Case A26039925

M. TENNER · 2026 · Case ID: A26039925

MIXED

Summary

The veteran, who served in the U.S. Army from November 2001 to May 2008, appeals the denial of service connection for several conditions and seeks revision of a prior rating decision based on clear and unmistakable error (CUE). The appeal also includes claims for increased ratings for existing service-connected conditions and entitlement to Total Disability based on Individual Unemployability (TDIU). The Board addressed multiple CUE motions related to denials of service connection for headaches, chronic fatigue syndrome, chronic sinusitis, immune deficiency, and chronic joint pain from a July 2009 rating decision. The Board denied all CUE motions, finding no clear and unmistakable error in the original decision, particularly regarding the application of presumptive service connection rules and the handling of missed medical examinations. The Board granted service connection for segmental dysfunction of the thoracic region with a 20 percent rating. It denied an increased rating for generalized anxiety disorder with alcohol use disorder, finding the evidence supported the existing 30 percent and 70 percent ratings but not higher. Service connection for epididymitis was granted, but a compensable rating was denied due to insufficient evidence of severity. Erectile dysfunction was granted as secondary to service-connected epididymitis. An increased rating for bilateral dry eye syndrome was denied, as the evidence did not meet the criteria for an extraschedular rating. The claim for TDIU was remanded for further development and adjudication.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

241212-504243

Full Decision Text

Citation Nr: A26039925
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 241212-504243
DATE: April 29, 2026

ORDER

The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for a headache disability, is denied.

The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic fatigue syndrome, is denied.

The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic sinusitis, is denied.

The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for an immune deficiency disability, is denied.

The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic joint pain, is denied.

An initial disability rating of 20 percent, and no higher, for service-connected segmental dysfunction of the thoracic region is granted.

An initial disability rating of 30 percent prior to December 12, 2022, and in excess of 70 percent thereafter is denied.

An initial compensable disability rating for service-connected epididymitis is denied.

Service connection for erectile dysfunction as secondary to service-connected epididymitis is granted.

An initial disability rating in excess of 20 percent for service-connected bilateral dry eye syndrome is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability is remanded.

FINDINGS OF FACT

1. The July 27, 2009, Rating Decision, which denied service connection for a headaches disability, is final, and it does not contain a clear and unmistakable error to which reasonable minds could not differ, such that a manifestly different outcome would have resulted but for that error.

2. The July 27, 2009, Rating Decision, which denied service connection for chronic fatigue syndrome, is final, and it does not contain a clear and unmistakable error to which reasonable minds could not differ, such that a manifestly different outcome would have resulted but for that error.

3. The July 27, 2009, Rating Decision, which denied service connection for chronic sinusitis, is final, and it does not contain a clear and unmistakable error to which reasonable minds could not differ, such that a manifestly different outcome would have resulted but for that error.

4. The July 27, 2009, Rating Decision, which denied service connection for an immune deficiency disability, is final, and it does not contain a clear and unmistakable error to which reasonable minds could not differ, such that a manifestly different outcome would have resulted but for that error.

5. The July 27, 2009, Rating Decision, which denied service connection for chronic joint pain, is final, and it does not contain a clear and unmistakable error to which reasonable minds could not differ, such that a manifestly different outcome would have resulted but for that error.

6. During the entire period on appeal, the Veteran's service-connected segmental dysfunction of the thoracic region manifested as forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees; it did not manifest as forward flexion of 30 degrees or less, nor did it manifest in any manner of ankylosis.

7. Prior to December 12, 2022, the severity, frequency, and duration of the Veteran's mental symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity.

8. From December 12, 2022, the severity, frequency, and duration of the Veteran's mental health symptoms did not more closely approximate total occupational and social impairment.

9. During the entire period on appeal, the Veteran's service-connected epididymitis did not manifest in tubercular infections; renal dysfunction; symptoms analogous long long-term drug therapy, one to two hospitalizations per year, or intermittent intensive management; or in symptoms of recurrent symptomatic infection not requiring hospitalization, but requiring suppressive drug therapy for less than 6 months.

10. The Veteran's erectile dysfunction is caused by service-connected epididymitis.

11. The Veteran is in receipt of the maximum disability rating allowed for his service-connected bilateral dry eye syndrome, and his disability does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards.

the Veteran's service-connected epididymitis did not manifest in tubercular infections; renal dysfunction; symptoms analogous long long-term drug therapy, one to two hospitalizations per year, or intermittent intensive management; or in symptoms of recurrent symptomatic infection not requiring hospitalization, but requiring suppressive drug therapy for less than 6 months.

10. The Veteran's erectile dysfunction is caused by service-connected epididymitis.

CONCLUSIONS OF LAW

1. The criteria for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for a headaches disability, are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105.

2. The criteria for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic fatigue syndrome, are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105.

3. The criteria for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic sinusitis, are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105.

4. The criteria for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for an immune deficiency disability, are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105.

5. The criteria for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic joint pain, are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105.

6. During the entire claim period, the criteria for an initial disability rating of 20 percent, and no higher, for service-connected segmental dysfunction of the thoracic region are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

7. The criteria for an initial disability rating in excess of 30 percent prior to December 12, 2022, and in excess of 70 percent thereafter for service-connected generalized anxiety disorder with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440.

8. During the entire claim period, the criteria for an initial compensable disability rating for service-connected epididymitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.31, 4.115a, 4.115b, Diagnostic Code 7525.

9. During the entire claim period, the criteria for an initial disability rating in excess of 20 percent for service-connected bilateral dry eye syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.20, 4.21, 4.31, 4.79, Diagnostic Code 6025.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Army from November 2001 to May 2008.

This appeal is being adjudicated according to the appellate process set forth under the Appeals Modernization Act (AMA).

The Veteran has filed a motion to advance his case on the Board of Veterans' Appeals' (Board) docket, claiming severe financial hardship as his basis. 38 U.S.C
38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.20, 4.21, 4.31, 4.79, Diagnostic Code 6025.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Army from November 2001 to May 2008.

This appeal is being adjudicated according to the appellate process set forth under the Appeals Modernization Act (AMA).

The Veteran has filed a motion to advance his case on the Board of Veterans' Appeals' (Board) docket, claiming severe financial hardship as his basis. 38 U.S.C. § 7107(b); 38 C.F.R. § 20.800(c). His appeal has been advanced on the Board's docket.

This case comes before the Board on appeal from a September 27, 2024, Higher-Level Review (HLR) Rating Decision issued by a Regional Office of the United States Department of Veterans Affairs (VA).

The Board received VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) on December 12, 2024, from the Veteran. The Veteran selected the Evidence Review docket. January 30, 2025, and February 12, 2025, Board letters informed the Veteran and listed representative that the appeal had been formally placed on the Board's Evidence Review docket. The Board's Evidence Review docket provides the Veteran with the opportunity to submit additional evidence within 90 days of the Board's receipt of the Notice of Disagreement. The requisite 90-day period has expired, and the Board may proceed to adjudicate the appeal.

The Board notes that the Veteran's initial representative, an attorney, is no longer representing him. The Veteran revoked that representative's authorization on July 3, 2025, in written correspondence to the VA. The Veteran's new representative, the Disabled American Veterans (DAV) Association, a co-located veterans service organization (VSO), filed an appearance on July 11, 2025, on behalf of the Veteran. The DAV submitted an informal hearing presentation (IHP) on August 14, 2025, addressing the claims in this appeal. Although the Board has not sent the DAV notification of the pending appeal, the Board finds that the DAV is aware of the appeal based on the filing of the IHP, and formal notification is unnecessary. See 38 U.S.C. § 5103; 38 C.F.R. § 19.36.

Evidentiary Standards

This appeal is comprised of two distinct groups of claims, each of which have their own evidentiary standards that guide the Board's adjudication. One group is the Veteran's motions for revision of a prior rating decision based on clear and unmistakable error. The other group is the increased-rating claims.

Motions for Revision based on Clear and Unmistakable Error

In the context of an appeal based on the allegation of clear and unmistakable error (CUE), "[r]eview for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made." 38 C.F.R. § 3.105(a)(iii); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that "evidence" in 38 U.S.C. § 5109A(a) is limited to evidence that was of record at the time of the challenged decision). Subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235?36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). To the extent the evidentiary-window provisions of the modernized review system (AMA) conflict with the evidentiary-window provisions associated with motions based on clear and unmistakable error, 38 C.F.R. § 3.105(a)(iii), the law provides that the evidentiary-window provisions associated with motions based on clear and unmistakable error control.

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128?29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and
evidentiary-window provisions associated with motions based on clear and unmistakable error, 38 C.F.R. § 3.105(a)(iii), the law provides that the evidentiary-window provisions associated with motions based on clear and unmistakable error control.

The benefit of the doubt does not apply in the specific context of CUE, since CUE does not involve the weighing of evidence. See Burden v. Shinseki, 727 F.3d 1161, 1169?70 (Fed. Cir. 2013).

Increased-Rating Claims

When a claimant chooses the HLR lane, the VA Regional Office is limited to the evidence of record at the time of the underlying rating decision. 38 C.F.R. § 3.2601(f). Here, the Veteran selected higher-level review of an April 19, 2024, Rating Decision. Thus, the VA Regional Office's September 27, 2024, Rating Decision was limited to consideration of the evidence at the time of the April 19, 2024, Rating Decision.

On appeal to the Board, by choosing the Evidence Review docket, the Board's adjudication on the merits is limited to the evidence of record at the time of the April 19, 2024, Rating Decision and the evidence submitted within 90 days of the filing of the Notice of Disagreement. 38 C.F.R. §§ 3.2601(f), 20.303.

Any findings favorable to the Veteran made by the VA Regional Office in notification of a decision are binding on the Board unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 C.F.R. § 20.801(a). "Findings" means "conclusions on questions of fact and application of law to facts made by an adjudicator concerning the issue under review." Id.

Any evidence added to the claims file during a period when the submission of new evidence was not allowed was not considered by the Board in the decision below. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is considered both new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Analyses

The procedural history in relation to the Veterans CUE motions substantially overlap, such that the Board will provide a discussion of their history together.

Within one year of separation from active military service, the Veteran filed an application for service connection, VA Form 21-526, on March 30, 2009. In relevant part, he sought service connection for a headache disability, sinusitis, an immune deficiency disability, chronic fatigue syndrome, and chronic joint pain.

The VA Regional Office scheduled the Veteran for VA medical examinations to assess his asserted disabilities. The Veteran did not appear for his scheduled examinations. See Notification Letters (associated with the claims file on July 9, 2009). On July 24, 2009, the VA Regional Office associated with the Veteran's claims file a chain of emails between the VA and the medical facility where the Veteran's medical examinations were to occur. According to the medical facility, the Veteran informed it that he was unable to attend his examination as he was going to be out, and he did not know when he was returning. He requested all future appointments be cancelled.

In a July 27, 2009, Rating Decision, the VA Regional Office denied service connection, in relevant part, for a headache disability, sinusitis, an immune deficiency disability, chronic fatigue syndrome, and chronic joint pain. The VA Regional Office notified the Veteran of that decision via written correspondence on July 29, 2009. The Veteran did not appeal that decision to the Board.

On March 17, 2023, the Veteran filed VA Form 20-0995, Supplemental Claim Application. He requested, in relevant part, readjudication of his claims for service connection for a headache disability, sinusitis, an immune deficiency disability, chronic fatigue syndrome, and chronic joint pain.

In a November 27, 2023, Rating Decision, the VA Regional Office granted service connection for headache disability,
connection, in relevant part, for a headache disability, sinusitis, an immune deficiency disability, chronic fatigue syndrome, and chronic joint pain. The VA Regional Office notified the Veteran of that decision via written correspondence on July 29, 2009. The Veteran did not appeal that decision to the Board.

In a November 27, 2023, Rating Decision, the VA Regional Office granted service connection for headache disability, rhinitis (claimed as sinusitis), irritable bowel syndrome (claimed as an immune deficiently disability), and chronic fatigue syndrome.

In a March 28, 2024, Rating Decision, the VA Regional Office denied service connection for "chronic joint pain all over the body" and an immune deficiency disability.

On April 9, 2024, the Veteran, through his attorney-representative at that time, filed CUE motions to revise (or reverse) the July 27, 2009, Rating Decision. As discussed more in depth later, he argued that all claims for service connection denied in that decision should have been granted.

In an April 19, 2024, Rating Decision, the VA Regional Office denied the CUE motions to revise (or reverse) the July 27, 2009, Rating Decision with respect to the denials of service connection for a headache disability, sinusitis, an immune deficiency disability, chronic fatigue syndrome, and chronic joint pain.

The Veteran filed VA Form 20-0996, Request for Higher-Level Review, of that decision. The VA Regional Office issued an HLR Rating Decision on September 27, 2024, confirming the denial of the CUE motions. The Veteran has appealed to the Board.

Clear and Unmistakable Error

Generally, a decision of a VA Regional Office that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. A previous determination that is final and binding will be presumed correct in the absence of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). If the evidence establishes CUE, the prior decision will be reversed or revised, and a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a).

"CUE is a very specific and rare kind of 'error' . . . of fact or law that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error." Simon v. Wilkie, 30 Vet. App. 403, 408 (2018) (quoting Fugo, 6 Vet. App. at 43). Thus, even where the premise of error is accepted, if it is not clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo, 6 Vet. App at 43?44.

To establish CUE, a claimant must demonstrate the following three elements:

(1) either (a) the correct facts as they were known at the time were not before the adjudicator, (b) the adjudicator made an erroneous factual finding, or (c) the statutory or regulatory provisions extant at the time were incorrectly applied;

(2) the error was undebatable and amounted to more than a disagreement with how the facts were weighed or the law applied; and

(3) the outcome of the claim would be manifestly different had the error not occurred.

Simon, 30 Vet. App. at 407. A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014).

Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43?44. Similarly, neither can broad-brush allegations of "failure to follow the regulations," "failure to give due process," or any other general, nonspecific claim of "error." Id. The VA's failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). Likewise, a breach of the VA's duty to notify and assist cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383?84 (1994). This includes situations when the VA Regional Office is alleged to have breached the duty to assist a claimant in obtaining relevant service medical records that may render a prior rating decision non-final, or another kind of "grave procedural error" ostensibly has occurred. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (en banc).

Threshold Determinations

There are two threshold matters that the Board must address before reaching the merits of the Veteran's CUE motions. First, the Board must address the finality of the July 27, 2009, Rating Decision. Lang v. Wilkie, 971 F.3d 1348, 1352 (Fed. Cir. 2020) (a decision must be final to be subject to revision based on CUE). Second, it must address the pleading requirements for a CUE motion. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005).

Finality

"The purpose of the rule of finality is to preclude repetitive and belated readjudication of veterans' benefit claims." Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). The finality of a decision is viewed from dual lenses: that of the law at the time of the rating decision and the current state of the law, to the extent they differ. As of July 29, 2009, the date of the notification of the July 27, 2009, Rating Decision, the law required that the Veteran file an appeal to the Board within one year of that date. 38 U.S.C. § 7105 (2009); 38 C.F.R. § 20.302 (2009). He did not do so, making the decision final in the absence of an exception. Here, for reasons discussed next, the Board finds no applicable exception applies that would render the decision non-final.

The July 27, 2009, Rating Decision was issued under the Legacy Appeal system (in effect until February 19, 2019, 38 C.F.R. § 3.2400(b) (2026)). Current law provides that in the Legacy Appeal system, if new and material evidence was received within year of notification of the rating decision, then the claim remained non-final until the evidence was addressed. 38 C.F.R. § 3.156(b) (2026). Here, the Board finds that new and material evidence was not received within one year of the July 29, 2009, notification of the Rating Decision. Thus, section 3.156(b) (2026) is inapplicable. The Veteran has not argued to the contrary. Thus, section 3.156(b) (2026) does not prevent finality.

Another exception is currently found in 38 C.F.R. § 3.156(c) (2026). Section 3.156(c) provide in relevant part: "Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156
3.156(b) (2026) is inapplicable. The Veteran has not argued to the contrary. Thus, section 3.156(b) (2026) does not prevent finality.

