Case 26004091

Summary

The veteran, who served from March 1968 to December 1969, appeals the denial of increased ratings for his left ankle and lumbar spine disabilities, as well as an increased rating for his dysthymic disorder with PTSD. He also sought an earlier effective date for his TDIU and special monthly compensation (SMC) for aid and attendance (A&A). The Board denied the increased rating for the left ankle, finding the veteran was already receiving the maximum schedular rating for limited motion and that the evidence did not support ankylosis for a higher rating. For the lumbar spine, the Board found the evidence did not support a rating higher than the existing 20 percent prior to May 20, 2021, or 40 percent thereafter, as the criteria for ankylosis or more severe functional loss were not met. The Board granted a separate 10 percent rating for left lower extremity radiculopathy effective October 31, 2017, as it was reasonably raised by the evidence. The claim for an increased rating for dysthymic disorder with PTSD was denied, as the evidence supported the current 70 percent rating but not total occupational and social impairment. The Board granted an earlier effective date for TDIU to May 20, 2002, finding that evidence of unemployability was submitted during the pendency of the TDIU claim. The Board also granted SMC for aid and attendance effective January 11, 2018, based on the combined impact of his service-connected disabilities, including bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness, requiring assistance with daily activities.

Full Decision Text

Citation Nr: 26004091
Decision Date: 04/02/26	Archive Date: 04/02/26

DOCKET NO. 11-31 738A
DATE: April 2, 2026

ORDER

Entitlement to a rating in excess of 20 percent for a left ankle disability is denied.

Entitlement to a rating in excess of 20 percent prior to May 20, 2021, and in excess of 40 percent thereafter for degenerative joint disease of the lumbar spine is denied.

Entitlement to a separate 10 percent rating effective October 31, 2017, for left lower extremity radiculopathy is granted. 

Entitlement to an initial rating in excess of 70 percent for a dysthymic disorder with posttraumatic stress disorder (PTSD) is denied.

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A) of another person due to combined service-connected disabilities, effective from January 11, 2018, is granted.

Entitlement to an effective date of May 20, 2002, for the grant of a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. The evidence persuasively weighs against finding ankylosis or functional ankylosis of the left ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between zero degrees and 10 degrees; a claim for peripheral neuropathy was not reasonably raised or within the scope of the appeal for increased rating for the ankle.

2. Prior to May 20, 2021, the Veteran's lumbosacral spine disability was productive of no more than forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; there was no evidence of intervertebral disc syndrome (IVDS) or favorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof.

3. From May 20, 2021, the Veteran's lumbosacral spine disability is manifested by flexion of the thoracolumbar spine to 30 degrees or less, but not productive of unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof, and there is no evidence of IVDS.

4. From October 31, 2017, mild, left lower extremity radiculopathy has been shown to be related to the Veteran's lumbosacral spine disability.

5. The Veteran's dysthymic disorder with PTSD manifested as occupational and social impairment with deficiencies in most areas and did not manifest as total occupational and social impairment. 

6. The Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected lumbar spine and left ankle disabilities from May 20, 2002.

7. The Veteran's service-connected disabilities combined, to include dysthymic disorder with PTSD, bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness renders him in need of aid and attendance of another person. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.155, 4.1, 4.71a, Diagnostic Codes (DC) 5270, 5271.

2. The criteria for entitlement to a rating in excess of 20 percent prior to May 20, 2021, and in excess of 40 percent thereafter, for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, DC 5242.

3. The criteria for a separate 10 percent rating, and no higher, from October 31, 2017, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, DC 8520.

4. The criteria for entitlement to an initial rating in excess of 70 percent for a dysthymic disorder with PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.
.41, 4.45, 4.59, DC 5242.

3. The criteria for a separate 10 percent rating, and no higher, from October 31, 2017, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, DC 8520.

4. The criteria for entitlement to an initial rating in excess of 70 percent for a dysthymic disorder with PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.130, DC 9433, 9411.

5. The criteria for entitlement to an effective date of May 20, 2002, for the grant of a TDIU have been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Phillips v. McDonough, 37 Vet. App. 394 (2024); Witkowski v. Collins, No. 24-0640 (October 21, 2025).

6. The criteria for entitlement to SMC based on combined service-connected disabilities, to include dysthymic disorder with PTSD, bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness, requiring A&A of another person, effective from January 11, 2018, have been met.  38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1968 to December 1969.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

Most recently, these matters were denied in a March 2024 Board decision. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (CAVC). In June 2025, the Court granted a Joint Motion for Remand (JMR) vacating the March 2024 decision and returning the case to the Board for action consistent with the JMR.

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3
 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).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Entitlement to a rating in excess of 20 percent for a left ankle disability

The Veteran is currently assigned a 20 percent rating for left ankle disability. He contends entitlement to a higher rating. 

