LEG IMPAIRMENT OF

STEVEN D. REISS · 2026 · Case ID: 26003019

MIXED

Summary

The veteran, who served in the U.S. Army from February 1997 to August 1999, appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 4, 2023, and seeks a higher rating for her service-connected right shin splints. The Board found that the veteran's right shin splints, which manifested with pain, swelling, instability, locking, and functional impairment, warranted a 40 percent rating throughout the appeal period. This rating was determined by analogy under Diagnostic Code 5261 for limitation of extension, as it provided the most favorable evaluation considering the veteran's symptoms and the regulatory changes in musculoskeletal disorder ratings. The Board accorded no probative weight to prior VA examinations that found the shin splints asymptomatic, citing contradictory lay statements and the failure of those examinations to discount medication effects. For the TDIU claim, the Board reviewed the veteran's employment history, noting she worked full-time in various positions, including as a safety instructor, until February 3, 2023. Despite her claims of disability, the evidence persuasively indicated she was capable of substantial gainful employment prior to February 4, 2023. Therefore, the TDIU claim was denied for the period prior to February 4, 2023.

Rationale

40 percent rating granted; Rated by analogy under DC 5261; Symptoms include pain, swelling, instability, locking, functional impairment

Service Branch

ARMY

Special Benefit

TDIU

Diagnostic Code

5261

Docket No.

16-45 580

Full Decision Text

Citation Nr: 26003019
Decision Date: 03/05/26 Archive Date: 03/05/26

DOCKET NO. 16-45 580
DATE: March 5, 2026

ORDER

Throughout the appeal, a rating of 40 percent, but no higher, for right knee patellofemoral syndrome with right shin splints (right shin splints) is granted.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 4, 2023, is denied.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's right shin splints have been manifested by right leg pain, swelling, right knee instability and locking, flare-ups, reduced range of motion, functional impairment, and extension limited to 30 degrees.

2. Prior to February 4, 2023, the weight of the probative evidence is persuasively against finding the Veteran's service-connected disabilities precluded her from securing and following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a rating of 40 percent, but no higher, for right shin splints have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5299-5261.

2. The criteria for entitlement to a TDIU prior to February 4, 2023, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1997 to August 1999.

These matters come before the?Board of Veterans' Appeals?(Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which adjudicated her September 23, 2013, claim.

In November 2018, the Board issued a decision which, in part, denied entitlement to a rating in excess of 10 percent for impairment of the right tibia and fibula.

The Veteran appealed the November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued a Memorandum Decision vacating the Board's decision and remanding the matter for further development and adjudication. Notably, the Court found the Veteran's right leg pain and its associated functional impairment are symptoms of her right shin splints and that the Veteran was competent to report such.

The Board remanded the matters on appeal in July 2021, January 2022, July 2022, January 2023, August 2023 and in January 2025.

In January 2025, the Board awarded service connection for right knee patellofemoral pain syndrome as secondary to the Veteran's right shin splints and remanded the issues of entitlement to a TDIU and service connection for a right lower extremity nerve/vascular disorder, to include residuals of deep vein thrombosis, as secondary to service-connect right shin splint.

During the appeal, the RO issued a rating decision in October 2025 that granted service connection for small fiber peripheral neuropathy of the right lower extremity, formerly characterized as right lower extremity nerve/vascular disorder, to include residuals of deep vein thrombosis, as secondary to service-connected right shin splints, effective September 23, 2013. The Board finds this grant of service connection constitutes a full grant of benefits sought on appeal; thus, this issue is no longer before the Board.

In the October 2025 rating decision, the RO also granted entitlement to a TDIU effective February 4, 2023. As the Veteran is presumed to seek the maximum rating, this matter remains on appeal and has been recharacterized as entitlement to a TDIU prior to February 4, 2023. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that an agency of original jurisdiction's grant of TDIU for a portion of the appeal period does not bifurcate the appeal of entitlement to TDIU from the underlying increased rating claim).

Increased Rating

1. Entitlement to a rating in excess of 10 percent prior to September 23, 2013, in excess of
the RO also granted entitlement to a TDIU effective February 4, 2023. As the Veteran is presumed to seek the maximum rating, this matter remains on appeal and has been recharacterized as entitlement to a TDIU prior to February 4, 2023. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that an agency of original jurisdiction's grant of TDIU for a portion of the appeal period does not bifurcate the appeal of entitlement to TDIU from the underlying increased rating claim).

Increased Rating

1. Entitlement to a rating in excess of 10 percent prior to September 23, 2013, in excess of 40 percent from September 21, 2021, in excess of 10 percent from April 13, 2022, and in excess of 20 percent from February 26, 2024, for right shin splints.