Another exception is currently found in 38 C.F.R. § 3.156(c) (2026). Section 3.156(c) provide in relevant part: "Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1) (2026). Service department records include military personnel and medical records. Id.

In the July 27, 2009, Rating Decision, the VA Regional Office indicated that it had the Veteran's service treatment records from November 2005 to March 2008 at the time of adjudication, as well as his DD Form 214 (Certificate of Release or Disclosure from Active Duty). Subsequent to the July 27, 2009, Rating Decision, the Veteran's claims file indicates military medical records were uploaded to the claims file on November 23, 2009. On review of those records, some records are duplicative of those records that were part of the claims file before the VA Regional Office at the time of the July 27, 2009, Rating Decision. But there are also new military medical records contained therein, which cover the full period of service. Whereas the July 27, 2009, Rating Decision only listed records between November 2005 and March 2008, the records associated with the claims file on November 23, 2009, cover the period from November 2001 to November 2005 and beyond. Hence, section 3.156(c) is triggered.

The Board finds that a full analysis of section 3.156(c) is unnecessary. Following receipt of the military medical records in November 2009, the Veteran filed his Supplemental Claim for service connection on March 17, 2023. The Veteran's Supplemental Claim requested readjudication of all the claims denied in the July 27, 2009, Rating Decision. The VA Regional Office readjudicated all the claims within a November 27, 2023, Rating Decision, taking into account the military medical records received in November 2009. Thus, reconsideration did occur in the context of the Supplemental Claim. Accordingly, the VA Regional Office's readjudication of all the claims satisfied the requirements of section 3.156(c). See Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014); George v. Shulkin, 29 Vet. App. 199, 205 (2018), vacated on other grounds sub nom. George v. Wilkie, 782 Fed. Appx. 997, No. 2018-1736, 2019 U.S. App. LEXIS 25498, 2019 WL 4010813 (Fed. Cir. Aug. 26, 2019). Therefore, the Board finds that 38 C.F.R. § 3.156(c) (2026) does not prevent finality.

The Board finds no applicable exception to finality applies. The Veteran, who was represented by an attorney at the time he filed his CUE motions and the appeal to the Board, does not make any argument to the contrary. The July 27, 2009, Rating Decision is final, and it may be subject to revision based on CUE.

Pleading Requirements

As to the second threshold matter, a motion for revision of a final decision based on CUE must be pleaded with specificity, setting forth "clearly and specifically the alleged [CUE] of fact or law in the [prior] decision, the legal and factual basis for such allegations, and why the result would have been manifestly different." 38 C.F.R. § 3.105(a)(1)(vii)(B); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Where a claimant is unrepresented or represented by a non-attorney, the VA must read a CUE motion sympathetically before consideration of the heightened pleading requirements. Comer v. Peake, 552 F.3d 1362, 1369-70 (Fed. Cir. 2009); see Andrews, 421 F.3d at 1283. But where a claimant is represented by an attorney, the Board is "entitled
been manifestly different." 38 C.F.R. § 3.105(a)(1)(vii)(B); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Where a claimant is unrepresented or represented by a non-attorney, the VA must read a CUE motion sympathetically before consideration of the heightened pleading requirements. Comer v. Peake, 552 F.3d 1362, 1369-70 (Fed. Cir. 2009); see Andrews, 421 F.3d at 1283. But where a claimant is represented by an attorney, the Board is "entitled to assume that the arguments presented by [the claimant are] limited for whatever reason under the advice of counsel and that those were the theories upon which [s]he intended to rely." See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) (citing Cogburn v. Shinseki, 24 Vet. App. 205, 213 (2010)). Thus, a CUE motion filed by an attorney is not entitled to a sympathetic reading. Id. Motions that are not pleaded with specificity "shall be dismissed without prejudice to refiling." Canady v. Nicholson, 20 Vet. App. 393, 400 (2006); see also 38 C.F.R. § 3.105(a)(1)(vii)(B) (requiring specific allegations of CUE); 38 C.F.R. § 20.1404(b) (same).

Here, at the time of the filing of his CUE motion and his appeal to the Board, the Veteran was represented by an attorney. The Veteran revoked his attorney's representation in July 2025. He is currently represented by a veterans service organization, which is not the equivalent of attorney representation. On review of the CUE motions, the Board finds that they are sufficiently well-pleaded, such that the Board may adjudicate the merits of the motions. The Board finds that the Veteran's attorney-representative, at the time, limited the CUE motions to the precise arguments presented therein, such that a liberal reading of the motions is unnecessary, except as to where logical gap-filling is required. Nothing causes the Board to believe that there are extraneous or implicit arguments that the Veteran requests the Board to adjudicate. The Veteran's current representative has not provided additional arguments beyond what the CUE motions originally presented. Thus, the Board limits its adjudication to the arguments specifically raised in the CUE motions.

The Board points out that the law is not clear about what standard governs the pleading requirements where a veteran is represented by an attorney at the time of the filing of the CUE motion and through the appeal to the Board but later becomes represented by a VSO after the attorney is removed from representation during the course of the appeal. In such an instance, as presented here, the Board believes that the CUE motions are to be read under the heightened pleading standards applicable to representation by an attorney. The Veteran was represented by an attorney at the time of the filing of his CUE motions, at the time of the filing of the Notice of Disagreement, and at the time the evidentiary window closed under the Evidence Review docket. The record does not contain evidence or argument indicating that the CUE motions are in any way deficient or are contrary to the Veteran's current intent to proceed with adjudication of his CUE motions. Nevertheless, the Board still affords the Veteran a sympathetic reading of this CUE motions to the extent logical gap-filling is required to make sense of his arguments.

Presentation of the Veteran's CUE Motions

On a final, but important note, on review of the Veteran's CUE motions, the Board observes that he has not discretely addressed each denial of service connection within the February 27, 2009, Rating Decision for which he seeks revision (or reversal). The motions are presented as one motion. Instead of analyzing each decision of the VA Regional Office separately, the Veteran chose to present his CUE motions grouped by arguments. He lays out one general CUE motion by argument heading, such as "failure to apply 38 C.F.R. 3.303(b)," and then proceeds to group all of the decisions which denied service connection into one general discussion. He does not distinctly address each decision within the February 27, 2009, Rating Decision.

Due to the way in which the Veteran's CUE motions have been presented, the Board had trouble distinguishing his arguments as applied to each decision of the VA Regional Office within the February 27, 2009, Rating Decision. Nevertheless, the arguments were sufficiently presented, such that adjudication on the merits could
of the VA Regional Office separately, the Veteran chose to present his CUE motions grouped by arguments. He lays out one general CUE motion by argument heading, such as "failure to apply 38 C.F.R. 3.303(b)," and then proceeds to group all of the decisions which denied service connection into one general discussion. He does not distinctly address each decision within the February 27, 2009, Rating Decision.

Due to the way in which the Veteran's CUE motions have been presented, the Board had trouble distinguishing his arguments as applied to each decision of the VA Regional Office within the February 27, 2009, Rating Decision. Nevertheless, the arguments were sufficiently presented, such that adjudication on the merits could occur. But for reasons explained in this decision, many arguments were underdeveloped, offering no supportive reasoning for the conclusions reached in the CUE motions. And that is likely due to the way in which the CUE motions were presented. The Board filled in logical gaps in the Veteran's arguments where permitted and necessary to address his arguments to the fullest extent possible.

In addition, the Veteran has essentially repeated the same arguments in each CUE motion. Thus, the analyses provided by the Board of the CUE motions are also repetitive. Where appropriate, rather than repeat the same analysis verbatim, the Board will incorporate by reference an analysis already conducted with respect to one CUE motion in a later analysis of another CUE motion.

1. The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for a headache disability, is denied.

In the July 27, 2009, Rating Decision, the VA Regional Office found that the Veteran was treated for headaches while in service in January 2006. It concluded: "Although there is a record of treatment in service for headache, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service." Thus, it denied service connection for a headache disability. The Board interprets the July 27, 2009, Rating Decision to mean that the VA Regional Office found that the evidence did not establish a current disability of headaches at the time of the decision.

In 2009, as now, in order to be entitled to service connection there must have been competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

In his CUE motion, the Veteran makes four primary arguments. The Board addresses each argument in turn.

First, the Veteran argues that the VA Regional Office failed to apply 38 C.F.R. § 3.303(a) and (b) (2009).

Section 3.303(a) (2009) is the general VA regulation discussing principles of service connection. A presumption of service connection is created by 38 U.S.C. § 1112 (2009), which is implemented by 38 C.F.R. § 3.303(b) (2009). The statute and regulation's respective text is the same now as it was in 2009. Pursuant to 38 U.S.C. § 1112:

[I]n the case of any veteran who served for ninety days or more during a period of war-

(1) a chronic disease becoming manifest to a degree of 10 percent or more within one year from the date of separation from such service . . . shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record of evidence of such disease during the period of service.

38 U.S.C. § 1112(a)(1) (2009). The presumption created by section 1112 is rebuttable "where there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease . . . has been suffered . . . ." 38 U.S.C. § 1113(a) (2009); see also 38 C.F.R. § 3.307(d) (2009) (defining the standard for "affirmative evidence to the contrary").

The VA promulgated 38 C.F.R. § 3.303(b) (2009) to implement section 1112. In doing so, it created two avenues for presumptive service connection, broadening section 1112. First, there is an explicit rule for when a chronic disease is "shown in
rebuttable "where there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease . . . has been suffered . . . ." 38 U.S.C. § 1113(a) (2009); see also 38 C.F.R. § 3.307(d) (2009) (defining the standard for "affirmative evidence to the contrary").

The VA promulgated 38 C.F.R. § 3.303(b) (2009) to implement section 1112. In doing so, it created two avenues for presumptive service connection, broadening section 1112. First, there is an explicit rule for when a chronic disease is "shown in service (or within the presumptive period under [38 C.F.R.] § 3.307)." 38 C.F.R. § 3.303(b) (2009). For a showing in service, "there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time." Id. In such cases, "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes." 38 C.F.R. § 3.303(b) (2009). In other words, if evidence establishes a chronic disease "shown in service (or within the applicable presumptive period)," later manifestations of that chronic disease are subject to service connection absent intercurrent causes. The Board observes that this regulatory framework is broader than that found in section 1112. Section 1112 does not apply to chronic diseases established in service.

The second avenue to establish presumptive service connection occurs based on "continuity of symptomology." Pursuant to 38 C.F.R. § 3.303(b) (2009), the second and third element of service connection may be established by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. § 3.303(b) (2009); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).

At the time of the July 27, 2009, Rating Decision, "as long as the condition is noted at the time the veteran was in service such noting need not be reflected in any written documentation (other than as required to be in a format sufficient for inclusion as part of the record and proceedings before the Secretary and the Board), either contemporaneous to service or otherwise." Savage, 10 Vet. App. at 496 (internal citation omitted).

The disease need not be diagnosed in the presumptive period. If it is not, however, there must "then [be] shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis." 38 C.F.R. § 3.307(c) (2009). Continuing symptoms, rather than treatment, are the focus of the evidentiary analysis. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). A medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology is necessary to establish presumptive service connection. Savage, 10 Vet. App. at 496.

The Veteran argues that at the time of the July 27, 2009, Rating Decision, there was no limitation of what conditions were subject to presumptive service connection under 38 C.F.R. § 3.303(b) (2009). He argues that the first published case to establish that the meaning of a "chronic disease" within 3.303(b) was limited to only those diseases listed in 38 C.F.R. § 3.309(a) was Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hence, he argues that the VA Regional Office clearly and unmistakably erred when it failed to apply 38 C.F.R.§ 3.303(b) (2009) to his claim for service connection for a headache disability. The Board disagrees with his argument.

The Board finds a recent non-precedential case from the United States Court of Appeals for Veterans Claims (Veterans Court), Perry v. Collins, No. 24-7279, 2026 LX 14034 (Vet. App. Feb. 27, 2026), directly addresses his argument. See Bethea v. Derwinski, 2 Vet. App.
.3d 1331 (Fed. Cir. 2013). Hence, he argues that the VA Regional Office clearly and unmistakably erred when it failed to apply 38 C.F.R.§ 3.303(b) (2009) to his claim for service connection for a headache disability. The Board disagrees with his argument.

The Board finds a recent non-precedential case from the United States Court of Appeals for Veterans Claims (Veterans Court), Perry v. Collins, No. 24-7279, 2026 LX 14034 (Vet. App. Feb. 27, 2026), directly addresses his argument. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (recognizing that a nonprecedential authority may be "relied upon . . . for any persuasiveness or reasoning it contains"). The Board notes that the same attorney who filed the CUE motion in this appeal is the same attorney who represented the appellant-veteran in Perry before the Veterans Court.

In Perry, the veteran made a nearly identical argument to the Veterans Court as the instant Veteran makes before the Board in this appeal. In Perry, the Veteran filed a CUE motion to revise a 2008 rating decision that denied service connection for posttraumatic stress disorder (PTSD) and a headache disability. Id. at *1. He focused his CUE motion on the VA's alleged failure to address and grant service connection under 38 C.F.R. § 3.303(b) (2008). Id. at *2. He argued "that, in 2008, the presumption under § 3.303(b) was not commonly understood to be limited to those conditions listed in § 3.309(a) and that such an understanding of §§ 3.303(b) and 3.309(a) only came about with the Federal Circuit's decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)." Id. at *5. He further argued "that, at the time of the 2008 decision, he was 'availed of the more liberal meaning of chronic, which was in place prior to the Walker case.'" Id.

The Veterans Court disagreed with the veteran's argument. The Veterans Court explained as follows:

But [the veteran's] account of the law misreads Walker. That case specifically addressed whether bilateral hearing loss and tinnitus were included in "other organic diseases of the nervous system" under § 3.309(a). 708 F.3d at 1334-39. Walker did not, as the veteran suggests, state for the first time that the § 3.303(b) presumption is limited to those conditions listed in § 3.309(a). The appellant offers nothing to support the notion that, in 2008, §3.303(b) was not limited to conditions listed in § 3.309(a).

Id.

The Board finds the Perry Court's explanation is persuasive. Similar to the argument presented in Perry, the Veteran has not presented an argument to support his assertion that section 3.303(b) (2009) was not limited to the chronic diseases listed in section 3.309(a) (2009). He simply asserts Walker was the first case to do so without discussion of any relevant cases prior to Walker. Moreover, the Board's own reading of Walker does not necessarily indicate that the United States Federal Circuit Court of Appeals was addressing, for the first time, section 3.303(b) as broadly the Veteran's argues. The Board independently agrees with the Perry Court's interpretation of Walker.

But this is not to say that the Veterans Court had not applied section 3.303(b)'s provisions inconsistently prior to Walker, which the VA Secretary pointed out and had disagreed with. The Walker Court stated:

The Secretary advises us that he disagrees with Savage v. Gober and other Veterans Court decisions in cases that have extended § 3.303(b), in reliance on Savage v. Gober, beyond the list of chronic diseases found in § 3.309(a). For example, the Veterans Court gave the benefit of § 3.303(b) to a claim for psoriasis in Kent v. Nicholson, 20 Vet. App. 1 (2006), and to a claim for varicose veins in Barr v. Nicholson, 21 Vet. App. 303 (2007), even though neither condition is named as a chronic disease in § 3.309(a).

Walker, 708 F.3d at 1338 n.3. The Walker Court abrogated all such cases from the Veterans Court. Id. at 1338 n.4. Thus, at the most, it was at least
the list of chronic diseases found in § 3.309(a). For example, the Veterans Court gave the benefit of § 3.303(b) to a claim for psoriasis in Kent v. Nicholson, 20 Vet. App. 1 (2006), and to a claim for varicose veins in Barr v. Nicholson, 21 Vet. App. 303 (2007), even though neither condition is named as a chronic disease in § 3.309(a).

