SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

MICHAEL MARTIN · 2026 · Case ID: A26040092

MIXED

Summary

The veteran, who served in the United States Marine Corps from January 1999 to August 2003, including periods of Reserve service, appeals the denial of service connection for several conditions and an earlier effective date for left shoulder scars, as well as TDIU. The Board granted service connection for obstructive sleep apnea (OSA) as secondary to his service-connected major depressive disorder (MDD), bilateral tinnitus, Non-Hodgkin lymphoma, status post total shoulder replacement with degenerative arthritis, scar residual to right shoulder surgery, and lower back pain. The Board denied service connection for left shoulder surgery scars and an earlier effective date for these scars. The TDIU claim was denied because, despite the veteran's unemployment and service-connected disabilities impacting his daily life and employability, he was able to complete post-graduate studies and obtain employment in his field during the appeal period. The Board found the evidence persuasively weighed against unemployability. For OSA, the Board relied on a private medical opinion linking it to MDD. For tinnitus, the Board found the VA examiner's opinion inadequate due to an inaccurate factual premise and relied on the veteran's testimony and service records showing a threshold shift, resolving doubt in his favor. For Non-Hodgkin lymphoma, the Board took judicial notice of potential exposures at Fort McClellan, Alabama, and found the evidence at least approximately balanced, resolving doubt in the veteran's favor. For the right shoulder conditions, the Board found continuity of symptomatology supported service connection, resolving doubt in the veteran's favor. For lower back pain, the Board found direct service connection warranted based on continuity of symptomatology and the veteran's credible testimony, resolving doubt in his favor. The left shoulder scars were denied a compensable rating as they did not meet the criteria for rating under the applicable diagnostic codes.

Rationale

Private medical opinion linked OSA to MDD; OSA is but-for caused by MDD; Resolving doubt in favor of veteran

Service Branch

MARINE CORPS

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

210223-142208

Full Decision Text

Citation Nr: A26040092
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210223-142208
DATE: April 29, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his service-connected major depressive disorder (MDD), is granted.

Entitlement to service connection for bilateral tinnitus is granted.

Entitlement to service connection for Non-Hodgkin lymphoma is granted.

Entitlement to service connection for status post total shoulder replacement, to include degenerative arthritis, is granted.

Entitlement to service connection for scar, residual right shoulder surgery is granted.

Entitlement to service connection for lower back pain is granted.

Entitlement to an initial compensable rating for scars, left shoulder surgery, is denied.

Entitlement to an earlier effective date for service connection of scars, left shoulder surgery is denied.

Entitlement to individual unemployability (TDIU) based on service-connected disabilities is denied.

FINDINGS OF FACT

1. The Veteran's OSA is "but-for" due to his service-connected MDD.

2. Resolving all doubt in favor of the Veteran, his bilateral tinnitus is etiologically related to his active service.

3. Resolving all doubt in favor of the Veteran, he served at Fort McCellan, Alabama, and was exposed to hazardous materials; as such, his Non-Hodgkin lymphoma is etiologically related to his service.

4. Resolving all doubt in favor of the Veteran, his status post total shoulder replacement, to include degenerative arthritis, first manifested in service and was incurred in service.

5. The Veteran's scar, residual right shoulder surgery, is "but-for" due to his now service-connected status post total shoulder replacement, to include degenerative arthritis.

6. Resolving all doubt in favor of the Veteran, his lower back pain first manifested in service and was incurred in service.

7. The Veteran's scars, left shoulder surgery are not painful, unstable or

8. Entitlement to an earlier effective date for service connection of scars, left shoulder surgery is denied.

9. The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history.

CONCLUSIONS OF LAW

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

2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for Non-Hodgkin lymphoma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for status post total shoulder replacement, to include degenerative arthritis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for scar, residual right shoulder surgery have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

6. The criteria for service connection for lower back pain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for an initial compensable rating for scars, left shoulder surgery have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

8. The criteria for an earlier effective date for service connection of scars, left shoulder surgery have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.2500.

9. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from January 1999 to August 2003, with periods of active duty for training (ACDUTRA) and inactive duty for training (IN
left shoulder surgery have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.2500.

9. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A March 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ) granted service connection for labral tear including superior labral anterior-posterior lesion is granted with an evaluation of 20 percent effective September 21, 2017 and scars, left shoulder surgery is granted with a noncompensable rating effective September 21, 2017, denied service-connection for lower back pain of the L5 and Non-Hodgkin lymphoma, and deferred decisions on service connection for tinnitus, residuals of the right shoulder surgery, and scar from the right shoulder surgery.

A May 2019 rating decision denied service connection for bilateral tinnitus, residuals of the right shoulder surgery, and scar, residual right shoulder surgery.

