SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served in the U.S. Marine Corps from March 1968 to March 1971, appeals the denial of service connection for obstructive sleep apnea (OSA) and seeks increased ratings for atrial fibrillation, bilateral upper and lower extremity peripheral neuropathy, and bilateral neuralgia. The Board granted service connection for OSA, finding that new and relevant evidence, specifically a private medical opinion linking OSA to service-connected hypertension, met the criteria for readjudication. The Board also granted separate 10 percent ratings for bilateral upper and lower extremity neuralgia, finding that the mild intermittent pain associated with the Veteran's peripheral neuropathy was not contemplated by the existing paralysis ratings. The Board granted a TDIU, finding the Veteran's combined service-connected disabilities likely precluded him from substantially gainful employment, considering his limited education, prior work history as a warehouse manager, and the functional limitations reported in VA and private medical opinions. However, the Board denied increased ratings for atrial fibrillation, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and bilateral upper and lower extremity peripheral neuropathy, finding the evidence did not support ratings higher than currently assigned. The Board remanded claims for squamous cell carcinoma due to a lack of opinion on its relationship to toxic exposures and for GERD to obtain a new examination addressing both pre- and post-amendment rating criteria.

Rationale

New and relevant evidence submitted; Private opinion linked OSA to hypertension; No contrary medical evidence

Full Decision Text

Citation Nr: A26039602
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 250905-640598
DATE: April 28, 2026

ORDER

The request to readjudicate a previously denied claim for service connection for obstructive sleep apnea (OSA) is granted.

Service connection for OSA is granted.

An initial rating higher than 10 percent for atrial fibrillation is denied.

A rating higher than 30 percent for right upper extremity peripheral neuropathy is denied.

A rating higher than 20 percent for left upper extremity peripheral neuropathy is denied.

A separate 10 percent rating for right upper extremity neuralgia is granted.

A separate 10 percent rating for left upper extremity neuralgia is granted.

A rating higher than 20 percent for right lower extremity peripheral neuropathy is denied.

A rating higher than 20 percent for left lower extremity peripheral neuropathy is denied.

A separate 10 percent rating for right lower extremity neuralgia is granted.

A separate 10 percent rating for left lower extremity neuralgia is granted.

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

REMANDED

Service connection for squamous cell carcinoma is remanded.

An initial rating higher than 10 percent for gastroesophageal reflux disease (GERD) is remanded.

FINDINGS OF FACT

1. Service connection for OSA was denied in a May 2025 rating decision, but evidence received since then is new and tends to prove a matter at issue.

2. OSA is due to service-connected hypertension.

3. Atrial fibrillation is not characterized by five or more treatment interventions per year.

4. Right upper extremity peripheral neuropathy is not manifested by motor or reflex impairment or any severe subjective symptoms.

5. Left upper extremity peripheral neuropathy is not manifested by motor or reflex impairment or any severe subjective symptoms.

6. Right upper extremity peripheral neuropathy is characterized by mild intermittent pain, but not moderate intermittent pain.

7. Left upper extremity peripheral neuropathy is characterized by mild intermittent pain, but not moderate intermittent pain.

8. Right lower extremity peripheral neuropathy is not manifested by motor or reflex impairment or any moderate subjective symptoms.

9. Left lower extremity peripheral neuropathy is not manifested by motor or reflex impairment or any severe subjective symptoms.

10. Right lower extremity peripheral neuropathy is characterized by mild intermittent pain, but not moderate intermittent pain.

11. Left lower extremity peripheral neuropathy is characterized by mild intermittent pain, but not moderate intermittent pain.

12. The Veteran's service-connected disabilities preclude him from engaging in gainful employment consistent with his educational and occupational background.

CONCLUSIONS OF LAW

1. The criteria for readjudicating a previously denied claim for service connection for OSA have been met.  38 U.S.C. §§ 5103A, 5108; 38 C.F.R. §§ 3.156, 3.2501.

2. The criteria for service connection for OSA have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for a rating higher than 10 percent for atrial fibrillation have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code (DC) 7010.