Walker, 708 F.3d at 1338 n.3. The Walker Court abrogated all such cases from the Veterans Court. Id. at 1338 n.4. Thus, at the most, it was at least unclear as to whether section 3.303(b) applied to conditions outside of those listed in section 3.309(a). To be sure, the Secretary's position was that only those conditions listed in section 3.309(a) were subject to presumptions service connection under section 3.30(b), and the Veterans Court had erred in prior decisions. Where interpretation of the law was debatable, CUE cannot exist. See Hatfield v. McDonough, 36 Vet. App. 97, 100 n.6 (2023).

Nevertheless, for the purposes of the Veteran's CUE motion, the Board will assume that section 3.303(b) (2009) was applicable to the Veteran's claimed headache disability in 2009. The Board recognizes that the VA Regional Office specifically assessed whether his disability was "chronic." That language reasonably suggests that it considered the application of 38. C.F.R. § 3.303(b) (2009). Although not explained by the VA Regional Office, the Board believes that the VA Regional Office considered the Veteran's headaches may have been an "organic disease of the nervous system." 38 C.F.R. § 3.309(a) (2009).

The Veteran argues that the outcome of the claim for service connection for a headache disability would have been manifestly different if the VA Regional Office had applied section 3.303(b) (2009). The Veteran, however, fails to discuss how he met the elements of service connection by applying section 3.303(b) (2009). Rather, he seems to presume the elements would have been met.

The Veteran generally asserts that there were notations in service of his headaches. And that is true. As the VA Regional Office explicitly recognized, the Veteran was treated for headaches in January 2006. But the presence of headaches in service is not dispositive. The VA Regional Office found a lack of evidence establishing residual headaches after service or evidence establishing that the Veteran's headaches were chronic. The Veteran has not cited evidence that is contrary to the VA Regional Office's conclusion. Instead, he argues that the VA Regional Office used his failure to appear at the VA medical examination as the basis to deny him service connection. That argument is incorrect. The VA Regional Office did not deny service connection due to his failure to appear. It noted that the law permitted it to consider the claim based on the evidence of record despite his failure to appear for the examination. See 38 C.F.R. § 3.655 (2009). The Veteran also argues that the request for a VA medical examination was intended to produce "negative evidence" in violation of 38 C.F.R. § 3.304(c) (2009). The Board also disagrees with that argument.

The Veteran does not discuss what clear and unmistakable evidence existed in the record at the time of the July 27, 2009, Rating Decision that established a then-extant headache disability was chronic or otherwise what evidence established continuity of symptomatology. The Board, on review of the record, has not found such clear and unmistakable evidence. Hence, the Board finds that the VA Regional Office's request for the Veteran to attend a medical examination to assess his headache disability was not clearly and unmistakably undertaken to develop negative evidence. He was requested to attend a medical examination to determine if he had a current headache disability post-service. And to the extent the Veteran wants the Board to reweigh the evidence of record to make a contrary conclusion to that of the July 27, 2009, Rating Decision, the Board is prohibited from doing so in the CUE context. Cacciola v. Gibson, 27 Vet. App. 45, 60 (2014) ("Although the Board is required to provide an adequate statement of reasons or bases for its determination whether the . . . decision contained CUE, the Board does not reweigh the evidence.").

In sum, the Board find that 38 C.F.R. § 3.303(b) (2009) was not applicable to conditions not found within 38 C.FR. § 3.309(a
the extent the Veteran wants the Board to reweigh the evidence of record to make a contrary conclusion to that of the July 27, 2009, Rating Decision, the Board is prohibited from doing so in the CUE context. Cacciola v. Gibson, 27 Vet. App. 45, 60 (2014) ("Although the Board is required to provide an adequate statement of reasons or bases for its determination whether the . . . decision contained CUE, the Board does not reweigh the evidence.").

In sum, the Board find that 38 C.F.R. § 3.303(b) (2009) was not applicable to conditions not found within 38 C.FR. § 3.309(a) (2009) at the time of the July 27, 2009, Rating Decision. But the Board assumes that the VA Regional Office considered application of 3.303(b) (2009) to the Veteran's headache disability. Yet, the evidence of record at the time of the July 27, 2009, Rating Decision did not clearly and unmistakably establish a then-extant headache disability that was chronic, nor did evidence clearly and unmistakably establish a headache disability post-service based on continuity of symptomatology. Therefore, the second and third elements of service connection were not clearly and unmistakably satisfied by the presumption found in section 3.303(b).

The Veteran's second argument is that the VA Regional Office failed to apply 38 C.F.R. § 3.317(b) (2009).

Presumptive service connection is available for Persian Gulf War veterans who exhibit indications of qualifying chronic disabilities. 38 U.S.C. § 1117 (2009); 38 C.F.R. § 3.317 (2009). This presumption alleviates the need for a veteran to establish a direct causal link between service and his or her disability. Section 3.317 in 2009 is different than it is today.

A "chronic disability" for purposes of this statutory and regulatory presumption is defined "as disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period." 38 C.F.R. § 3.317(a)(4) (2009). A "qualifying" chronic disability is one that results from either an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI), such as chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, and any other illness the Secretary determines meets the definition of a MUCMI. 38 U.S.C. § 1117(a)(2) (2009); 38 C.F.R. §§ 3.317(a)(2), (b) (2009) (listing symptoms that may be a manifestation of an undiagnosed illness or a MUCMI).

The term "medically unexplained chronic multi-symptom illness (MUCMI)" is "a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii) (2009).

Significantly, there must be "objective indications of a qualifying chronic disability." 38 C.F.R. § 3.317(a)(1) (2009) (emphasis assed). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. §§ 3.317(a)(3), (b) (2009); see also 38 U.S.C. § 1117(g) (2009).

On review of the July 27, 2009, Rating Decision, the Board does not locate a specific discussion of 38 U.S.C § 1117 or 38 C.F.R. § 3.317 in relation to the Veteran's claim for service connection for a headache disability. Furthermore, the Veteran does not explain why the VA Regional Office committed CUE by not applying the statute and regulation to his disability. Rather, he recites applicable law, states that section 3.317(b) was for application, and concludes that he would have been granted service connection for a headache disability. That is not a sufficient argument to establish revision of the rating decision based on CUE. See Fugo, 6 Vet. App. at 44; Russell, 3 Vet. App. at 310. There is no discussion from the Veteran explaining his conclusion. And the Board does not reasonably find a factual basis in the record supporting his conclusion.

The
relation to the Veteran's claim for service connection for a headache disability. Furthermore, the Veteran does not explain why the VA Regional Office committed CUE by not applying the statute and regulation to his disability. Rather, he recites applicable law, states that section 3.317(b) was for application, and concludes that he would have been granted service connection for a headache disability. That is not a sufficient argument to establish revision of the rating decision based on CUE. See Fugo, 6 Vet. App. at 44; Russell, 3 Vet. App. at 310. There is no discussion from the Veteran explaining his conclusion. And the Board does not reasonably find a factual basis in the record supporting his conclusion.

The Veteran once again makes the assertion that the VA Regional Office denied his claim for service connection because he failed to appear for his VA medical examinations and was developing negative evidence. But as explained above, that is not an accurate understanding of the VA Regional Office's decision. The Board incorporates its prior discussion on the matter here, rather than repeat itself. In short, the VA Regional Office properly requested the Veteran attend a VA medical examination to develop his claim.

Moreover, whether disability qualifies as a chronic disability under 38 U.S.C. § 1117 (2009) and 38 C.F.R. § 3.317 (2009) must be based on objective evidence. 38 C.F.R. § 3.317(a)(1) (2009). And a medical examination would constitute objective evidence. The Veteran argues that there was sufficient evidence before the VA Regional Office to award service connection, and thus a medical examination was unnecessary. But such a conclusion is not supported by clear and unmistakable evidence in the record, and he offers no explanation to support his conclusion.

The VA Regional Office concluded that the Veteran's military medical records contained treatment for his headaches, but the evidence did not establish headaches post-service or a chronic disability of headaches in service in its view. Hence, the VA Regional Office reasonably requested a medical examination to assess his headaches. The Board does not find clear and unmistakable evidence of record that establishes his headaches were a qualifying chronic disability or a MUCMI for purposes of the statute and regulation. The Veteran generally asserts that there were abundant notations of symptoms in service and that a manifestly different outcome would have resulted. But he offers no reasoning for his conclusion, and it is not the Board's duty to create an argument for him. His general assertion, without a well-reasoned explanation in support, renders his argument insufficient to establish CUE. To the extent the Veteran wants the Board to reweigh the evidence of record to make a contrary conclusion to that of the July 27, 2009, Rating Decision, the Board is prohibited from doing so in the CUE context. Cacciola, 27 Vet. App. at 60.

In sum, the Veteran has not established that 38 U.S.C. § 1117 (2009) and 38 C.F.R § 3.317 (2009) were applicable to his claim for a headache disability. But if the Board assumes that the statute and regulations were applicable, the evidence of record at the time of the July 27, 2009, Rating Decision did not clearly and unmistakably establish a then-extant headache disability that was a qualifying chronic disability based on objective evidence, nor did evidence clearly and unmistakably establish a headache disability that constituted a MUCMI based on objective evidence. Therefore, the second and third elements of service connection were not clearly and unmistakably satisfied by the presumptions found in 38 U.S.C. § 1117 (2009) and 38 C.F.R § 3.317 (2009).

The Veteran's third argument is that the VA Regional Office committed CUE in the February 27, 2009, Rating Decision when it failed to apply 38 C.F.R. § 3.655 (2009).

Pursuant to 38 C.F.R. § 3.655(a) (2009),

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.

"Good cause" was defined generally as a "legally sufficient reason" for an action and is "often the burden placed on a litigant (usu[ally] by court rule or order) to show
or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.

"Good cause" was defined generally as a "legally sufficient reason" for an action and is "often the burden placed on a litigant (usu[ally] by court rule or order) to show why a request should be granted or an action excused." Black's Law Dictionary 251 (9th ed. 2009).

The provisions of 38 C.F.R. § 3.655(b) (2009) addressed the VA's duty when a claimant failed to report to a VA examination without good cause in connection with an original claim: "When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record." See also Turk v. Peake, 21 Vet. App. 565, 569 (2008) (when a veteran misses a scheduled VA examination, the VA must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination).

The Veteran argues that evidence existed in the record at the time of the July 27, 2009, Rating Decision that established good cause to reschedule his medical examination. And had the VA Regional Office done a proper analysis under section 3.655 (2009), the Veteran argues that he would have been given an opportunity to reschedule his examination and "the exams may have been outcome determinative," manifestly changing the outcome of the decision.

Of record at the time of the rating decision was an email chain between the VA Regional Office and the medical facility where the Veteran's examinations were to occur. See Correspondence (associated with claims file on July 24, 2009). The medical facility informed the VA Regional Office that the Veteran had reported that he was out of town at the time a mental health evaluation was set to occur in relation to an associated claim for service connection. The Veteran reported that he did not know when he would return. He requested any future appointments be cancelled. At that time, the Veteran was scheduled or set to be scheduled for medical examinations to assess his asserted disabilities within his March 30, 2009, application for benefits.

In the July 27, 2009, Rating Decision, the VA Regional Office acknowledged the email correspondence in the record. It found no evidence that the Veteran requested to have any examinations rescheduled. Thus, it concluded that there was no intent from the Veteran to appear for another examination, and it was proper to decide the claim on the evidence of record. The Board finds that the VA Regional Office's conclusion was not clear and unmistakable error. The VA Regional Office applied the substance of section 3.655 (2009), despite not specifically identifying the regulation. The VA Regional Office was not under an obligation to cite the regulation, although doing so would have been more informative and proper. See 38 C.F.R. § 3.103 (2009). But even if it was under such an obligation, the Veteran has not explained how the failure to do so resulted in a manifestly different outcome. And the Board sees no logical way in which an award of service connection would have occurred if the regulation was cited.

More to the point, the Veteran has not explained how a manifestly different outcome would have occurred if the VA Regional Office had rescheduled his medical examination. He acknowledges that an examination "may" have resulted in favorable evidence in support of his claim for service connection. But his argument is only speculation. It is equally speculative that an examination may not have supported his claim for service connection. Thus, any failure by the VA Regional Office to afford the Veteran another medical examination, consistent with the duty to assist as found in section 3.655 (2009), would not have clearly and unmistakably resulted in manifestly different outcome. See Fugo, 6 Vet. App. at 44 (speculation cannot amount to a manifestly different outcome); Caffrey, 6 Vet. App. at 384 (the breach of the duty to assist creates an "incomplete rather than an incorrect record.").

The Veteran submitted a statement on April 29, 2024, along with his CUE motion addressing why he could not attend VA examinations in 2009. He discussed his work schedule and how he had to travel for work and
by the VA Regional Office to afford the Veteran another medical examination, consistent with the duty to assist as found in section 3.655 (2009), would not have clearly and unmistakably resulted in manifestly different outcome. See Fugo, 6 Vet. App. at 44 (speculation cannot amount to a manifestly different outcome); Caffrey, 6 Vet. App. at 384 (the breach of the duty to assist creates an "incomplete rather than an incorrect record.").

The Veteran submitted a statement on April 29, 2024, along with his CUE motion addressing why he could not attend VA examinations in 2009. He discussed his work schedule and how he had to travel for work and could not attend the examination. He explained that he was under the impression that he could reschedule his examination. Unfortunately, the Board is not permitted to consider his statement as evidence in support of his CUE motion because it did not exist at the time of the July 27, 2009, Rating Decision. In the CUE context, the Board is limited to the evidence of record at the time of the July 27, 2009, Rating Decision. Russell, 3 Vet. App. at 314.

In sum, while 38 C.F.R. 3.655 (2009) was applicable to the Veteran's circumstances at the time of the July 27, 2009, Rating Decision, the VA Regional Office did properly apply the substance of that regulation without specifically identifying the regulation. The VA Regional Office did not commit CUE in its analysis because there was no clear and unmistakable evidence that the Veteran requested to reschedule his medical examination or intended to appear for an examination at a later date. The VA Regional Office was correct to decide the claim based on the evidence of record. The failure to cite the regulation in the decision did not result in a manifestly different outcome. And even if a medical examination had been rescheduled and occurred, the record does not clearly and unmistakably establish that the examination would have supported the Veteran's claim for service connection. Therefore, it is not clear and unmistakable that a manifestly different outcome would have resulted, i.e., an award of service connection.

The Veteran's fourth argument is that the VA Regional Office committed CUE when it failed to apply 38 U.S.C. § 1154(b) (2009).

Recognizing the unique nature of military service that comes with combat, Congress created 38 U.S.C. § 1154(b) to allow "lay or other evidence . . . , notwithstanding the fact that there is no official record of such incurrence or aggravation," to establish the second element of service connection: in-service incurrence of an injury or disease. Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994); 38 U.S.C. § 1154(b) (2009); 38 C.F.R. § 3.304(d) (2009) (implementing regulation). Section 1154(b) (2009) lowers the bar that combat veterans must clear to establish that a disability was incurred in service. Still, this "combat presumption" under section 1154(b) (2009) is limited. Combat veterans must establish a current disability and a medical nexus to establish service connection. Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007) (citing Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected.")). Before a veteran can invoke the presumption, there must be a finding that the veteran served in combat. See Cohen v. Brown, 10 Vet. App. 128, 145 (1997). Once the criteria for the section 1154(b) (2009) have been met, "[s]ervice connection of such injury or disease may [only] be rebutted by clear and convincing evidence to the contrary." 38 U.S.C. § 1154(b) (2009).

The presumption attaches after four sequential steps. First, the evidence must establish that the Veteran engaged in combat during active service. If and only if such fact is established must the remaining steps be considered; otherwise, the presumption is inapplicable. Second, it must be determined whether the veteran proffered "satisfactory lay or other evidence of service incurrence or aggravation" of an injury or disease. If such evidence is proffered, then it must be determined whether the evidence is consistent with the "circumstances, conditions, or hardships" of the veteran's service. Finally, the evidence must
rebutted by clear and convincing evidence to the contrary." 38 U.S.C. § 1154(b) (2009).

