PARALYSIS OF SCIATIC NERVE OR EXTERNAL POPLITEAL NERVE

KELLI A. KORDICH · 2025 · Case ID: 25012191

MIXED

Summary

The Veteran served from August 1984 to February 1988, including service at Camp Lejeune, North Carolina. The Veteran appeals the denial of service connection for a right thigh disability, right knee degenerative arthritis, left hip disability, and facial keloid scarring. The Veteran also appeals the rating assigned to his thoracolumbar spine disability and the effective date for his Total Disability based on Individual Unemployability (TDIU) and Dependents' Educational Assistance. The Board granted service connection for right femoral radiculopathy (claimed as right thigh disability) and right knee degenerative arthritis, finding these conditions related to service or aggravated by service-connected disabilities. Service connection for left hip disability and facial keloid scarring was denied, as the Board found no nexus to service or exposure. The Board found the prior rating reduction for the thoracolumbar spine disability improper, restoring a 40 percent rating prior to January 18, 2017, but denying a higher rating thereafter. The Veteran's mental disorder claim was granted at 50 percent prior to July 6, 2020, but a higher rating was denied. An earlier effective date for TDIU and Dependents' Educational Assistance was granted, along with special monthly compensation at the housebound rate.

Rationale

Service connection granted as result of service-connected thoracolumbar spine disability; Meets criteria for direct service connection

Special Benefit

SMC - HOUSEBOUND; TDIU; EARLIER EFFECTIVE DATE

Docket No.

18-48 776

Full Decision Text

Citation Nr: 25012191
Decision Date: 09/26/25 Archive Date: 09/26/25

DOCKET NO. 18-48 776
DATE: September 26, 2025

ORDER

Service connection for right femoral radiculopathy (claimed as "right thigh") is granted.

Service connection for right knee degenerative arthritis is granted.

Service connection for a left hip disability is denied.

Service connection for keloid scarring on face is denied.

The prior 40 percent rating for degenerative arthritis of the thoracolumbar spine is restored, effective June 29, 2022.

A 40 percent rating for the thoracolumbar spine disability, prior to January 18, 2017, is granted.

A rating above 40 percent for the thoracolumbar spine disability, from January 18, 2017, is denied.

A 50 percent rating for unspecified depressive disorder with insomnia, prior to July 6, 2020, is granted.

A rating above 70 percent for unspecified depressive disorder, from July 6, 2020, is denied.

An earlier effective date of January 30, 2016, for a total disability rating based on individual unemployability (TDIU) is granted.

An earlier effective date of January 30, 2016, for basic eligibility to Dependents' Educational Assistance is granted.

Special monthly compensation (SMC) at the housebound rate, from January 30, 2016, is granted.

FINDINGS OF FACT

1. The Veteran's right femoral nerve radiculopathy (i.e., right thigh disability) is the result of his service-connected thoracolumbar spine disability.

2. The Veteran's right knee degenerative arthritis was aggravated by the service-connected thoracolumbar spine disability and lower extremity radiculopathy.

3. The Veteran's left hip symptoms are due to left sciatic radiculopathy, which is already service-connected. He does not have another separate and distinct left hip disability.

4. The keloid scarring on the Veteran's face is not the result of service, to include exposure to contaminated water at Camp Lejeune and other toxic exposures.

5. As of June 29, 2022, the Veteran did not experience an actual improvement in his ability to function under the ordinary conditions of life and work with respect to his thoracolumbar spine disability.

6. Prior to January 18, 2017, the Veteran's thoracolumbar spine disability limited forward flexion to approximately 15 degrees.

7. The Veteran's thoracolumbar spine disability has not resulted in unfavorable ankylosis or the functional equivalent of unfavorable ankylosis. He did not have incapacitating episodes of intervertebral disc syndrome (IVDS) totaling at least 6 weeks over a 12-month period either.

8. Prior to July 6, 2020, the Veteran's mental disorder symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity.

9. Since July 6, 2020, the Veteran's mental disorder symptoms more nearly approximated occupational and social impairment with deficiencies in most areas.

10. As of January 30, 2016, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected thoracolumbar spine disability alone

11. As of January 30, 2016, the Veteran had a permanent total service-connected disability.

12. In addition to the thoracolumbar spine disability, the Veteran had other service-connected disabilities that were cumulatively rated at 60 percent or more, as of January 30, 2016.

CONCLUSIONS OF LAW

1. The criteria for service connection for right femoral radiculopathy (claimed as "right thigh") have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for right knee degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

4. The criteria for service connection for keloid scarring on face have not been met. 38 U.S.C. §§ 1110
2. The criteria for service connection for right knee degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

4. The criteria for service connection for keloid scarring on face have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

5. The rating reduction from 40 percent to 20 percent for degenerative arthritis of the thoracolumbar spine, effective June 29, 2022, was improper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, and 4.13.

6. The criteria for a 40 percent rating for the thoracolumbar spine disability, prior to January 18, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242.

7. The criteria for a rating above 40 percent for the thoracolumbar spine disability, from January 18, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

8. The criteria for a 50 percent for unspecified depressive disorder with insomnia, prior to July 6, 2020, have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9435.

9. The criteria for a rating above 70 percent for unspecified depressive disorder with insomnia, from July 6, 2020, have not been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9435.

10. The criteria for an earlier effective date of January 30, 2016, for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

11. The criteria for an earlier effective date of January 30, 2016, for basic eligibility to Dependents' Educational Assistance have been met. 38 U.S.C. §§ 1155, 3510; 38 C.F.R. §§ 3.807, 21.3020.

12. The criteria for SMC at the housebound rate, from January 30, 2016, have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1984 to February 1988, including at Camp Lejeune in North Carolina. This is an appeal to the Board of Veterans' Appeals (Board) under the legacy review system.