4. The criteria for a rating higher than 30 percent for right upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8515. 

5. The criteria for a rating higher than 20 percent for left upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8515.

6. The criteria for a separate 10 percent rating for right upper extremity neuralgia have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8715.

7. The criteria for a separate 10 percent rating for left upper extremity neuralgia have been met.  38 U.S.C. §§ 1155, 5107;
 met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8515.

6. The criteria for a separate 10 percent rating for right upper extremity neuralgia have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8715.

7. The criteria for a separate 10 percent rating for left upper extremity neuralgia have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8715.

8. The criteria for a rating higher than 20 percent for right lower extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520.

9. The criteria for a rating higher than 20 percent for left lower extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520.

10. The criteria for a separate 10 percent rating for right lower extremity neuralgia have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8720.

11. The criteria for a separate 10 percent rating for left lower extremity neuralgia have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8720.

12. The criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the U.S. Marine Corps from March 1968 to March 1971.

The rating decisions on appeal were issued in May 2025 (squamous cell carcinoma, bilateral upper and lower peripheral neuropathy, TDIU), June 2025 (atrial fibrillation, GERD), and July 2025 (OSA).  These constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In his September 5, 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Therefore, the Board may only consider the evidence of record at the time of each agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 20.801. 

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

However, because the Board is remanding the claims of service connection for squamous cell carcinoma and a higher initial rating for GERD, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims.  38 C.F.R. § 3.103(c)(2)(ii).

Previously Denied Claim of OSA

A claimant may request readjudication of
 submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims of service connection for squamous cell carcinoma and a higher initial rating for GERD, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims.  38 C.F.R. § 3.103(c)(2)(ii).

Previously Denied Claim of OSA

A claimant may request readjudication of a previously denied claim if new and relevant evidence is presented or secured.  VA will readjudicate the claim taking into consideration all the evidence of record.  "New evidence" means existing evidence not previously submitted to agency decisionmakers.  "Relevant evidence" means evidence that tends to prove or disprove a matter in issue.  38 C.F.R. § 2501(a).

Historically, a May 2025 rating decision denied the claim for service connection for OSA.  In June 2025, the Veteran submitted a supplemental claim.  The July 2025 rating decision on appeal again denied the claim, finding that new and relevant evidence had not been presented.

In conjunction with his supplemental claim, the Veteran submitted a May 2025 private opinion which linked the Veteran's OSA to his service-connected hypertension.  This evidence is new because it was not previously submitted.  It is also relevant as it tends to prove matter at issue, namely whether OSA is related to a service-connected disability.  Therefore, new and relevant evidence has been received and readjudication of the claim on the merits is appropriate.

Service Connection for OSA

Service connection may be granted on a secondary basis for a disability that is due to or aggravated by a service-connected disease or injury.  Establishing service connection on a secondary basis requires sufficient evidence to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (2) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding "but for" causation or aggravation is enough to show entitlement to secondary service connection).

The Veteran has a current OSA diagnosis.  He is also service-connected for hypertension.  As noted above, a May 2025 private opinion linked OSA to hypertension.  That physician cited a National Institute of Health study which showed that certain factors linked the two conditions.  Namely, the RAA is a hormonal system that regulates blood pressure and fluid balance.  It is a vasoconstrictor which caused swelling in the upper airways, and this effect is greater in patients with hypertension.  There is no competent medical evidence refuting this opinion or otherwise indicating that OSA and hypertension are not linked.  Therefore, service connection is appropriate.