The presumption attaches after four sequential steps. First, the evidence must establish that the Veteran engaged in combat during active service. If and only if such fact is established must the remaining steps be considered; otherwise, the presumption is inapplicable. Second, it must be determined whether the veteran proffered "satisfactory lay or other evidence of service incurrence or aggravation" of an injury or disease. If such evidence is proffered, then it must be determined whether the evidence is consistent with the "circumstances, conditions, or hardships" of the veteran's service. Finally, the evidence must be accepted as "sufficient proof of service connection." Thus, "a factual presumption arises that the alleged injury or disease is service connected." Collette, 82 F.3d at 393. The Secretary, however, could still rebut service connection with "clear and convincing evidence to the contrary." 38 U.S.C. § 1154(b) (2009); Jenson, 19 F.3d 1417.

In his CUE motion, the Veteran argues that he was deployed to Iraq during the Persian Gulf War. In relation to the claim for service connection for a headache disability, the VA Regional Office did not apply section 1154(b) (2009). The VA Regional Office has determined, as a matter of law and fact, that the Veteran did serve in Iraq from May 2003 to June 2003. See VA Memoranda (associated with the claims file December 3, 2022, and January 27, 2203). Although these determinations came after the July 27, 2009, Rating Decision, they are binding on the Board. 38 C.F.R. § 20.801(a). But the VA Regional Office has not made a determination that the Veteran served in combat. The Board does not find CUE in relation to that matter based on the record at the time of the July 27, 2009, Rating Decision.

In the claims file before the VA Regional Office at the time of the July 27, 2009, Rating Decision, no military records documented that the Veteran engaged in combat during his active military service. The Veteran's DD Form 2014 is likewise silent for any such combat experience. Nor did the Veteran report that he engaged in combat. Therefore, the VA Regional Office did not commit CUE when it did not apply 38 U.S.C. § 1154(b) to the Veteran's claim for service connection for a headache disability. As the evidence of record at the time of the July 27, 2009, Rating Decision, did not clearly and unmistakably establish that the Veteran engaged in combat, section 1154(b) was not for application.

The Board also wants to point out that the Veteran's CUE motion, which was drafted and submitted by his then-extent attorney-representative, did not cite any evidence of alleged combat experience in service. Instead, it merely recited section 1154(b) and some relevant case law; it then asserted a manifestly different outcome would have occurred if section 1154(b) would have been applied. The lack of attentiveness by the attorney to the Veteran's own service is concerning to the Board.

In the interest of completeness-separate and apart from the merits of the CUE motion itself-the Board observes that in the military medical records associated with the Veteran's claims file on November 23, 2009, the Veteran specifically disavowed any combat experience in Iraq. In an April 9, 2007, military medical record, the medical professional documented that the Veteran reported: "Deployed to Iraq Mar 2003 through June 2003. I didn't see any action; I was working on the network. Maintained classified network; was in a safe area in the north, no insurgence at that time." The Board only points out this evidence to highlight the Board's concern with the attorney's attentiveness to the CUE motion. The Board is not relying on this evidence in its analysis of the CUE motion since the evidence lies outside of the record.

In sum, the evidence of record at the time of the July 27, 2009, Rating Decision did not clearly and unmistakably contain evidence that the Veteran engaged in combat during his active military service. Therefore, 38 U.S.C. § 1154(b) (2009) was not applicable to his claim for service connection. The VA Regional Office did not commit CUE when it did not apply section 1154(b) (2009).

The Board has addressed all arguments raised in the Veteran's CUE motion. The Board recognizes that the Veteran submitted an argument on February
UE motion. The Board is not relying on this evidence in its analysis of the CUE motion since the evidence lies outside of the record.

The Board has addressed all arguments raised in the Veteran's CUE motion. The Board recognizes that the Veteran submitted an argument on February 13, 2025. His argument, however, addresses why he should receive an increased rating claim for his headache disability. But there is no claim on appeal for an increased rating. Nor is there a rating decision addressing the rating for headaches that could be associated with the Veteran's Notice of Disagreement. The Board has interpreted the arguments liberally because they were submitted by the Veteran himself, but they do not address why there is CUE in the February 27, 2009, Rating Decision. His arguments generally recount the onset of his headaches and the severity of symptoms. Yet, such evidence cannot be considered by the Board when evaluating whether there was CUE within the July 27, 2009, Rating Decision. The Board is limited to the evidence of record at the time of the July 27, 2009, Rating Decision. Russell, 3 Vet. App. at 314. And his statements fall outside of that evidentiary window.

2. The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic fatigue syndrome, is denied.

In the February 27, 2009, Rating Decision, the VA Regional Office found that the Veteran's military records documented "complaints of fatigue, headaches, and myalgia." The Veteran reported that his symptoms began after receiving Anthrax vaccines in service. The VA Regional Office cited a Memorandum dated March 5, 2008, authored by medical professionals of the Department of the Army, which noted that the Veteran had many symptoms associated with chronic fatigue syndrome. As discussed, the Veteran did not attend a medical examination that was scheduled because he was out of town. The Veteran requested all future appointments to be cancelled. He did not request any examinations to be rescheduled. The VA Regional Office adjudicated the claim for service connection based on the evidence of record.

The VA Regional Office recited relevant information from 38 C.F.R. § 4.88a (2009), which related to chronic fatigue syndrome. Section 4.88a (2009) set forth the criteria that was necessary to determine a diagnosis of chronic fatigue syndrome. The VA Regional Office concluded that the claims file as of July 27, 2009, did not contain a formal medical diagnosis of chronic fatigue syndrome consistent with section 4.88a (2009). Therefore, the VA Regional Office denied service connection as the evidence did not establish the first element of service connection, a current disability. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341 (1999).

The Veteran's CUE motion makes the same four primary arguments set forth above in relation to the preceding CUE motion. Those are: (1) failure to apply 38 C.F.R § 3.303(b) (2009); (2) failure to apply 38 C.F.R. § 3.317(b) (2009); (3) failure to apply 38 C.F.R. § 3.655 (2009); and (4) failure to apply 38 U.S.C. § 1154(b) (2009).

The arguments provided by the Veteran are the same as provided in relation to the preceding CUE motion. He makes no additional citations to law or facts of record. The Board finds it unnecessary to repeat its prior analyses. It incorporates the prior statements of law and analyses by reference here.

The Veteran does not make any argument as to why the VA Regional Office's conclusion, that he did not have a formal medical diagnosis of chronic fatigue syndrome, was CUE. The Board has reviewed the record and has not located evidence of a formal medical diagnosis of chronic fatigue syndrome at the time of the July 27
.655 (2009); and (4) failure to apply 38 U.S.C. § 1154(b) (2009).

At its core, the Veteran's claim for service connection was denied because there was a lack of evidence establishing a medical diagnosis of chronic fatigue syndrome consistent with 38 C.F.R. § 4.88a (2009). In the absence of any such diagnosis, the first element of service connection was not met. The March 5, 2008, Memorandum from the Department of the Army did not formally diagnose the Veteran with chronic fatigue syndrome. The Memorandum stated: "[The Veteran] has many of the symptoms that fit the definition for [c]hronic fatigue [s]yndrome (CFS)." But no formal medical diagnosis is rendered in the Memorandum. The Memorandum states: "We are unable to definitively prove or disprove a causal relationship between [the Veteran's] fatigue and anthrax vaccine . . . . Whatever the cause of the multi-symptom illness, we have seen previously high functioning service members who have become functionally impaired . . . ."

The Memorandum refers to the Veteran's symptoms as "fatigue" and "multi-symptom illness" all the while stating that his symptoms fit the definition of chronic fatigue syndrome. But nowhere in the Memorandum is there a formal medical diagnosis of chronic fatigue syndrome. At the most, it was only clear and unmistakable that the Veteran had symptoms that were consistent with "fatigue," "a multi-symptom illness," and "chronic fatigue syndrome." It was debatable as to what his formal medical diagnosis was at the time. No military medical records or other records confirmed a diagnosis of chronic fatigue syndrome as of the July 27, 2009, Rating Decision. The Board cannot now reweigh the evidence and evaluate whether a diagnosis can be interpreted from the evidence, nor can it reweigh evidence and choose what it finds more credible. Cacciola, 27 Vet. App. at 60 (the Board cannot reweigh evidence in the CUE context). In light of the evidence indicating, at the most, a debatable diagnosis, CUE cannot be established. Russell, 3 Vet. App. at 314 (the error must be undebatable to establish CUE).

Because the record at the time of the July 27, 2009, Rating Decision did not clearly and unmistakably establish a formal medical diagnosis of chronic fatigue syndrome, the application of 38 C.F.R. § 3.303(b) (2009) was inapplicable. The evidence did not clearly and unmistakably establish a chronic disease in service or continuity of symptomatology of a chronic disease post-service.

Likewise, 38 C.F.R § 3.317 (2009) could not apply due to the lack of a formally diagnosed medical disability. The evidence did not establish that the Veteran had a qualifying chronic disability, that included either an undiagnosed illness or a medically unexplained chronic multi-symptom illness. No medical professional rendered such conclusions or diagnoses. The Veteran has not directed the Board to any medical evidence that clearly and unmistakably establishes that he had a qualifying chronic disability at the time of the July 27, 2009, Rating Decision based on the evidence of record at that time. The Board cannot reweigh the evidence and render its own conclusion on the matter. Cacciola, 27 Vet. App. at 60.

Finally, the Board has previously discussed why 38 C.F.R. § 3.655 (2009) was not applied erroneously by the VA Regional Office and why 38 U.S.C. § 1154(b) (2009) was inapplicable to the Veteran's CUE motion in total, and the Board incorporates those analyses here. The Veteran makes no additional arguments beyond those discussed in connection with his preceding CUE motion in relation to his headache disability. For the reasons previously explained, the Veteran has not established CUE by the VA Regional Office via application of 38 C.F.R. § 3.655 (2009) and 38 U.S.C. § 1154(b) (2009) in relation to this CUE
discussed why 38 C.F.R. § 3.655 (2009) was not applied erroneously by the VA Regional Office and why 38 U.S.C. § 1154(b) (2009) was inapplicable to the Veteran's CUE motion in total, and the Board incorporates those analyses here. The Veteran makes no additional arguments beyond those discussed in connection with his preceding CUE motion in relation to his headache disability. For the reasons previously explained, the Veteran has not established CUE by the VA Regional Office via application of 38 C.F.R. § 3.655 (2009) and 38 U.S.C. § 1154(b) (2009) in relation to this CUE motion.

The Board has addressed all arguments raised in the Veteran's CUE motion. The Board recognizes that the Veteran submitted an argument on February 13, 2025. His argument, however, addresses why he should receive an increased rating claim for his chronic fatigue syndrome. But there is no claim on appeal for an increased rating. Nor is there a rating decision addressing the rating for chronic fatigue syndrome that could be associated with the Veteran's Notice of Disagreement. The Board has interpreted the arguments liberally as he submitted them himself, but they do not address why there is CUE in the February 27, 2009, Rating Decision. His arguments generally recount the onset of his symptoms and the severity of symptoms. But such evidence cannot be considered by the Board when evaluating whether there was CUE within the July 27, 2009, Rating Decision. The Board is limited to the evidence of record at the time of the July 27, 2009, Rating Decision. Russell, 3 Vet. App. at 314. And his arguments were not part of the record at that time.

3. The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic sinusitis, is denied.

In the July 27, 2009, Rating Decision, the VA Regional Office found that the Veteran was treated for sinus congestion in service in October 2007. It also observed that the Veteran was referred for a CT of his sinuses, but the results of the labs were not available in the record. It found that the remainder of the military medical records available at that time did not document a medical diagnosis of chronic sinusitis. As discussed, the Veteran did not attend a medical examination that was scheduled because he was out of town. The Veteran requested all future appointments to be cancelled. He did not request any examinations to be rescheduled. The VA Regional Office adjudicated the claim for service connection based on the evidence of record. Therefore, the VA Reginal Office denied service connection as the evidence did not establish the first element of service connection, a current disability of sinusitis. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341 (1999).

The Veteran's CUE motion makes the same four primary arguments set forth above in relation to the preceding CUE motions. Those are: (1) failure to apply 38 C.F.R § 3.303(b) (2009); (2) failure to apply 38 C.F.R. § 3.317(b) (2009); (3) failure to apply 38 C.F.R. § 3.655 (2009); and (4) failure to apply 38 U.S.C. § 1154(b) (2009).

The arguments provided by the Veteran are the same as provided in relation to all preceding CUE motions. He makes no additional citations to law or facts of record. The Board finds it unnecessary to repeat its prior analyses. It incorporates the prior statements of law and analyses by reference here.

The Veteran does not make any argument as to why the VA Regional Office's conclusion, that the record did not establish a medical diagnosis of chronic sinusitis, was CUE.

The Board's review of the record does not clearly and unmistakably establish a formal medical diagnosis of sinusitis at the time of the February 27, 2009, Rating Decision. Although the Veteran's military medical records list chronic sinusitis within the "problems" list on various records, the Board has been unable to locate a medical record that clearly and unmistakably diagnosed the Veteran chronic sinusitis. It is unclear from the record whether the documentation of chronic sinusitis in the "problems list" is documentation of the Veteran's lay statements, a recording based on past history of the disability, or something else. As it was debatable as to what the notations in the Veteran's military medical records meant, the VA Regional Office did not commit CUE when it found a lack of a medical diagnosis of chronic sinusitis of record. In the absence of a current disability of chronic sinusitis, the first element of service connection could not be met.

As to application of 38 C.F.R. § 3.303(b) (2009), chronic sinusitis was not a "chronic disease" identified in 38 C.F.R. § 3.309(a) (2009). Therefore, the VA Regional Office did not commit CUE by not considering application of 38 C.F.R. § 3.303(b) (2009). But even if the Board were to assume that section 3.303(b) (2009) applied, the Veteran would not have received the benefit of application of that regulation. As just explained, the evidence did not clearly and unmistakably establish a diagnosis of chronic sinusitis at the time of the July 27, 2009, Rating Decision. Therefore, section 3.303(b) (2009) could not have applied in the absence of a diagnosed disability.

The Board finds that 38 C.F.R § 3.317 (2009) could equally not apply due to the lack of a formally diagnosed medical disability. The evidence did not establish that chronic sinusitis was a "qualifying chronic disability," to include either an undiagnosed illness or a medically unexplained chronic multi-symptom illness. No medical professional rendered such conclusions or diagnoses. The Veteran has not directed the Board to any medical evidence that clearly and unmistakably establishes that he had chronic sinusitis or that such disability was a qualifying chronic disability at the time of the July 27, 2009, Rating Decision based on the evidence of record at that time. The Board cannot reweigh the evidence and render its own conclusion on the matter. Cacciola, 27 Vet. App. at 60.

The Board has addressed all arguments raised in the Veteran's CUE motion. The Board recognizes that the Veteran submitted an argument on February 13, 2025. His argument, however, addresses why he should receive an increased rating claim for his sinusitis. But there is no claim on appeal for an increased rating. Nor is there a rating decision addressing the rating for sinusitis that could be associated with the Veteran's Notice of Disagreement. The Board has interpreted the arguments liberally because he submitted them himself, but they do not address why there is CUE in the February 27, 2009, Rating Decision. His arguments generally recount the onset of his symptoms and the severity of symptoms. But such evidence cannot be considered by the Board when evaluating whether there was CUE within the July 27, 2009, Rating Decision. The Board is limited to the evidence of record at the time of the July 27, 2009, Rating Decision. Russell, 3 Vet. App. at 314. And his statements were not part of that record.

The Board finds that the Veteran has not established CUE in the July 27, 2009, Rating Decision. Accordingly, the motion for revision, on the basis of clear and unmistakable error, of the
is CUE in the February 27, 2009, Rating Decision. His arguments generally recount the onset of his symptoms and the severity of symptoms. But such evidence cannot be considered by the Board when evaluating whether there was CUE within the July 27, 2009, Rating Decision. The Board is limited to the evidence of record at the time of the July 27, 2009, Rating Decision. Russell, 3 Vet. App. at 314. And his statements were not part of that record.

