from left-sided spasticity with contractures in both his left upper extremity and his right lower extremity. The Veteran currently lived at home with his wife, and he mainly used a manual tilt-in space wheelchair (MWC). The Veteran had a caregiver that performed his activities of daily living (ADLs) and instrumental ADLs (iADLs). The Veteran's wife also helped at times, shifting his weight.

A February 2019 neurological focused motor assessment revealed +3 for the right upper extremity (RUE), the Veteran could raise the extremity, but not against resistance. 0 for the left upper extremity (LUE) with no movement. +2 of the right lower extremity (RLE), the Veteran could move the extremity but could not lift it. 0 for the left lower extremity (LLE), the Veteran's movement of the extremity was contracted.

The February 2019 examination for Housebound Status or Aid and Attendance reflects a diagnosis of right MCA stroke complicated by left-sided paraplegia. The VA physician noted that the Veteran was confined to a wheelchair and had lower extremity weakness. The physician indicated that the Veteran's disabilities restricted listed activities and functions due to upper and lower extremity weakness. The physician stated that the Veteran was unable to feed himself due to right-sided CVA causing left-sided weakness, was not able to prepare his own meals, and was confined to a wheelchair and unable to use the left side of his body due to weakness and contractures. The examiner noted right-sided weakness as well. The physician stated that the Veteran needed assistance with bathing and tending to other hygiene needs, required nursing home care, and could not transfer without a Hoyer lift. The physician indicated that the Veteran required significant assistance with activities of daily living and instrumental activities of daily living, required medication management, and was unable to administer medications to himself. The physician noted that the Veteran did not have mental capacity to manage benefits payments, that speech and cognition were slow secondary to stroke, and that communication was limited to short sentences with unclear understanding of all questions. The physician observed that posture and general appearance were chronically ill-appearing in no acute distress, with mild left-sided facial droop. The physician noted inability to perform fine finger movements or grip and inability to feed himself due to strength and mobility limitations after the CVA. The physician observed bilateral lower extremity contractures, worse on the left side, inability to weight bear, and wheelchair dependence due to decreased strength, with strength rated at 2/5 and increased tone and spasticity. The physician noted sacral pain from prolonged seated position due to mobility limitations. The physician indicated that the Veteran required trunk and neck support with a high-back wheelchair and was able to leave home or the immediate premises only with assistance.

In the November 2019 rating decision, the RO found that issue for which aid and attendance could be granted upon was weakness due to a prior CVA.

In a January 2020 rating decision, the RO determined that the Veteran was not competent to handle disbursement of funds. The RO explained that the Veteran had been diagnosed with
worse on the left side, inability to weight bear, and wheelchair dependence due to decreased strength, with strength rated at 2/5 and increased tone and spasticity. The physician noted sacral pain from prolonged seated position due to mobility limitations. The physician indicated that the Veteran required trunk and neck support with a high-back wheelchair and was able to leave home or the immediate premises only with assistance.

In the November 2019 rating decision, the RO found that issue for which aid and attendance could be granted upon was weakness due to a prior CVA.

In a January 2020 rating decision, the RO determined that the Veteran was not competent to handle disbursement of funds. The RO explained that the Veteran had been diagnosed with a stroke that caused slow cognition and that the examiner stated the Veteran was not capable of directing the management of benefits in his own best interests. The RO noted that a prior rating decision dated November 21, 2019 proposed to rate the Veteran as incompetent.

As noted, the December 2023 VA examination reflects diagnoses of chronic PTSD, severe recurrent MDD, and major neurocognitive impairment. As to the Veteran's neurocognitive impairment, the examiner noted that records indicated that the Veteran had several strokes that were due to vascular issues. In addition, the records indicate that dementia was an issue in the Veteran's cognitive decline. The examiner indicated that the Veteran had more than one mental disorder diagnosed and stated that it was not possible to differentiate which symptoms were attributable to each diagnosis because the disorders overlapped significantly, although the stroke and dementia had led to cognitive decline. The examiner noted that the Veteran had been bed bound and participated minimally in the examination due to cognitive issues, with his wife providing most of the history. The examiner opined that the neurocognitive impairment was less likely than not due to service, as it was attributed to a stroke. As a result of the stroke, the Veteran experienced cognitive decline, was no longer independent, and required 24/7 care. The examiner noted that the Veteran had difficulty understanding conversation, communication problems, recall issues, and decreased motivation for therapy, which contributed to his other mental health problems. The examiner also noted The Veteran experienced a CVA in 2017, which had now created dementia, cognitive decline, and major neurocognitive impairment. The Veteran now needed 24/7 care and was no longer independent, but homebound.