In making this determination, the Board takes notice of a November 2025 VA medical opinion which is not within the evidentiary scope of this appeal but nonetheless corroborates a link between OSA service-connected hypertension, as well as service-connected diabetes.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Atrial fibrillation

The Veteran is currently assigned a 10 percent rating for atrial fibrillation under 38 C.F.R. § 4.104, DC 7010.  Under that code, a 10 percent rating is assigned for supraventricular tachycardia confirmed by ECG, with one
.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Atrial fibrillation

The Veteran is currently assigned a 10 percent rating for atrial fibrillation under 38 C.F.R. § 4.104, DC 7010.  Under that code, a 10 percent rating is assigned for supraventricular tachycardia confirmed by ECG, with one to four treatment interventions per year; or, confirmed by ECG with either continuous use of oral medications to control or use of vagal maneuvers to control.  A maximum 30 percent rating is warranted when supraventricular tachycardia is confirmed by ECG, with five or more treatment interventions per year.

Note (2) of DC 7010 indicates that for the purposes of this DC, a treatment intervention occurs whenever a symptomatic patient requires intravenous pharmacologic adjustment, cardioversion, and/or ablation for symptom relief.

The Veteran underwent a VA examination in February 2024.  He reported being asymptomatic and taking medication for his condition.  The examiner specifically noted that the Veteran did not have five or more treatment interventions per year, which is the sole criteria for the higher 30 percent rating.  A review of the Veteran's outpatient treatment records also fails to show any documented treatment interventions as defined by the rating schedule.  Neither the Veteran nor his representative have put forth any evidence or argument to refute these findings.  Therefore, a rating higher than 10 percent is not appropriate. 

Right upper extremity peripheral neuropathy

The Veteran is currently assigned a 30 percent rating for his right upper extremity peripheral neuropathy under 38 C.F.R. § 4.124a, DC 8515, which addresses paralysis of the median nerve.  The record shows that he is right-hand dominant, and therefore his right upper extremity is considered a major extremity for rating purposes.

Under these criteria, mild incomplete paralysis is rated at 10 percent for both the major and minor extremity.  Moderate incomplete paralysis is rated at 30 percent for the major extremity and 20 percent for the minor extremity.  Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity.  

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

Although the Board is not bound by administrative manuals, it is relevant for guidance as to determining the severity of the Veteran's radiculopathy during the appeal period.  See Overton v. Wilkie, 30 Vet. App. 257 (2018).  VA's administrative manual provides guidance on the terms mild, moderate, moderately severe, and severe incomplete paralysis.  See VA's Adjudication Procedures Manual (the "M21-1"), Part V.iii.12.A.2.c.

Mild incomplete paralysis is the default assigned based on symptoms, however slight, if they are sufficient to support the diagnosis for service connection purposes.  The disability is generally limited to sensory deficits that are lower graded, less persistent, or affecting a small area.  A very minimal reflex or motor abnormality could potentially also be consistent with mild incomplete paralysis.

Moderate incomplete paralysis is when symptoms are likely described and medically graded as significantly disabling in sensory-only cases.  Combinations of significant sensory changes and reflex or motor changes of a lower degree, or weakness or diminished reflexes graded as medically moderate also fall into this category.

Moderately severe incomplete paralysis is motor and/or reflex impairment at a grade reflecting a high degree of limitation.  Atrophy may be present.

Severe incomplete paralysis is for motor and/or reflex impairment, including atrophy, at a grade reflecting a very high level of limitation.  For the sciatic nerve, marked muscular atrophy is expected.

The Board finds that a rating higher than 30 percent is not warranted because the evidence does not show any motor or reflex impairment, or other findings consistent with "severe" level of incomplete paralysis.  The Veteran underwent a VA examination in September 2020.  Strength, reflexes,
 changes of a lower degree, or weakness or diminished reflexes graded as medically moderate also fall into this category.

Moderately severe incomplete paralysis is motor and/or reflex impairment at a grade reflecting a high degree of limitation.  Atrophy may be present.

Severe incomplete paralysis is for motor and/or reflex impairment, including atrophy, at a grade reflecting a very high level of limitation.  For the sciatic nerve, marked muscular atrophy is expected.

The Board finds that a rating higher than 30 percent is not warranted because the evidence does not show any motor or reflex impairment, or other findings consistent with "severe" level of incomplete paralysis.  The Veteran underwent a VA examination in September 2020.  Strength, reflexes, and sensation were normal.  The examiner assessed only mild subjective symptoms such as paresthesias and numbness and an overall mild level of incomplete paralysis.