The Veteran's left ankle disability is currently rated 20 percent disabling under Diagnostic Code 5271.  During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020).  These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327.  Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, and both the former 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, under DC 5271, ankle disability with moderate limitation of motion warrants a 10 percent rating.  A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271.  Standard range of ankle dorsiflexion is from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II.  

Under the pre-February 7, 2021, regulations, "slight," "moderate," and "marked" were not defined in the Rating
 criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, under DC 5271, ankle disability with moderate limitation of motion warrants a 10 percent rating.  A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271.  Standard range of ankle dorsiflexion is from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II.  

Under the pre-February 7, 2021, regulations, "slight," "moderate," and "marked" were not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6.  

As of February 7, 2021, under the amended criteria for DC 5271, moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) warrants a 10 percent rating; marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) warrants a 20 percent rating.  

As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating under either version of DC 5271.

The June 2025 JMR determined the Board should address whether the evidence shows the functional equivalent of ankylosis in its evaluation of whether a rating is warranted under DC  5270. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

A rating for an ankle disability may be assigned a rating higher than 20 percent under Diagnostic Code 5270, if ankylosis is present. Under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees.  A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity.  38 C.F.R. § 4.71a, Diagnostic Code 5270.

A 40 percent rating is the maximum schedular rating for ankylosis of the ankle under Diagnostic Code 5270. 38 C.F.R. § 4.71a, DC 5270. In determining the schedular criteria for this disability, also pertinent is the "amputation rule," which provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 40 percent rating is the maximum rating provided for an amputation below the knee. See 38 C.F.R. § 4.71, DCs 5165, 5166. 

On VA examination in February 2006, the Veteran was diagnosed with degenerative joint disease of the left ankle joint. On physical examination, the Veteran had dorsiflexion to 3 degrees, plantar and medial flexion was zero degrees and 5 degrees of lateral flexion. There was no tenderness or swelling of the joint.   There was no additional loss of motion due to weakness, pain, fatigue or lack of endurance following repetitive motion testing.  The examiner indicated the Veteran was status post left ankle fusion with mild loss of function due to stiffness and lack of motion.

In June 2009, the Veteran had an ankle examination. He reported daily constant, severe, aching throbbing ankle pain. He reported stumbling frequently, with one fall in the last six months. He denied flare-ups. Aggravating factors were described as standing and walking, with no identified alleviating factors. There was no deformity, giving way, incoordination, or instability. He had pain, stiffness, weakness. There were no episodes of dislocation or subluxation. He reported locking episodes weekly. There was no effusion or inflammation. Standing was limited to up to 30 minutes, and functional limitation was one block total. He used a cane on a regular basis. His ankle was tender. The examiner stated he had left ankle ankylos
 the Veteran had an ankle examination. He reported daily constant, severe, aching throbbing ankle pain. He reported stumbling frequently, with one fall in the last six months. He denied flare-ups. Aggravating factors were described as standing and walking, with no identified alleviating factors. There was no deformity, giving way, incoordination, or instability. He had pain, stiffness, weakness. There were no episodes of dislocation or subluxation. He reported locking episodes weekly. There was no effusion or inflammation. Standing was limited to up to 30 minutes, and functional limitation was one block total. He used a cane on a regular basis. His ankle was tender. The examiner stated he had left ankle ankylosis stable, with plantar flexion fixed at 0 degrees and dorsiflexion ranging from 0 to 3 degrees. Motion was not fixed for abduction or adduction. The effect on his usual daily activities was moderate to severe as to chores, severe as to recreation and traveling, and prevented exercise and sports.

In October 2017, the Veteran underwent an ankle examination. He reported chronic, severe, throbbing left ankle pain. He reported pain worse with standing or weightbearing. He was using Percocet for the pain. He had a history of left ankle surgery in 1995. He was using a wheelchair due to a right above the knee amputation three weeks prior. He denied flare-ups of the ankle. Functional loss with repetitive use was described as pain, fatigue, and weakness with standing and weightbearing. Range of motion testing revealed flexion to 10 degrees, and plantar flexion to 15 degrees, with pain. He had pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or soft tissue, he had mild tenderness with palpation over the lateral and medial malleolus. There was no crepitus. There was no additional loss of function or range of motion after three repetitions. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no ankylosis, or atrophy. Ankle instability was not suspected. The examiner explained that the Veteran would not be able to do work that requires prolonged standing, walking, bending, lifting, or carrying. There was no evidence of pain on passive range of motion testing, or when the joint is used in non-weight bearing.

In January 2018 the Veteran had a left above the knee amputation. 

In May 2019, VA examiner Dr. M.H. responded to a request for addendum/clarification of the October 2017 ankle examination relating to the impact of the Veteran's left ankle disability on his ability to work. Dr. M.H. stated that because the Veteran had undergone a left leg above the knee amputation no comment on the impact of the left ankle on employment would be appropriate.

