Case 26002081

MATTHEW W. BLACKWELDER · 2026 · Case ID: 26002081

MIXED

Summary

The veteran, who served from December 1971 to August 1993, appeals the denial of increased ratings for bilateral plantar fasciitis and bilateral lateral plantar nerve entrapment neuropathy, and the effective date for a TDIU. The Board dismissed the appeal for an increased rating for bilateral plantar fasciitis due to the veteran's withdrawal of the issue. For the bilateral lateral plantar nerve entrapment neuropathy claims, the Board denied increased ratings beyond the existing 10 percent for each foot. The Board found that the evidence, including multiple VA examinations and private treatment records, did not demonstrate severe incomplete paralysis of the posterior tibial nerve, which would be required for a higher rating. While the veteran complained of pain and numbness, and some reports mentioned "severe" pain, the Board found these symptoms were primarily sensory and did not meet the criteria for severe incomplete paralysis, especially given consistent findings of 5/5 motor strength and normal reflexes. The Board also noted that the Veteran's bilateral foot conditions, when combined with other service-connected disabilities, did not violate the amputation rule, which caps the combined rating for lower extremity disabilities. Regarding the TDIU claim, the Board found that the Veteran met the criteria for an extra-schedular TDIU. The Veteran last worked in March 2015 due to his service-connected disabilities, and vocational assessments supported his inability to secure substantially gainful employment. The Board granted the TDIU effective September 1, 2015, the day after the Veteran's temporary total 100 percent rating expired, as the issue of TDIU was moot during that period.

Special Benefit

TDIU

Docket No.

17-44 371

Full Decision Text

Citation Nr: 26002081
Decision Date: 02/12/26 Archive Date: 02/12/26

DOCKET NO. 17-44 371
DATE: February 12, 2026

ORDER

The claim for an increased rating for bilateral plantar fasciitis, evaluated as 30 percent disabling prior to August 25, 2020, and as 50 percent disabling thereafter, is dismissed.

A rating in excess of 10 percent for left foot lateral plantar nerve entrapment neuropathy is denied.

A rating in excess of 10 percent for right foot lateral plantar nerve entrapment neuropathy is denied.

An effective date of September 1, 2015 for a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. In a statement received in December 2025, prior to the promulgation of a decision in the appeal, the Veteran's representative stated that the Veteran requested a withdrawal of the issue of entitlement to an increased rating for bilateral plantar fasciitis, evaluated as 30 percent disabling prior to August 25, 2020, and as 50 percent disabling thereafter.

2. Prior to August 25, 2020, the Veteran's left foot lateral plantar nerve entrapment neuropathy is not shown to have been productive of severe incomplete paralysis of the posterior tibial nerve.

3. Prior to August 25, 2020, the Veteran's right foot lateral plantar nerve entrapment neuropathy is not shown to have been productive of severe incomplete paralysis of the posterior tibial nerve.

4. As of August 25, 2020, any additional increase in the ratings for the Veteran's left foot disabilities, or right foot disabilities, would violate the amputation rule of 38 C.F.R. § 4.68.

5. As of September 1, 2015, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal of the issue of entitlement to an increased rating for bilateral plantar fasciitis, evaluated as 30 percent disabling prior to August 25, 2020, and as 50 percent disabling thereafter, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204.

2. Prior to August 25, 2020, the criteria for a rating in excess of 10 percent for left foot lateral plantar nerve entrapment neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8625.

3. Prior to August 25, 2020, the criteria for a rating in excess of 10 percent for right foot lateral plantar nerve entrapment neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8625.

4. As of August 25, 2020, the combined rating for the Veteran's service-connected left foot disabilities is 40 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.68.

5. As of August 25, 2020, the combined rating for the Veteran's service-connected right foot disabilities is 40 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.68.

6. The criteria for an effective date of September 1, 2015, and no earlier, for a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400, 4.16 (b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1971 to August 1993.

In October 2013, the RO denied claims for separate ratings in excess of 10 percent for left foot lateral plantar nerve entrapment neuropathy, and right foot lateral plantar nerve entrapment neuropathy. The Veteran appealed.

A lengthy administrative history followed. Most recently, in November 2023, the
and no earlier, for a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400, 4.16 (b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1971 to August 1993.