Identical findings were recorded during an October 2021 VA examination, though sensation was objectively decreased in the shoulder and forearm.  However, the currently assigned 30 percent rating for moderate incomplete paralysis contemplates this level of sensory impairment.  At no time has the Veteran shown any motor or reflex impairment consistent with severe incomplete paralysis as defined above.

Notably, the Board previously remanded the Veteran's peripheral neuropathy claims to assess the severity of the Veteran's condition without the ameliorative effects of medication.  A VA opinion obtained in March 2025 stated that the Veteran's medication, Duloxetine, was used to only treat pain, which is discussed below as part of the separate rating for neuralgia.

Left upper extremity peripheral neuropathy

The Veteran is currently assigned a 20 percent rating for his left upper extremity peripheral neuropathy under 38 C.F.R. § 4.124a, DC 8515.  His left upper extremity is his minor extremity for rating purposes.

The Board finds that a rating higher than 20 percent is not warranted because the evidence does not show any motor or reflex impairment, or other findings consistent with "severe" level of incomplete paralysis.  The Veteran underwent a VA examination in September 2020.  Strength, reflexes, and sensation were normal.  The examiner assessed only mild subjective symptoms such as paresthesias and numbness.

During an October 2021 VA examination, sensation was decreased in the shoulder and forearm on objective testing.  The examiner also assessed moderate subjective symptoms of paresthesias and numbness.  However, strength and reflexes were still normal, and the examiner diagnosed an overall mild level of incomplete paralysis.  Like the right upper extremity, at no time has the Veteran shown any motor or reflex impairment consistent with severe incomplete paralysis as defined above.

Right upper extremity neuralgia

Left upper extremity neuralgia

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  38 C.F.R. § 4.124.  "Neuralgia" is defined by Dorland's Medical Dictionary (30th Ed.) as "pain extending along the course of one or more nerves."

Nerve pain is a symptom specifically listed in the regulations as characterizing neuritis and neuralgia, whereas incomplete paralysis contemplates impaired function.  Banschbach v. McDonough, 37 Vet. App. 422 (2024).

During the September 2020 and October 2021 VA examinations, the Veteran was found to have mild intermittent pain associated with his bilateral peripheral neuropathy.  This pain is not inherently contemplated by the assigned ratings for incomplete paralysis.  Therefore, a separate rating under DC 8715 for neuralgia of the median nerve is warranted.  Because the Veteran's pain was only assessed as mild, a 10 percent rating for each upper extremity is appropriate.

Right lower extremity peripheral neuropathy

The Veteran is assigned a 20 percent rating for right lower extremity peripheral neuropathy under 38 C.F.R. § 4.124a, DC 8520.

Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R § 4.124a.  

The Board finds that a rating higher than 20 percent is not warranted because the evidence does not show any motor or reflex impairment, let alone at a grade reflecting a high degree of limitation
 criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R § 4.124a.  

The Board finds that a rating higher than 20 percent is not warranted because the evidence does not show any motor or reflex impairment, let alone at a grade reflecting a high degree of limitation.  During a September 2020 VA examination, the Veteran had objective evidence of decreased sensation in the feet and toes.  However, strength and reflexes both tested as normal.  The examiner noted subjective symptoms of mild paresthesias and mild numbness and assessed an overall mild level of incomplete paralysis.  Nearly identical findings were recorded during the October 2021 VA examination, with sensation testing as objectively normal.  Some trophic skin changes were present, but no muscle atrophy was shown.

In the absence of any strength or reflex impairment, moderately severe incomplete paralysis is not shown, and a higher rating is not warranted.

Left lower extremity peripheral neuropathy

The Veteran is assigned a 20 percent rating for right lower extremity peripheral neuropathy under 38 C.F.R. § 4.124a, DC 8520.