Based upon a review of the evidence delineated above, the Board finds that the Veteran's left ankle disability warrants no more than the currently assigned 20 percent rating.  The Board is aware the 2009 VA examiner indicated the Veteran had left ankle ankylosis.  Based on this record, at worst throughout the period on appeal, the Veteran's left ankle disability manifested with ankylosis of plantar flexion at 0 degrees. However, there was no indication of fixation in abduction, adduction, inversion, or eversion. The Board finds this approximates ankylosis of the ankle in plantar flexion less than 30 degrees. The evidence persuasively weighs against finding functional ankylosis of the left ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between zero degrees and 10 degrees.

In addition, this notation is in contrast to the totality of the evidence.  Notably, the Veteran's medical records and the October 2017 VA examiner specifically noted the absence of ankylosis and a considerably greater range of motion.  Ankylosis or functional ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between zero degrees and 10 degrees, is a significant finding that would be visually apparent. The nature and severity of this finding would ordinarily be reported, noted, and recorded in an examination.

The Veteran has not described symptoms or functional impairment suggestive of functional ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between zero degrees and 10 degrees. There is also no evidence of any malunion of the os calcis or astragalus or any astragalectomy, no separate and/or higher ratings are
 a considerably greater range of motion.  Ankylosis or functional ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between zero degrees and 10 degrees, is a significant finding that would be visually apparent. The nature and severity of this finding would ordinarily be reported, noted, and recorded in an examination.

The Veteran has not described symptoms or functional impairment suggestive of functional ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between zero degrees and 10 degrees. There is also no evidence of any malunion of the os calcis or astragalus or any astragalectomy, no separate and/or higher ratings are warranted on the basis of any such impairment at any time during the claim period. See 38 C.F.R. § 4.71a, DCs 5270, 5272-5274.

Further, the Board notes that the Court has held that, in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria.  Jones v. Shinseki, 26 Vet. App. 56 (2012); Ingram v. Collins, 38 Vet. App. 130 (2025). The Court also held that, with respect to DCs that do not reference medication, "the Board must discount beneficial medication effects when assigning an evaluation."  Id. Here, DC 5271 does not consider the ameliorative effects of medication. However, the record contains no does not contain any indication that prescribed medications (Percocet) or any over the counter medication resulted in ameliorative effects during the appeal period. Thus, the Board's application of the relevant DC in this case does not consider any ameliorative effects of medication in assessing the level of impairment caused by the Veteran's left ankle disability as the record does not show that it does. 

As a final matter, in the June 2025 JMR, CAVC stated that in May 2023, the Veteran submitted argument in connection with his pending appeal. CAVC noted that in connection with his increased rating claim for the left ankle disability, the Veteran asserted service connection was warranted for peripheral neuropathy of the left ankle pursuant to Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). CAVC found the Board failed to address these arguments in the decision.  

The Veteran's representative asserted in the May 2023 Brief, that during the course of an October 1996 claim for increased rating for his service-connected left ankle, a February 1995 VA treatment record raised a claim to establish service connection for peripheral neuropathy of his left ankle. The Veteran's representative asserted that under 38 C.F.R. §§ 3.155(d)(2), 3.160 and Bailey, VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim. 

He further asserts that peripheral neuropathy of the left leg is associated with his left ankle and thus, related to service.  He argues that peripheral neuropathy was caused by the initial 1969 ankle fracture. The representative noted the Veteran was diagnosed with peripheral vascular disease in 1999 and thereafter, diabetes and claudication problems.  He alternatively asserts that peripheral neuropathy was aggravated by peripheral vascular disease and diabetes. He maintains that neither VA nor the Board has ever addressed the claim to establish service connection.   

38 C.F.R. § 3.155(d)(2) directs VA to consider as part of a veteran's claim for benefits "entitlement to any ancillary benefits that arise as a result of the adjudication decision."  Additionally, the "claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed."  VA must "consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition[.]" Id.  CAVC Court has interpreted the language of 38 C.F.R. § 3.155(d)(2) to require VA to develop and adjudicate related claims for secondary service connection for disabilities that are "reasonably raised" during the adjudication of a formally initiated claim for the "proper evaluation level for the primary service-connected disability."  See Bailey, 33 Vet. App. at 203.  In Bailey, a case involving secondary service connection for diarrhea and lower extremity lymphedema due to radiation treatment for prostate cancer, CAVC determined that 38 C.F.R. § 3.155(d)(2) required VA
 condition, including those identified by the rating criteria for that condition[.]" Id.  CAVC Court has interpreted the language of 38 C.F.R. § 3.155(d)(2) to require VA to develop and adjudicate related claims for secondary service connection for disabilities that are "reasonably raised" during the adjudication of a formally initiated claim for the "proper evaluation level for the primary service-connected disability."  See Bailey, 33 Vet. App. at 203.  In Bailey, a case involving secondary service connection for diarrhea and lower extremity lymphedema due to radiation treatment for prostate cancer, CAVC determined that 38 C.F.R. § 3.155(d)(2) required VA to "recognize, develop, and adjudicate" entitlement to secondary service connection for Bailey's diarrhea and lymphedema "once the  VA examination report raised those issues in the context of the formally initiated claim as to the proper evaluation level for service-connected prostate cancer residuals." Id. at 203.