A September 2019 rating decision denied service connection for sleep apnea.

In March 2020, the Veteran filed a VA Form 20-0996 Decision Review Request: Higher-Level Review (HLR) seeking review of the March 2019 rating decision. A second HLR was filed in March seeking review of the May 2019 rating decision.

An April 2020 HLR rating decision denied service connection for Non-Hodgkin lymphoma and tinnitus. Duty to assist errors were found regarding evaluation of labral tear including superior labral anterior-posterior lesion, evaluation of scars, left shoulder surgery, lower back pain of the L5; residuals of the right shoulder surgery; scar, residual right shoulder surgery. Earlier effective dates for labral tear including superior labral anterior-posterior lesion and scars, left shoulder surgery was denied.

A June 2020 supplemental review rating decision denied service connection for increased rating and earlier effective date for labral tear including superior labral anterior-posterior lesion and scars, left shoulder surgery, and denied service connection for lower back pain of the L5, residuals of the right shoulder surgery, and scar, residual right shoulder surgery.

In September 2020, the Veteran filed an HLR seeking review of the September 2019 rating decision.

A September 2020 HLR rating decision denied service connection for OSA.

The Veteran timely filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), in February 2021, appealing the April 2020, July 2020, and September 2020 rating decisions, to the Board of Veterans' Appeals (Board). The Appellant chose the "Hearing with a Veterans Law Judge" option.

A hearing was conducted on July 30, 2024, with the undersigned presiding. The Board may only consider the evidence of record at the time of the March 2019 and September 2019 AOJ decisions on appeal, which were subsequently subject to HLR and the June 2020 supplemental review rating decision, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing.? 38 C.F.R. §20.302(a).

Service Connection

To establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury;?and?(3) a causal relationship between the present disability?and?the disease or injury incurred or aggravated during service. Shedden v. Principi,?381 F.3d 1163, 1167?(Fed. Cir. 2004).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may be established on a secondary basis for a disability resulting from a service-connected disease or injury. 38?U.S.C. §§?1110, 1131; 38 C.F.R. §?3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability
during service. Shedden v. Principi,?381 F.3d 1163, 1167?(Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability resulting from a service-connected disease or injury. 38?U.S.C. §§?1110, 1131; 38 C.F.R. §?3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability results from the service-connected disability. Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (holding that section 1110 "requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability").

When a veteran served for at least 90 days during a period of war after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Alternatively, when a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See, 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board considers all possible theories of service connection. See El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Although the Board must provide adequate reasons and bases for a decision, the Board need not discuss all evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on what the relevant evidence shows, or fails to show, with respect to the Veteran's claims on appeal. Consequently, any evidence not discussed within this decision is irrelevant, duplicative, or unfavorable to the Veteran's claims. See Timberlake v. Gober, 14Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Based on a sympathetic assessment of the veteran's claim, the Board may recharacterize an issue on appeal, or expand or restrict the scope of a particular claim to ensure the veteran is compensated for the full benefit sought. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); see
Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

1. Entitlement to service connection for sleep apnea

The Veteran seeks service connection for OSA. As the Veteran does not contend, nor does the record indicate that the Veteran's OSA is directly related to service, the Board finds that service connection on a direct basis is not warranted. The Board considers all possible theories of entitlement to service connection. See El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).

The Board notes the AOJ did not make any favorable findings regarding OSA in the rating decision on appeal.

The Veteran has a current diagnosis of OSA and is service connected for MDD. The only remaining question before the Board is whether the Veteran's OSA is but-for caused or aggravated by his service-connected MDD.

After a review of the evidence of record, the Board finds that entitlement to service connection for OSA is warranted.

The Board notes that the AOJ did not conduct medical development of this claim. As such, there is no VA examination of record. Despite there being no VA examination during the period on appeal, a remand will not be necessary as the medical evidence of record is sufficient to support adjudication.

Turning to the evidence of record, the Veteran submitted evidence of a home sleep study, conducted by the New Orleans VA in March 2020, indicating a diagnosis of obstructive sleep apnea. He also submitted a private medical opinion in support of his OSA claim. The private examiner opined that the correlation between depression and the development of obstructive sleep apnea is widely accepted in contemporary medicine. The examiner explained that the role of serotonin in the neurotransmission of serotonin has been implicated in depression as it is deficient and influences upper airway dilator motor neurons. Ultimately, the examiner opined that the Veteran's OSA is at least as likely as not due to his service-connected MDD.

There being no other medical opinions to consider, the medical evidence of record weighs in favor that the Veteran's OSA is secondary to his MDD.

Accordingly, the persuasive weight of the evidence demonstrates that entitlement to service connection for OSA as secondary to the Veteran's service-connected MDD is warranted. As evidence persuasively favors the claim for a higher disability rating; there is no reasonable doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran's claim is granted.

