Case A26039722

COLLEEN M. GLASER-ALLEN · 2026 · Case ID: A26039722

MIXED

Summary

The Veteran, a Navy Veteran who served from July 1966 to April 1970, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Veteran has service-connected disabilities including PTSD (70%), obstructive sleep apnea (30%), tinnitus (10%), and bilateral hearing loss (10%). The Veteran claims his conditions prevent him from securing or maintaining substantially gainful employment, citing lawn maintenance work as his previous occupation. The Board reviewed VA examinations from December 2023 (sleep apnea), December 2024 (hearing loss/tinnitus), and January 2025 (PTSD). The sleep apnea examiner found no work impact, while the hearing loss examiner noted difficulties with understanding speech in noisy environments. The PTSD examiner found mild impairment in understanding instructions and moderate impairment in social interaction and responding to work situations, but no severe impairments. The Board found the examiners' opinions probative and adequate, noting no contrary medical opinions. The Board also noted the Veteran and his former employers did not respond to requests for employment information. Consequently, the Board denied TDIU, finding the Veteran's limitations did not preclude substantially gainful employment. The case also involves remanded issues for headaches and Meniere's disease/vertigo, as the prior VA opinions used an unlawful "proximate cause" standard instead of the required "but-for" causation standard for secondary service connection. The Board remanded these for new opinions using the correct legal standard.

Rationale

Veteran's PTSD rated 70%, OSA 30%, tinnitus 10%, bilateral hearing loss 10%.; Examiners found no significant work limitations or mild/moderate impairments.; No contrary medical opinions of record.; Veteran and employers did not respond to requests for employment information.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

260413-647690

Full Decision Text

Citation Nr: A26039722
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 260413-647690
DATE: April 28, 2026

ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

REMANDED

Entitlement to service connection for headaches is remanded.

Entitlement to service connection for Meniere's disease, also claimed as vertigo, is remanded.

FINDING OF FACT

The Veteran's service-connected disabilities do not preclude him from securing or maintaining substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU are not met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Navy from July 1966 to April 1970. His awards and decorations include the National Defense Service Medal and the Vietnam Service Medal with star.

Preliminary Matters

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2025 rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The rating decisions constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

Evidence Windows

The Veteran appealed the April 2025 rating decisions by filing an April 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he selected direct review by a Veterans Law Judge. As the Veteran selected the Direct Review docket, for the issues of entitlement to service connection for headaches and Meniere's disease, the Board may only consider the evidence of record before the AOJ at the time of the April 11, 2025 rating decision. See 38 C.F.R. §§ 20.300(a), 301. For the issue of entitlement to TDIU, the Board may only consider the evidence of record before the AOJ at the time of the April 22, 2025 rating decision. See 38 C.F.R. §§ 20.300(a), 301.

Evidence was added to the claims file after the rating decision on appeal. The Board will not consider this evidence in this decision. See 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See Cook v. McDonough, 36 Vet. App. 175 (2023).

The Board notes that that Veteran's Notice of Disagreement was received on April 13, 2026. Requests to modify a Notice of Disagreement must be made by completing a new Notice of Disagreement on a form prescribed by the Secretary, and must be received at the Board within one year from the date that the agency of original jurisdiction mails notice of the decision on appeal, or within 60 days of the date that the Board receives the Notice of Disagreement, whichever is later. See 38 C.F.R. § 20.202(c)(2). Therefore, the Veteran currently has time pending within which he may switch dockets. A Veteran may waive this docket switch window. See Williams v. McDonough, 37?Vet. App.?205 (2024); 38 C.F.R. §§ 20.302 and 20.303. In this case, the Veteran waived his right to change dockets in AMA. See April 2026 Notice of Disagreement. Further, the Board notes that this case has been advanced on the docket. As such, the Board will proceed with adjudication.

1. Entitlement to TDIU is denied.

Legal Principles

A?TDIU?may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. ?See 38 C.F.R. § 4.16(a).
205 (2024); 38 C.F.R. §§ 20.302 and 20.303. In this case, the Veteran waived his right to change dockets in AMA. See April 2026 Notice of Disagreement. Further, the Board notes that this case has been advanced on the docket. As such, the Board will proceed with adjudication.

1. Entitlement to TDIU is denied.

Legal Principles

A?TDIU?may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. ?See 38 C.F.R. § 4.16(a). ?To qualify for schedular consideration of a?TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. ?Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. ?See 38 C.F.R. § 4.16(a); Moody v. Wilkie,?30?Vet. App.?329, 339?(2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

The Veteran meets the schedular criteria for TDIU as his posttraumatic stress disorder (PTSD) is rated 70 percent disabling.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).

In determining whether a Veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran's occupational history, education skill and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities require by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual
) to perform the type of activities require by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id.

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

Evidence and Analysis

In the April 2025 rating decision on appeal, the AOJ favorably found that: 1) the Veteran was not working; and 2) the Veteran's service-connected disabilities met the schedular criteria for TDIU as of November 13, 2023.

The Veteran has the following service-connected disabilities: 1) PTSD, rated 70 percent disabling; 2) obstructive sleep apnea, rated 30 percent disabling; 3) tinnitus, rated 10 percent disabling; and 4) bilateral hearing loss, rated 10 percent disabling.

In the Veteran's August 2024 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he contends that all of his service-connected conditions prevent him from securing or following a substantially gainful occupation. He reports that he became too disabled to work on May 1, 2021. He lists his previous employers as Harbor Hills Golf Course and On Top of The World Golf Course. His position at both was lawn maintenance.

The VA sent letters to Harbor Hills Golf Course and On Top of The World Golf Course in September 2024 requesting employment information. No response was received from either golf course.