Historically, in a March 1970 rating decision service connection for left ankle fracture was established effective December 1969, rated 10 percent disabling.  In an unappealed September 1996 rating decision, a 100 percent rating was assigned effective August 15, 1996, based on left ankle fusion surgery.  A 20 percent rating was made effective October 1, 1996.  The 20 percent rating was continued in an October 1999 rating decision. In May 2002, the Veteran filed a claim for TDIU citing his left ankle and lumbar spine disabilities as rendering him unemployable. TDIU was denied in May 2003 and ultimately granted in a January 2022 Board decision. The Board notes the effective date was appealed and addressed in the instant decision below (granting back to May 2002). In November 2005, the Veteran filed a claim for increase for the left ankle.  In September 2006, the 20 percent rating was continued, which the Veteran timely appealed in September 2006 and is the subject of the instant decision.  

Unlike Bailey, prior to May 2002 TDIU claim and November 2005 increased rating claim, the record reflects no evidence which reasonably indicates that the Veteran had peripheral neuropathy that was a complication of his left ankle, or his lumbosacral spine disability, and service connection for peripheral neuropathy was not raised in the context of any prior claim. While there was an isolated notation of peripheral neuropathy following complaints of left ankle pain in February 1995, electromyography in June 1999 found no evidence of radiculopathy or denervation. Furthermore, private medical records from CardioVascular Associations revealed the Veteran had peripheral vascular disease with a history of claudication since 1995. The Board notes service connection for peripheral vascular disease was established.  Reports of VA examination in August 1999, March 2003, February 2006, June 2009, and October 2017 do not reference or diagnose peripheral neuropathy.  The Veteran underwent an amputation of the left lower extremity in January 2018. 

The evidence did not reasonably raise peripheral neuropathy as a complication of his left ankle or for service connection during the adjudication of his claims.  38 C.F.R. § 3.155(d)(2); see Baily, supra. The Board finds that prior to 2002 or 2005, there was an absence of evidence that the Veteran had peripheral neuropathy as a neurological manifestation of the left ankle or lumbar spine, that it was an ancillary disability reasonably raised during adjudication of another formally initiated claim, or that it was the subject of a formal or informal claim for compensation.  The Board also finds that the Veteran did not have a confirmed diagnosis of peripheral neuropathy of the left ankle and did not have at any time during the pendency of the claims or recent to the filing of the claims.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believed there was a current diagnosis of peripheral neuropathy, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  

In conclusion, the Board finds that the Veteran is in receipt of the highest schedular evaluation for his left ankle disability during the period on appeal and the evidence of record persuasively weighs against the Veteran's claim for a higher rating or a rating under a different diagnostic code or an ancillary claim for peripheral neuropathy
2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believed there was a current diagnosis of peripheral neuropathy, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  

In conclusion, the Board finds that the Veteran is in receipt of the highest schedular evaluation for his left ankle disability during the period on appeal and the evidence of record persuasively weighs against the Veteran's claim for a higher rating or a rating under a different diagnostic code or an ancillary claim for peripheral neuropathy.  As such, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. Dec. 17, 2021).

?

Entitlement to a rating in excess of 20 percent, prior to May 20, 2021, and 40 percent thereafter for degenerative joint disease of the lumbar spine, to include whether separate ratings are warranted for neurological impairment

The Veteran is seeking entitlement to an increased evaluation for his lumbar spine disability. The Veteran's lumbar spine disability is evaluated as 20 percent disabling prior to May 20, 2021, and 40 percent disabling thereafter, pursuant to 38 C.F.R. § 4.71a, DC 5242. 

The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a General Rating Formula for Diseases and Injuries of the Spine.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  See Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note 5.

During the period on appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021.  85 Fed. Reg. 230 (Nov. 30, 2020).  These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities."  Id.

Prior to the regulatory change, Diagnostic Code 5242 was assigned for degenerative arthritis of the spine (see also Diagnostic Code 5003) and Diagnostic Code 5243 for IVDS.  As of February 7, 2021, under the amended criteria, Diagnostic Code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS (see also either Diagnostic Code 5003 or 5010).  It also amends Diagnostic Code 5243 for IVDS allowing the Diagnostic Code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 must be used for all other disc diagnoses.  Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each Diagnostic Code was unchanged. 

At the outset, the Board considered a higher rating under Diagnostic Code 5243.  However, the Veteran does not contend, nor does the evidence of record demonstrate that the Veteran has been diagnosed with IVDS or that he has had the requisite incapacitating episodes as defined by VA regulation due to his service-connected lumbar spine disability at any time during the period on
5243 for IVDS allowing the Diagnostic Code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 must be used for all other disc diagnoses.  Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each Diagnostic Code was unchanged. 