In the May 2025 private opinion, the psychologist noted that the Veteran had a significant medical history, including multiple strokes beginning in 2014, with the most recent events occurring in 2017. The Veteran reported a diagnosis of dementia and currently resided in a nursing home due to his wife's recent spinal surgery, which temporarily prevented her from continuing in her role as his caregiver. The examiner noted that the Veteran had a history of obstructive sleep apnea with the initial diagnosis dating back to 2002. At that time, he was prescribed a C-PAP machine. According to his wife, he demonstrated some benefits when compliant with treatment experiencing improved sleep and reduced daytime fatigue. However, his long-term adherence to C-PAP use was inconsistent, and this became more problematic following a series of serious medical complications, particularly his stroke in 2017. The Veteran endorsed experiencing migraine headaches approximately two to three times per week, which he stated started after his stroke. During the evaluation, the Veteran's wife reported that prior to his stroke, the Veteran became angrier and more controlling. He would have angry outbursts if the laundry was not folded perfectly or if dinner was not ready at a specific time. These episodes coincided with worsening blood pressure and blood sugar levels. She persisted in ensuring that he took his medications. She also discovered that the Veteran had been taking heavy doses of ibuprofen for chronic pain in his ankle, knees and bank, which led to sever constipation. To manage it, he took large amounts of magnesium citrate and currently suffered from chronic constipation, requiring tap-water enemas and strong laxatives to have bowel movements. She asserted that she believed that all of these factors contributed to the massive strokes the Veteran experienced. As a result, he was currently unable to talk, had dementia, and required full-time care and supervision.

In May 2025, the Veteran's wife submitted a statement indicating that since 2007 the Veteran has had difficulties in the working environment due to his psychiatric disorder. Specifically, she noted that there were instances where she thought he was at work and found out that he had not been to work for about a week. She wrote that she learned that he was going fishing and staying at casinos all day. When she asked him why, he would tell her that he felt he just could not take being stressed about working and that he had been having war nightmares and needed to feel relaxed and fishing and gambling let him escape. She reported that the Veteran became more paranoid at work and believed that his boss and co-workers were all against him, so he began missing his medications and his blood sugar began to rise so high that the machine would not give a number. He became more self-destructive, eating things to the point where he would begin to lose consciousness because his blood sugar would be so high. The more she tried to encourage him to monitor his blood sugar and blood pressure and take his medications and mention things to the doctor, the more he would become annoyed with her. She continued to push to make sure that he would take his medications and mention things to his doctors. The Veteran later insisted that she no longer accompany him to any doctor's appointments. In addition, she reported that she had been concerned about his sleep apnea and she would make him use his C-PAP machine, and he would throw it off during the night. He began to have more war nightmares and would wake up pouring with sweat. He reported that sometimes he would leave in the middle of the night for the casino because he did not want to sleep and was having nightmares. He would come back early in the morning to go to work, exhausted, which became increasingly prevalent over the years. She stated that before his stroke he became angrier and would have fits of anger with her if the laundry was not perfectly folder or if dinner had not been ready at a certain time. The more he had fits of anger, the higher the blood pressure and blood sugar became. She continued to make him take his medications. She also discovered that because he was having extreme pain in his ankle, knees and back he was taking heavy doses of Ibuprofen which resulted in extreme constipation and then taking Citrate magnesium for that, which has resulted in him having chronic constipation and he had to have tap-water enemas and heave laxatives to have bowel movement. She wrote that she believed all of this contributed to the massive strokes that happened to the Veteran, and as a result he was no longer able to walk, he had dementia and needed 100 percent assistance for his care and could not be let alone.

Analysis

For reasons set forth below, the likelihood is approximately evenly balanced, if not higher, that throughout the period on appeal, the symptoms of the Veteran's right MCA stroke with left-side hemiplegia and major neurocognitive impairment, more closely approximate paraplegia with paralysis of both lower extremities with loss of anal and bladder sphincter control under 38 C.F.R. § 3.350(e)(2). Thus, entitlement to SMC under 38 U.S.C. § 1114(o) is warranted throughout the period on appeal.