In May 2023, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. In July 2023, the Board remanded the Veteran's claims to the agency of original jurisdiction (AOJ) for additional development. The AOJ substantially complied with the Board's instructions, and the claims are now ready for further review. Stegall v. West, 11 Vet. App.
.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On remand, the AOJ granted service connection for bilateral hand essential tremors. See March 2025 Rating Decision. The AOJ's grant of service connection resolves the claim for bilateral hand shaking in full, so that issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); Holland v. Gober, 10 Vet. App. 433 (1997).

The AOJ also granted a TDIU, effective September 26, 2016. See May 2025 Rating Decision. However, the Board finds that the TDIU claim is not fully resolved because the AOJ's grant does not cover the entire rating period on review. The TDIU issue therefore remains on appeal. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30?Vet. App. 356 (2018).?

Service Connection

The Veteran maintains he is entitled to service connection for a right thigh disability, a right knee disability, a left hip disability, and keloid scarring on his face.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "Direct" service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013).

"Secondary" service connection generally requires evidence that the current disability was caused or aggravated by another service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995);

"Presumptive" service connection may also be established for certain diseases associated with exposure to contaminants in the water supply at Camp Lejeune. Veterans who served at Camp Lejeune for 30 or more days between August 1953 and December 1987 may be entitled to presumptive service connection for any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin's lymphoma; and Parkinson's disease. 38 C.F.R. §§ 3.307(a)(7), 3.309(f).

Only the eight diseases listed at 38 C.F.R. § 3.309(f) are subject to presumptive service connection based on exposure to contaminated water at Camp Lejune. Nevertheless, a claimant may still establish direct service connection for an unlisted disability basis by showing proof of causation through competent evidence. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

1. Service connection for right femoral radiculopathy (right thigh disability)

The Veteran asserts that his right thigh problems are related to his service-connected back disability and radiculopathy of the lower extremities. After careful review, the Board finds that he is entitled to secondary service connection for right femoral radiculopathy.

The Board instructed the AOJ to provide a VA examination to determine the nature and etiology of the claimed right thigh disability on remand.

In January 2024, a VA contractor examined the Veteran's right thigh and hip. The Veteran reported a "jumping" or twitching sensation in the right thigh. However, the physical examination was normal, including range of motion testing. The January 2024 VA examiner found that the Veteran did not a have current musculoskeletal disability of
Veteran asserts that his right thigh problems are related to his service-connected back disability and radiculopathy of the lower extremities. After careful review, the Board finds that he is entitled to secondary service connection for right femoral radiculopathy.

The Board instructed the AOJ to provide a VA examination to determine the nature and etiology of the claimed right thigh disability on remand.

In January 2024, a VA contractor examined the Veteran's right thigh and hip. The Veteran reported a "jumping" or twitching sensation in the right thigh. However, the physical examination was normal, including range of motion testing. The January 2024 VA examiner found that the Veteran did not a have current musculoskeletal disability of the right hip or thigh. Instead, the examiner determined that the Veteran's reported symptoms were consistent with right lower extremity radiculopathy.

In October 2024, another VA examiner reached the same conclusion. The October 2024 VA examiner attributed the Veteran's right thigh symptoms, including the sensation of muscle spasms and fasciculations, to femoral nerve radiculopathy. This examiner went on to provide a favorable medical opinion in February 2025.

According to the February 2025 VA medical opinion, the Veteran's currently diagnosed right femoral radiculopathy is a "a direct complication and progression" of his service-connected thoracolumbar spine disability. The VA examiner explained that the service-connected disability has resulted in encroachment or impingement of the femoral nerve and subsequent radiculopathy symptoms.

The Board finds the VA examiner's opinion highly probative because it contains "factually accurate, fully articulated, sound reasoning" linking the Veteran's right femoral radiculopathy to the service-connected thoracolumbar disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion was based on a review of the Veteran's personal medical history, including his statements about his subjective symptoms.

The Veteran has already established service-connection for right lower extremity radiculopathy, which is rated under the criteria for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In other words, the currently service-connected radiculopathy is sciatic nerve radiculopathy. The femoral nerve radiculopathy, though, is not yet service-connected.

So, resolving any reasonable doubt in his favor, the Board finds that the Veteran's right femoral radiculopathy (i.e., right hip disability) is the result of his service-connected thoracolumbar spine disability Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Service connection is granted.

2. Service connection for right knee degenerative arthritis

The Veteran also attributes his right knee problems to the service-connected back disability and lower extremity radiculopathy. The Board finds that secondary service connection is warranted.

The Board remanded the right knee claim for a VA examination and medical opinions. The January 2024 VA examiner diagnosed the Veteran with right knee osteoarthritis. The Veteran reported that the onset of this disability was in 2016. He told the VA examiner his service-connected back disability had worsened over time, he began to limp, and he then gradually developed right knee pain.

The January 2024 VA examiner determined that the Veteran's right knee disability was less likely than not proximately due to, the result of, or aggravated by his service-connected thoracolumbar spine disability. Essentially, the examiner reasoned that they were "two unrelated conditions."

The AOJ obtained addendum medical opinions for the right knee in March 2025. The March 2025 VA examiner determined that the Veteran's right knee disability was less likely than not incurred in or caused by service, or proximately due to or the result of the service-connected thoracolumbar spine disability and lower extremity radiculopathy. This examiner reasoned that the reported onset of right knee trouble was in 2016, an x-ray first revealed arthritic changes in 2012, and both of these events were well after separation from service in 1988. Further, the VA examiner explained that while lumbar spine conditions can influence lower limb mechanics, they do not directly cause degenerative arthritis in the knee. The examiner pointed out that the development of osteoarthritis is "primarily driven by intrinsic joint factors and systemic risk factors, rather than compensatory movement patterns alone."

However, the March 2025 VA examiner also provided a favorable opinion regarding aggravation. The examiner determined that the Veteran's right knee arthritis was at least as likely as not aggravated by the service-connected thoracolumbar spine disability and lower extremity radicul
2016, an x-ray first revealed arthritic changes in 2012, and both of these events were well after separation from service in 1988. Further, the VA examiner explained that while lumbar spine conditions can influence lower limb mechanics, they do not directly cause degenerative arthritis in the knee. The examiner pointed out that the development of osteoarthritis is "primarily driven by intrinsic joint factors and systemic risk factors, rather than compensatory movement patterns alone."