At the outset, the Board considered a higher rating under Diagnostic Code 5243.  However, the Veteran does not contend, nor does the evidence of record demonstrate that the Veteran has been diagnosed with IVDS or that he has had the requisite incapacitating episodes as defined by VA regulation due to his service-connected lumbar spine disability at any time during the period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Consequently, a higher rating is not warranted under this code section. He will be evaluated under Diagnostic Code 5242 prior to and from February 7, 2021, onward.  

Turning to the evidence of record, on VA examination in February 2006 the Veteran had forward flexion to 90 degrees, backward flexion to 15 degrees, 45 degrees lateral flexion to the left and right, and 65 degrees of rotation to the left and right.  There was no muscle spasm or tenderness. The examiner stated there was minimal loss of function due to pain. There were no radiculopathy symptoms or bladder or bowel problems. 

In August 2009 the Veteran had another VA examination. There was no joint swelling, effusion, tenderness, laxity, ankylosis, inflammatory arthritis, guarding, spasm or motor loss. X-rays disclosed discogenic degenerative disease at L4-5 and minimal change at L4-5 and L5-S1. Range of motion was flexion ranging from 0 to 70 degrees, extension from 0 to 15 degrees, left and right lateral flexion from 0 to 20 degrees, and left and right lateral rotation from 0 to 20 degrees. There was no evidence of radiculopathy. 

On VA examination in October 2017, the Veteran reported chronic, moderately severe, sharp stabbing lower back pain that radiates down the legs. He stated pain was worse with prolonged sitting. He was using Percocet and Gabapentin for pain. He reported using a back brace on occasion. He denied flare-ups. Functional loss was described as pain and fatigue with prolonged sitting. The Veteran was unable to stand to perform range of motion as he had a right knee above the knee amputation three weeks prior.  He also had a pressure ulcer on the left heel. There was pain with weight bearing. Straight leg raising test results were negative. There were left lower extremity symptoms of radiculopathy, mild constant pain, and paresthesias, impacting the sciatic nerve. The Veteran would not be able to do work that requires prolonged standing, walking, bending lifting or carrying. There was no evidence of pain on passive range of motion testing, or of pain when the joint was used in non-weight bearing. 

In January 2019, Dr. M.H. completed a VA examination to evaluate the severity of the Veteran's back disability. The Veteran reported constant low back pain which was worse when he sat. He was status post bilateral above the knee amputations and thus unable to stand or ambulate. He was using a wheelchair. He was more comfortable when his back was not flexed completely in a sitting position. He denied flare-ups. Functional impairment was noted as an inability to lift heavy objects. Range of motion was flexion ranging from 0 to 80, extension from 0 to 8, right and left lateral flexion from 0 to 15, and right and left lateral rotation from 0 to 25, each with pain. There was evidence of pain with weight bearing. There was no evidence of tenderness or pain on palpation of the joints. There was no additional loss of function or range of motion after three repetitions. The examiner indicated the physical examination was not consistent or inconsistent with his statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm of the spine. There were no radicular signs. He did not have IVDS. The examination was amended due to a lack of lower extremities due to above the knee amputations. He had no strength or reflexes in his lower extremities due to mid-thigh above the knee amputations. The functional impact was described as the Veteran being unable to engage in physically demanding work. 

The Veteran challenged Dr. M.H.'s competency to perform an examination or render an opinion.  Thus
 not consistent or inconsistent with his statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm of the spine. There were no radicular signs. He did not have IVDS. The examination was amended due to a lack of lower extremities due to above the knee amputations. He had no strength or reflexes in his lower extremities due to mid-thigh above the knee amputations. The functional impact was described as the Veteran being unable to engage in physically demanding work. 

The Veteran challenged Dr. M.H.'s competency to perform an examination or render an opinion.  Thus, VA bears the burden of demonstrating his competency through evidence of experience, education, or other qualifications.  The record shows that Dr. M.H. is a physician who has completed VA benefits related courses on topics including General Certification Overview, Medical Opinions, Aggravation Opinions, Gulf War General Medical Examinations, Military Sexual Trauma and the Disability Examination Process, Traumatic Brain Injury Examination, and Cervical (Neck) and Thoracolumbar (Back) Spine Examinations.  Beyond requesting Dr. M.H.'s CV, the Veteran has not raised any specific concern with Dr. M.H.'s competency to perform VA examinations or provide medical opinions about lumbar spine conditions.  The Board finds that Dr. M.H.'s training as a physician, combined with his VA course in performing the specific examination performed here, is sufficient to demonstrate his qualifications to competently administer a VA back examination using the standard VA disability benefits questionnaire found in the file.  