Specifically, in the August 2018 examination for Housebound Status or Aid and Attendance, the Veteran's private physician indicated that the Veteran had left sided hemiplegia, was incontinent of bowel and bladder. In the October 2018 rating decision, the RO found that the Veteran's non-service-connected ischemic stroke rendered the Veteran housebound and or in regular need of aid and attendance of another person. The December 2018 VA treatment record indicates that the Veteran had left sided hemiplegia and had become incontinent of both urine and stool since his December 2017 stroke. In the February 2019 examination for Housebound Status or Aid and Attendance, the Veteran's VA physician indicated that the Veteran had right MCA stroke complicated by left sided paraplegia and right sided weakness, and the Veteran was confined to a wheelchair. In the November 2019 rating decision, the RO found that issue for which aid and attendance could be granted upon was weakness due to a prior CVA.

In addition, the evidence of record establishes that the Veteran is in regular need of aid and attendance due to the symptoms of his right MCA stroke with left-side hemiplegia and major neurocognitive impairment under 38 U.S.C. § 1114(r)(1); 38 C.F
7 stroke. In the February 2019 examination for Housebound Status or Aid and Attendance, the Veteran's VA physician indicated that the Veteran had right MCA stroke complicated by left sided paraplegia and right sided weakness, and the Veteran was confined to a wheelchair. In the November 2019 rating decision, the RO found that issue for which aid and attendance could be granted upon was weakness due to a prior CVA.

Specifically, in the August 2018 examination for Housebound Status or Aid and Attendance, the Veteran's private physician indicated that the Veteran had severe cognitive deficits of dysphonia and needed 24/7 caregiver support. The December 2024 VA examiner indicated that the Veteran had major neurocognitive impairment requiring 24/7 care.

The evidence is not evenly balanced, nor approximately so that the Veteran was in need of a higher level of care due to the symptoms of his right MCA stroke with left-side hemiplegia and major neurocognitive impairment. Although the August 2018 and February 2019 examinations for Housebound Status or Aid and Attendance indicate that the Veteran required nursing home care. The evidence of record does not indicate that the Veteran required personal health-care services on a daily basis in the Veteran's home by a licensed provider. As noted, the Veteran was provided skilled nursing care at home for the purposes of monitoring his blood pressure and blood sugar. Further, although the nursing treatment was recommended to start on a daily basis, it was only for a week, and thereafter it was reduced to twice a week or as needed. In addition, there is no indication that the Veteran's wife is a licensed health-care professional or was providing care to the Veteran under the regular supervision of a licensed health-care professional.

As such, entitlement to SMC under 38 U.S.C. § 1114(r)(2) is not warranted at any point during the period on appeal. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. Lynch, supra. In this case, the evidence persuasively favors a finding that the Veteran is not in need of a higher level of aid and attendance due to the symptoms of his left-sided paraplegia and neurocognitive impairment status post December 2017 stroke. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

16. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) based on housebound status

The award of SMC(r)(1) renders the issue of entitlement to SMC(s) moot because SMC(r)(1) is the greater award, both levels of SMC may not be assigned concurrently, and the benefit of SMC(s) is subsumed by the greater benefit of SMC(l). See 38 U.S.C. § 1114. Accordingly, entitlement to SMC(s) is moot, and the appeal as to that issue is dismissed.

17. Entitlement to a TIDU

Summary

The Veteran submitted a formal claim of entitlement to a TDIU in September 2019. For reasons set forth below, the evidence is at least approximately evenly balanced, if not higher, that the Veteran's service-connected disabilities have precluded him from engaging in substantially gainful employment throughout the period on appeal. Thus, resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU due to his service-connected disabilities is warranted.

Unemployability Criteria

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of a service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). The inability to secure or follow a substantially gainful occupation does not require that the Veteran be totally disabled before finding that there is an inability to engage in substantial gainful activity. Rather, the issue is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991); see also Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975).

Factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id.