4. The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for an immune deficiency disability, is denied.

In the July 27, 2009, Rating Decision, the VA Regional Office found that the Veteran was seen in service in November 2007 by an infectious disease doctor for potential Lyme disease. A Western Blot test- utilized to identify proteins and accurately quantify relative protein levels-was negative, and the disease was ruled out. As discussed, the Veteran did not attend a medical examination that was scheduled because he was out of town. The Veteran requested all future appointments to be cancelled. He did not request any examinations to be rescheduled. The VA Regional Office adjudicated the claim for service connection based on the evidence of record. Therefore, the VA Reginal Office denied service connection as the evidence did not establish the first element of service connection, a current disability of immune deficiency. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341 (1999).

The Veteran does not make any argument as to why the VA Regional Office's conclusion, that the record did not establish a medical diagnosis of an immune deficiency disability, was CUE.

The Board's review of the record does not clearly and unmistakably establish a formal medical diagnosis of an immune deficiency disability at the time of the July 27, 2009, Rating Decision. In his March 30, 2009, VA Form 21-526, the Veteran sought service connection for "immune deficiency problems." The VA Regional Office interpreted his claimed disability broadly, consistent with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Hence, it reviewed the record and found evidence that the Veteran reported that he was diagnosed with Lyme disease by a private medical facility, which he believed led to symptoms of chronic aches and pains. Military Medical Records (dated October 29, 2007; November 8, 2007). The VA Regional Office found that Lyme disease fell within the Veteran's claimed immune deficiency disability.

Although the Veteran's military medical records listed Lyme disease within the "problems" list on various records, the Board has been unable to locate a medical record that clearly and unmistakably diagnosed the Veteran with Lyme disease. The first military medical record mentioning Lyme disease is dated October 29, 2007. The record documented that the Veteran reported a positive diagnosis for Lyme disease by an outside medical facility. But subsequent military medical records ruled out a diagnosis of Lyme disease based on testing. See November 19, 2007; July 31, 2008, Military Medical Records. The Board finds that the VA Regional Office did not commit CUE when it found no medical evidence established a diagnosis of Lyme disease in service.

The Board acknowledges that "Lyme disease" was listed in the Veteran's "problems list" within his military medical records. But the evidence
has been unable to locate a medical record that clearly and unmistakably diagnosed the Veteran with Lyme disease. The first military medical record mentioning Lyme disease is dated October 29, 2007. The record documented that the Veteran reported a positive diagnosis for Lyme disease by an outside medical facility. But subsequent military medical records ruled out a diagnosis of Lyme disease based on testing. See November 19, 2007; July 31, 2008, Military Medical Records. The Board finds that the VA Regional Office did not commit CUE when it found no medical evidence established a diagnosis of Lyme disease in service.

The Board acknowledges that "Lyme disease" was listed in the Veteran's "problems list" within his military medical records. But the evidence does not establish such a diagnosis in service. It is unclear if Lyme disease was listed based solely on the Veteran's lay statements, a recording based on past history of the disease, or something else. Regardless, the evidence does not establish a diagnosis of Lyme disease at the time of the July 27, 2009, Rating Decision. In the absence of a current disability of Lyme disease or another immune deficiency disability, the first element of service connection could not be met.

As to application of 38 C.F.R. § 3.303(b) (2009), Lyme disease was not a "chronic disease" identified in 38 C.F.R. § 3.309(a) (2009). Therefore, the VA Regional Office did not commit CUE by not considering application of 38 C.F.R. § 3.303(b) (2009). But even if the Board were to assume that section 3.303(b) (2009) applied, the Veteran would not have received the benefit of application of that regulation. As just explained, the evidence did not clearly and unmistakably establish a diagnosis of Lyme disease (or another immune deficiency disability) at the time of the July 27, 2009, Rating Decision. Therefore, section 3.303(b) (2009) could not have applied in the absence of a diagnosed disability.

The Board finds that 38 C.F.R § 3.317 (2009) could equally not apply due to the lack of a formally diagnosed medical disability. The evidence did not establish that Lyme disease was a "qualifying chronic disability," to include either an undiagnosed illness or a medically unexplained chronic multi-symptom illness. No medical professional rendered such conclusions or diagnoses. The Veteran has not directed the Board to any medical evidence that clearly and unmistakably establishes that he had Lyme disease or that such disability was a qualifying chronic disability at the time of the July 27, 2009, Rating Decision based on the evidence of record at that time. The Board cannot reweigh the evidence and render its own conclusion on the matter. Cacciola, 27 Vet. App. at 60.

The Board has addressed all arguments raised in the Veteran's CUE motion. The Board finds that the Veteran has not established CUE in the July 27, 2009, Rating Decision. Accordingly, the motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for an immune deficiency disability, is denied.

5. The motion for revision, on the basis of clear and unmistakable error, of the July 27, 2009, Rating Decision, which denied service connection for chronic joint pain, is denied.

In the July 27, 2009, Rating Decision, the VA Regional Office found that the Veteran's military medical records documented that he was seen in October 2007 for multiple joint pain over the past one to two years. The VA Regional Office found that the Veteran reported his symptoms began after receiving several Anthrax vaccinations. The VA Regional Office found that the Veteran was diagnosed with right shoulder tendinopathy in service. No other chronic condition was diagnosed in service to account for his multiple join pain. As discussed, the Veteran did not attend a medical examination that was scheduled because he was out of town. The Veteran requested all future
July 27, 2009, Rating Decision, which denied service connection for chronic joint pain, is denied.

In the July 27, 2009, Rating Decision, the VA Regional Office found that the Veteran's military medical records documented that he was seen in October 2007 for multiple joint pain over the past one to two years. The VA Regional Office found that the Veteran reported his symptoms began after receiving several Anthrax vaccinations. The VA Regional Office found that the Veteran was diagnosed with right shoulder tendinopathy in service. No other chronic condition was diagnosed in service to account for his multiple join pain. As discussed, the Veteran did not attend a medical examination that was scheduled because he was out of town. The Veteran requested all future appointments to be cancelled. He did not request any examinations to be rescheduled.

The VA Regional Office adjudicated the claim for service connection for "joint pain all over the body" based on the evidence of record. It did award the Veteran service connection for right shoulder tendinopathy based on the documented medical diagnosis contained in his military medical records. But the VA Reginal Office denied service connection for joint pain all of the body because the evidence did not establish the first element of service connection, a current disability beyond right shoulder tendinopathy. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341 (1999).

The arguments provided by the Veteran are the same as provided in relation to all preceding CUE motions analyzed by the Board above. He makes no additional citations to law or facts of record. The Board finds it unnecessary to repeat its prior analyses. It incorporates the prior statements of law and analyses by reference here.

The Veteran does not make any argument as to why the VA Regional Office's conclusion, that the record did not establish a medical diagnosis of chronic bodily joint pain, was CUE.

The Board's review of the record does not clearly and unmistakably establish a formal medical diagnosis of chronic bodily joint pain at the time of the February 27, 2009, Rating Decision. In his March 30, 2009, VA Form 21-526, the Veteran sought service connection for "chronic joint pain (all over body)." The VA Regional Office interpreted his claimed disability broadly, consistent with Clemons, 23 Vet. App. at 5. Hence, it reviewed the record and found evidence that the Veteran was diagnosed with and treated for right shoulder tendinopathy in service. But there was no other medical diagnosis for chronic bodily joint pain.

Although the Veteran's military medical records list "diffuse joint pain (arthralgias)" within the "problems" list on various records, the Board has been unable to locate a medical record that clearly and unmistakably diagnosed the Veteran with chronic bodily joint pain or a similar disability. It is unclear if the joint pains (arthralgias) were listed based solely on the Veteran's lay statements, a recording based on past history of the disability, or something else. Regardless, the evidence does not establish a medical diagnosis of chronic bodily joint pain or another similar disability at the time of the July 27, 2009, Rating Decision. In the absences of a current disability of chronic bodily joint pain or another similar disability, the first element of service connection could not be met.

As to application of 38 C.F.R. § 3.303(b) (2009), chronic bodily joint pain was not a "chronic disease" identified in 38 C.F.R. § 3.309(a) (2009). There are listed chronic diseases that could be consistent with symptoms of chronic bodily joint pain, such as arthritis, in section 3.309(a) (2009). But the record at the time of the July 27, 2009, Rating Decision did not contain evidence of medical diagnoses, nor x-ray evidence, of any such disabilities. The VA Regional Office was not permitted to make its own medical diagnosis of the Veteran's symptoms. Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991) (the VA "must consider only independent medical evidence to support [its] findings"). Therefore, the VA Regional Office did not commit CUE by not considering application of 38 C.F.R. §
are listed chronic diseases that could be consistent with symptoms of chronic bodily joint pain, such as arthritis, in section 3.309(a) (2009). But the record at the time of the July 27, 2009, Rating Decision did not contain evidence of medical diagnoses, nor x-ray evidence, of any such disabilities. The VA Regional Office was not permitted to make its own medical diagnosis of the Veteran's symptoms. Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991) (the VA "must consider only independent medical evidence to support [its] findings"). Therefore, the VA Regional Office did not commit CUE by not considering application of 38 C.F.R. § 3.303(b) (2009). But even if the Board were to assume that section 3.303(b) (2009) applied, the Veteran would not have received the benefit of application of that regulation. As just explained, the evidence did not clearly and unmistakably establish a diagnosis of chronic bodily joint poin or another similar disability at the time of the July 27, 2009, Rating Decision. Therefore, section 3.303(b) (2009) could not have applied in the absence of a diagnosed disability.

The Board finds that 38 C.F.R § 3.317 (2009) could equally not apply due to the lack of a formally diagnosed medical disability. The evidence did not establish that chronic bodily joint pain was a "qualifying chronic disability," to include either an undiagnosed illness or a medically unexplained chronic multi-symptom illness. No medical professional rendered such conclusions or diagnoses. The Veteran has not directed the Board to any medical evidence that clearly and unmistakably establishes that he had chronic bodily joint pain or that such disability was a qualifying chronic disability at the time of the July 27, 2009, Rating Decision based on the evidence of record at that time. The Board cannot reweigh the evidence and render its own conclusion on the matter. Cacciola, 27 Vet. App. at 60.

The Board has addressed all arguments raised in the Veteran's CUE motion. The Board recognizes that the Veteran submitted an argument on February 13, 2025. His argument, however, addresses why he should receive an increased rating claim for his chronic bodily joint pain. But there is no claim on appeal for an increased rating. In fact, the Veteran is not service-connected for chronic bodily joint pain or a similar disability, exception for right shoulder tendinopathy. The Board has interpreted the arguments liberally as he submitted them himself, but they do not address why there is CUE in the February 27, 2009, Rating Decision. His arguments generally recount the onset of his symptoms and the severity of symptoms. But such evidence cannot be considered by the Board when evaluating whether there was CUE within the July 27, 2009, Rating Decision. The Board is limited to the evidence of record at the time of the July 27, 2009, Rating Decision. Russell, 3 Vet. App. at 314. And his statements were not part of the record at that time.

6. An initial disability rating of 20 percent, and no higher, for service-connected segmental dysfunction of the thoracic region is granted.

Before addressing the merits of each of the Veteran's increased-rating claims that follow, the Board acknowledges that he proceeds with the assistance of a VSO. Unlike a CUE motion, which has specific pleading requirements under 38 C.F.R. § 3.105, an increased-rating claim has no such filing requirements. The Veteran's prior representative, an attorney, did not make any arguments for increased ratings beyond the statements contained within the Notice of Disagreement. His VSO
of the July 27, 2009, Rating Decision, which denied service connection for chronic joint pain, is denied.

6. An initial disability rating of 20 percent, and no higher, for service-connected segmental dysfunction of the thoracic region is granted.

Before addressing the merits of each of the Veteran's increased-rating claims that follow, the Board acknowledges that he proceeds with the assistance of a VSO. Unlike a CUE motion, which has specific pleading requirements under 38 C.F.R. § 3.105, an increased-rating claim has no such filing requirements. The Veteran's prior representative, an attorney, did not make any arguments for increased ratings beyond the statements contained within the Notice of Disagreement. His VSO has submitted a generic IHP, which does not specifically address his claims on appeal. The Board sympathetically interprets pleadings in connection with his claims for all increased ratings. Comer, 552 F.3d at 1369.

The VA Regional Office originally denied service connection for a back disability in the July 27, 2009, Rating Decision. As explained above in this decision, the VA Regional Office was required to reconsider that decision following the receipt of additional military medical records in November 2009. 38 C.F.R. § 3.156(c). The VA Regional Office issued a new Rating Decision on November 27, 2023, which complied with section 3.156(c), awarding service connection for a chronic back condition. It assigned an initial 20 percent disability rating effective December 16, 2022.

As part of the adjudication of his CUE motion in relation to his back disability, the VA Regional Office issued a Rating Decision on April 19, 2024, finding CUE with respect to the back disability. It assigned an earlier effective date of May 26, 2008, for the disability (now characterized as segmental dysfunction of the thoracic region), and it assigned an initial disability rating of 10 percent. The Veteran requested higher-level review of that decision. A September 27, 2024, HLR Rating Decision confirmed the April 19, 2024, Rating Decision.

Hence, the Veteran is currently service-connected for segmental dysfunction of the thoracic region with a 10 percent disability rating from May 26, 2008, to December 16, 2022, and a 20 percent disability rating thereafter. The Veteran's Notice of Disagreement indicates that he believes he is entitled to a higher disability rating. He submitted an argument on February 13, 2025, stating that he believed he was entitled to a 100 percent disability rating.

For the following reasons, the Board finds that the Veteran is entitled to an initial 20 percent disability rating, and no higher, for the entire period on appeal.

Disability Ratings

For all increased rating claims in this appeal, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Diagnostic codes are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id.

Rating Criteria - Spine

The Veteran's back spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, entitled "Lumbosacral or cervical strain." Diagnostic Code 5237 is found under the "General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula for the Spine)," which applies to Diagnostic Codes 5235 to 5243. The General Rating Formula for the Spine provides as follows:

Rating (%)

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine 100

Unfavorable ankylosis of the entire thoracolumbar spine 50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion of
ral or cervical strain." Diagnostic Code 5237 is found under the "General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula for the Spine)," which applies to Diagnostic Codes 5235 to 5243. The General Rating Formula for the Spine provides as follows:

Rating (%)

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine 100

Unfavorable ankylosis of the entire thoracolumbar spine 50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable
acolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Analysis

The Veteran's VA medical records document that he reported engaging in physical exercise during the claim period. See September 11, 2012, VA Medical Record. He reported that his back symptoms improved as he exercised. See February 14, 2012; September 11, 2012, VA Medical Records.

The Veteran received only one medical examination assessing his back during the period on appeal, from May 26, 2008, to the present. That examination occurred on August 25, 2023, following receipt of his Supplemental Claim on March 17, 2023, which were his CUE motions. The examiner recorded that the Veteran reported progressive worsening of his back disability. The examiner documented initial ranges of motion as follows:

" Forward flexion endpoint (90 degrees): 60 degrees

" Extension endpoint (30 degrees): 25 degrees

" Right lateral flexion endpoint (30 degrees): 25 degrees

" Left lateral flexion endpoint (30 degrees): 25 degrees

" Right lateral rotation endpoint (30 degrees): 25 degrees

" Left lateral rotation endpoint (30 degrees): 25 degrees

The examiner objectively observed pain during each range of motion, but no additional loss of range of motion occurred due to that pain. Passive range-of-motion testing was not performed because the examiner determined that it may cause the Veteran severe pain. Pain was observed by the examiner on weight-bearing and active motion, which caused functional loss. The examiner documented that the Veteran could not reach the floor to pick up items, and was limited in squatting, crouching, kneeling, and climbing due to pain.