The above evidence persuasively demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent prior to May 20, 2021. To meet the criteria for a 40 percent rating, the range of flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under diagnostic code 5242. 

The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this lumbar spine disability meets the criteria for a higher rating. 

Prior to May 20, 2021, the record shows that the Veteran's flexion on exam was found to be, at worst, to 70 degrees. The functional impact was described as pain and fatigue with prolonged sitting. Although there were complaints of pain, there was no specific weakness, fatigability, or incoordination noted. Furthermore, there was no evidence of muscle spasms or guarding severe enough to result in abnormal spinal contour or abnormal gait. Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. As for functional loss during a flare-up, the Veteran denied flare-ups in 2017 and 2019. While he did report pain worse with prolonged sitting, and an inability to lift heavy objects, these limitations do not more nearly approximate limitation of flexion to 30 degrees or less. 

The Board has considered whether a higher rating based on favorable ankylosis is warranted.  The application of 38 C.F.R. §§§ 4.40 and 4.45 permits consideration under the General Spine Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, if the demonstrated functional loss is the functional equivalent of ankylosis. Chavis, 34 Vet. App. at 19. In this case, although the Board acknowledges the Veteran's reports of symptoms indicative of some functional loss, the Board concludes that such functional loss is not consistent with that contemplated by favorable or unfavorable ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility, and the Veteran was still able to perform forward flexion to 70 degrees. Also, to the extent that the Veteran has experienced functional loss, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine. Thus, his symptoms are fully contemplated by the assigned schedular rating.  Thus, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's lumbar spine.

Here, DCs 5243-5242 does not consider the ameliorative effects of medication. However, the record does not contain any indication that prescribed medications (Percocet and Gabapentin) or any over the counter medication resulted in ameliorative effects during the appeal period. Thus, the
 perform forward flexion to 70 degrees. Also, to the extent that the Veteran has experienced functional loss, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine. Thus, his symptoms are fully contemplated by the assigned schedular rating.  Thus, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's lumbar spine.

Here, DCs 5243-5242 does not consider the ameliorative effects of medication. However, the record does not contain any indication that prescribed medications (Percocet and Gabapentin) or any over the counter medication resulted in ameliorative effects during the appeal period. Thus, the Board's application of the relevant DCs in this case does not consider any ameliorative effects of medication in assessing the level of impairment caused by the Veteran's low back disability as the record does not show that it does. Jones, 26 Vet. App. at 63; Ingram, 38 Vet. App. at 131.

Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent for his lumbar spine disability prior to May 20, 2021. 

The Board has also considered whether a separate rating is warranted prior to May 20, 2021, for any associated neurological disorder.  See 38 C.F.R. § 4.71a. However, there is no objective evidence of bowel or bladder impairment.  There is also no objective evidence of right lower extremity radiculopathy.  The first objective evidence of left lower extremity radiculopathy associated with the lumbar spine disability was upon VA examination on October 31, 2017, and thus, a separate rating is warranted from the date.  However, radiculopathy was classified as mild, so no more than 10 percent is warranted. 38 C.F.R. § 4.124a, DC 8520. 

The Board finds that from May 20, 2021, the criteria for a rating higher than 40 percent have not been met. In May 2021, he underwent a back examination and reported constant low back pain. He reported hardly being able to stand up on his prosthetic legs because of the severity of low back pain. He had trouble with constant pain with flexion and extension. He used a back brace and a TENS unit for the pain in his back. He reported flare-ups that occurred 3 to 4 times per week, that reached a level of 8 to 9 out of 10 and lasted 30 to 40 minutes. He reported a precipitating factor of pain when moving around and changing positions in his wheelchair. An alleviating factor was laying down flat. The Veteran's inability to stand up straight with moderate pain in the lumbar spine caused him to have inability to stand for more than 20 to 30 minutes at a time. He had a constant limp because of the pain. He was unable to flex his back much at all because of the restricted range of motion and unable to bend over and pick up certain items. There were no signs or symptoms due to radiculopathy.

Range of motion testing revealed flexion ranging from 0 to 20 degrees, extension from 0 to 10, right and left lateral rotation from 0 to 10 degrees, right and left lateral flexion from 0 to 10 degrees. He had pain with weight bearing, active motion, and passive motion, that resulted in functional loss as the pain caused him to have even more restricted range of motion during a flare. There was crepitus, and moderate tenderness to the posterior lumbar spine. There was no additional loss of function or range of motion after three repetitions. Pain and fatigability caused functional loss with repeated use over time and during a flare-up, with the estimate range of motion being flexion ranging from 0 to 15 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each from 0 to 5 degrees. He had localized tenderness and muscles spasms of the posterior lumbosacral spine that did not result in abnormal gait or abnormal spinal contour. There was no ankylosis or IVDS. There were no signs of radiculopathy. The examiner explained the functional impact as being the Veteran had severe limitation in range of motion in the lumbar spine due to degenerative joint disease in the lumbar spine, that made it difficult for him to be able to bend over and pick things up and to ambulate. 