The Veteran maintains that she is entitled to a higher rating for service-connected right knee patellofemoral pain syndrome with right shin splints (right shin splints) throughout the appeal period.

The Veteran's right shin splints were rated 10 percent disabling from November 16, 2000, 40 percent from September 21, 2021, 10 percent from April 13, 2022, and 20 percent from February 26, 2024. Initially, the Veteran's shin splints were rated under Diagnostic Code (DC) 5299-5262, then under DC 5262 from September 23, 2013, and finally under DC 5262-5261 from September 21, 2021.

Unlisted disabilities requiring rating by analogy are coded by numbers of the most closely related body part and 99, while hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional diagnostic code, shown after the hyphen, represents the basis for the rating, while the primary diagnostic code indicates the underlying source of the disability. 38 C.F.R. § 4.27.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021).

VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, medial tibial stress syndrome (shin splints) was rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5262, which concerns impairment of the tibia and fibula. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a.

However, since this diagnostic code takes into account knee and ankle disabilities, the Board must also address whether the Veteran would
analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5262, which concerns impairment of the tibia and fibula. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a.

However, since this diagnostic code takes into account knee and ankle disabilities, the Board must also address whether the Veteran would receive a higher benefit under diagnostic codes for knee and ankle disabilities.

Diagnostic Code 5261, concerning limitation of extension of a leg, provides a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees. This diagnostic code was not amended in February 7, 2021. 38 C.F.R. § 4.71a, DC 5261.

As of February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg.

The amended Diagnostic Code 5262 continues to provide a rating for impairment of the tibia and fibula. The rating criteria are split into three categories: medial tibial stress syndrome (shin splints); malunion; and nonunion. For shin splints, a 10 percent rating is warranted where treatment is required for no less than 12 months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 40 percent rating is still assigned for nonunion of the tibia and fibula with loose motion and requiring brace. For malunion of the tibia and fibula, the rater is directed to evaluate the disability under diagnostic codes 5256, 5257, 5260 or 5261 for the knee, or diagnostic codes 5270 or 5271 for the ankle, whichever results in the highest evaluation.

When a diagnostic code does not include the ameliorative effects of medication in its rating criteria, the VA is precluded from including those effects in its calculation of the appropriate disability rating because they may obscure or distort the veteran's symptoms or impairments, and thus interfere with the process of assigning a disability rating that reflects the true nature and severity of the veteran's disability. Ingram v. Collins, 38 Vet. App. 130, 132 (2025); Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Additionally, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). More specifically, "if [a diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required... to discount the ameliorative effects of medication." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc) (citing Jones, 26 Vet. App. at 63); see also Ingram v. Collins, 38 Vet. App. 130, 135 (2025) (affirming the holdings in Jones and McCarroll as good law).

As Diagnostic Codes 5261 and 5262 do not contemplate the effects of medication in alleviating the Veteran's right shin splints, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of her disabilities. Id.

Based on the evidence of record, the Board finds the Veteran's service-connected right knee patellofemoral pain syndrome with right shin splints would be most favorably evaluated by analogy under the former rating criteria, namely DC 5299-5261 (leg limitation of extension), as there was not a specific diagnostic code for shin splints prior to February 7, 2021, and rating by analogy under DC 5261 would afford the Veteran the highest possible rating after considering all manifestations of her service-connected disability throughout the appeal period.

After review of the evidence of record, the Board finds that a 40 percent rating, but no higher, for the Veteran's service-connected right knee patellofemoral pain syndrome with right shin splints (right shin splints) is warranted throughout the appeal.

As highlighted by the Board in the July 2021, January 2022, and July 2022 remands, the Veteran was afforded VA knee and lower leg examinations in December 2015, August 2016, September 2021, and April 2022 which were not wholly adequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the Board accords no probative weight to the December 2015 and August 2016 VA examiners' finding that the Veteran's right shin splints were asymptomatic as the evidence of record, including the Veteran's competent lay statements regarding her right shin symptoms, directly contradicts this finding. See Reonal v. Brown, 5 Vet. App. 548 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative).

Additionally, none of the VA examinations obtained throughout the appeal period discounted the ameliorative effects of medication on the Veteran's right shin splint symptoms. See VA examinations dated December 2015, August 2016, September 2021, April 2022, August 2022, December 2023, and February 2024; Ingram, 38 Vet. App. 130 (2025). However, the Board will refer to these examinations to the extent that they are relevant and provide useful information to assist in the adjudication of this appeal.