A lengthy administrative history followed. Most recently, in November 2023, the Board granted a separate 10 percent rating for bilateral metatarsalgia effective May 25, 2012, and granted a TDIU effective September 25, 2017, and remanded claims for a rating in excess of 10 percent for right foot lateral plantar nerve entrapment neuropathy with plantar spurs, a rating in excess of 10 percent for left foot lateral plantar nerve entrapment neuropathy with plantar spurs, and an increased rating for plantar fasciitis, evaluated as noncompensable prior to February 21, 2020, and as 30 percent disabling thereafter.

In February 2020, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before a Veterans Law Judge who has since retired from the Board. The Veteran, was offered the opportunity for an additional hearing, but he declined.

Dismissal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by either the Veteran or by his authorized representative. 38 C.F.R. § 20.204.

In a statement received in December 2025, the Veteran's representative stated that the Veteran desires to withdraw his appeal as to the claim for an increased rating for bilateral plantar fasciitis, evaluated as 30 percent disabling prior to August 25, 2020, and as 50 percent disabling thereafter. As such, the Board no longer has appellate jurisdiction over this issue, and it can take no further action on this matter. Accordingly, the appeal as to this issue is dismissed.

Increased Rating

1. Rating in excess of 10 percent, left foot and right foot lateral plantar nerve entrapment neuropathy.

In April 1994, the RO granted service connection for lateral plantar nerve entrapment neuropathy with plantar spurs, left foot, and lateral plantar nerve entrapment neuropathy with plantar spurs, right foot, with each disability separately evaluated as 10 percent disabling. There was no appeal and the RO's decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103.

On May 25, 2012, the Veteran filed claims for increased ratings. In October 2013, the RO denied the claims.

During his February 2020 Board hearing, the Veteran testified that his foot condition had progressed in severity since his last examination. He stated that he had severe constant pain, hot and cold sensations, and periodic numbness and tingling.

The Board notes that service connection is currently in effect for disabilities that include bilateral plantar fasciitis, and bilateral metatarsalgia (Morton's disease).

The Veteran's bilateral lateral plantar nerve entrapment neuropathy has been rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 8625. Under Diagnostic Code 8625, a 10 percent rating is assigned for incomplete paralysis of the posterior tibial nerve of a mild and/or moderate severity level. A higher 20 percent evaluation is assigned for severe incomplete paralysis of the posterior tibial nerve.

With regard to the definitions in the relevant diagnostic codes, the Board may make factual findings based on evidence such as dictionaries. Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009). In Johnson v. Wilkie, 30 Vet. App. 245, 254 (2018) the U.S. Court of Appeals for Veterans Claims (Court) held that the Board must provide a standard for comparing and assessing the terms in DC 5257 that allows for review by the Court, and that allows a
ibial nerve of a mild and/or moderate severity level. A higher 20 percent evaluation is assigned for severe incomplete paralysis of the posterior tibial nerve.

With regard to the definitions in the relevant diagnostic codes, the Board may make factual findings based on evidence such as dictionaries. Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009). In Johnson v. Wilkie, 30 Vet. App. 245, 254 (2018) the U.S. Court of Appeals for Veterans Claims (Court) held that the Board must provide a standard for comparing and assessing the terms in DC 5257 that allows for review by the Court, and that allows a veteran to assess what his or her evidence must demonstrate.

Interpretation of Johnson must be tempered with the structure of DC 5284 and the manner in it operates, and the capacity of a reasonable man or woman to understand language. Joiner v. Shinseki, 2011 U.S. App. Vet. Claims LEXIS 112 (applying a reasonable person standard to for knowing what was needed to substantiate a claim). Furthermore, it is inappropriate for the Board to read numerical or temporal benchmarks into diagnostic codes that are not within its terms. 38 U.S.C. § 5107(b).

In rating diseases of the peripheral nerves (including the sciatic and femoral nerves), the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38?C.F.R. §?4.124a.

The words "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

Although the regulations do not specifically define the terms "moderate" and "severe," the regulations do provide useful guidance for comparative analysis. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of the nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial regeneration.

The Board considers "moderate" to correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered significantly disabling medically, and/or involving a larger area in nerve distribution. Additionally, moderate can correspond to combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes with or without sensory impairment, graded as medically moderate.

"Severe" is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve.

Prior to August 25, 2020.

The evidence dated during the time period in issue includes VA progress notes dated in 2011 which show that the Veteran reported bilateral foot pain and periodic numbness, but that he denied any weakness or restriction of movement. He was able to walk on his toes and heels. The assessments included obesity.

An August 2013 VA back conditions disability benefits questionnaire (DBQ) notes 5/5 strength of bilateral ankle plantar flexion and dorsiflexion, and bilateral great toe extension. Reflex
those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve.