2. Entitlement to service connection for bilateral tinnitus

The Veteran contends his bilateral tinnitus is etiologically related to his active service. Specifically, the Veteran avers that he participated in weapons training beyond that of a normal Marine with no hearing protection. He also testified that he "stood post daily seven to 12 hours a day on an airfield, most times with limited to no hearing protection. He asserts that he has a constant ringing in his ears that "gets higher when it's quiet." See July 2024 Board Hearing.

The decision on appeal conceded that the Veteran has a current diagnosis of tinnitus. The AOJ further conceded that a qualifying event, injury, or disease had its onset during service, namely the Veteran's MOS of military police is moderately probable for noise exposure. Further, the AOJ conceded that tinnitus is a chronic disease which may be presumptively linked to service and the Veteran has sufficient service to meet the minimum requirements for presumptive service connection. These are favorable findings which are binding on the Board. See 38 C.F.R. § 3.104(c). The Veteran's claim essentially turns on whether there is a medical nexus between the Veteran's diagnosis and service.

The Board determines that the probative evidence contained in the evidentiary window is at least in approximate balance that the Veteran's tinnitus is etiologically related to his service.

In this
event, injury, or disease had its onset during service, namely the Veteran's MOS of military police is moderately probable for noise exposure. Further, the AOJ conceded that tinnitus is a chronic disease which may be presumptively linked to service and the Veteran has sufficient service to meet the minimum requirements for presumptive service connection. These are favorable findings which are binding on the Board. See 38 C.F.R. § 3.104(c). The Veteran's claim essentially turns on whether there is a medical nexus between the Veteran's diagnosis and service.

The Board determines that the probative evidence contained in the evidentiary window is at least in approximate balance that the Veteran's tinnitus is etiologically related to his service.

In this regard, the Board has thoroughly reviewed the Veteran's service treatment records (STRs) and the hearing conservation data collected during his service. Hearing conservation data was recorded for this particular Veteran as it was determined that he was routinely exposed to noise. Notably, a significant threshold shift was noted in a May 2003 hearing conservation audiogram.

The Board has reviewed the VA Hearing Loss and Tinnitus examination and opinion afforded to the Veteran and finds the opinion to be inadequate for purposes of adjudication. The examiner opined that "because there is no evidence that hearing loss or significant threshold changes occurred during military service and time of onset is significantly post military service, there is no basis on which to conclude that claimed tinnitus was caused by military noise exposure."

As noted previously, the STRs indicate a significant threshold shift occurred in service. Therefore, the VA Hearing Loss and Tinnitus medical opinion is based on an inaccurate factual premise and is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (noting that medical opinions based on an incomplete or inaccurate factual premise are not probative).

Here, the Board finds the totality of the evidence, is at least in approximate balance. Tinnitus is consistent with the circumstances of the Veteran's service as a Military Police, with a Rifle Qualification Badge (expert) and Pistol Qualification Badge (sharpshooter) as well as participation in military education including recruit training, male, marine combat training, and law enforcement.

Accordingly, and resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is granted.

3. Entitlement to service connection for Non-Hodgkin lymphoma

The Veteran contends his Non-Hodgkin lymphoma is due to hazardous exposures at Fort McClellan, Alabama.

In the rating decision on appeal, the AOJ conceded current diagnosis of diffuse large B-cell lymphoma (Non-Hodgkin lymphoma). The AOJ further conceded Non-Hodgkin lymphoma is a chronic disease which may be presumptively linked to service and minimum requirements for presumptive service connection were met. These are favorable findings which are binding on the Board. See 38 C.F.R. § 3.104(c).

The Board has thoroughly reviewed the record and finds that service connection for Non-Hodgkin lymphoma is warranted.

In this regard, the Board notes that VA has acknowledged the presence of various chemicals and toxins at Fort McClellan and the potential exposure of service personnel at that facility. The Board takes judicial notice of VA's public health bulletin on potential exposures at Fort McClellan (see https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp) which notes that potential exposures could have included, but are not limited to: radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base; chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base; and/or airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town.