VA treatment records throughout the appeal reflect the Veteran's complaints of chronic right leg/knee pain, instability, unpredictable locking of the right knee, tenderness, and swelling. The Veteran reported that her right shin splints cause complications with performing everyday activities, including major swelling after sitting or standing. The Veteran has taken medication to treat her right leg pain, to include ibuprofen, methocarbamol, and diclofenac. The Veteran also participated in physical therapy for her right knee and shin splints but did not see any improvement in her symptoms. See VA treatment records dated November 2015, August 2016, and April 2019; September 2016, VA Form 9; August 2017, Third party correspondence.

The September 2021, April 2022, August 2022, December 2023, and February 2024 VA knee and lower leg examinations cumulatively indicate range of motion studies in active and passive motion were at worst to 100 degrees flexion and 30 degrees extension. Estimated range of motion studies after repeated use and/or flare-ups were at worst to 0 degrees flexion and 15 degrees extension. At most, the Veteran received shin splint treatment for less than 12 consecutive months. T

he Veteran's symptoms include constant pain, soreness, moderate hypersensitivity to touch between her right knee and shin, tenderness, swelling, and falls due to unexpected right knee locking. The Veteran described severe flare-ups that occur up to five times per week, lasting a couple hours to a couple days, precipitated by touch and activity (to include walking and using stairs), and alleviated with rest.

The examiners noted evidence of pain with active and passive motion, weight-bearing, non-weight-bearing, and non-movement/rest that causes functional impairment of limited mobility and decreased range of motion. The examiners found no ankylosis of knee joint or patellar instability but found recurrent subluxation or persistent instability. At most, the Veteran's shin splints require treatment for 12 consecutive months or more.

The Veteran's regular use of a brace and occasional
falls due to unexpected right knee locking. The Veteran described severe flare-ups that occur up to five times per week, lasting a couple hours to a couple days, precipitated by touch and activity (to include walking and using stairs), and alleviated with rest.

The Veteran's regular use of a brace and occasional use of a compression sleeve for right shin splints was also noted. The Veteran's functional limitations include limited mobility and range of motion that affects the Veteran's ability to perform manual labor, swelling, an inability to stand or walk for more than 10 minutes, an inability to run, workout, squat, or climb ladders, and requires rest/recovery breaks every 30 minutes throughout the day.

Additionally, the April 2022 and December 2024 VA examiners found the Veteran's right shin splints affect her right knee range of motion but not her right ankle range of motion.

Based on the lay and medical evidence of record, considering all manifestations of the Veteran's right shin splints, and discounting the ameliorative effects of medication, if any, the Board finds the Veteran's right shin splints are most favorably rated under Diagnostic Code 5261 for right leg limitation of extension. During the appeal period, the Veteran's active and passive range of motion was at worst 30 degrees extension; thus, supporting a 40 percent rating for limitation of extension. The Board finds a 40 percent disability rating under right leg limitation of extension most accurately reflects the Veteran's level of impairment for right shin splints throughout the appeal period based on the severity and frequency of her flare-ups, functional impairments, and other right leg/knee symptomatology detailed above.

In light of the foregoing, the Board finds a 40 percent rating under Diagnostic Code 5261 is warranted for the right shin splints throughout the appeal period.

The Board has considered the former and revised rating criteria, as well as all diagnostic codes for the knee, ankle, and leg, but determines that the Veteran would not be entitled to a rating in excess of 40 percent for her service-connected right shin splints under any other diagnostic code. See 38 C.F.R. § 4.71a, DCs 5256-5262, 5270-5271. Specifically, under the former and amended rating criteria, the only diagnostic codes that provide for a rating in excess 40 percent for the knee, ankle, and leg are 5256 and 5261.

Even considering the Veteran's chronic pain, instability, flare-ups, locking, instability, reported functional impairment, and discounting the ameliorative effects of medication, the Board observes that all of the VA examinations of record did not find favorable right knee ankylosis or extension limited to at least 45 degrees, the evidence of record does not support finding same throughout the appeal period. See VA examinations dated VA examinations dated September 2021, April 2022, August 2022, December 2023, and February 2024.

For these reasons, the weight of the evidence is persuasively against finding the Veteran is entitled to a rating in excess of 40 percent throughout the appeal period for service-connected right shin splints and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

The Board finds that the 40 percent rating assigned adequately portrays any right leg pain, swelling, right knee instability and locking, flare-ups, limitation of extension, reduced range of motion, and functional impairment that the Veteran experiences as a consequence of her right shin splints. Therefore, entitlement to a rating of 40 percent, but no higher, for service-connected right shin splints is warranted throughout the appeal period.

TDIU

2. Entitlement to a TDIU prior to February 4, 2023.

The Veteran asserts that her service-connected disabilities, to include right shin splints and posttraumatic stress disorder (PTSD), prevent her from securing and substantially gainful employment. See January 2024, VA Form 21-8940.