Prior to August 25, 2020.

An August 2013 VA back conditions disability benefits questionnaire (DBQ) notes 5/5 strength of bilateral ankle plantar flexion and dorsiflexion, and bilateral great toe extension. Reflexes were normal (2+) at the left and right ankle. Sensation at the left and right ankles, and left and right feet and toes (L5), was normal.

An August 2013 VA foot conditions DBQ shows that the Veteran complained of foot pain and numbness in his toes. The Veteran reported that he has pain in the feet upon walking, and that he has trouble with lifting and walking in his job. Over the last year he has lost four days due to his foot condition. Left and right foot X-rays did not show any gross abnormalities. The diagnoses were hallux valgus and calcaneal spur.

VA progress notes dated in 2014 note good toe movement, and a good baseline gait, with distal pain denied by patient throughout.

Private treatment records dated in 2015 show that the Veteran reported numbness in his feet and periodic cold sensations, and a history of back surgery in May 2015. He stated that he lifts fairly sizable refrigeration equipment, up to 400 pounds, at his job, and that he was currently off work. He denied any pain with flexion or extension of his feet. Gait was normal. The joints and extremities appeared normal. There were no gross deficits observed in motor function. Strength in the lower extremities was 5/5. There were atrophic changes in the feet. Reflexes were 2+ (normal). A December 2015 EMG (electromyogram) showed mixed type polyneuropathy of the lower extremities. The diagnoses included obesity. VA progress notes dated in 2015 show complaints of painful feet "all the time."

A December 2016 VA peripheral nerve conditions DBQ shows that the examiner determined that the Veteran has mild bilateral numbness and paresthesias and/or dysesthesias in his lower extremities. The reflexes in his feet and toes were all normal. He did not have any trophic changes. All nerve testing performed on his feet were normal. Strength of left and right ankle plantar flexion and dorsiflexion was 5/5. There was no muscle atrophy. Gait was antalgic, slow and slumped due to bilateral knee pain. The Veteran wears braces on both knees and uses a cane for both back and knee pain.

A December 2016 VA back conditions DBQ shows that strength of left and right ankle plantar flexion, ankle dorsiflexion, and great toe extension was 5/5. Reflexes were normal at the right and left ankles, feet, and toes. See also July 2017 VA back conditions DBQ (same).

VA progress notes dated in 2016 note 5/5 motor strength in the bilateral lower extremities. The Veteran complained of numbness and tingling sensation in both feet. Beginning in 2017, the Veteran was noted to have diabetes mellitus, type 2. He denies any loss of sensation in his lower extremities. In June 2017, a foot screen was normal, to include normal sensation and skin. An October 2017 VA progress note shows that the Veteran reported walking one to two hours two to four times weekly. In May and August 2018, he refused diabetic foot examinations after stating that "everything is ok," and that his feet are fine. Thereafter, he complained of foot numbness, tingling, and pain. On examination, there was no atrophic skin. Protective sensation was absent. Deep tendon reflexes were 0/5 in the left and right ankle. Sensation to sharp and dull stimulus, light touch, and position sense was decreased or present. Muscle strength was 5/5 in the left and right lower extremities. The Veteran was noted to wear custom foot orthotics. The assessments included diabetes with neuropathic manifestation. The Veteran was noted to have pes cavus foot pain, ten hammertoes, a Tail
refused diabetic foot examinations after stating that "everything is ok," and that his feet are fine. Thereafter, he complained of foot numbness, tingling, and pain. On examination, there was no atrophic skin. Protective sensation was absent. Deep tendon reflexes were 0/5 in the left and right ankle. Sensation to sharp and dull stimulus, light touch, and position sense was decreased or present. Muscle strength was 5/5 in the left and right lower extremities. The Veteran was noted to wear custom foot orthotics. The assessments included diabetes with neuropathic manifestation. The Veteran was noted to have pes cavus foot pain, ten hammertoes, a Tailor's bunion, and dermatophytosis. In 2018, he underwent a right hip replacement and was noted to use a rollator walker. He was noted to walk independently from the parking lot to the clinic. In 2019, he reported that his hobbies are wood working, fishing, yard work, and gardening, and that he walks a lot. He was noted to have osteoarthritis of his hips and knees and to use a cane for gait assistance.