While the Veteran's military personnel records appear incomplete, his STRs indicate he did, in fact, serve at Fort McClellan. See STRs (Health Record Receipt, July 2000 to August 2001). Further, the Veteran is competent to report serving at Fort McClellan and any exposures he experienced in service. Also, there is no affirmative evidence to explicitly contradict these reports, and the reports are consistent with the places, types, and circumstances of the Veteran's service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Moreover, the Board must consider the Veteran's statements along with the other evidence of record in determining whether he was exposed to hazardous exposures in Fort McClellan. Parseeya-Picch
did, in fact, serve at Fort McClellan. See STRs (Health Record Receipt, July 2000 to August 2001). Further, the Veteran is competent to report serving at Fort McClellan and any exposures he experienced in service. Also, there is no affirmative evidence to explicitly contradict these reports, and the reports are consistent with the places, types, and circumstances of the Veteran's service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Moreover, the Board must consider the Veteran's statements along with the other evidence of record in determining whether he was exposed to hazardous exposures in Fort McClellan. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was exposure to herbicide agents in Vietnam or elsewhere). Additionally, VA's regulatory scheme anticipates there will be situations in which the service records do not show either way whether a veteran served in a particular location. 38 C.F.R. § 3.102 ("The reasonable doubt doctrine is also applicable even in the absence of official records").

Therefore, the Board finds it at least approximately balanced that the Veteran served in Fort McClellan and was exposed to hazardous materials there. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran served at Fort McClellan and was exposed to hazardous materials. 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition).

Additionally, the Veteran submitted a letter from his private hematologist/oncologist in which the private provider noted that the question of possible exposure at Fort McClellan in Alabama in 1999 cannot be ruled out of the pathology of the Veteran's Non-Hodgkin lymphoma. Further, the provider opined that though causality could not be definitively delineated; however, mutagenic agents can increase the risk for lymphoma. Ultimately, the provider noted there exists a possible link between exposure to hazardous materials and a cancer diagnosis for the Veteran.

The Board further observes that the AOJ did not conduct medical development of this claim. As such, there is no VA examination of record. Despite there being no VA examination during the period on appeal, a remand will not be necessary as the medical evidence of record is sufficient to support adjudication.

Therefore, based on the totality of the evidence of record and weighing the favorable and non-favorable evidence, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's Non-Hodgkin lymphoma is directly related to his military service.

Resolving reasonable doubt in favor of the Veteran, the claim for entitlement to service connection for Non-Hodgkin lymphoma is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

4. Entitlement to service connection for status post total shoulder replacement, to include degenerative arthritis

5. Entitlement to service connection for scar, residual right shoulder surgery

The Veteran seeks service connection for his status post right shoulder surgery, to include degenerative arthritis and scar, residual right shoulder surgery. The Veteran avers that in the early 2000s he could not raise his right shoulder and arm over his head. He recalled being placed on light duty and was told he could be removed from the Presidential Unit if his injury required a significant amount of light duty time. He further testified he experienced AC separations, where his shoulder would "pop out and come back in" while on active duty. The Veteran also indicated an underwater training exercise during his Reserve service, in which he was kicked underwater causing dislocation. He was taken to the emergency room that night and had surgery the following summer. See July 2024 Board Hearing.

Initially, the Board has recharacterized the Veteran's claim more broadly to one for status post total shoulder replacement, to include degenerative arthritis, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In this regard, the Board observes that the medical evidence of record indicates that the Veteran is status post total shoulder replacement and has a current diagnosis of degenerative arthritis of the right shoulder.

In the rating decision on appeal, the AOJ conceded the Veteran had a current diagnosis of degenerative arthritis with residuals of status post total shoulder replacement and right shoulder scars as a residual of right shoulder surgery. The AOJ further conceded a qualifying event, injury, or disease had its onset during
post total shoulder replacement, to include degenerative arthritis, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In this regard, the Board observes that the medical evidence of record indicates that the Veteran is status post total shoulder replacement and has a current diagnosis of degenerative arthritis of the right shoulder.

The Veteran's claims essentially hinge on a medical nexus between his current diagnosis of a right shoulder condition and his service.

The Board has thoroughly reviewed the record and finds that service connection for the Veteran's right shoulder conditions is warranted.

In this regard, the Veteran submitted private treatment records indicating he has been status post reduction of right shoulder dislocation since at least 2013. See Medical Treatment Record - Non-Government Facility, received August 7, 2018. Further, he has participated in physical therapy since at least 2013 for his right shoulder condition. See Medical Treatment Record - Non-Government Facility, received August 23, 2018. Further, though the Veteran does not appear to have initiated care with VA until October 2019, his VA treating provider noted he suffers "chronic right shoulder and back pain." See January 2020 VA Treatment Note.

The Veteran was afforded a VA Shoulder Conditions examination during which the examiner confirmed the Veteran's current diagnosis of degenerative arthritis and post-surgical scar. The examiner noted the Veteran reported an incident in Reserve service, in 2012, at which time he was kicked in the shoulder during underwater training exercises resulting in a dislocated shoulder. The VA examiner proffered a positive nexus opinion linking the Veteran's right shoulder condition to his described Reserve service incident during underwater training. The AOJ determined the positive VA nexus opinion could not be accepted because it was based on the erroneous assumption that the Veteran was on active duty in 2013.