Given the motion found by the VA examiners, and VA medical providers, the Board finds that that the Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent
 He had localized tenderness and muscles spasms of the posterior lumbosacral spine that did not result in abnormal gait or abnormal spinal contour. There was no ankylosis or IVDS. There were no signs of radiculopathy. The examiner explained the functional impact as being the Veteran had severe limitation in range of motion in the lumbar spine due to degenerative joint disease in the lumbar spine, that made it difficult for him to be able to bend over and pick things up and to ambulate. 

Given the motion found by the VA examiners, and VA medical providers, the Board finds that that the Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof.  Chavis, supra. Notably, during examination in 2021, flexion was limited to 20 degrees.  During a flare-up and after repeated use, his motion was expected to be limited to 15 degrees.  As such, an evaluation in excess of 40 percent is not warranted. 

The Board has considered functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca, supra. However, to be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine, of which there is no evidence. 

There is no evidence of incontinence of bowel or bladder or right lower extremity radiculopathy due to his lumbar spine disability to warrant separate ratings. There was no evidence of moderate left lower radiculopathy to warrant a separate rating in excess of 10 percent.  38 C.F.R. §   4.124a, DC 8520. 

The record also does not contain any indication that prescribed medications (Percocet and Gabapentin) or any over the counter medication resulted in ameliorative effects from May 2021.  Thus, the Board's application of the relevant DCs in this case does not consider any ameliorative effects of medication in assessing the level of impairment caused by the Veteran's low back disability as the record does not show that it does. Jones, 26 Vet. App. at 63; Ingram, 38 Vet. App. at 131.

The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment caused by the Veteran's back disability. 

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating greater than 20 percent before May 20, 2021, or greater than 40 percent thereafter. As the evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra.

Entitlement to an initial rating in excess of 70 percent for a dysthymic disorder with PTSD

The Veteran is seeking a total disability rating for his dysthymic disorder with PTSD, currently rated 70 percent disabling for the entire period on appeal. 

Under the applicable rating criteria, a 70-percent rating applies when a veteran's occupational and social impairment reflects deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DCs 9433, 9411, General Rating Formula for Mental Disorders. 

A 100-percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of
 intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DCs 9433, 9411, General Rating Formula for Mental Disorders. 

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

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. 

Turning to the evidence of record, at an October 2007 psychiatric examination the Veteran reported negative thoughts, irritability, and anhedonia. The Veteran indicated that he was retired, but when he was working he had back and leg problems. There was no indication that his psychiatric disability interfered with his ability to work.  The Veteran was oriented in all spheres. Thought process and content were unremarkable.  There were no delusions.  The Veteran had problems concentrating, but memory was normal.  The Veteran did not have homicidal or suicidal thoughts.  He maintained his personal hygiene.  The Veteran had a quick temper and easily angered, but he tried to avoid people and had fair extent of impulse control. 

In August 2009 he had a psychiatric examination. He reported chronic moderate ongoing depressed mood. He reported chronic suicidal ideation and denied any suicidal plan or intent. He was taking anti-depressant medication. He was oriented to person, time, and place. His mood was dysphoric. Speech was soft or whispered, and coherent. He had no delusions or panic attacks. He reported difficulty with sleep nightly, and daytime fatigue. There were no homicidal thoughts. He reported anger and irritability. He had no difficulties with activities of daily living. He reported problems in his relationship with his five children; however, it was improving. He was living with his daughter and three grandchildren and reported enjoying his grandchildren's company. He had been divorced twice. He did not have any friends and reported spending most of his time sitting on the back porch or sitting inside. On occasion he was attending church. He had a history of four alcohol rehabilitation programs the last being in 2006. He stopped working in 1996 due to physical health reasons. Although depressive symptoms may mildly reduce efficiency at times, the examiner opined that he was not unemployable due to mental disorder symptoms. 

In October 2010, he was admitted to the hospital due to suicidal ideation. In September 2013, he was admitted to the hospital with a diagnosis of polysubstance abuse. 

In an April 2018 statement from his representative, it was asserted that the 2007 psychiatric examination was more accurate than the 2009 examination. The support was that the 2009 examiner did not address the Veteran's claims file in its entirety, nor was there rationale for the conclusion that there was not total occupational and social impairment in view of chronic sleep impairment, depressed mood, and irritability. 

In December 2018, he underwent a psychiatric examination
 opined that he was not unemployable due to mental disorder symptoms. 

In October 2010, he was admitted to the hospital due to suicidal ideation. In September 2013, he was admitted to the hospital with a diagnosis of polysubstance abuse. 

In an April 2018 statement from his representative, it was asserted that the 2007 psychiatric examination was more accurate than the 2009 examination. The support was that the 2009 examiner did not address the Veteran's claims file in its entirety, nor was there rationale for the conclusion that there was not total occupational and social impairment in view of chronic sleep impairment, depressed mood, and irritability. 