The Board finds that the evidence is insufficient to show that the Veteran's service-connected left foot or right foot lateral plantar nerve entrapment neuropathy is shown to have been productive of severe incomplete paralysis of the posterior tibial nerve, and that a rating in excess of 10 percent is not warranted for the left foot or the right foot. The findings in the medical evidence have been discussed. The Veteran has repeatedly been shown to have 5/5 strength in his lower extremities. The December 2016 examiner stated that the diagnosis of bilateral plantar nerve entrapment of the feet was not supported by the examination findings and that the condition would have no functional impact. The VA examiners' conclusions are sufficiently supported by the associated findings. The examination findings are also consistent with the Veteran's noted activity levels and walking abilities in the VA progress notes. With regard to trophic changes, there is one finding of trophic changes in 2015. However, a number of previously and subsequently dated findings show that there are no trophic changes. This evidence therefore does not warrant an increased rating. Finally, to the extent that Mr. Z.F.'s opinions could be read to indicate that he concluded that the Veteran's neuropathy significantly contributed to unemployability, and thus are evidence of severe incomplete paralysis of the posterior tibial nerve in his left or right lower extremity, these opinions are inconsistent with, and are afforded less probative value than, the previously discussed findings. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). Accordingly, the Board finds that the evidence is insufficient to show that the Veteran has severe incomplete paralysis of the posterior tibial nerve in his left or right lower extremity, and that the criteria for a rating in excess of 10 percent have been met for left foot lateral plantar nerve entrapment neuropathy, or right foot lateral plantar nerve entrapment neuropathy, have not been met. The claims must therefore be denied. 38 C.F.R. § 4.124a, DC 8625.

In a December 2025 brief, the Veteran's attorney argued that the evidence showed "severe" incomplete paralysis in both feet, pointing to a September 2014 treatment report which describes the Veteran as having constant numbness and tingling in his feet, as well as an August 2020 VA exam explicitly describes the Veteran as having "severe" intermittent pain in both feet. However, as was explained above the symptoms that the attorney pointed out are wholly sensory, and therefore should be rated as mild or at most moderate under VA regulations. While pain may be described as "severe" this categorization does not mandate a rating of severe, as pain is another sensory symptom. To that end, severe pain might in some instances warrant a moderate rating, rather than a mild rating.

As the evidence persuasively favors a finding that the criteria for increased ratings have not been met, the claims are denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

As of August 25, 2020.

The amputation rule, at 38 C.F.R. § 4.68 states that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. The combined evaluation for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165
, severe pain might in some instances warrant a moderate rating, rather than a mild rating.

As the evidence persuasively favors a finding that the criteria for increased ratings have not been met, the claims are denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

As of August 25, 2020.

As of August 25, 2020, the Veteran is in receipt of a 50 percent rating for bilateral plantar fasciitis, which would be rated as 30 percent disabling for each extremity if rated separately under DC 5276. Combining this with the separate, 10 percent awards for lateral plantar nerve entrapment neuropathy of the left and right foot yields a rating of 40 percent for each foot, which is the maximum contemplated by the amputation rule (30 percent and 10 percent combine to 37 which rounds to 40 percent). See 38 C.F.R. § 4.25. Accordingly, as of August 25, 2020, increased ratings for the Veteran's service-connected left foot or right foot lateral plantar nerve entrapment neuropathy would violate the amputation rule, and are not warranted. See 38 C.F.R. § 4.68; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

2. TDIU effective date prior to September 25, 2017.

A TDIU is currently in effect as of September 25, 2017. The Veteran argues that he has been unable to work since March 2015 due to the combined effects of his service-connected spine, feet and tinnitus conditions, and depressive disorder. See, e.g., October 2023 VA Form 21-8940.

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. In general, the effective date of an award of increased compensation shall be the earliest date for which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o); Harper v. Brown, 10 Vet. App. 125 (1997).

VA laws and regulations provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).

A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000).

VA may assign TDIU where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. TDIU may be assigned on a schedular basis under § 4.16(a) or on an extra-schedular basis under § 4.16(b). Id. The schedular basis requires that certain percentage requirements are met. That is, if the Veteran has one service-connected disability, it must be rated at 60 percent or greater and if the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent
found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. TDIU may be assigned on a schedular basis under § 4.16(a) or on an extra-schedular basis under § 4.16(b). Id. The schedular basis requires that certain percentage requirements are met. That is, if the Veteran has one service-connected disability, it must be rated at 60 percent or greater and if the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a).

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014).

"Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a).