The Veteran completed repetitive-use testing, which did not result in additional loss of range of motion in any direction. Following repeated use over time, the examiner opined that pain, fatiguability, and lack of endurance would result in the following ranges of motion:

" Forward flexion endpoint (90 degrees): 55 degrees

" Extension endpoint (30 degrees): 20 degrees

" Right lateral flexion endpoint (30 degrees): 20 degrees

" Left lateral flexion endpoint (30 degrees): 20 degrees

" Right lateral rotation endpoint (30 degrees): 20 degrees

" Left lateral rotation endpoint (30 degrees): 20 degrees

The Veteran reported experiencing flare-ups of his symptoms every few weeks or months. The flare-ups lasted hours to days. The symptoms included increased pain, stiffness, and decreased range of motion. The examiner diagnosed the severity of the pain as moderate. The examiner opined that the Veteran's ranges of motion during a flare-up would be limited as follows:

" Forward flexion endpoint (90 degrees): 55 degrees

" Extension endpoint (30 degrees): 20 degrees

" Right lateral flexion endpoint (30 degrees): 20 degrees

" Left lateral flexion endpoint (30 degrees): 20 degrees

" Right lateral rotation endpoint (30 degrees): 20 degrees

" Left lateral rotation endpoint (30 degrees): 20 degrees

The examiner endorsed that the Veteran had muscle spasms that did not result in abnormal gait or abnormal spinal contour. The examiner recorded that the Veteran experienced intermittent spasms up and down his back. Additional factors that contributed to functional limitation included interference with standing and sitting, and disturbance of locomotion due to pain, stiffness, and decreased ranges of motion.

The Veteran displayed full muscle strength in his lower extremities. The examiner did not observe muscle atrophy. The Veteran's sensory examination was normal as to all lower extremities. There were no indications of radiculopathy or loss of reflexes. The examiner did not observe signs of ankylosis.

The Board finds that the examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran's medical history, claims file, and lay statements, and otherwise provided a correct disability picture of the severity of the Veteran's back disability at the time of the examination. The
Additional factors that contributed to functional limitation included interference with standing and sitting, and disturbance of locomotion due to pain, stiffness, and decreased ranges of motion.

The Board finds that the examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran's medical history, claims file, and lay statements, and otherwise provided a correct disability picture of the severity of the Veteran's back disability at the time of the examination. The Board finds the examination report credible and probative.

Based on the examination report, the VA Regional Office found that the Veteran met the 20 percent rating criteria of Diagnostic Code 5237 because his forward flexion of the thoracolumbar spine was greater than 30 degrees and did not exceed 60 degrees. The Board agrees with that assessment. No competent, credible, and probative evidence establishes that the Veteran's forward flexion of his thoracolumbar spine was 30 degrees or less (40 percent rating criteria), or that he experienced ankylosis in any form at the time of the medical examination report (40 percent, 50 percent, 100 percent rating criteria).

"Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing Dorland's Illustrated Medical Dictionary 91 (27th ed. 1988). In Chavis v. McDonough, 34 Vet. App. 1 (2021), the United States Court of Appeals for Veterans Claims held that, in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11. The Board acknowledges that the Veteran reported stiffness in his back, but such stiffness is not the equivalent of functional ankylosis because the evidence establishes that he maintained ranges of motion in all directions. His back was not in a fixed position or similar in status. Thus, the Board finds no competent evidence of record at the time of the examination report-or thereafter, for reasons discussed next-that established either a medical diagnosis of ankylosis or the functional equivalent of ankylosis.

The Veteran submitted a medical opinion from a private medical doctor, Dr. J.H., on February 20, 2025. Dr. J.H. indicated that he treated the Veteran beginning in August 2021. After documenting the Veteran's medical history, Dr. J.H. stated that the Veteran generally had "moments of impairment that rend him useless in his work and with activities of daily living." But Dr. J.H. did not state what particular disability or disease caused the Veteran's functional limitations. Rather, he talked in generic terms. Dr. J.H.'s opinion has no probative value to the Board when assessing the severity of the Veteran's back disability.

On February 13, 2025, the Veteran submitted a statement addressing the severity of his symptoms. He stated that he had constant back pain when he separated from military service. He reported that he continued to have severe back pain that radiated to his lower extremities. He had muscle spasms and stiffness that interfered with standing, walking, and sitting. He reported frequent nerve pain and numbness in his lower extremities, leading to sleep disturbances. He reported an inability to perform daily tasks, such as putting on socks, carrying groceries, and sitting for long periods. He reported that he was unable to work.

The Board finds the Veteran is competent to report the symptoms he has described in his February 13, 2025, statement. His statements are credible to the extent that they describe symptoms that are capable of lay description. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Veteran has not competently or credibly provided evidence of limitation of his ranges of motion, which the rating criteria consider. Nor has the Veteran provided competent medical evidence addressing whether he has ankylosis or the functional equivalent of ankylosis. He continued to report that he had functional
The Board finds the Veteran is competent to report the symptoms he has described in his February 13, 2025, statement. His statements are credible to the extent that they describe symptoms that are capable of lay description. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Veteran has not competently or credibly provided evidence of limitation of his ranges of motion, which the rating criteria consider. Nor has the Veteran provided competent medical evidence addressing whether he has ankylosis or the functional equivalent of ankylosis. He continued to report that he had functional movement of his thoracolumbar spine, albeit limited in certain circumstances. But none of the Veteran's statements establish limitations that are consistent with functional ankylosis on the Board's review of the evidence. He is not locked in a particular position or so constrained to be limited in such a fashion.

A VA Form 28-1902b, Counseling Record - Narrative Report, created as part of his application for vocational rehabilitation, documented that his back symptoms limited his ability to carry, sit, stand, and sleep. The report, however, is silent as to any additional limitations in relation to the rating criteria under Diagnostic Code 5237. The Board finds the evidence contained in the report credible and probative as to the impacts of the Veteran's symptoms associated with his back disability.

On review of all relevant evidence of record, the Board finds that the evidence did not establish forward flexion of the thoracolumbar spine to 30 degrees or less, nor does the evidence establish any form of ankylosis during the claim period.

The VA Regional Office chose to stage the Veteran's ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (holding that it is "well established that, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found"). The Board, however, finds that an initial 20 percent disability rating is more proper based on the record evidence. The Board finds that the evidence contained in the August 25, 2023, medical examination report should be applied retrospectively in this appeal. The symptoms at the time of the August 25, 2023, medical examination report are generally consistent with the symptoms described by the Veteran when he separated from service. The Veteran's symptoms prior to August 25, 2023, were not more severe than at the time of the examination.

Accordingly, an initial disability of 20 percent, and no higher, for service-connected segmental dysfunction of the thoracic region is granted. A disability rating in excess of 20 percent during the claim period is not proper because, for the reasons discussed above, the evidence does not establish the criteria for a higher disability rating.

In the interest of completeness, the Board acknowledges that the Veteran reported medication usage, Motrin, for his back to the August 25, 2023, medical examiner. But the report does not document that the Veteran was taking the medication at the time of the examination. In Ingram v. Collins, 39 Vet. App. 130 (2025), the appellate court held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. That means, the "VA is obligated to discount the beneficial effects of the medications taken for each disability and evaluate the baseline severity of those disabilities. This makes sense because veterans taking medication for a disability might present as less disabled than they actually are." Id. at 137?39. The Board must ensure that the "baseline severity" of the disability is being evaluated when assigning the rating. Id. at 137.

Diagnostic Code 5237 does not account for ameliorative effects of medication. The Board, therefore, must discount the effects of medication on the Veteran's back disability. The Board has done so in this appeal. The August 25, 2023, medical examination report was conducted without the Veteran taking medication. The Board finds no evidence that the Veteran took medication immediately prior to or during the examination. The Veteran has not asserted the contrary. Therefore, the Board finds that the August 25, 2023, medical examination report represents the baseline severity of the Veteran's service-connected back disability in compliance with Ingram. Id. The examination report is proper for the Board to rely on when assessing the proper rating.

Finally, the Board recognizes that the Veteran has now reported numbness, nerve issues, and radiating pain in his lower extremities, as stated in his February 13, 2025, correspondence. The General Rating Formula for the Spine, Note (
25, 2023, medical examination report was conducted without the Veteran taking medication. The Board finds no evidence that the Veteran took medication immediately prior to or during the examination. The Veteran has not asserted the contrary. Therefore, the Board finds that the August 25, 2023, medical examination report represents the baseline severity of the Veteran's service-connected back disability in compliance with Ingram. Id. The examination report is proper for the Board to rely on when assessing the proper rating.

Finally, the Board recognizes that the Veteran has now reported numbness, nerve issues, and radiating pain in his lower extremities, as stated in his February 13, 2025, correspondence. The General Rating Formula for the Spine, Note (1), requires the VA to consider "objective neurologic abnormalities, . . . separately, under an appropriate diagnostic code." (emphasis added). The Veteran's statements, which are evidence, however, were not before the VA Regional Office at the time of the April 19, 2024, Rating Decision. The Board does not find a pre-decisional duty-to-assist error in this regard. 38 C.F.R. § 20.802(a). The VA Regional Office was not on notice of the Veteran's reported numbness, nerve issues, and radiating pain in the lower extremities, which may be symptoms of neurologic problems. The August 25, 2023, medical examination report did not document such symptoms and specifically found no radiculopathy, which is a neurologic condition, see Dorland's Illustrated Medical Dictionary 2405 (27th ed. 1988). No other competent evidence of record established symptoms that may indicate neurologic disabilities associated with the Veteran's service-connected back disability at the time of the April 19, 2024, Rating Decision.

Currently, the Board does not find competent objective evidence of record that the Veteran has a neurologic disability associated with his service-connected back disability. The text of Note (1) in the General Rating of the Spine requires "objective" evidence. The Veteran's lay statements are subjective. While the Board finds the Veteran competent to report his symptoms, without evidence showing that he has the necessary medical training or expertise, he cannot competently opine that he has particular disability associated with his back disability. See 38 C.F.R. §§ 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377. His subjective lay statements are not sufficient to establish a medically diagnosed neurologic disability associated with his back disability. Therefore, the Board does not find a basis to award a separate disability rating for a neurologic disability. And the Board does not find a legal basis to remand the claim for development in the absence of a pre-decisional duty to assist violation or other legal duty. If he chooses, the Veteran may file a supplemental claim for service connection for any such disability.

7. An initial disability rating of 30 percent prior to December 12, 2022, and in excess of 70 percent thereafter is denied.

The VA Regional Office originally denied service connection for a psychiatric disability in the July 27, 2009, Rating Decision. As explained above in this decision, the VA Regional Office was required to reconsider that decision following the receipt of additional military medical records in November 2009. 38 C.F.R. § 3.156(c). The VA Regional Office issued a new Rating Decision on November 27, 2023, which complied with section 3.156(c), awarding service connection for generalized anxiety disorder with alcohol use disorder. It assigned an initial 70 percent disability rating effective December 16, 2022.

As part of the adjudication of his CUE motion in relation to his psychiatric disability, the VA Regional Office issued a Rating Decision on April 19, 2024, finding CUE with respect to the psychiatric disability. It assigned an earlier effective date of May 26, 2008, for the award of service connection for the psychiatric disability, assigning an initial noncompensable rating from May 26, 2008, to December 16, 2022. The Veteran requested higher-level review of that decision. A September 27, 2024, HLR Rating Decision assigned increased the initial rating to 30 percent from May 26, 2008, to December 16, 2022. It continued the 70 percent rating from December 16, 2022.

Hence, the Veteran is currently service-connected for generalized anxiety disorder with alcohol use disorder with a 30 percent disability rating from May 26, 2008, to December 16, 2022, and a 70 percent disability rating thereafter. The Veteran's Notice of Disagreement indicates that he believes he is entitled to a higher disability rating. He submitted
to December 16, 2022. The Veteran requested higher-level review of that decision. A September 27, 2024, HLR Rating Decision assigned increased the initial rating to 30 percent from May 26, 2008, to December 16, 2022. It continued the 70 percent rating from December 16, 2022.

Hence, the Veteran is currently service-connected for generalized anxiety disorder with alcohol use disorder with a 30 percent disability rating from May 26, 2008, to December 16, 2022, and a 70 percent disability rating thereafter. The Veteran's Notice of Disagreement indicates that he believes he is entitled to a higher disability rating. He submitted an argument on February 13, 2025, stating that he believed he was entitled to a 100 percent disability rating.

For the following reasons, the Board finds that an initial disability rating in excess of 30 percent prior to December 12, 2022, and in excess of 70 percent thereafter are not warranted.

Rating Criteria - Generalized Anxiety Disorder

The Veteran's generalized anxiety disorder with alcohol use disorder is rated under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130, Diagnostic Code 9400. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The symptoms listed in the General Formula are not intended to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114?18 (Fed. Cir. 2013).

The General Formula, 38 C.F.R. § 4.130, Diagnostic Code 9400, provides as follows:

Rating (%)

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 70

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 10

A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F
as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30

A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio, 713 F.3d at 116?17.

Analysis

The Veteran's military medical records contain relevant information about the Veteran's mental health symptoms around the time he filed his claim for service connection after separation from military service. See Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (medical records not categorically irrelevant merely because they predate the period on appeal).

In April 2007, while on active service, the Veteran received a diagnosis of generalized anxiety disorder. The medical professional who evaluated the Veteran documented that the Veteran experienced symptoms of sleep disturbances, lack of focus, lack of energy, slight irritability, anxiety, obsession and worrying, social retraction (introvert), self-conscious speech. April 9, 2007, Military Medical Record. The Veteran continued to experience similar symptoms in similar severity throughout the remainder of his active military service. See, e.g., October 11, 2007; January 7, 2008, Military Medical Records.

The Veteran's VA medical records, which begin in 2011, document that the Veteran was treated for his mental health symptoms. A February 14, 2012, VA Primary Care Note documented that the Veteran did not report experiencing symptoms of depression and lack of interest in doing activities at that time. Nor did he experience nightmares, avoidance, watchfulness, or detachment from others. He denied a depressed mood, changes in appetite, and suicidal and homicidal ideations. He was not taking medications for his mental health at that time.

A March 28, 2020, VA Mental Health Note documented that the Veteran had used "herbal medication" to treat his mental health symptoms over the years. The Veteran did not believe he needed any psychiatric help at that time.

The Veteran responded to suicide screening questionnaires in December 16, 2022, and January 9, 2023, as documented in his medical records. He provided responses that yielded negative results for indications of suicidal thoughts.

On August 4, 2023, the Veteran received a VA-contracted mental health evaluation. The examiner endorsed that the Veteran experienced symptoms of depression; anxiety; suspiciousness; panic attacks weekly or less often; chronic sleep impairment; mild memory loss for such things as names, directions, or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting.

The examiner observed that the Veteran made very little eye contact. The Veteran's affect was anxious, suspicious, and his attitude was negativistic. There were no signs of delusions. He denied suicidal and homicidal ideations. He had a short attention span, requiring prompting to stay on task. He was oriented in all spheres. The examiner opined that the Veteran's mental health symptoms caused occupational and social impairment with reduced reliability and productivity.

The Board finds that the examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran's medical history, claims file, and lay statements, and otherwise provided a correct disability picture
work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting.

The Board finds that the examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran's medical history, claims file, and lay statements, and otherwise provided a correct disability picture of the severity of the Veteran's psychiatric disability at the time of the examination. The Board finds the examination report credible and probative.

A November 6, 2023, VA Primary Care Outpatient Note documented that the Veteran experienced depressed mood and brain fog. But he declined psychotherapy. A November 7, 2023, depression screening documented that the Veteran had little interest or pleasure in doing things nearly every day. He felt down and depressed nearly every day. A simultaneous posttraumatic stress disorder screening documented avoidance efforts, feelings of detachment, and feelings of being constantly on guard, watchful, and easily startled.