The Board observes that the Veteran's exact periods of ACDUTRA and INACDUTRA during his Reserve service have not yet been determined by the AOJ. Further, these records appear to be incomplete as filed. Notably, the Board observes Drill Warning Orders from August 2012 indicating a 3-day training period including a swim qualification. See Military Personnel Record (Veteran submitted), received August 7, 2018. That notwithstanding, the Board finds that a remand for records is unnecessary as the evidence of record is sufficient to establish an approximate balance that the Veteran's right shoulder pain first manifested during his initial period of active-duty service.

Accordingly, the Board finds the evidence is at least in approximate balance on the issue of continuity of symptomatology. The Veteran is competent to report his history of symptoms of right shoulder pain and injury. "Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. §§ 3.303(b). Here, the Veteran's testimony is competent and credible. The Board has no reason to doubt his statements.

By virtue of the foregoing, resolving all doubt in favor of the Veteran, the Board concludes that service connection for status post right shoulder surgery, to include degenerative arthritis, is warranted as the evidence is at least in approximate balance that the Veteran's current disability is the result of his active-duty service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Likewise, the Veteran's scar, residual right shoulder surgery is but-for due to his now service-connected status post right shoulder surgery, to include degenerative arthritis. Entitlement to service connection for scar, residual right shoulder surgery is warranted.

The claims are granted.

6. Entitlement to service connection for lower back pain

The claims are granted.

6. Entitlement to service connection for lower back pain

The Veteran seeks service connection for lower back pain. The Veteran avers that his job duties, which required him to participate in lethal and nonlethal training, weapons handling, standing post for long periods of time in boots, and wearing body armor regularly, caused his low back pain including a "sensation going down [his] right leg." He further testified that his laminectomy physician attributed his low back issues to his "time on active duty and in the Reserves." The Veteran also noted that if his back "was acting up," he would get a low score on his PFT (physical fitness training). At times, he was unable to sit straight up out of bed and would roll out instead. He also noted a slip and fall, which he initially attributed to old age because "it's all relative" in youth. See July 30, 2024 Board Hearing.

The Board notes the Veteran asserts a secondary theory of entitlement to service connection for his low back pain, specifically as secondary to his service-connected bilateral pes planus. The Board considers all theories of entitlement. See El Amin, 26 Vet. App. 136.

In the rating decision on appeal, the AOJ conceded a current diagnosis of right sided lumbar disc herniation. The Board is bound by favorable findings. See 38 C.F.R. § 3.104(c).

The Veteran's claim essentially turns on whether an in-service event, injury, or disease occurred and a medical nexus between the current diagnosis and service.

Upon review of the record, the Board finds that service connection is warranted on a direct basis. See El Amin, 26 Vet. App. 136. Because the Board is granting service connection on a direct basis, the Board need not address secondary service connection.

In this regard, the Board notes the Veteran's STRs are silent for complaint or treatment of back pain. However, private treatment records indicate the Veteran has sought medical care for low back pain since a fall in 2016. See Medical Treatment Record - Non-Government Facility, received August 7, 2018. Further, though the Veteran does not appear to have initiated care with VA until October 2019, his VA treating provider noted he suffers "chronic right shoulder and back pain." See January 2020 VA Treatment Note.

The AOJ did not conduct medical development of this claim. As such, there is no VA examination of record.

Here, continuity of symptomatology may be considered. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this regard, it is noted continuity of symptomatology, not continuity of treatment, is required to establish a nexus between a disorder noted in service and a chronic disorder found after service. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

Additionally, under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent regarding a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Veteran's testimony is competent and credible. The Board has no reason to doubt his statements.

Therefore, based on the totality of the evidence of record and weighing the favorable and non-favorable evidence, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's low back condition is related to his active-duty military service.

Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back condition, on a direct basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

The appeal is granted.

7. Entitlement to an initial compensable rating for scars, left shoulder surgery

As noted previously, on his February 2021 NOD, the Veteran sough appellate review of "[l]eft shoulder residuals
on the totality of the evidence of record and weighing the favorable and non-favorable evidence, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's low back condition is related to his active-duty military service.

Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back condition, on a direct basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

The appeal is granted.

7. Entitlement to an initial compensable rating for scars, left shoulder surgery

As noted previously, on his February 2021 NOD, the Veteran sough appellate review of "[l]eft shoulder residuals & labral tear: disabilities arising from this injury were not rated separately in accordance with the rating schedule as required." At his July 2024 Board hearing, the Veteran and his representative confirmed that the issues on appeal were increased rating for scars left shoulder surgery and earlier effective date for scars of left shoulder surgery. The Board notes the Veteran's representative indicated there were "a couple of VA exams...the scarring in particular..." and that the Veteran would submit testimony regarding "the tissue and the pain and all the things related to a scar rating." See July 2024 Board Hearing.