However, the March 2025 VA examiner also provided a favorable opinion regarding aggravation. The examiner determined that the Veteran's right knee arthritis was at least as likely as not aggravated by the service-connected thoracolumbar spine disability and lower extremity radiculopathy. Here, the examiner reasoned that lumbar strain and thoracolumbar degenerative arthritis, along with bilateral lower extremity radiculopathy, can lead to compensatory mechanics that increase stress on the right knee, thereby aggravating existing degenerative arthritis. Citing medical literature, the examiner explained that this is due altered biomechanics, increased joint load, muscle imbalances, and chronic inflammation.

The Board finds the VA examiner's opinion highly probative because it contains "factually accurate, fully articulated, sound reasoning" for the conclusion that the Veteran's service-connected disabilities aggravated his right knee degenerative arthritis. Nieves-Rodriguez, 22 Vet. App. at 304. This opinion was based on a review of the Veteran's personal medical history, as well as pertinent medical literature. It carries at least as much probative weight as the unfavorable VA opinion from January 2024.

So, resolving any reasonable doubt in his favor, the Board finds that the Veteran's right knee degenerative arthritis was aggravated by his service-connected thoracolumbar spine disability and lower extremity radiculopathy. Lynch, 21 F.4th at 781-82. Service connection is granted.

3. Service connection for a left hip disability

The Veteran also attributes his left hip problems to the service-connected back disability and lower extremity radiculopathy. After careful review, the Board finds that service connection is not warranted because there is no current disability apart from left sciatic nerve radiculopathy, which is already service-connected.

The Board remanded the left hip claim for a VA examination and medical opinions as well.

At the January 2024 VA exam, the Veteran reported a "constant dull aching pain" in his left hip. However, the physical examination was normal, including range of motion testing. The January 2024 VA examiner found that the Veteran did not a have current musculoskeletal disability of the left hip or thigh. Instead, the examiner determined that the Veteran's reported symptoms were consistent with left lower extremity radiculopathy.

The October 2024 VA examiner reached the same conclusion, diagnosing the Veteran with left sciatic radiculopathy. The examiner attributed the reported symptoms, including lateral left hip pain along with posterior lateral thigh/gluteal region, to this sciatic radiculopathy. The examiner went on to opine that the left sciatic radiculopathy was "a direct complication and progression" of his service-connected thoracolumbar spine disability. The examiner explained that the service-connected disability has resulted in encroachment or impingement of the sciatic nerve and subsequent radiculopathy symptoms.

The Board finds the January 2024 and October 2024 VA examinations adequate to decide the claim. The examiners interviewed the Veteran about his medical history and current symptoms, reviewed his medical records, and performed appropriate testing to determine the nature and etiology of his claimed left hip disability. The examiners adequately explained that the Veteran's reported symptoms are attributable to left sciatic radiculopathy. See e.g., See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion).

The Veteran has already established service-connection for left lower extremity radiculopathy. This disability is rated at 20 percent for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In other words, his left sciatic nerve radiculopathy is already service-connected.

The evidence persuasively shows that the Veteran's left hip symptoms are due to left sciatic radiculopathy, which is already service-connected. The evidence is persuasively against finding that he has another separate and distinct left hip disability. As such, the benefit-of-the-doubt rule is not applicable in this instance. Lynch, 21 F.4th at 781-82. Service connection is denied.
lower extremity radiculopathy. This disability is rated at 20 percent for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In other words, his left sciatic nerve radiculopathy is already service-connected.

4. Service connection for keloid scarring on face

The Veteran attributes the keloid scarring on his face to contaminated water exposure at Camp Lejeune. After careful review, the Board finds that he is not entitled to service connection.

Service records confirm that the Veteran served at Camp Lejeune for at least 90 days, so he is presumed to have been exposed to contaminants in the water supply. These contaminants include perchloroethylene (PCE), trichloroethylene (TCE), vinyl chloride, and benzene. See January 2024 Toxic Exposure Risk Activity (TERA) Memorandum. However, presumptive service connection is not available in this case because keloid scarring is not one of the specific disabilities associated with exposure to Camp Lejeune's contaminated water. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The Veteran must therefore establish direct service connection by showing proof of causation through competent evidence. Combee, 34 F.3d at 1042.

The Veteran also had other toxic exposures during service in addition to water contaminants. Based on his military occupational specialty (mortarman), the AOJ found evidence of exposure to organic pollutants, like polyaromatic hydrocarbons (PAH) and polychlorinated biphenyls (PCB), as well as hexachlorocyclohexane (HCH), dichlorodiphenyltrichloroethane (DDT), and hexachlorobenzene (HCB). The AOJ also noted exposures to chromium, copper, zinc, lead, and cadmium from weapons and explosive discharge. See January 2024 TERA Memorandum.

The evidence of record fails to demonstrate the Veteran had keloids on his face during service. Service records document treatment for skin issues in 1987. He complained of irritation caused by a "cyst" or papule on his inner thigh, which he'd had for 21 days. He also complained of two "hair bumps" on his chest, which he'd had for 5 months. The assessment at the time was "follicular lesions."

At a September 2019 VA examination, the Veteran reported that his skin problems started in approximately 1986. He stated that his condition "began as a hair bump and continued to grow and [multiply]." This history is generally consistent with the information in his service treatment records. Notably, though, he did not tell the VA examiner that he had any skin problems affecting his face while on active duty.

The 2019 VA examiner noted the presence of keloid scarring on the Veteran's face, axillary areas, and chest. The examiner indicated that these scars were less likely than not incurred in or caused by service because keloids are "secondary to skin trauma."