During the time period in issue, service connection was in effect for: major depressive disorder, evaluated as 50 percent disabling, bilateral plantar fasciitis, evaluated as 30 percent disabling, degenerative arthritis with spinal fusion, evaluated as 10 percent disabling (with a temporary total (100 percent) rating from May 4, 2015 to August 31, 2015), lateral plantar nerve entrapment neuropathy, left foot, evaluated as 10 percent disabling, lateral plantar nerve entrapment neuropathy, right foot, evaluated as 10 percent disabling, bilateral metatarsalgia, evaluated as 10 percent disabling, and tinnitus, evaluated as 10 percent disabling, and lumbar scar, evaluated as noncompensable. The Veteran's combined rating is 30 percent effective September 9, 1993, 60 percent effective May 25, 2012, 100 percent from May 4, 2015 to August 31, 2015, 60 percent effective September 1, 2015, and 70 percent effective July 20, 2017.

Prior to July 20, 2017, the Veteran does not meet the percentage requirements of 38 C.F.R. § 4.16 (a) for TDIU. Therefore, the claim for a TDIU must be considered under the criteria of 38 C.F.R. § 4.16 (b).

Ordinarily, VA's Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration.

The sole fact that a claimant is unemployed or has difficulty obtaining employment, as in this case, is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While 38 C
ant is unemployed or has difficulty obtaining employment, as in this case, is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While 38 C.F.R. § 3.321 (b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994).

While Social Security Administration (SSA) decisions regarding unemployability are clearly relevant and should be weighed and evaluated, they are not controlling with respect to VA determinations. Odiorne v. Principi, 3 Vet. App. 456, 461 (1992).

Subsequent to the Board's November 2023 decision, the Court held that the Board may award a TDIU on an extraschedular basis in the first instance without first receiving a decision from the Director of Compensation Service (Director). Witkowski v. Collins, 38 Vet. App. 459 (2025).

On May 25, 2012, the Veteran filed his claims for increased ratings for his service-connected foot disabilities, and a claim for service connection for a back disability. See VA Form 21-526b (Veteran's Supplemental Claim for Compensation). The Board subsequently determined that the issue of entitlement to a TDIU had been raised. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

An application for increased compensation based on unemployability (VA Form 21-8940), received in October 2023, shows that the Veteran indicated that he last worked full time in March 2015, as a delivery driver. Specifically, he indicated that he had worked as a delivery driver for the same employer from 1996 to March 2015. He indicated that he had 12 years of education and training in truck driving. He indicated that he left his last job due to disability.

An August 2013 VA back conditions DBQ shows that the Veteran complained of daily pain and constant flare-ups. He stated that he could not take in heavy loads (washer and dryers) due to his back. On examination, there was no objective evidence of painful motion on extension. Flexion was to 80 degrees with pain. Left and right lateral flexion was to 20 degrees. Left and right lateral rotation was to 30 degrees. There was no additional limitation in range of motion of the thoracolumbar spine (back) following repetitive-use testing. Bilateral strength was 5/5 at the hips knees, ankles, and great toes. There was no muscle atrophy. A sensory examination was normal. There was no radicular pain or signs or symptoms due to radiculopathy. An X-ray report notes multilevel degenerative disc disease predominantly at L4-L5 and L5-S1. The diagnosis was degenerative joint disease lumbar spine.

A March 2015 private report notes a history of cervical spine surgery that month. The Veteran says he has been doing well. He is just restless from not doing things. He is a pretty active guy. He wants to go back to work. A May 2015 report notes a history of lumbar spine surgery earlier that month. He did well after surgery. Strength was 5/5.

A decision of the Social Security Administration (SSA) dated in July 2015 shows that the SSA determined that the Veteran was disabled as of March 11, 2015 with a primary diagnosis of disorders of back (discogenic and degenerative), and a secondary diagnosis of osteoarthrosis and allied disorders. The Veteran asserted that he was disabled due to neck and back injuries, and that he had not been able to work since March 11, 2015. The SSA's documentation shows the following: On March 11, 2015, the Veteran underwent cervical spine surgery; he stopped work that same day. In May 2015, he underwent lumbar spine surgery. The SSA determined that the Veteran was partially credible, after comparing his statements as to the severity of
July 2015 shows that the SSA determined that the Veteran was disabled as of March 11, 2015 with a primary diagnosis of disorders of back (discogenic and degenerative), and a secondary diagnosis of osteoarthrosis and allied disorders. The Veteran asserted that he was disabled due to neck and back injuries, and that he had not been able to work since March 11, 2015. The SSA's documentation shows the following: On March 11, 2015, the Veteran underwent cervical spine surgery; he stopped work that same day. In May 2015, he underwent lumbar spine surgery. The SSA determined that the Veteran was partially credible, after comparing his statements as to the severity of his symptoms to his treatment reports. A residual functional capacity (RFC) evaluation indicated that he could frequently lift and carry 10 pounds, and occasionally lift and carry 20 pounds. He could stand or walk, and sit, about six hours in an 8-hour workday. He was unlimited in climbing ramps and stairs, kneeling, balancing, and crouching. He could occasionally crawl or stoop. He could not climb ladders or scaffolds. An assessment of vocational factors noted a work history as a delivery driver from 1996 to March 2015. He cannot perform his past relevant work as it requires more exertion than allowed by his RFC.