Notably, the Veteran's representative did not address this issue in the October 2024 Post-BVA Hearing Brief submitted on October 22, 2024. Further, no medical records, examinations, or testimony were proffered into evidence following the Board hearing regarding the Veteran's left shoulder scars.

There is no separate VA Scars Conditions examination of record. However, the March 2019 VA Shoulder Conditions examination briefly indicates the Veteran's left shoulder scars, noting in pertinent part:

[L]eft shoulder scars: #1: 2 cm x 1 cm; scar#2: 3 cm x 1 cm; scar#3: 2.5 cm x 1 cm *Note: Veteran's bilateral shoulder scars have keloid formation and are hyperpigmented. He reports treatment of keloids per dermatologist with injections. Scars are stable, healed, non-tender to palpation, and no evidence of skin break down.

The Board finds the evidence is sufficient to make a determination regarding the appropriate disability evaluation for the Veteran's left shoulder scars.

The Veteran contends he is entitled to an initial compensable rating for his right shoulder scar. The Veteran is currently in receipt of a noncompensable rating for his right shoulder scar pursuant to DC 7805.

Scars are rated under 38 C.F.R. § 4.118 and specifically DCs 7800, 7801, 7802, 7804 and 7805. Scars rated under DC 7805 are evaluated under DC 7804 for unstable or painful scars. Pursuant to DC 7804, a disability rating of 10 percent is warranted for one or two scars that are unstable or painful; 20 percent is warranted for three or four scars that are unstable or painful; and 30 percent is warranted for five or more scars that are unstable or painful. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering skin over the scar. Note (2) instructs that if one or more scars are both unstable and painful to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars rated under DCs 7800, 7801, 7802 or 7805 may also receive an evaluation under DC 7804 when applicable. DC 7805 provides scars that have other disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 shall be evaluated under an appropriate code.

The Board has considered the elements to support a rating under the other DCs for rating scars. However, the evidence does not indicate the Veteran has a scar, or other disfigurement, of the head face or neck (DC 7800); a scar with underlying soft tissue damage (DC 7801); a scar without underlying soft tissue damage that is of an area of 144 square inches (929 sq. cm) or greater (DC 7802); a scar that is both unstable and painful (DC 7804 (Note 2)); or other disabling effect(s) not considered in a rating provided under DCs 7800, 7801, 7802 or 7804 (DC 7805). As such, the Veteran's scar does not meet a compensable disability rating under DCs 7800-7805 and such a rating is not warranted. Additionally, the Board's review of the evidence within the evidence window has not shown any contention by the Veteran that his service-connected left shoulder scar
DC 7801); a scar without underlying soft tissue damage that is of an area of 144 square inches (929 sq. cm) or greater (DC 7802); a scar that is both unstable and painful (DC 7804 (Note 2)); or other disabling effect(s) not considered in a rating provided under DCs 7800, 7801, 7802 or 7804 (DC 7805). As such, the Veteran's scar does not meet a compensable disability rating under DCs 7800-7805 and such a rating is not warranted. Additionally, the Board's review of the evidence within the evidence window has not shown any contention by the Veteran that his service-connected left shoulder scar is painful or causes any other disabling effect.

The Board has not found any evidence that suggests symptomology that would fit within any of the other DCs which would provide the Veteran with a compensable disability rating.

In conclusion, the Board finds the evidence of record persuasively weighs against the Veteran's claim for an initial compensable rating for his service-connected left shoulder scar. As the evidence of record persuasively weighs against a compensable rating for the Veteran's left shoulder scar, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021)

8. Entitlement to an earlier effective date for service connection of scars, left shoulder surgery

On his February 2021 NOD, the Veteran sough appellate review of "[l]eft shoulder residuals & labral tear: disabilities arising from this injury were not rated separately in accordance with the rating schedule as required." At his July 2024 Board hearing, the Veteran and his representative confirmed that the issues on appeal were increased rating for scars left shoulder surgery and earlier effective date for scars of left shoulder surgery. The Board notes the Veteran's representative indicated there were "a couple of VA exams...the scarring in particular..." and that the Veteran would submit testimony regarding "the tissue and the pain and all the things related to a scar rating." See July 2024 Board Hearing.

Earlier Effective Dates

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date for an initial award of compensation "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400.