In November 2023, the Board found the 2019 VA medical opinion inadequate to decide the claim. The Board explained that the examiner had failed to address the Veteran's contention that the keloids on his face were due to exposure to Camp Lejeune's contaminated water. As such, the Board instructed the AOJ to obtain an addendum opinion on remand.

In December 2023, a VA examiner reviewed the claims file and provided an addendum. The 2023 VA examiner found it less likely than not that the keloid scarring of the Veteran's face was due to service. Essentially, the examiner attributed the disability to a post-service event, illness or injury, such as genetic predisposition, facial trauma or infection. However, the examiner did not adequately explain the medical basis for this conclusion. See Monzingo, 26 Vet. App. at 105.

In June 2024, the Veteran received another in-person VA examination. There, he clarified that the onset of the keloids on his face was in the 1990s-i.e., after separation from service. The June 2024 VA examiner opined that the keloid scarring was less likely than not caused by the Veteran's participation in a toxic exposure risk activity (TERA).
of the Veteran's face was due to service. Essentially, the examiner attributed the disability to a post-service event, illness or injury, such as genetic predisposition, facial trauma or infection. However, the examiner did not adequately explain the medical basis for this conclusion. See Monzingo, 26 Vet. App. at 105.

The AOJ obtained another VA medical opinion in October 2024. This opinion also reflects that the that the keloid scarring on the Veteran's face was less likely than not caused by his participation in a TERA. The October 2024 VA examiner discussed the Veteran's history of exposure to the contaminated water supply at Camp Lejeune, as well as the other toxic exposures noted in the AOJ's January 2024 TERA memorandum. The examiner explained that there is no medical or scientific evidence of a relationship between the development of keloids and the TERA. The examiner reviewed the medical literature. However, the examiner determined that the literature did not reveal a medical nexus between the Veteran's exposures and keloid scarring. The examiner also reviewed and considered the Veteran's lay statements, but indicated that this lay evidence did not support a nexus either.

The Board finds the October 2024 VA medical opinion highly probative because it contains "factually accurate, fully articulated, sound reasoning" for the conclusion that the Veteran's facial keloid scarring is not due to toxic exposures in service. Nieves-Rodriguez, 22 Vet. App. at 304. This opinion was based on a review of the Veteran's personal medical history, as well as medical literature.

The record contains no competent evidence that contradicts the October 2024 VA opinion. The Veteran is competent to describe the onset and history of his skin problems. In this case, he has reported that he developed keloids on his face in the 1990s, after separation from service. However, he is not qualified through education, training, or experience to identify toxic exposures as the cause of those keloids. That requires a complex medical determination beyond the competence of a layperson. See Jandreau, 492 F.3d at1376-77; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In other words, his unsupported lay statements are not enough to establish a nexus in this case.

In sum, the evidence is persuasively against finding that the keloid scarring on the Veteran's face is the result of service, to include exposure to contaminated water at Camp Lejeune and other toxic exposures. The benefit-of-the-doubt rule is not applicable. Lynch, 21 F.4th at 781-82. Service connection is denied.

Restoration of Prior Rating for Thoracolumbar Spine Disability

The Veteran seeks a higher rating for his service-connected thoracolumbar spine disability. During the course of his appeal, the AOJ reduced that rating from 40 percent to 20 percent, effective June 29, 2022. See December 2022 Rating Decision. He disagrees with the rating reduction.

The propriety of the rating reduction is within the scope of the Veteran's appeal here. The Board finds that the reduction was improper, so the Veteran's original 40 rating must be restored.

VA must observe certain procedural and substantive requirements before reducing or discontinuing compensation payments for service-connected disabilities. Otherwise, the rating reduction will be considered "void ab initio" and the prior rating will be restored. Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Among other things, VA must determine: (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough and adequate examinations; and (3) whether any improvement actually reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); see also Faust v. West, 13 Vet. App. 342, 349 (
VA must determine: (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough and adequate examinations; and (3) whether any improvement actually reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); see also Faust v. West, 13 Vet. App. 342, 349 (2000).

In this case, the evidence fails to demonstrate actual improvement in the Veteran's ability to function under the ordinary conditions of life and work with respect to his back disability.

The Veteran's 40 percent rating was in effect from January 18, 2017, until June 29, 2022. The AOJ assigned the 40 percent rating based on a January 2017 VA examination. According to that exam, the Veteran's back disability caused "significant restrictions" on his ability to perform various activities, such as lifting, bending over, and walking without taking a break. Range of motion testing exhibited pain on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The 2017 VA examiner found that the back disability impacted the Veteran's ability to work, in that he had difficulty with prolonged walking, sitting, driving, lifting, and twisting.

The AOJ reduced the Veteran's rating based on a June 2022 VA examination. His reported symptoms, at that time, included stiffness, soreness, and limited mobility. Range of motion testing, again, exhibited pain on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Like the previous examiner, the 2022 VA examiner found that the back disability impacts the Veteran's ability to perform occupational tasks, such as prolonged walking and standing.

The two VA examinations above describe similar symptoms and functional impairment. Significantly, the June 2022 VA exam shows that the Veteran's back problems continued to impact his ability to work, in that he continued to have difficulty with job tasks that involved activities like prolonged walking. The exam did not reveal an actual improvement in his overall disability picture.

The AOJ cited no other evidence of actual improvement under the ordinary conditions of life and work. The Board finds no such evidence in the record.

Accordingly, the Board finds that the rating reduction was improper and must be set aside. The prior 40 percent rating is restored, effective June 29, 2022.

Higher Ratings for Thoracolumbar Spine & Mental Disorder

As noted above, the Veteran seeks a higher rating for his thoracolumbar spine disability. He also seeks a higher rating for service-connected unspecified depressive disorder with insomnia.

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected symptoms would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The potential for staged ratings "accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process." Id.

1. Thoracolumbar spine disability rating

The Veteran's back disability is rated at 10 percent prior to January 18, 2017, and at 40 percent rating for the entire period thereafter.

Neck and back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a.