Factual Considerations

In addition to the evidence as outlined above, in the September 2019 TDIU Application, the Veteran indicated that his lower back disability and psychiatric disability prevented him from securing or following any substantially gainful occupation. The Veteran reported that the date his disability affected full-time employment, he last worked full-time, and he became too disabled to work was December 26, 2017. The Veteran stated that he earned $62,000 in 2016 as a technician and that he worked as a technician from 2007 to 2017, earning $5,000 per month.

In May 2025, the private psychologist opined that from a psychological standpoint, independent of the Veteran's post-stroke neurological impairments, the Veteran has been unable to engage in substantially gainful employment since at least 2019 due to his psychiatric symptoms alone. The psychologist noted that the symptoms of the Veteran's PTSD included nightmares, hypervigilance, intrusive thoughts, emotional detachment, and sleep disturbances. The psychologist stated that the symptoms were not only persistent but were disruptive to the Veteran's psychological stability and daily functioning. The Veteran's clinical history, supported by both medical records and statements from his wife, indicate a longstanding pattern of emotional dysregulation, paranoia, avoidance behaviors and social withdrawal. The manifestations severely limited his ability to interact appropriately with others, follow instructions, sustain attention, or manage workplace stress. In particular, the Veteran's hypervigilance, distrust of others, and chronic sleep deprivation posed significant barriers to maintaining concentration and consistent behavior in even minimally demanding work environments. Although the Veteran's neurological decline certainly compounded his overall level of impairment, the documented psychological symptoms, particularly those associated with PTSD, were in themselves sufficiently severe to preclude competitive employment. These psychiatric limitations reflected a level of occupational and social impairment that would be expected to interfere with the Veteran's ability to initiate or maintain gainful work.

Analysis

The evidence of record establishes that the Veteran's service-connected disabilities render the Veteran unable to secure and follow a substantially gainful occupation.

Specifically, the evidence of record, including the May 202
workplace stress. In particular, the Veteran's hypervigilance, distrust of others, and chronic sleep deprivation posed significant barriers to maintaining concentration and consistent behavior in even minimally demanding work environments. Although the Veteran's neurological decline certainly compounded his overall level of impairment, the documented psychological symptoms, particularly those associated with PTSD, were in themselves sufficiently severe to preclude competitive employment. These psychiatric limitations reflected a level of occupational and social impairment that would be expected to interfere with the Veteran's ability to initiate or maintain gainful work.

Analysis

The evidence of record establishes that the Veteran's service-connected disabilities render the Veteran unable to secure and follow a substantially gainful occupation.

Specifically, the evidence of record, including the May 2025 private opinion, indicates that the symptoms of the Veteran's service-connected PTSD were disruptive to the Veteran's psychological stability and daily functioning, severely limited his ability to interact appropriately with others, follow instructions, sustain attention, or manage workplace stress, and created significant barriers to maintaining concentration and consistent behavior. Ray, supra. As such, the Veteran's service-connected PTSD was alone sufficient to render the Veteran unable to secure and follow a substantially gainful occupation.

In addition, the symptoms of the Veteran's left-sided paraplegia and neurocognitive impairment status post December 2017 stroke also rendered the Veteran unable to secure and follow a substantially gainful occupation. As noted, the February 2019 VA physician indicated that the Veteran was confined to a wheelchair and required significant assistance with activities of daily living and instrumental activities of daily living. Specifically, the Veteran was unable to feed himself or prepare his own meals. He required medication management and was unable to administer medications to himself. Further, the physician noted that the Veteran did not have mental capacity to manage benefits payments, that speech and cognition were slow secondary to stroke, and that communication was limited to short sentences with unclear understanding of all questions. Notably, in the January 2020 rating decision, the RO determined that the Veteran was not competent to handle disbursement of funds. The RO explained that the Veteran had been diagnosed with a stroke that caused slow cognition and that the examiner stated the Veteran was not capable of directing the management of benefits in his own best interests.

Therefore, the effect of his service-connected disabilities on his ability to perform the type of employment for which his occupational history would qualify him are such that he would be precluded from securing and following a substantially gainful occupation.

Rating Percentage Threshold

A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16(a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. For the purposes of determining whether the schedular criteria for a TDIU have been met, disabilities of common etiology will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b).

Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), "rating boards should submit to the Director, Compensation Service, 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). However, "the VA appeals system allows the Board to adjudicate extraschedular TDIU in the first instance." Witkowski v. Collins, 38 Vet. App. 459 (2025). Specifically, in Witkowski, the United States Court of Appeals for Veterans Claims (Court) indicated that "the availability of immediate review of extraschedular TDIU issues would likely improve the Board's caseload and
16(b), "rating boards should submit to the Director, Compensation Service, 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). However, "the VA appeals system allows the Board to adjudicate extraschedular TDIU in the first instance." Witkowski v. Collins, 38 Vet. App. 459 (2025). Specifically, in Witkowski, the United States Court of Appeals for Veterans Claims (Court) indicated that "the availability of immediate review of extraschedular TDIU issues would likely improve the Board's caseload and uniformity by limiting the number of times the Board would be required to apply a malleable standard as part of a duplicative requirement. [Thereby, enabling the Board] to resolve straightforward cases involving TDIU, [by granting] benefits when the correct evidence is present [or] deny them when the law or facts cannot support a grant. [The Board is not] forced into delaying the inevitable."

The Veteran has a combined rating of 10 percent from September 8, 1998 and a combined rating of 40 percent from September 27, 2019 for his service-connected disabilities. Specifically, the Veteran's service-connected disabilities include ankylosis of the right ankle with a 10 percent rating from September 8, 1998 and a 30 percent rating from September 27, 2019 as well as a 10 percent rating for a right ankle scar from September 27, 2019.

In addition, the Veteran is now-service connected for PTSD, sleep apnea, hypertension, headaches, residuals of a stroke, a left ankle disability, a low back disability, a neck condition and tinnitus. However, ratings for these disabilities will be established upon the RO's implementation of the Board's decision. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where "the first appeal concern[s] the rejection of the logically up-stream element of service-connectedness, the appeal [cannot] concern the logically down-stream element of compensation level).

Given that the RO assigned a 70 percent rating for the Veteran's PTSD effective October 26, 2023 in the July 2024 rating decision, it is likely that the Veteran will meet the schedular requirements for a TDIU in this case. However, even if the Veteran did not meet the schedular criteria for a TDIU prior to October 26, 2023, entitlement to a TDIU would still be warranted on an extraschedular basis in this case.

As discussed, the evidence of record establishes that the Veteran's service-connected disabilities have precluded him from securing or following substantially gainful employment. Given the severity of the symptoms of the Veteran's service-connected disabilities, including the residuals of his stroke and the symptoms of his PTSD, this is a straightforward case. As the correct evidence is present and the grant of entitlement of a TDIU is inevitable, there is no benefit to the Veteran in delaying adjudication of his claim of entitlement to a TDIU until the RO assigned ratings for PTSD, sleep apnea, hypertension, headaches, residuals of a stroke, a left ankle disability, a low back disability, a neck condition and tinnitus. Although ratings have not been assigned for the Veteran's PTSD, sleep apnea, hypertension, headaches, residuals of a stroke, a left ankle disability, a low back disability, a neck condition and tinnitus, there is no prejudice to the Veteran given the award of entitlement to a TDIU as well as the awards of entitlement to SMC under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1) and the finding that the Veteran's service connected PTSD alone would warrant entitlement to a TDIU. See Simmons v. Wilkie, 30 Vet. App. 267, 279 (2018) ("prejudice is established by demonstrating a disruption of the essential fairness of the adjudication, which can be shown by demonstrating that the error (1) prevented the claimant from effectively participating in the adjudicative process, or (2) affected or could have affected the outcome of the determination."); Bradley v. Peake, 22 Vet. App. 280 (2008) (a TDIU can assist in obtaining special monthly compensation under 38 U.S.C. § 1114(s)(1) by serving as "a service-connected disability rated as total," if the TDIU is based on a single disability.)

Thus, entitlement to a TDIU due to the
. 267, 279 (2018) ("prejudice is established by demonstrating a disruption of the essential fairness of the adjudication, which can be shown by demonstrating that the error (1) prevented the claimant from effectively participating in the adjudicative process, or (2) affected or could have affected the outcome of the determination."); Bradley v. Peake, 22 Vet. App. 280 (2008) (a TDIU can assist in obtaining special monthly compensation under 38 U.S.C. § 1114(s)(1) by serving as "a service-connected disability rated as total," if the TDIU is based on a single disability.)

Thus, entitlement to a TDIU due to the Veteran's service-connected disabilities is warranted.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G. Johnson, Counsel

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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