An April 2019 VA occupational discharge therapy note includes a notation that the Veteran still works as a truck driver. However, other 2019 VA progress notes include notations that the Veteran has not worked since March 2015, and that he previously was a delivery driver.

An October 2024 Advisory Opinion from the Director, DROC (Decision Review Operations Center), in Bay Pines, FL., states that the inability to perform a specific job does not warrant a total rating based on individual unemployability. Although the Veteran may be prevented from more strenuous occupations, there is no medical evidence of complete occupational impairment. Therefore, he is not precluded from obtaining or retaining some form of substantially gainful employment by reason of service-connected disabilities.

A December 2025 vocational assessment report from Z.F., CRC, shows that he states the following: The Veteran has been unable to work at substantially gainful employment levels since at least March 2015, "when he was forced to retire from his work as a delivery driver." Specifically, his service-connected disabilities cause limitations in sitting, standing, and walking that preclude him from performing the full range of physical requirements of even sedentary employment consistently and reliably, in addition to limitations in his ability to meet employer expectations of adequate pace and productivity, which are basic requirements of substantially gainful employment at any skill or exertional level. When the effects of the Veteran's service-related disabilities are considered together, the synergy of these conditions create a greater impact on his ability to work than when these limitations are considered individually. The Veteran has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least March 2015 to the present. The Veteran has been unable to sit for the majority of the workday, in addition to stand and/or walk for up to one-third of an eight-hour workday, as is required of sedentary employment. The records show that the Veteran has been unable to sit for prolonged periods of time since at least March 2015. This limitation precludes him from sitting for the majority of an eight-hour workday, which is the most basic physical requirement in sedentary employment. He would be unable to meet the standard workplace requirements of pace, productivity, and reliability, even in an unskilled sedentary work role. In support of his conclusion. Mr. Z.F. cited to the SSA's decision and a number of treatment reports. See also October 2023 vocational assessment report from Mr. Z.F.

The Board finds that the Veteran is shown to have met the requirements for a TDIU on an extra-schedular basis. The evidence indicates that the Veteran last worked March 11, 2015, and that he stopped working in significant part due to his service-connected disabilities. See July 2015 SSA decision. The evidence is sufficient to show that the Veteran's service-connected disabilities have resulted in a marked interference with employment. 38 C.F.R. § 3.321 (b)(1); Kellar. Although the Board has considered the September 2024 Advisory Opinion, the countervailing opinions of Mr. Z.F. warrant the conclusion that the evidence does not persuasively favor a finding that the criteria for a TDIU have not been met. Lynch.

With regard to the effective date, the Veteran is
The evidence indicates that the Veteran last worked March 11, 2015, and that he stopped working in significant part due to his service-connected disabilities. See July 2015 SSA decision. The evidence is sufficient to show that the Veteran's service-connected disabilities have resulted in a marked interference with employment. 38 C.F.R. § 3.321 (b)(1); Kellar. Although the Board has considered the September 2024 Advisory Opinion, the countervailing opinions of Mr. Z.F. warrant the conclusion that the evidence does not persuasively favor a finding that the criteria for a TDIU have not been met. Lynch.

With regard to the effective date, the Veteran is in receipt of a temporary total (100 percent) rating from May 4, 2015 to August 31, 2015. See 38 C.F.R. § 4.30. The issue of entitlement to a TDIU is moot during that time. Herlehy v. Principi, 15 Vet. App. 33 (2001); Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, a TDIU on an extraschedular basis is warranted as of the day following the last day of the Veteran's 100 percent rating, i.e., September 1, 2015. Id.; 38 C.F.R. § 4.16(b).

An effective date prior to May 4, 2015 is not warranted, as the evidence is insufficient to show that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation prior to that date. See e.g., August 2013 VA DBQ.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T.S.E., 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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