The Board finds that a rating higher than 20 percent is not warranted because the evidence does not show any motor or reflex impairment, let alone at a grade reflecting a high degree of limitation.  During a September 2020 VA examination, the Veteran had objective evidence of decreased sensation in the feet and toes.  However, strength and reflexes both tested as normal.  The examiner noted subjective symptoms of mild paresthesias and mild numbness and assessed an overall mild level of incomplete paralysis.  

During an October 2021 VA examination, the Veteran had decreased sensation in the knee and ankle areas, as well as moderate subjective paresthesias and moderate numbness.  These symptoms are already contemplated under the current rating for moderate incomplete paralysis.  Strength and reflexes remained normal and the examiner assessed an overall mild level of incomplete paralysis.  Therefore, the criteria for moderately severe incomplete paralysis have not been shown.

In the absence of any strength or reflex impairment, moderately severe incomplete paralysis is not shown, and a higher rating is not warranted.

Right lower extremity neuralgia

Left lower extremity neuralgia

During the September 2020 and October 2021 VA examinations, the Veteran was found to have mild intermittent pain associated with his bilateral peripheral neuropathy.  This pain is not inherently contemplated by the assigned ratings for incomplete paralysis.  Therefore, a separate rating under DC 8720 for neuralgia of the sciatic nerve is warranted.  Because the Veteran's pain was only assessed as mild, a 10 percent rating for each lower extremity is appropriate.

TDIU

A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities.  38 C.F.R. § 4.16.  The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

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

The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court found the phrase has two components: an economic one and a noneconomic one.  Ray v. Wilkie, 31 Vet. App. 58 (2019).  In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training
, 13 Vet. App. 342 (2000).  A Veteran need not show 100 percent unemployability to be entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

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

The Veteran is service connected for coronary artery disease, bilateral upper and lower extremity peripheral neuropathy, obstructive sleep apnea, hypothyroidism with dermatitis, diabetes mellitus, cerebral vascular disease, bilateral hearing loss, tinnitus, atrial fibrillation, GERD, and hypertension.

The Veteran submitted TDIU application forms in August 2021 and April 2025.  He also submitted a September 2025 statement.  Collectively, he reported that he had a 10th grade education and later completed a GED degree.  He worked as a warehouse manager full-time until 2014 when he had a stroke and was unemployed for several years after that.  In 2019, he agreed to do temporary part-time work for his former employer.  This was limited to 10 hours a week for 2 to 3 weeks at a time.  This occurred a couple times per year.  This amount decreased in 2020 and again in 2021, when he stopped working altogether.  Based on his statements, the Board finds that he has not been gainfully employed since 2014.

Regarding functional impairment, a January 2018 VA examination noted that hearing loss caused difficulty with communication, particularly with background noise, at a distance, or over the phone.  Tinnitus caused difficulties with concentration.  An October 2021 VA opinion noted that the Veteran would have difficulty standing for more than 2 hours due to peripheral neuropathy.  He was generally capable of only sedentary work, defined as exerting up to 10 pounds occasionally or a negligible amount of force frequently, as well as sitting most of the time and walking or standing for brief periods.  A February 2023 VA opinion noted that OSA caused daytime drowsiness which limited concentration. 

An August 2025 private vocational opinion stated that the Veteran had shortness of breath with exertion, difficulty with concentration, and pain and discomfort in his arms and legs.  He reportedly could only sit, stand, or walk for 20 minutes at a time.  His upper extremity neuropathy prevented him from using a keyboard or computer at a satisfactory level.  The opining expert stated that these limitations were incompatible with the light physical demands of being a warehouse manager.

Based on this evidence, the Board finds that the Veteran's service-connected disabilities would likely preclude him from engaging in the mental and physical acts of his prior employment as a warehouse manager.  Moreover, given his limited education and experience, he would also likely be precluded from engaging in any other type of employment that he would otherwise be qualified for.  Therefore, a TDIU is warranted.