Under the General Formula, a 10 percent rating is warranted where forward flexion of the cervical spine is greater
a disability while the claim works its way through the adjudication process." Id.

1. Thoracolumbar spine disability rating

The Veteran's back disability is rated at 10 percent prior to January 18, 2017, and at 40 percent rating for the entire period thereafter.

Under the General Formula, a 10 percent rating is warranted where forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; where combined range of motion is combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a.

A 20 percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; where the combined range of motion of the cervical spine is not greater than 170 degrees; or where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 30 percent rating is warranted for where forward flexion of the cervical spine is limited to 15 degrees or less; or for favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id.

Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id., General Formula at Note 1.

When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

Additionally, under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Mitchell, 25 Vet. App. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). The trigger for the minimum compensable rating under 38 C.F.R. § 4.59 is "painful motion" of joints or "actually painful" joints. Petitti v. McDonald, 27 Vet. App. 415, 425 (2015).

Ankylosis is generally defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). For VA purposes, "unfavorable ankylosis" means that 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5.

VA may consider a rating under the General Formula based on ankylosis "if a claimant's functional loss is consistent with that contemplated by ankylosis-in other words, if it is the functional equivalent of ankylosis." Chavis v. McDonough, 34 Vet. App. 1, 11 (2021).

The IVDS Formula provides that a 10 percent rating
costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5.

The IVDS Formula provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., IVDS Formula at Note 1.

Prior to January 18, 2017

After careful review, the Board finds that the Veteran is entitled to a 40 percent rating, under the General Formula, for the period prior to January 18, 2017.

The Veteran received VA examinations to assess the severity of his disability in January 2015 and May 2016. However, the VA examiners did not adequately address the extent of the Veteran's functional impairment due to pain and other factors with flare-ups and/or repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The January 2015 VA examiner indicated that the Veteran's back pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. However, the examiner was unable to describe the additional limitation in terms of range of motion because the Veteran "could not replicate a flare-up at the time of the exam." Similarly, the May 2016 VA examiner found it "[im]possible to state, without undue speculation," whether pain weakness, fatigability or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. This examiner asserted that the Veteran would need to be examined after repeated use over time to determine functional impairment.

In both instances, the VA examiners failed to express an opinion on flare-ups/repeated use over time based on a "general aversion to offering an opinion on issues not directly observed." Sharp, 29 Vet. App. at 33. Consequently, the 2015 and 2016 VA exams are not wholly adequate for rating purposes.

In November 2023, the Board requested a retrospective medical opinion for the period prior to January 18, 2017. The AOJ obtained one in March 2025.

The March 2025 VA examiner reviewed the claims file, including various exam reports and the Veteran's lay statements. The examiner indicated that the Veteran's estimated range of motion, after repeated use over time, would have been 20 degrees on forward flexion, 5 degrees on extension, 15 degrees on right lateral flexion, 20 degrees on left lateral flexion, 25 degrees on right lateral rotation, and 25 degrees on left lateral rotation. As for flare-ups, the examiner indicated that the estimated range of motion would have been 15 degrees on flexion, 0 degrees on extension, 10 degrees on right lateral flexion, 15 degrees on left lateral flexion, 20 degrees on right lateral rotation, and 20 degrees on left lateral rotation.

The Board finds the March 2025 VA retrospective opinion adequate to decide the claim. This opinion supports the award of a 40 percent rating, but no higher, prior to January 18, 2017. The opinion does not demonstrate that the Veteran had unfavorable ankylosis of the spine, or its functional equivalent, during this period. The Veteran's estimated extension with flare-ups was 0 degrees-i.e., fixation in a neutral position. This limitation of extension is consistent with favorable (not unfavorable) ankylosis. 38 C.F.R
, 10 degrees on right lateral flexion, 15 degrees on left lateral flexion, 20 degrees on right lateral rotation, and 20 degrees on left lateral rotation.

The Board finds the March 2025 VA retrospective opinion adequate to decide the claim. This opinion supports the award of a 40 percent rating, but no higher, prior to January 18, 2017. The opinion does not demonstrate that the Veteran had unfavorable ankylosis of the spine, or its functional equivalent, during this period. The Veteran's estimated extension with flare-ups was 0 degrees-i.e., fixation in a neutral position. This limitation of extension is consistent with favorable (not unfavorable) ankylosis. 38 C.F.R. § 4.71a, General Formula at Note 5. Moreover, the record does not show that the Veteran's back problems resulted in any of the specific complications of unfavorable ankylosis listed at Note 5. Id.

The Board has also considered whether the Veteran is entitled to a rating above 40 percent under the IVDS Formula. The January 2015 and May 2016 VA examiners found that the Veteran did not have IVDS of the thoracolumbar spine. On the other hand, a January 2017 VA examiner found that there was IVDS. However, that examiner also found that the Veteran did not have any incapacitating episodes, as defined by Note 1, during the previous 12 months. In any event, the record does not document incapacitating episodes of IVDS totaling at least 6 weeks over a 12-month period, as required for a rating above 40 percent. The IVDS Formula is not applicable here.

So, resolving any reasonable doubt in his favor, the Board finds that the Veteran's thoracolumbar spine disability limited forward flexion to approximately 15 degrees prior to January 18, 2017. Lynch, 21 F.4th at 781-82. A 40 percent rating for this period is granted.

From January 18, 2017

After careful review, the Board finds that the Veteran is not entitled to a rating above 40 percent for the period since January 18, 2017.

To obtain a rating higher than 40 percent, the evidence must show that the Veteran had unfavorable ankylosis (or its functional equivalent), or that he had incapacitating episodes of IVDS totaling at least 6 weeks over a 12-month period. The most probative evidence demonstrates that these criteria are not met. This evidence comes from a series of VA examinations.