The Veteran filed an application for vocational and rehabilitation on December 1, 2023. A Counseling Narrative Report created in connection with his application documented that when the Veteran experienced a mental health episode it lasted for hours on average. VA Form 28-1902f, Counsel Record (associated with the claims file on January 10, 2024). The evaluator concluded that the Veteran's symptoms affected his occupational abilities, such that he may need reasonable accommodations, such as a flexible work schedule. The Veteran was a feasible candidate for employment in the evaluator's opinion. VA Form 28-1902f, Feasibility Determination (associated with the claims file on January 10, 2024).

On February 13, 2025, the Veteran submitted a statement in which he described his mental health symptoms. He reported that, following his return from Iraq in 2003, he had sleep disturbances, struggled to focus, and felt overwhelmed by simple tasks. After separation from service, he attempted to obtain employment but found himself unable to handle pressures of the workforce. He continued to have anxiety, which affected his ability to make rational decisions, meet deadlines, and handle routine interaction with people. His relationships with others were strained due to his symptoms.

Currently, he reports that he cannot hold a full-time job. His anxiety is relentless. He constantly feels on edge. He has trouble thinking clearly, making decisions, and functioning normally. He forgets appointments, struggles to complete simple tasks, has uncontrollable irritability, lashes out at others, overwhelming exhaustion that affects his hygiene. He reports that he has no friends.

The Board finds the Veteran competent to report his physical and mental sensations and experiences associated with his psychiatric disability. Jandreau, 493 F.3d at 1377. The Board finds that the Veteran's statements contained in his February 13, 2025, correspondence are credible because they generally align with the statements made to medical professionals in service and those made to the August 2023 mental health examiner. The Veteran's consistent reports lend support to the credibility of his statements. The Board finds that his statements are probative of his past and current mental health symptoms, which the Board will weigh against other evidence of record.

May 26, 2008, to December 12, 2022

From May 26, 2008, to December 16, 2022, the Board finds that the Veteran's mental health symptoms most closely reflected symptoms consistent with the 30 percent rating criteria, causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

In relation to this time frame, the Board finds that the most credible and probative evidence of record are the statements the Veteran made to his medical professionals during this period. See generally Fed. R. Evid. 803(4) (statements made for purposes of medical treatment are generally trustworthy); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). In service, the Veteran reported mental health symptoms of sleep disturbances, lack of focus, lack of energy, slight irritability, anxiety, obsession and worrying, social retraction (introvert), and self-conscious speech. The Board finds that his reported symptoms resemble those contemplated by the 30 percent rating criteria. At that time, his mental health symptoms produced decrease in work efficiency and
R. Evid. 803(4) (statements made for purposes of medical treatment are generally trustworthy); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). In service, the Veteran reported mental health symptoms of sleep disturbances, lack of focus, lack of energy, slight irritability, anxiety, obsession and worrying, social retraction (introvert), and self-conscious speech. The Board finds that his reported symptoms resemble those contemplated by the 30 percent rating criteria. At that time, his mental health symptoms produced decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that the Veteran had no reason to lie to his treating medical professional as he was seeking care for his mental health symptoms. Thus, his statements to his treating medical professionals in service are highly probative.

After separation from service, the February 24, 2012, VA Primary Care Note indicated that he reported no symptoms of depression and lack of interest in doing activities. Nor did he experience nightmares, avoidance, watchfulness, or detachment from others. He denied a depressed mood, changes in appetite, and suicidal and homicidal ideations. He was not taking medications for his mental health at that time. These statements are highly probative of his then-extent symptoms because they were made for medical treatment. The Board finds that the Veteran had no reason to lie about his symptoms at that time.

While the Veteran's lay statements in his February 13, 2025, correspondence suggest that his symptoms were more severe from May 26, 2008, to December 12, 2022, the Board finds that the probative value of those statements are outweighed by the statements made to medical professionals during the relevant time frame and those statements he made in service. Aas stated, the Board finds that the Veteran had no reason to lie to his treating medical professionals. The Board finds that he told them the truth because he was seeking treatment for his mental health symptoms. In the Board's view, his contemporaneous statements made at the time he was experiencing those symptoms are more credible and probative than his recollection of his symptoms several years later.

The Veteran's mental health symptoms during this time frame did not more closely manifest as occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Diagnostic Code 9440 (50 percent criteria).

As the higher ratings only differ in degree-that is, inability to satisfy the lower rating criteria necessarily means the higher rating criteria cannot be satisfied-the Board will not address the higher ratings. See generally Johnson v. Wilkie, 30 Vet. App. 245, 247 (2015) (discussing "successive rating criteria" and 38 C.F.R. §§ 4.7, 4.21, requirements of the lower rating must be met to attain the higher rating.).

Accordingly, an initial disability rating in excess of 30 percent prior to December 12, 2022, is denied.

From December 12, 2022

The Board finds that the evidence first established an increase in the severity of the Veteran's symptoms when the Veteran attended his mental health evaluation on August 25, 2023. The examination report is highly credible and probative for the reasons previously explained. The VA Regional Office relied on the examination report to award the Veteran a 70 percent disability rating effective December 12, 2022. The VA Regional Office assigned that effective date because that is when the Veteran filed a completed Notice of Intent to file a claim in connection with his completed Supplemental Claim. See 38 C.F.R. § 3.155(b).

The Veteran's February 13, 2025, statements generally align with the symptoms documented in the August 25, 2023, examination report. The Veteran adds that he believes he attempted to work full-time but was unable. During the August 2023 examination, he reported that he had many failed employments and usually worked part-time in labor/service positions at restaurants, bars, and breweries. He had also been a personal fitness trainer on and off. The Veteran was also married at the time of the examination. The examiner endorsed that the Veteran had difficulty establishing and maintaining social and occupational relationships, which the Board finds is supported by the evidence. The examiner's opinion about the effect of the
.R. § 3.155(b).

The Board finds that the evidence does not support that the Veteran's mental health symptoms resulted in total occupational and social impairment during the claim period. The Veteran reported that he maintained occupational capabilities, as he reported being employed part-time in various positions. "Total" occupational impairment means "absolute," not just "some" impairment. Total, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/total, Definition 2. The VA Counseling Narrative, which was completed by a VA rehabilitation counselor, likewise found that the Veteran was employable despite all of his service-connected disabilities. The Board finds the counselor's conclusion is credible and probative because she based her opinion based on review of the Veteran's entire claims file at the time she offered her opinion. The Board has weighed the Veteran's lay statements in his February 13, 2025, correspondence with the foregoing evidence, and finds that the medical examination report and the rehabilitation counselor's report are more probative than the Veteran's lay statements. The Board finds a lack of competent, credible, and probative evidence that establishes that the Veteran's mental health symptoms rendered him totally occupationally impaired during the period.

Moreover, the Veteran's symptoms did not more closely reflect gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Diagnostic Code 9440 (100 percent rating criteria). His symptome were more consistent with the 70 percent rating criteria of Diagnostic Code 9440.

Accordingly, the Board finds that a disability rating in excess of 70 percent from December 12, 2022, is not proper.

8. An initial compensable disability rating for service-connected epididymitis is denied.

The VA Regional Office originally denied service connection for epididymitis (claimed as testicular cysts) in the July 27, 2009, Rating Decision. As explained above in this decision, the VA Regional Office was required to reconsider that decision following the receipt of additional military medical records in November 2009. 38 C.F.R. § 3.156(c). The VA Regional Office issued a new Rating Decision on November 27, 2023, which complied with section 3.156(c), awarding service connection for epididymitis. It assigned an initial noncompensable disability rating effective December 16, 2022.

As part of the adjudication of his CUE motion in relation to epididymitis, the VA Regional Office issued a Rating Decision on April 19, 2024, finding CUE with respect to epididymitis. It assigned an earlier effective date of May 26, 2008, for the disability, and it continued an initial noncompensable disability rating. The Veteran requested higher-level review of that decision. A September 27, 2024, HLR Rating Decision confirmed the April 19, 2024, Rating Decision.

Hence, the Veteran is currently service connected for epididymitis from May 26, 2008, with a noncompensable disability rating. The Veteran's Notice of Disagreement indicates that he believes he is entitled to a higher disability rating. He submitted an argument on February 13, 2025, stating that he believed he was entitled to a 50 percent disability rating.

For the following reasons, the Board finds that the Veteran is not entitled to a compensable disability rating during the claim period.

Rating Criteria - Epididymitis

For the following reasons, the Board finds that the Veteran is not entitled to a compensable disability rating during the claim period.

Rating Criteria - Epididymitis

Epididymitis received its own diagnostic code on November 14, 2021. Prior to November 14, 2021, epididymitis did not have an assigned diagnostic code. When the regulations do not provide a diagnostic code that matches a veteran's condition, the VA must evaluate the veteran's condition by analogy under a diagnostic code for a similar condition. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); see 38 C.F.R. § 4.20 (providing that unlisted conditions may be rated "under a closely related disease or injury in which not only the functions affected, but [also] the anatomical localization and symptomatology[,] are closely analogous"). An adjudicator should select a diagnostic code based on the function affected, the anatomical location, and symptomatology to ensure the disabilities are closely analogous.

This is a bit of an unusual circumstance because the VA Regional Office retroactively evaluated the Veteran's epididymitis for the first time after November 14, 2021. Hence, it was required to find an analogous diagnostic code prior to November 14, 2021, under which to rate the disability. It appears that the VA Regional Office rated the Veteran's epididymitis under 38 C.F.R. § 4.115b, Diagnostic Code 7525.

Epididymitis is "an inflammation of the epididymis," which is "the elongated cordlike structure along the posterior border of the testis." Dorland's Illustrated Medical Dictionary 566 (28th ed. 1988). Prior to November 14, 2021, Diagnostic Code 7525 applied specifically to "epididymo-orchitis, chronic only." "Epididymo-orchitis is inflammation of [the] epididymis and testicle. The epididymis is a coiled tube inside [the] scrotum. It stores and carries sperm from [the] testicles to [the] penis. Epididymo-orchitis usually affects the epididymis and testicle on one side, but it may affect both sides." Epididymo-orchitis, https://www.drugs.com/cg/epididymo-orchitis.html (last visited April 15, 2026). The Board finds Diagnostic Code 7525 is a proper analogous code under which to rate epididymitis. The definition of epididymo-orchitis encompasses epididymitis. Each disability addresses similar functionality, anatomical location, and symptomatology.

Prior to November 14, 2021, 38 C.F.R. § 4.115b, Diagnostic Code 7525 instructed adjudicators to rate the disability "as urinary tract infection" unless a tubercular infection was involved.

From November 14, 2021, Diagnostic Code 7525 is now specifically applicable to epididymitis. The rating criteria remained the same.

The rating criteria for a urinary tract infection was found in 38 C.F.R. § 4.115a. The rating criteria changed effective November 14, 2021.

Prior to November 14, 2021, section 4.115a provided:

Rating (%)

Poor renal function: Rate as renal dysfunction.

Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management 30

Long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management 10

Because section 4.115a only provided for a minimal 10 percent disability rating, a noncompensable rating would be assigned when the requirements for the 10 percent rating have not been met. 38 C.F.R. § 4.31 ("In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.").

As of November 14, 2021, section 4.115a provides:

Rating (%)

Poor renal function: Rate as renal dysfunction.

Recurrent symptomatic infection requiring drainage by stent or nephrostomy tube; or requiring greater than 2 hospitalizations per year; or requiring continuous intensive management 30

Recurrent symptomatic infection requiring 1-2 hospitalizations per year or suppressive drug therapy
when the requirements for the 10 percent rating have not been met. 38 C.F.R. § 4.31 ("In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.").

As of November 14, 2021, section 4.115a provides:

Rating (%)

Poor renal function: Rate as renal dysfunction.

Recurrent symptomatic infection requiring drainage by stent or nephrostomy tube; or requiring greater than 2 hospitalizations per year; or requiring continuous intensive management 30

Recurrent symptomatic infection requiring 1-2 hospitalizations per year or suppressive drug therapy lasting six months or longer 10

Recurrent symptomatic infection not requiring hospitalization, but requiring suppressive drug therapy for less than 6 months 0

Because the period on appeal spans the time frame pre- and post-amendments, the Board is required to analyze the rating criteria under both versions of Diagnostic Code 7525, and whichever criteria is more favorable to the Veteran will be applied from November 14, 2021, forward. See Ervin v. Shinseki, 24 Vet. App. 318 (2011) (discussing retroactivity and effects of changes in law or regulation during the pendency of an appeal), opinion corrected, 25 Vet. App. 178 (2012).

Analysis

The Veteran was diagnosed with epididymitis in service. November 30, 2007, Military Medical Record. At that time his only symptom was pain, and he was prescribed medication. The Veteran did not receive any VA medical treatment for that disability following separation from service according to his VA medical records. The Board has not located any relevant medical records that document treatment for his epididymitis or in relation to urinary or renal functioning.

The VA Regional Office afforded the Veteran a contracted medical examination addressing his disability on August 25, 2023. The Veteran reported that he experienced erectile dysfunction around 2004, which worsened over time. He took Cialis, which only helped "some of the time." But the examiner endorsed that the Veteran's condition has remained the same since its onset. His current symptoms consisted of intermittent scrotal pain and an inability to obtain or maintain an erection. The Veteran did not experience renal dysfunction or voiding dysfunction. There was no evidence that the Veteran was taking medical at the time of the examination, or that he was describing symptoms to the examiner while taking any medication. The symptoms documented in the medical examination report represent the baseline severity of the Veteran's epididymitis. Ingram, 39 Vet. App. at 137.

Absent evidence to the contrary, the Board finds the medical examiner was competent to exam and diagnose the Veteran and to provide medical judgments related to the Veteran's epididymitis. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competency of medical professionals is presumed absent evidence to the contrary). The Board finds the medical professional's examination, medical findings, and medical opinion are credible and probative. The medical professional conducted a thorough examination, relied on accurate facts, considered the Veteran's relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment.

The Veteran submitted a statement on February 13, 2025, describing the onset of his disability. The Veteran reported that his disability required constant monitoring, repeated ultrasounds, and medication. He reported constant testicular pain, making it difficult to sit, walk, or engage in physical activity. He reported flare-ups that required ultrasounds, medication, and medical management. He reported sexual dysfunction, sensitivity and pressure in the groin area. Due to his symptoms, he has suffered mental distress, including lack of confidence and relationship issues.

The Board finds the Veteran competent to report his physical sensations of pain and experiences associated with his epididymitis. Jandreau, 493 F.3d at 1377. The Board finds the Veteran's statements to the various medical professionals are credible and probative. His statements within the February 13, 2025, are also credible and probative.

When the Board weighs his statements against all relevant evidence of record, the Board finds that there is a lack of competent evidence establishing symptoms that warrant a compensable disability rating for epididymitis during the entire claim period, from May 26, 2008, to the present.

First, no competent evidence of record establishes that the Veteran's epididymitis involved tubercular infections during the period on appeal. Second, there is no competent evidence of record that the Veteran's epididymitis caused renal dysfunction or a urinary tract infection during the period on appeal. Nor is there competent evidence of record that the Veteran's symptoms
probative. His statements within the February 13, 2025, are also credible and probative.

First, no competent evidence of record establishes that the Veteran's epididymitis involved tubercular infections during the period on appeal. Second, there is no competent evidence of record that the Veteran's epididymitis caused renal dysfunction or a urinary tract infection during the period on appeal. Nor is there competent evidence of record that the Veteran's symptoms associated with his epididymitis were consistent with either the pre- or post-amended rating criteria of Diagnostic Code 7525 as rated through 38 C.F.R. § 4.115a.