Additionally, in January 2025, the VA requested the Veteran complete another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, due to conflicting information in the claims file regarding the Veteran's last day of work. No response was received from the Veteran and another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, was not completed.

At the Veteran's December 2023 VA sleep apnea examination, the examiner determined that the Veteran's sleep apnea has no impact on his ability to work.

At the Veteran's December 2024 VA hearing loss and tinnitus examination, the examiner determined that the Veteran's hearing loss and tinnitus conditions cause difficulties understanding others in groups and with background noise. The examiner explained that the Veteran needs face to face communication to understand others but only one on one, and not in groups. Further, he noted that the Veteran has difficulties localizing where sound is coming from due to degree of hearing loss in his left ear.

At the Veteran's January 2025 VA PTSD examination, the examiner determined that the Veteran has no impairment in the Veteran's ability to carry out very short and simple instructions, make simple work-related decisions, and make complex work-related decisions. The examiner determined that the Veteran has mild impairment in his ability to understand and remember detailed instructions and carry out detailed instructions. The examiner determined that the Veteran has moderate impairment in his ability to interact appropriately with the public, his supervisor, and co-workers; and to respond appropriately to usual work situations and to changes in routine work setting. However, the examiner did not find any severe impairments.

The Board is sympathetic to the Veteran's symptoms. However, the Board does not find that the limitations caused by the Veteran's service-connected conditions preclude him from securing or maintaining any substantially gainful employment. The Board finds the examiners' opinions regarding the Veteran's functional limitations to be prob
decisions, and make complex work-related decisions. The examiner determined that the Veteran has mild impairment in his ability to understand and remember detailed instructions and carry out detailed instructions. The examiner determined that the Veteran has moderate impairment in his ability to interact appropriately with the public, his supervisor, and co-workers; and to respond appropriately to usual work situations and to changes in routine work setting. However, the examiner did not find any severe impairments.

The Board is sympathetic to the Veteran's symptoms. However, the Board does not find that the limitations caused by the Veteran's service-connected conditions preclude him from securing or maintaining any substantially gainful employment. The Board finds the examiners' opinions regarding the Veteran's functional limitations to be probative and adequate as they are based on either in-person or approved video telehealth examinations. There are no medical opinions to the contrary of record. Further, the Veteran and his prior employers have not responded to VA's requests for additional information, as noted above. As such, the Board finds that entitlement to TDIU is not warranted.

The Board is grateful for the Veteran's service, but the Board is bound and constrained by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Accordingly, the claim is denied.

REASONS FOR REMAND

1. Entitlement to service connection for headaches is remanded.

2. Entitlement to service connection for Meniere's disease, also claimed as vertigo, is remanded.

In a January 2025 VA medical opinion, a VA clinician opined that the Veteran's headaches are not proximately due to or aggravated by the Veteran's service-connected PTSD.

In a January 2025 VA medical opinion, a VA clinician also opined that the Veteran's Meniere's disease is not proximately due to or aggravated by the Veteran's service-connected PTSD and/or tinnitus.

The Board finds that the January 2025 VA medical opinions are not compliant with Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023). In Spicer, the Federal Circuit held that 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, it held 38 C.F.R. § 3.310(b) was unlawful because it required "proximate causation" to establish aggravation of a disability, rather than but-for causation. The "but-for" causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction. Stated another way, "but-for" causation is broad, undisputedly broader than proximate cause. Thus, a service-connected disability need only be a contributing cause to establish secondary service connection. In rendering an opinion regarding secondary service connection, the January 2025 VA clinicians in this case used the "proximate cause" standard, which has been deemed unlawful by Spicer. The Board finds that this constitutes a pre-decisional duty to assist error. As such, VA medical opinions are warranted regarding whether the Veteran's headaches and/or Meniere's disease is secondary to his service-connected PTSD and/or tinnitus.

The matters are REMANDED for the following action:

1. Please forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's headaches. The entire claims file should be made available to and reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided.

The clinician is requested to provide opinions responsive to the following:

a.) whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's headaches had its onset in, was caused by, or are otherwise related to his service.

b.) whether, but for the Veteran's service-connected PTSD, he would not have headaches.

c.) whether the Veteran's headaches would have been less severe and have resulted in less functional impairment but for the Veteran's service-connected PTSD.

If the clinician opines
clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided.

The clinician is requested to provide opinions responsive to the following:

b.) whether, but for the Veteran's service-connected PTSD, he would not have headaches.

c.) whether the Veteran's headaches would have been less severe and have resulted in less functional impairment but for the Veteran's service-connected PTSD.

If the clinician opines that the Veteran's headaches would result in less functional impairment but for the Veteran's service-connected PTSD, the clinician must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the primary service-connected disability.

The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so.

2. Please forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's Meniere's disease. The entire claims file should be made available to and reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided.

The clinician is requested to provide opinions responsive to the following:

a.) whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's Meniere's disease and/or vertigo had its onset in, was caused by, or are otherwise related to his service.

b.) whether, but for the Veteran's service-connected PTSD and/or tinnitus, he would not have Meniere's disease and/or vertigo.

c.) whether the Veteran's Meniere's disease and/or vertigo would have been less severe and have resulted in less functional impairment but for the Veteran's service-connected PTSD and/or tinnitus.

If the clinician opines that the Veteran's Meniere's disease and/or vertigo would result in less functional impairment but for the Veteran's service-connected PTSD and/or tinnitus, the clinician must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the primary service-connected disability.

3. Finally, should the AOJ grant either service connection for headaches or Meniere's disease/vertigo, the AOJ should readjudicate the Veteran's claim for a TDIU.

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Samuelson, 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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