The Veteran received VA exams for his back in January 2017, December 2020, June 2022, and November 2022. In each instance, the VA examiners found that the Veteran did not have ankylosis of the thoracolumbar spine. Range of motion testing confirmed that the spine was not fixed in either flexion or extension. The Veteran's estimated range of motion during flare-ups and/or with repeated use over time varied was not consistent with unfavorable ankylosis either. He also had none of the specific complications of unfavorable ankylosis listed at Note 5 to the General Formula. Moreover, there no evidence of incapacitating episodes of IVDS, as defined by Note 1 to the IVDS Formula.

The Board finds the January 2017, December 2020, June 2022, and November 2022 VA exams adequate for rating purposes. The VA examiners interviewed the Veteran about his symptoms and medical history, reviewed his medical records, performed the required testing (or explained why certain testing could not be performed), and reported all signs and symptoms necessary for evaluating the back disability under the rating criteria. Notably, the VA examiners adequately addressed the extent of the Veteran's functional impairment due to pain and other factors with flare-ups and/or repeated use over time.

The Veteran does not appear to argue otherwise. He does not assert that his back disability resulted in unfavorable ankylosis or the functional equivalent of ankylosis. Nor does not he assert that he had incapacitating episodes of IVDS, let alone incapacitating episodes totaling at least 6 weeks over a 12-month period.

In sum, the evidence is persuasively against finding that the Veteran had unfavorable ankylosis, or its functional equivalent, during the period since January 18, 2017. This is the case even when considering his lay statements regarding functional loss with repeated use over time and during flare-ups. The evidence is also persuasively against finding that he experienced incapacitating episodes of IVDS totaling at least 6 weeks over a 12-month period. There is no reasonable doubt to resolve in his favor here. Lynch, 21 F.4th at 781-82. A rating above 40 percent,
itating episodes of IVDS, let alone incapacitating episodes totaling at least 6 weeks over a 12-month period.

2. Mental disorder rating

The Veteran's unspecified depressive disorder with insomnia is rated at 30 percent prior to July 6, 2020, and at 70 percent thereafter.

Under the General Rating Formula for Mental Disorders (General Formula), a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130.

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id.

A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id.

In applying 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 Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability ratings. 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, 114-118 (Fed. Cir. 2013).

Prior to July 6, 2020

After careful review, the Board finds that the Veteran is entitled to a 50 percent rating for the period prior to July 6, 2020.

The most probative evidence for this period shows that the Veteran's mental disorder symptoms most closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated occupational and social impairment with reduced reliability and productivity. This evidence comes from VA examinations performed in March 2016 and April 2017.

The March 2016 VA examiner found that the Veteran's symptoms included depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran also reported feeling of guilt and low self-worth. The examiner noted that the Veteran's symptoms resulted in irritability and fatigue. The Veteran stated that he had been married for 32 years. However, he described his marriage as "poor," stating he was "no longer emotionally connected" to his spouse. On the other hand, he described his relationship with his siblings as "fine" and his relationship with his
of impairment that most closely approximated occupational and social impairment with reduced reliability and productivity. This evidence comes from VA examinations performed in March 2016 and April 2017.

The March 2016 VA examiner found that the Veteran's symptoms included depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran also reported feeling of guilt and low self-worth. The examiner noted that the Veteran's symptoms resulted in irritability and fatigue. The Veteran stated that he had been married for 32 years. However, he described his marriage as "poor," stating he was "no longer emotionally connected" to his spouse. On the other hand, he described his relationship with his siblings as "fine" and his relationship with his children and grandchildren as "good." As for work, he reported that he had been out on medical leave due to his back problems and he did not know if he would be able to go back to work.

Overall, the March 2016 VA examiner found that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The April 2017 VA examiner also found that the Veteran's symptoms included depressed mood and chronic sleep impairment. The examiner noted that depression affects his mood and motivation. Additionally, the Veteran reported having nightmares "every night," difficulties with his memory, and irritability and anger. He reported that he was irritable "a good bit," yelling at his wife and grandsons. He also stated that he would withdraw to avoid expressing his anger. He remained on longterm disability leave from work due to his back problems. He indicated that his "identity has been affected because he cannot work."

Like the previous examiner, the April 2017 VA examiner found that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The Board finds the VA examinations above adequate for rating purposes. The VA examiners interviewed the Veteran, reviewed the electronic claims file (including medical records), and reported signs and symptoms necessary for evaluating his mental disorder under the rating criteria.

Still, the Board must conduct its own "holistic analysis" regarding the Veteran's symptoms and level of occupational and social impairment. Bankhead, 29 Vet. App. at 22; see Vazquez-Claudio, 713 F.3d at 114-118. The evidence here shows that the Veteran had symptoms like disturbances of motivation and mood, which are associated the 50 percent rating criteria. His other symptoms included depressed mood, chronic sleep impairment with nightmares "every night," fatigue, guilt, low self-worth, memory difficulties, and irritability and anger. These symptoms affected his social functioning, including his marriage, which he described as poor.

Accordingly, the Board finds that the Veteran's mental disorder symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity during the period prior to June 6, 2020. Lynch, 21 F.4th at 781-82. A 50 percent rating is granted.

From July 6, 2020

After careful review, the Board finds that the Veteran is not entitled to a 70 percent rating for the period since July 6, 2020.

For this period, the most probative evidence here shows that the Veteran's mental disorder symptoms most closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated occupational and social impairment with deficiencies in most areas. Again, the most probative evidence comes from a series of VA examinations.

The Veteran received VA mental disorder exams in July 2020, December 2023, and March 2025.

The July 2020 VA examiner found that the Veteran had the following symptoms: depressed mood; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; and neglect of personal appearance and hygiene. The examiner indicated that the Veteran remained married and he had retired in 2018, following a two-year period of disability leave. Overall, the examiner found that the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas.

The December 2023 VA examiner found that the Veteran's symptoms include depressed mood, anxiety, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran described his 38-year marriage as "up and down" because of his attitude and his inability to "cope [and]get along." He stated that he is "somewhat close" to his children and "kinda" gets along with them. He reported talking to
personal appearance and hygiene. The examiner indicated that the Veteran remained married and he had retired in 2018, following a two-year period of disability leave. Overall, the examiner found that the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas.