The Board recognizes that when it applies Diagnostic Code 7525 (effective prior to November 14, 2021) by analogy, the Veteran's symptoms need not identically match the listed rating criteria. Webb v. McDonough, 71 F.4th 1377, 1380 (Fed. Cir. 2023). A condition rated by analogy is not expected to satisfy all the criteria of the analogous diagnostic code. Id. at 1381. The minimum 10 percent disability rating criteria under Diagnostic Code 7525 as applied through 38 C.F.R. § 4.115a (effective prior to November 14, 2021) required evidence of long-term drug therapy, one to two hospitalizations per year, or intermittent intensive management. Looking at the Veteran's symptoms by analogy to those found in Diagnostic Code 7525, the Board finds that his symptoms are not closely related to the rating criteria. The Veteran did not require drug therapy, was not hospitalized, and did not require any form of intensive management for his epididymitis. Although he reported ongoing medical management, such as ultrasounds and pain management, his statements are too vague for the Board to evaluate the degree of medical management. It is unclear when such medical treatment occurred, for how long, or the degree of care required. The Board has not located any medical records in the Veteran's claims file that are consistent with his statements or that would otherwise inform the Board about his degree of medical management. The 30 percent rating criteria are likewise not satisfied by analogy. That criteria required recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. The Veteran's symptoms were not analogous to that criteria. He did not have an infection, require frequent hospitalization, or have a need for intensive management due to epididymitis.

Accordingly, the Board finds that the competent, credible, and probative evidence of record does not establish entitlement to a compensable disability rating for epididymitis during the claim period under the pre- or post-amendments of 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7525.

9. Service connection for erectile dysfunction as secondary to service-connected epididymitis is granted.

The Board acknowledges that the Veteran has reported erectile dysfunction as a symptom of his epididymitis. The August 25, 2023, medical examiner endorsed a diagnosis of erectile dysfunction. The examiner endorsed that the etiology of the Veteran's erectile dysfunction is unknown. The question reasonably raised by the record is whether the Veteran's erectile dysfunction is a distinct disability that may be service connected. Bailey v. Wilkie, 33 Vet. App. 188 (2021) (VA must develop and adjudicate a secondary claim that is raised during the development of an increased rating claim).

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis.

Service connection may also be established on a secondary basis for a disability which is due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) caused by; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Recently, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, a service-connected disability need only be a contributing cause (or aggravating factor), not the contributing cause (or aggravating factor), to establish secondary service connection.

The Board finds that the evidence establishes a diagnosis of erectile dysfunction. There is also sufficient evidence that the Veteran's erectile dysfunction is secondary to his service-connected epididymitis. The Veteran has credibly described the onset of his erectile dysfunction and how his epididymitis causes his erectile dysfunction. He did not develop erectile dysfunction until after his epididymitis manifested. The Board finds a medical opinion addressing the etiology of the Veteran's erectile dysfunction is unnecessary because the cause is capable of lay description in this instance. Jandreau, 493 F.3d at 1377 (noting general competence of laypersons to testify as to symptoms and circumstances of onset).

Accordingly, service connection for erectile dysfunction as secondary to service-connected epididymitis is granted. The VA Regional Office will assign the initial effective date and rating in the first instance.

10. An initial disability rating in excess of 20 percent for service-connected bilateral dry eye syndrome is denied.

The VA Regional Office originally denied service connection for dry eye syndrome in the July 27, 2009, Rating Decision. As explained above in this decision, the VA Regional Office was required to reconsider that decision following the receipt of additional military medical records in November 2009. 38 C.F.R. § 3.156(c). The VA Regional Office issued a new Rating Decision on November 27, 2023, which complied with section 3.156(c), awarding service connection for dry eye syndrome. It assigned an initial 10 percent disability rating effective December 16, 2022.

As part of the adjudication of his CUE motion in relation to dry eye syndrome, the VA Regional Office issued a Rating Decision on April 19, 2024, finding CUE with respect to dry eye syndrome. It assigned an earlier effective date of May 26, 2008, for the disability, and it assigned an initial 20 percent disability rating from that date to the present. The Veteran requested higher-level review of that decision. A September 27, 2024, HLR Rating Decision confirmed the April 19, 2024, Rating Decision. The Board notes that the April 19, 2024, Rating Decision does not indicate an earlier effective date was assigned, but the accompanying codesheet does reflect an earlier effective date. And the HLR Rating Decision confirms the earlier effective date and 20-percent initial rating.

Hence, the Veteran is currently service connected for bilateral dry eye syndrome from May 26, 2008, with an initial 20 percent disability rating. The Veteran's Notice of Disagreement indicates that he believes he is entitled to a higher disability rating. He submitted an argument on February 13, 2025, stating that he believed he was entitled to a 50 percent disability rating.

For the following reasons, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 20 percent for his bilateral dry eye syndrome during the claim period.

Rating Criteria - Dry Eye Syndrome

Dry eye syndrome does not have a directly corresponding diagnostic code. Thus, the VA Regional Office was required to rate the disability by analogy. 38 C.F.R. § 4.20. Initially, the VA Regional Office chose to rate the Veteran's dry eye syndrome under 38 C.F.R. § 4.79, Diagnostic Code 6018 ("Chronic conjunctivitis (nontrachomatous)"). It later
2025, stating that he believed he was entitled to a 50 percent disability rating.

For the following reasons, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 20 percent for his bilateral dry eye syndrome during the claim period.

Rating Criteria - Dry Eye Syndrome

Dry eye syndrome does not have a directly corresponding diagnostic code. Thus, the VA Regional Office was required to rate the disability by analogy. 38 C.F.R. § 4.20. Initially, the VA Regional Office chose to rate the Veteran's dry eye syndrome under 38 C.F.R. § 4.79, Diagnostic Code 6018 ("Chronic conjunctivitis (nontrachomatous)"). It later changed the diagnostic code for the entire claim period to 38 C.F.R. § 4.79, Diagnostic Code 6025 ("Disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.").

The lacrimal apparatus is commonly referred to as the tear system of the eye: "a network of glands, sacs and ducts around your eyes. It makes new tears and drains old ones out of your eyes. Dry or watery eyes are the most common symptom of something interfering with your tear system." Tear System (Lacrimal Apparatus), Clevland Clinic Online, https://my.clevelandclinic.org/health/body/24415-lacrimal-apparatus (last accessed Apr. 16, 2026). "Dry eyes affect the layers of tears that cover your cornea. It happens when you don't have enough tears or when your tears evaporate too quickly. Symptoms include burning, itching and a gritty feeling in your eye." Dry Eyes, Cleveland Clinic Online, https://my.clevelandclinic.org/health/diseases/24479-dry-eye (last accessed Apr. 16, 2026).

The Board finds Diagnostic Code 6025 is a proper code under which to rate the Veteran's dry eye syndrome. The lacrimal apparatus addresses similar functionality, anatomical location, and symptomatology of dry eye syndrome.

38 C.F.R. § 4.79, Diagnostic Code 6025 provides only two ratings. A 10 percent rating is warranted when the disability affects only one eye. A 20 percent rating is warranted when the disability affects both eyes.

Analysis

The Veteran is already rated at 20 percent for the entire claim period under Diagnostic Code 6025. He requests a higher rating. The only mechanism to award a higher rating is found under 38 C.F.R. § 3.321, extraschedular ratings.

The VA's schedule of disability ratings is based on the average impairment of earning capacity in civil occupations from specific injuries or combinations of injuries. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a). Nonetheless, "[t]o accord justice[] . . . to the exceptional case where the schedular evaluations are found to be inadequate, . . . the Director [of Compensation and Pension Services]" is authorized to approve an extraschedular rating "commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). The "governing norm" in these cases is whether they present "such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards." Id.

In Thun v. Peake, 22 Vet. App. 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the United States Court of Appeals for Veterans Claims set forth the "three-step inquiry" for determining whether a veteran is entitled to an extraschedular rating under § 3.321(b)(1). 22 Vet. App. at 115-16; see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that the "steps" described in Thun "are, in fact, elements that must be established before an extraschedular rating can be awarded").

First, the Board must find "that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 115. This step requires "a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id.

Second, if "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and
App. 423, 427 (2009) (clarifying that the "steps" described in Thun "are, in fact, elements that must be established before an extraschedular rating can be awarded").

Second, if "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate," then the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms," such as "marked interference with employment" and "frequent periods of hospitalization." Id. (citing 38 C.F.R. § 3.321(b)(1)).

Third, if the criteria under the first two steps are satisfied, then the case must be referred to the VA Director of the Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.

As neither the VA Regional Office, nor the Board, has yet decided to refer the Veteran's claim to the Director for extraschedular consideration, the Board must first decide whether referral is warranted. Only after a referral and decision by the Under Secretary for Benefits or the Director of the Compensation and Pension Service may the VA Regional Office or Board proceed to adjudicate the claim on the merits. Floyd v. Brown, 9 Vet. App. 88, 95?96 (1996) ("The Board is in fact obligated to consider the applicability of the extra-schedular rating regulation[] but must then refer the matter for decision in the first instance by the appropriate VA officials.").

"The initial extraschedular referral decision under § 3.321(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that application of the regular schedular standards is impractical because the disability is exceptional or unusual with such related factors as marked interference with employment or frequent periods of hospitalization." Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020) (quoting 38 C.F.R. § 3.321(b)) (citing Thun, 22 Vet. App. at 115?16) (internal quotation marks omitted). Bearing in mind the benefit-of-the-doubt standard, 38 U.S.C. § 5107(b), the Board now turns to whether the evidence shows a reasonable possibility that an extraschedular rating is warranted for the Veteran's service-connected disability.

Step one: Exceptionality and extraschedular analysis

The Veteran's symptoms associated with his dry eye syndrome consisted of fluctuation in vision while in active service. November 28, 2007, Military Medical Records. He was told to use warm compresses and artificial tears to assist him. The Veteran's VA medical records are silent for treatment or symptoms of dry eye syndrome post-service.

On August 1, 2023, the Veteran received a VA-contracted medical examination assessing his eyes. The Veteran reported experiencing constant dryness. He used warm compresses two to three times a week and artificial tears a few times a day. He reported that the disability had stayed the same since service. The examiner opined that the Veteran's bilateral dry eye syndrome did not decrease his visual acuity or cause any other visual impairment. No additional symptoms were reported by the Veteran or documented by the examiner.

The Board finds that the examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran's medical history, claims file, and lay statements, and otherwise provided a correct disability picture of the severity of the Veteran's back disability at the time of the examination. The Board finds the examination report credible and probative.

In his February 13, 2025, statement, the Veteran reported the onset on his symptoms in service. He reported a worsening of symptoms since service. He reported severe dryness and irritation that caused discomfort. He reported blurred vision, causing interference with reading, driving, and working on a screen. He reported burning sensations sometimes. He reported sensitivity to light. He reported eye fatigue and strain, making it hard to focus on tasks.

The Board finds the Veteran competent to report his physical sensations and experiences associated with his eyes. Jandreau, 493 F.3d at 1377. The Board finds the Veteran's statements to the medical professionals are credible and probative, as are his lay statements contained in the February 13, 2025,
, 2025, statement, the Veteran reported the onset on his symptoms in service. He reported a worsening of symptoms since service. He reported severe dryness and irritation that caused discomfort. He reported blurred vision, causing interference with reading, driving, and working on a screen. He reported burning sensations sometimes. He reported sensitivity to light. He reported eye fatigue and strain, making it hard to focus on tasks.

Under the "reasonable possibility standard," the Board finds that the Veteran's dry eye syndrome does not present an exceptional disability picture such that the available schedular evaluation under Diagnostic Code 6025 is inappropriate. The rating criteria under Diagnostic Code 6025 is written in broad terms. There are no defined symptoms that are necessary to warrant a particular evaluation. Rather, the rating criteria focus on whether one or both eyes are affected. The severity of the Veteran's symptoms are encompassed by the rating criteria. The Board finds that pain, blurriness, and the effect of such symptoms on the Veteran's daily activities are contemplated by the rating criteria.

Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he has merely disagreed with the assigned disability ratings for his level of impairment. In other words, he does not have any symptoms from his service-connected dry eye syndrome that are unusual or different from those contemplated by the schedular criteria.

As the first step is not satisfied, the Board need not discuss the remaining steps. The inability to satisfy the first step means that referral to the Director of Compensation and Pension Services is not required.

But even if the Board were to proceed to the second step, the Board would find a lack of competent evidence establishing that the Veteran's dry eye syndrome created marked interference with employment or required frequent periods of hospitalization. No competent evidence indicates that the Veteran has been hospitalized for his disability. He has reported some interference with activities. But there must be a reasonable possibility of marked interference with employment. "Marked" is not defined in the regulation or in relevant case law. Absent an express definition, it is presumed that the VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). "Marked," as an adjective, is defined as "having a distinctive or emphasized character." Marked, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/marked, Definition 2 (last visited Apr. 16, 2026). The Board finds no competent evidence of record that the Veteran's symptoms associated with his dry eye syndrome raised a reasonable possibility of marked interference with employment. He has not reported how his symptoms affected employment.

There is insufficient evidence to substantiate a reasonable possibility that application of the regular schedular standards is impractical because the disability is exceptional or unusual with such related factors as marked interference with employment or frequent periods of hospitalization.

Accordingly, an initial disability rating in excess of 20 percent for service-connected dry eye syndrome is not warranted, nor is referral to the Director of Compensation and Pension Services for extraschedular consideration.

REMANDED

In the context of an appeal under the AMA, if the Board identifies a duty-to-assist error that existed at the time of the rating decision on appeal and cannot grant the maximum benefit for the claim, the Board "shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication . . . if the error occurred prior to the date of the agency of original jurisdiction decision on appeal." 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Board may also remand for correction of any other error to satisfy a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a).

1. Entitlement to a total disability rating based on individual unemployability is remanded.

A request for total disability evaluation based on individual unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 453?
Board may also remand for correction of any other error to satisfy a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a).

1. Entitlement to a total disability rating based on individual unemployability is remanded.

A request for total disability evaluation based on individual unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 453?55 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating).

In this case, the Veteran sought increased ratings for several disabilities. The record contains evidence of unemployability due to his service-connected disabilities. Therefore, whether the Veteran is entitled to an award of TDIU is properly considered part of his appeal. See Rice, 22 Vet. App. at 454?55. For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507.

For a veteran who does not qualify for a schedular 100 percent disability rating, according to 38 C.F.R. § 4.16(a), a veteran is entitled to TDIU benefits if the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities, and:

1. The veteran has one service-connected disability rated at 60 percent or more;

2. The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more.

See also 38 C.F.R. § 4.25 (combined ratings table). If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilit[y(-ies)]. 38 C.F.R. § 4.16(a).

"Substantially gainful employment" includes two components: a noneconomic component and economic component. The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 31 Vet. App. at 73. When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider:

1. The veteran's history, education, skill, and training;

2. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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

3. 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.

Id. (citations omitted). The Board is precluded from considering the Veteran's age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286 (2015).

The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty
.19; see Pederson v. McDonald, 27 Vet. App. 276, 286 (2015).

The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case." Ortiz-Valles, 28 Vet. App. at 71 (emphasis added).

Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). "Protected environment" is not defined by statutes or VA regulations, but the Board finds that it generally means a work environment in which the employer makes special and significant accommodations beyond those reasonably required by law and that are reasonably necessary to accommodate the veteran. In this respect, the Board is mindful of the Americans with Disabilities Act (ADA), especially its mandate that employers provide reasonable accommodations for individuals with disabilities such as "job restructuring, part-time or modified work schedules,... [and] acquisition or modification of equipment or devices." 42 U.S.C. § 12111(9)(B). Where a veteran's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the veteran to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.

In short, the economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and that the noneconomic component requires the Board to fully explain why it concluded a veteran was capable of such employment. Ray, 31 Vet. App. at 73.

The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 75?76.

The VA Regional Office has not developed or adjudicated whether the Veteran is entitled to TDIU benefits. Consistent with the Board's duty to ensure compliance with the law, remand is required to satisfy the statutory and regulatory requirements. The Board finds that it cannot address the reasonably raised claim in the first instance because the record is underdeveloped.

In general, to the extent evidence was added to the claims file during a period of time when new evidence was not allowed, such evidence will be considered by the VA Regional Office in the adjudication of the claim on remand.

Accordingly, the matter is REMANDED for the following action:

1. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The VA Regional Office should take any additional, reasonable, and necessary developmental action.

2. The VA Regional Office is not prohibited from taking any other actions it deems necessary to develop and adjudicate the Veteran's claim.

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.F. Sawka, 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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