Under the Appeals Modernization Act (AMA), a determination on a claim by the AOJ becomes final unless the claimant continuously pursues the claim by filing a supplemental claim, a request for higher-level review, or an appeal to the Board within one year of the date the AOJ mails notice of the decision. 38 C.F.R. §§ 20.1103, 3.2500(c)(1). If a claimant continuously pursues an issue by filing one of these administrative review options within one year, the effective date will be the date of receipt of the initial claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1). If a supplemental claim is received more than one year after the date on which the AOJ issued notice of a decision, the effective date will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

Governing regulation provides that a claimant may indicate his desire to file a claim for benefits by submitting an intent to file a claim to VA. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the

benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Upon receipt of an intent to file a claim, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the appropriate application form prescribed by the Secretary. 38 C.F.R. § 3.155(b)(3). If
ant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the

benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Upon receipt of an intent to file a claim, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the appropriate application form prescribed by the Secretary. 38 C.F.R. § 3.155(b)(3). If an intent to file a claim is not submitted in the form required by paragraph (b)(1) of this section or a complete claim is not filed within one year of the receipt of the intent to file a claim, VA will not take further action unless a new claim or a new intent to file a claim is received. 38 C.F.R. § 3.155(b)(4).

Claims filed on or after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). A complete claim is required for all types of claims and will generally be considered filed as of the date it was received by VA for an evaluation or award of benefits under the laws administered by VA. 38 C.F.R. § 3.155(d)(1). If VA receives a complete claim within one year of the filing of an intent to file a claim that meets the requirements of paragraph (b) of this section, it will be considered filed as of the date of receipt of the intent to file a claim. 38 C.F.R. § 3.155(d)(1)(ii). An original claim is the initial complete claim for one or more benefits on an application form prescribed by the Secretary. 38 C.F.R. § 3.160(b).

Analysis

Here, the Veteran filed a VA Form 21-0996 Intent to File on September 21, 2017, as well as a VA Form 21-0781 Statement in Support of Claim for PTSD. On August 7, 2018, within one year of the filing of his Intent to File, the Veteran filed a VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits, seeking service connection for "torn Librium of the left shoulder."

Since the Veteran initially submitted his claim more than one year following separation from service, the effective date of the grant of service connection will be the date of the receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400. Review of the record shows that the Veteran filed an intent to file on September 21, 2017, followed by a claim for service connection for his left shoulder condition.

Comparing the date that entitlement arose, the date of the intent to file, and the date of receipt of claim, the Board concludes that the Veteran has been appropriately assigned the date of September 21, 2017, as that is the date his intent to file was received, which was immediately followed by his initial claim for service connection for his left shoulder condition.

Accordingly, an effective date earlier than September 21, 2017, for the grant of service connection for scars, left shoulder surgery is not warranted. The appeal is denied.

9. Entitlement to TDIU

TDIU

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 U.S.C. § 501; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (
able at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

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

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown,4 Vet. App. 361, 363(1993). The ultimate issue of whether TDIU should be awarded is not a medical issue but rather is a determination for the VA adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).

Additionally, marginal employment may exist, on a fact found basis, where the applicant's income exceeds the poverty threshold but is in a "protected environment," defined as a "lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111 (2024). The Board must consider whether the employment is shielded, at least partially, from the competitive market, looking to the extent the applicant's income exceeds the poverty threshold, the employer's intent in employing the applicant, and applicant's receipt of workplace accommodations under the Americans with Disabilities Act. Id.

In Phillips v. McDonough, 37 Vet. App. 394 (2024), the question of when VA must consider TDIU was addressed. It was noted by the United States Court of Appeals for Veterans Claims (Court) that the VA is obligated to "determine all potential claims raised by the evidence." Therefore, VA must consider whether a TDIU award is warranted "whenever a veteran submits evidence of a disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability." Phillips v. McDonough, supra, at 7, quoting Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). Further
. Id.

TDIU is in essence an alternate way to obtain a total disability rating without being rated 100 percent under the rating schedule. It is not a separate claim but rather an attempt to obtain an appropriate rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for TDIU may be pursued as part of the initial adjudication of the underlying claim or as an attempt to get a higher rating, whenever the VA receives evidence of unemployability. Rice v. Shinseki, supra, at 453; Phillips v. McDonough, supra, at 8.

It is presumed that the Veteran is seeking the maximum benefit allowed by law and regulation, under any applicable theory, including TDIU. Therefore, a claim is considered to remain in controversy when less than the maximum benefit available is awarded. Phillips v. McDonough, supra, at 9; AB v. Brown, 6 Vet. App. 35 (1993); Morgan v. Wilkie, 31 Vet. App. 162 (2019). Further, TDIU is not a separate claim, therefore a partial grant or denial of TDIU does not absolve the VA of responsibility to consider TDIU as part of another stream or for the entire period on appeal. Phillips v. McDonough, supra, at 8, citing Harper v. Wilkie, 30 Vet. App. 356 (2018).