The December 2023 VA examiner found that the Veteran's symptoms include depressed mood, anxiety, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran described his 38-year marriage as "up and down" because of his attitude and his inability to "cope [and]get along." He stated that he is "somewhat close" to his children and "kinda" gets along with them. He reported talking to his siblings "sometimes." He also reported having a few local friends. He indicated that he last worked in 2016. The examiner summarized the Veteran's level of impairment as occupational and social impairment with reduced reliability and productivity.

Most recently, the March 2025 VA examiner found that the Veteran's symptoms include the following: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Additionally, the Veteran described hypervigilant symptoms and "hearing voices or music playing at 2 or 3 in the morning outside but there is nothing there." However, he denied seeing or hearing things at night. The examiner explained that these are likely hypnagogic hallucinations, which take place as someone is falling asleep and "are not typically considered problematic."

The Veteran again described his marriage as "having ups and downs." With respect to his social life, he stated that he attends church "every so often, maybe once a month." He also noted that he has some neighbors he sees now and then. He reported no changes in his employment status since the 2023 VA exam.

Like the previous examiner, the March 2025 VA examiner summarized the Veteran's level of impairment as occupational and social impairment with reduced reliability and productivity.

The Board finds the VA examinations above adequate for rating purposes, as the examiners interviewed the Veteran, reviewed the electronic claims file (including medical records), and reported signs and symptoms necessary for evaluating his mental disorder under the rating criteria.

In sum, the evidence shows that the Veteran exhibited symptoms associated with a 70 percent rating, such as near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, and neglect of personal appearance and hygiene. He also reported one symptom contemplated by the 100 percent criteria: persistent delusions or hallucinations. Nevertheless, the evidence does not demonstrate that his symptoms caused total (or approximately total) occupational and social impairment. Significantly, the Veteran has remained married for approximately 40 years, despite his marital difficulties. He maintains a "somewhat close" relationship with his children. He also reported having a few friends and participating in social activities like going to church. These facts weigh heavily against finding that the Veteran's level of impairment was total or approximately total.

The Board therefore finds that the Veteran's mental disorder symptoms more nearly approximated occupational and social impairment with deficiencies in most areas during the period since July 6, 2020. The evidence is persuasively against a finding of total (or approximately total) occupational and social impairment, so there is no reasonable doubt to resolve in his favor. Lynch, 21 F.4th at 781-82. A rating above 70 percent is denied.

TDIU, Dependents' Educational Assistance, & SMC

Finally, the Board will address whether the Veteran is entitled to an earlier effective date for a TDIU, plus the ancillary benefits of Dependents' Educational Assistance eligibility and SMC.

1. TDIU

The Veteran maintains he became unable to work, due to his service-connected back problems, in January 2016.

On remand, the AOJ granted a TDIU, effective September 26, 2016. However, the Veteran raised the issue of unemployability prior that date, in connection with other claims on appeal here. See e.g., March 2016 VA Form 21-4138, Statement in Support of Claim. Because the AOJ's grant does not cover for the entire rating period on review, the TDIU issue remains on appeal. Payne, 31 Vet. App. 373; Harper, 30?Vet. App. 356. The Board must now decide whether the Veteran is entitled to an earlier effective date.

As explained below, the Board finds that the Veteran is entitled to a TDIU, effective January 30, 2016. That is one day after the date he last worked. The Board further finds that the TDIU is warranted based on his service-connected thoracolumbar
appeal here. See e.g., March 2016 VA Form 21-4138, Statement in Support of Claim. Because the AOJ's grant does not cover for the entire rating period on review, the TDIU issue remains on appeal. Payne, 31 Vet. App. 373; Harper, 30?Vet. App. 356. The Board must now decide whether the Veteran is entitled to an earlier effective date.

VA will grant a TDIU, when the schedular rating is less than total, if the evidence shows that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A schedular TDIU is available where: there is only one service-connected disability, and it is rated at 60 percent or more; or there are two or more disabilities, with at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities or of one or both lower extremities, for example, will be considered "one disability" for TDIU purposes. Id. § 4.16(a)(1).

"Marginal employment" is not considered substantially gainful employment. This generally means that a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id.

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 term "employment in a protected environment" means "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." Labruscas v. McDonough, 37 Vet. App. 111, 113 (2024).

The noneconomic component of the TDIU analysis requires a determination as to a veteran's ability to secure and follow such employment. Ray, 31 Vet. App. at 73. Attention should be given to a veteran's history, education, skills, and training; whether they have the physical ability (both exertional and nonexertional) 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 they have 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 a TDIU is an individualized determination, specific to a veteran's particular circumstances. 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).

In this case, the Veteran met the basic percentage requirements for TDIU prior to September 26, 2016. As of January 12, 2016, his combined disability rating was at least 70 percent or more, and he had at least one disability rated at 40 percent or more. Moreover, the evidence reasonably shows that the service-connected back disability has rendered him unemployable since January 30, 2016.

In March 2016, the Veteran began receiving vocational rehabilitation and employment (VR&E) counseling through VA. At that time, he was employed as
, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In March 2016, the Veteran began receiving vocational rehabilitation and employment (VR&E) counseling through VA. At that time, he was employed as a cable splicer for an electric utility. However, he reported that he had been out on Family and Medical Leave Act (FMLA) leave since January 2016 due to back problems.

According to the March 2016 VR&E counseling records, the Veteran's job was primarily physical in nature and involved climbing ladders, standing, and bending for prolonged periods. The VR&E counselor indicated that the service-connected back disability "makes a substantial contribution to the impairment of employability" and was a "major consideration[] in preventing him from gaining and sustaining suitable employment." The counselor noted functional limitations such as difficulty performing physically demanding work, and difficulty with standing, sitting, lifting, bending, balancing, reaching, climbing, and pushing and pulling heavy objects. The counselor also noted that the Veteran had a high school diploma, but no post-secondary education or other educational achievements.