It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason
reduced range of motion, and functional impairment that the Veteran experiences as a consequence of her right shin splints. Therefore, entitlement to a rating of 40 percent, but no higher, for service-connected right shin splints is warranted throughout the appeal period.

TDIU

2. Entitlement to a TDIU prior to February 4, 2023.

It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86.

The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

A TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

In the present case, the Veteran's TDIU claim is part and parcel of the increased rating claim for PTSD and right shin splints received by VA on September 23, 2013. As stated earlier, the RO granted a TDIU effective February 4, 2023. Therefore, the Board must consider entitlement to a TDIU prior to February 4, 2023.

From September 23, 2013, to February 3, 2023, including the Board's grant herein, the Veteran's service-connected disabilities of PTSD and major depressive disorder (50 percent from May 25, 2010, and 70 percent from February 2, 2016), right knee patellofemoral syndrome with right shin splints (40 percent from September 23, 2013), residuals of lysis of pelvic and abdominal adhesions (10 percent from November 16, 2000), small fiber peripheral neuropathy of the right lower extremity (10 percent from September 23, 2013), chronic constipation (noncompensable), and residual scars in the abdomen (noncompensable) combine for a total rating of 80 percent effective September 23, 2013, and 90 percent effective February 2, 2016. Thus, satisfying the schedular requirements for a TDIU for the relevant period. See 38 C.F.R. § 4.16(a).

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to:

" The veteran's history, education, skill, and training;

" Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

" Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability
" Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

" Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

After review of the evidence of record, the Board finds the weight of the probative evidence is persuasively against finding the Veteran's service-connected disabilities precluded her from securing and following substantially gainful employment prior to February 4, 2023.

On the January 2024 VA Form 21-8940, the Veteran stated she has obtained and left many jobs in the past 10 to 15 years and recently quit her full-time job in February 2023.

The evidence of record indicates that the Veteran stopped working full-time on February 3, 2023. The Veteran reported working full-time as a safety instructor from August 2020 to February 3, 2023. VA treatment records support The Veteran's statement that she has worked several jobs in the past 10 to 15 years is corroborated by VA treatment records that reflect the Veteran's numerous reports of employment, including as an airline reservationist and at the airport.

At times, such as in February 2016, the Veteran reported working two jobs. In 2016, while employed as an airline reservationist, the Veteran's work hours were limited due to her service-connected psychiatric disability, but she was able to return to work without restriction in August 2016. See Buddy/Lay statements dated August 2017 (lay statement from S.S., the Veteran's coworker, indicating she has known the Veteran for 3 years and currently works with her but the Veteran misses work at times due to psychiatric symptoms) and February 2024 (letter from M.A., the Veteran's former employer); January 2024, VA Form 21-8940; VA examinations dated February 2016 (Veteran reported working two jobs) and September 2021 (Veteran reported working at PA safety and with United Ground Express); VA treatment records dated December 2015, February 2016, June 2016, August 2016 (Veteran reported being extremely busy at work as an airline reservationist), October 2019 (Veteran rescheduled a medical appointment due to a work conflict), and March 2020 (Veteran reported working at the airport).

A February 2024 letter from M.A., the Veteran's former employer (PA safety), indicated that the Veteran worked for their company full-time for approximately two years and quit by text message on February 3, 2023. M.A. reported the Veteran was initially hired for a clerical position (namely, adding events to the company's website) but quickly moved up in the company and ultimately became a safety instructor. M.A. described the Veteran as efficient, communicative, and a fast learner; the Veteran also completed several certifications, to include a RRP (Lead Renovator) instructor certification. M.A. stated the Veteran created her own website in October or November 2022 and registered her own safety training business in December 2022. See February 2024, Buddy/Lay statement.

The Board notes that the Veteran indicated she was too disabled to work as of January 1, 2008, but stated she has been working four hours per week at a before and after school program since February 1, 2021, and as a full-time safety instructor at PA Safety Service from August 2020 to February 2023. However, the overwhelming evidence
communicative, and a fast learner; the Veteran also completed several certifications, to include a RRP (Lead Renovator) instructor certification. M.A. stated the Veteran created her own website in October or November 2022 and registered her own safety training business in December 2022. See February 2024, Buddy/Lay statement.

In light of the evidence of record, the Board finds the evidence weighs persuasively against finding the Veteran's service-connected disabilities precluded her from securing and following substantial gainful employment prior to February 4, 2023. Indeed, the evidence of record establishes that the Veteran was employed full-time, albeit in various positions, until February 3, 2023. Further, there is no indication from the record that the Veteran's previous employment was marginal. Therefore, the Board concludes that the criteria for a TDIU have not been met prior to February 4, 2023. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Straughn, Shavonne

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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