The Court has stated regarding TDIU, "it is clear from our jurisprudence that an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on that disability (either overtly stated or implied by a fair reading of the claim or the evidence of record), it is also true that a veteran may, at any time, may independently assert entitlement to TDIU based on an existing service-connected disability." Rice v. Shinseki, supra, at 453. However, the courts have also cautioned that an inferred claim for TDIU will only be considered when the Veteran proffers some evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).

Extraschedular TDIU

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, education and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b).

Pertinent to this claim, the Court recently decided the case of Witkowski v. Collins, No. 24-0640. 2025 U.S. App. Vet. Claims LEXIS 1423 (decided October 21, 2025). Witkowski overturned the longstanding precedent of Bowling v. Principi, 15 Vet. App. 1, 10 (2001) holding that referral to the Director of Compensation Services prior to adjudicating TDIU on an extraschedular basis did not apply to the Board and only applied to rating boards. Under Witkowski, the Board may award TDIU on an extraschedular basis in the first instance without first receiving a decision from the Director of Compensation Services.

Analysis

Effective August 12, 2019, the Veteran was service connected for major depressive disorder with a 70 percent disability rating, bilateral pes planus with a 30 percent disability rating, status post left shoulder labral tear including superior
2025). Witkowski overturned the longstanding precedent of Bowling v. Principi, 15 Vet. App. 1, 10 (2001) holding that referral to the Director of Compensation Services prior to adjudicating TDIU on an extraschedular basis did not apply to the Board and only applied to rating boards. Under Witkowski, the Board may award TDIU on an extraschedular basis in the first instance without first receiving a decision from the Director of Compensation Services.

Analysis

Effective August 12, 2019, the Veteran was service connected for major depressive disorder with a 70 percent disability rating, bilateral pes planus with a 30 percent disability rating, status post left shoulder labral tear including superior labral anterior-posterior lesion with a 20 percent disability rating, scars, left shoulder surgery with a noncompensable disability rating, and hyperhidrosis with a noncompensable rating. Thus, the Board finds that the Veteran met the schedular criteria for TDIU prior to the September 2020 rating decision. See September 2025 Rating Decision - Codesheet.

The VA examinations afforded to the Veteran indicate he was unemployed during the period on appeal and his service-connected disabilities impact his activities of daily living and ability to work. See March 2019 VA Shoulder Conditions Examination (indicating the Veteran was unemployed and had difficulty and weakness raising his bilateral arms overhead with increased pain lifting heavy items); see also May 2020 VA Skin Conditions Examination (indicating an inability to do work outside due to excessive sweating leading to dehydration); see also October 2020 VA Foot Conditions Examination (indicating the Veteran was limited in running, jumping, prolonged ambulation and standing, and high impact activities); see also April 2021 VA Mental Disorders Examination (indicating the Veteran has difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting and his MDD manifests with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood). The April 2021 examiner noted the Veteran reported that the last time he worked was in 2018 as an intel analyst.

Additionally, the Veteran was found eligible to participate in VA's Vocational Rehabilitation and Employment Program, Chapter 31 services, in September 2019. Notably, VA found that the Veteran had an impairment to employability and his service-connected disabilities contributed, in substantial part, to that impairment. The Veteran's September 2018 resume indicates he last worked in September 2018 and his January 2023 resume indicates he had a gap in employment from September 2018 to 2022. The Veteran also obtained a Master of Social Work degree in December 2022 while on the program. According to a January 2024 VA Form 5655 Financial Status Report he obtained employment in January 2022 and maintained that employment through at least 2024, as a social worker. An April 2023 VR-64 Chapter 31 Positive Decision Letter also indicates the Veteran successfully maintained employment for at least 60 days.

Based on a review of the foregoing evidence, the Board finds that, at no time during the appeal period did the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with her education and work history. The Board acknowledges that the Veteran had a break in his resume from approximately September 2018 to January 2022, and that his service-connected disabilities may have impacted his ability to work as evidenced by his combined disability rating of 80 percent. Thus, the Veteran meets the economic component for a TDIU; however, the evidence of record reveals that limitations associated with his service-connected disabilities did not render him unable to perform the physical and mental acts necessary for substantially gainful employment consistent with his education and work history both prior to furthering his education and after. Van Hoose, 4 Vet. App at 363.

The Board has weighed the lay and medical evidence of record in considering the information regarding the Veteran's educational and employment history. As the Veteran was able to successfully complete post-graduate studies and obtain employment in his field of study during the period on appeal, the Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities.

Therefore, as the evidence of record persuasively weighs against his claim for a TDIU, the benefit of the doubt doctrine is not applicable in the instant appeal, and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Martin T. Mitchell

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Herring, Victoria B.

The Board's decision in this case is binding only with respect to the instant

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