REASONS FOR REMAND

Service connection for squamous cell carcinoma

The record reflects a current diagnosis of squamous cell carcinoma.  During service, the Veteran was exposed to toxic exposure risk activities (TERA), including herbicide agents in Vietnam and contaminated water at Camp Lejeune.  To date, no VA opinion has been obtained addressing whether the current condition is related to these TERA.  This is a breach of VA's pre-decisional duty-to-assist.

An initial rating higher than 10 percent for GERD

The June 2025 rating decision granted an initial 10 percent rating for GERD under 38 C.F.R. § 4.114, DC 7206, effective from March 8, 2024.  A review of the record does not show any specific evidence addressing the severity of his condition during the relevant period.  An April 2025 private opinion stated that GERD should be rated at 10 percent based on his documented history, but no specific information relevant to the rating criteria were addressed.  The failure to provide the Veteran with an
 is related to these TERA.  This is a breach of VA's pre-decisional duty-to-assist.

An initial rating higher than 10 percent for GERD

The June 2025 rating decision granted an initial 10 percent rating for GERD under 38 C.F.R. § 4.114, DC 7206, effective from March 8, 2024.  A review of the record does not show any specific evidence addressing the severity of his condition during the relevant period.  An April 2025 private opinion stated that GERD should be rated at 10 percent based on his documented history, but no specific information relevant to the rating criteria were addressed.  The failure to provide the Veteran with an examination addressing the severity of his GERD is a breach of VA's pre-decisional duty-to-assist.

Notably, effective May 19, 2024, VA amended the criteria for rating digestive disabilities.  As part of this amendment, VA created DC 7206 for GERD and revised DC 7346, noting that hiatal hernia and paraesophageal hernia are to be rated as stricture of the esophagus under Diagnostic Code 7203.  The new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after May 19, 2024.

In this case, the Veteran's grant of service connection for GERD was made effective prior to the amendment.  Before the amendment, GERD was typically rated by analogy under DC 7346.  Under that code, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

Under the post-amendment DC 7206, a noncompensable disability rating is warranted for a documented history of GERD without daily symptoms or requirement for daily medications.   A 10 percent disability rating is warranted for a documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptomatic.  A 30 percent disability rating is warranted for a documented history of recurrent esophageal stricture(s) causing dysphagia which requires dilatation no more than 2 times per year.  A 50 percent disability rating is warranted for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following: (1) dilatation 3 or more times per year, (2) dilatation using steroids at least 1 time per year, or (3) esophageal stent placement.  An 80 percent disability rating is warranted for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by 38 C.F.R. § 4.112(a) and treatment with either surgical correction of esophageal stricture(s) or percutaneous esophago-gastrointestinal tube (PEG tube).

To fully and fairly rate the Veteran's GERD, the examination should address both the pre and post-amendment rating criteria.

The matters are REMANDED for the following action:

1. Obtain an opinion from an appropriate clinician regarding whether the Veteran's squamous cell carcinoma is at least as likely as not related to the combined, synergistic effect of all toxic exposure risk activities, including exposure to herbicide agents in Vietnam and contaminated water at Camp Lejeune.

A complete rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner should explain whether the inability to provide the needed opinion is due to the limits of medical knowledge generally, a lack of expertise from the examiner, or inadequate information such as missing evidence.  If an examination is necessary to provide the requested opinion, one should be scheduled.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected GERD.  The examiner should provide a full description of the disability and report all signs and symptoms associated with the condition.

The examiner should assess whether the following are present: persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of
, the examiner should explain whether the inability to provide the needed opinion is due to the limits of medical knowledge generally, a lack of expertise from the examiner, or inadequate information such as missing evidence.  If an examination is necessary to provide the requested opinion, one should be scheduled.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected GERD.  The examiner should provide a full description of the disability and report all signs and symptoms associated with the condition.

The examiner should assess whether the following are present: persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; or pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health

The examiner should also address how frequently GERD requires dilatation, including with steroids; whether an esophageal stent has been placed; and whether aspiration, 

?

undernutrition, substantial weight loss, and treatment with surgical correction or a PEG tube are present.   

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Patel, Shamil

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.