As discussed above, the Veteran also received a VA mental disorders examination in March 2016. He told the VA examiner that he had worked for the electric utility for 17 years, but he had to go on medical leave in February of that year due to back problems. He stated that he was not allowed to go back to work due to the medications he had to take, he did not know "if he will be able to go back to work," and he spent his days going to medical appointments.

In May 2016, a VA examiner assessed the severity of the service-connected back disability. The Veteran again stated that he had been out of work since January due to back pain. He reported that he was unable to bend or climb for work at the electric utility any longer. The May 2016 VA examiner found that the back disability impacted his ability to work, including bending, climbing, and lifting heavy objects. The examiner also noted that the he had been under the care of neurosurgeon for work-related back pain since January 30, 2016.

Subsequent VA examiners made similar findings about the functional impact of the Veteran's back disability. For example, the January 2017 VA examiner found that the disability caused difficulty with prolonged walking, sitting, driving, lifting, twisting, and climbing. The December 2020 VA examiner found that the disability would impact the Veteran's ability to perform physically strenuous jobs, including jobs requiring heavy lifting, climbing, repeated bending or squatting, and prolonged walking.

In August 2017, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability. He indicated that the service-connected back disability prevented him from securing or following any substantially gainful occupation. He indicated that he last worked fulltime, and became too disabled to work, in January 2016. He stated that he was "currently on longterm disability leave" from the electric utility, where he had been employed since 1999.

In April 2020, a representative from the electric utility completed a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. According to the VA Form 21-4192, the Veteran's employment had not terminated. The electric utility representative stated that the Veteran was on longterm disability leave, effective July 29, 2016. However, the representative also indicated that the Veteran last worked on January 29, 2016.

More recently, at the May 2023 Board hearing, the Veteran testified that he had not worked since January 2016. He testified that he was "forced to go on FMLA long term disability [leave.]" He stated that it was "mainly the back" that contributed to his leaving the power company. He indicated that his doctors didn't want him climbing, kneeling and "being in the air" at work. Additionally, he testified that he had not been trained in any type of sedentary work, such as office work.

After the hearing, the Veteran submitted another statement in support of the TDIU claim. See August 2023 VA Form 21-4138, Statement in Support of Claim. He noted that the Social Security Administration found him to be disabled due to
Veteran testified that he had not worked since January 2016. He testified that he was "forced to go on FMLA long term disability [leave.]" He stated that it was "mainly the back" that contributed to his leaving the power company. He indicated that his doctors didn't want him climbing, kneeling and "being in the air" at work. Additionally, he testified that he had not been trained in any type of sedentary work, such as office work.

Eventually, the AOJ granted the TDIU, effective September 26, 2016. The AOJ explained that this effective date was "the date after which [the Veteran was] found, by the Social Security Administration, to have not engaged in substantial gainful activity[.]" May 2025 Rating Decision.

The evidence above, however, makes clear that the Veteran became too disabled to work before September 2016. He has consistently reported that he went on FMLA and/or other longterm disability leave, due to his back problems, in January 2016. Contemporaneous records, including the March 2016 VR&E counseling notes, support that assertion. The April 2020 VA Form 21-4192 also confirms that his last day of work was on January 29, 2016. Furthermore, multiple VA examiners have found that the back disability impacts the Veteran's ability to work, including his ability to perform the specific types of physical tasks required of a cable splicer.

Resolving any reasonable doubt in his favor, the Board therefore finds that the Veteran, as of January 30, 2016, was unable to secure or follow a substantially gainful occupation due to his service-connected thoracolumbar spine disability alone. Lynch, 21 F.4th at 781-82. A TDIU is granted, effective January 30, 2016.

2. Dependents' Educational Assistance

The AOJ also determined that the Veteran met the basic eligibility requirements for Dependents' Educational Assistance, effective September 26, 2016. See May 2025 Rating Decision. The Board finds that he is entitled to an earlier effective date for this benefit as well.

Under 38 C.F.R. § 3.155(d)(2), VA will adjudicate entitlement to ancillary benefits, such as Dependents' Educational Assistance and SMC, that arise as a result of an adjudication decision. A veteran may, but need not, assert entitlement to ancillary benefits at the time the claim is filed. Id.; see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).

Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is available if the following conditions are met: (1) a veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) that veteran has a permanent total service-connected disability; (3) a permanent total service-connected disability was in existence at the date of their death; or (4) they died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021.

As discussed above, the Board has granted a TDIU, effective January 30, 2016. This rating satisfies the "permanent total service-connected disability" requirement for the purposes of 38 U.S.C. Chapter 35, so basic eligibility to Dependents' Educational Assistance is also granted from that date.

3. SMC

The Board finds that the Veteran is also entitled to the ancillary benefit of SMC at the housebound rate, effective January 30, 2016.

SMC at the housebound rate is available when a veteran has a service-connected disability rated as 100 percent, plus an additional service-connected disability or disabilities independently ratable at 60 percent, which are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i)(1).

Again, the Board has granted a TDIU based solely on the Veteran's thoracolumbar spine disability, effective January 30, 2016. This satisfies the requirement of a single disability with a total rating for the purposes of awarding SMC. Bradley v. Peake,
C at the housebound rate is available when a veteran has a service-connected disability rated as 100 percent, plus an additional service-connected disability or disabilities independently ratable at 60 percent, which are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i)(1).

Again, the Board has granted a TDIU based solely on the Veteran's thoracolumbar spine disability, effective January 30, 2016. This satisfies the requirement of a single disability with a total rating for the purposes of awarding SMC. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran's other service-connected disabilities include unspecified depressive disorder with insomnia and tinnitus. These disabilities are cumulatively rated at 60 percent or higher, as of January 30, 2016. They are separate and distinct from his thoracolumbar spine disability, and they involve different anatomical segments and bodily systems. Accordingly, SMC at the housebound rate is granted from that date as well.

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D.Z. Wall, 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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