In December 2018, he underwent a psychiatric examination and was found to have occupational and social impairment with reduced reliability and productivity. He reported getting along well with his wife and being on good terms with his five adult children. He last saw a psychologist for supportive therapy in 2015. He had a history of polysubstance abuse. He was referred to a group therapy program for substance abuse in 2014. He completed his requirements for pain contract violation program in 2016. He had symptoms of depressed mood, anxiety, mild memory loss and disturbances of motivation and mood. On observation he was casually dressed inadequate grooming and hygiene. Psychomotor activity was normal, speech clear and coherent. Thought process and content were unremarkable. His affect was slightly constricted. He reported stress over seeing ghosts in his home. He denied hearing voices. His attention, judgment, and intelligence were within normal limits, reasoning, insight, and impulse control were fair. He denied suicidal or homicidal ideation. 

In May 2019, VA examiner Dr. J.F. provided an addendum opinion addressing the impact of the Veteran's dysthymic disorder on his employment and activities of daily life. Dr. J.F. noted that Veteran worked as a mail carrier with the post office for 28 years before retiring in 1996 secondary to ankle problems with no indication that the Veteran's depressive symptoms had a significant impact on his work. In December 2018, at the Veteran's most recent psychiatric examination, his depressive disorder was of moderate severity and Dr. J.F. found that subsequent VA treatment notes did not reflect any significant worsening of symptoms. They opined that if the Veteran were currently employed, he may have had difficulties interacting with supervisors, co-workers and customers, and reduced work performance due to attention and concentration problems. 

Because the Veteran challenged Dr. J.F.'s competency to render this opinion, VA bears the burden of demonstrating the provider's competency through evidence of experience, education, or other qualifications. The record shows that Dr. J.F. is a psychologist who completed a Ph.D. as well as VA specific training in Medical Opinions, General Certification Overview, and Initial PTSD examinations. Beyond requesting Dr. J.F.'s CV, the Veteran has not raised any specific concern with the provider's competency to perform VA examinations or provide medical opinions about psychiatric conditions. The Board finds that Dr. J.F.'s Ph.D. level education in psychology, combined with the specific training in VA medical opinions and PTSD examinations, are sufficient to demonstrate the provider's qualifications to competently evaluate the severity of the Veteran's dysthymic disorder with PTSD and provide a medical opinion as to the disability's likely impact on the Veteran's ability to work. 

In May 2021, VA examiner Dr. B.H. described the Veteran's level of psychiatric impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. He was married and reported for the last few years living in an apartment alone, while his wife continued to live in their home. He reported that his wife came to see him daily. He was prescribed mirtazapine and took melatonin. He reported at times feeling sad. He had things he enjoyed such as listening to music and talking to neighbors. He reported feeling thankful to be alive. He denied anxiety but worried about his daughter getting involved in unhealthy relationships. He reported keeping to himself. He did not expect bad things to happen. He slept two hours a night and napped for three hours during the day. He denied nightmares, or suicidal ideation. The examiner stated the Veteran presented as alert and oriented in all spheres. He was cooperative and appeared sincere. His speech was normal, comprehension was intact. His thought process was linear, and goal directed, and thought content was unremarkable. Memory and cognition were intact. There was no evidence of auditory or visual hallucinations. Insight and impulse control were intact. 

An April 2023 lay statement from the Veteran's daughter revealed that the Veteran's overall health had deteriorated greatly over the past years. She noted that her father required assistance to get out of bed and into
. He did not expect bad things to happen. He slept two hours a night and napped for three hours during the day. He denied nightmares, or suicidal ideation. The examiner stated the Veteran presented as alert and oriented in all spheres. He was cooperative and appeared sincere. His speech was normal, comprehension was intact. His thought process was linear, and goal directed, and thought content was unremarkable. Memory and cognition were intact. There was no evidence of auditory or visual hallucinations. Insight and impulse control were intact. 

An April 2023 lay statement from the Veteran's daughter revealed that the Veteran's overall health had deteriorated greatly over the past years. She noted that her father required assistance to get out of bed and into his wheelchair every day, and to get in and out of the shower. She added that the Veteran spent most of his days either in his wheelchair or in bed, and that he was a fall risk due to his bilateral amputations.  The Veteran required assistance with cleaning, cooking, washing dishes, washing clothes, and many other tasks in the home. The Veteran was also unable to go grocery shopping. The Veteran needs assistance in preparing his medications every day. 

The Veteran's medical treatment records, including his most recent treatment records, are consistent with the level of impairment reflected in the examinations of record and do not indicate a worsening of symptoms since his last VA examination. 

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's dysthymia with PTSD warrants the currently assigned 70 percent rating, but no higher. The Veteran reported consistent depression throughout the period on appeal. While his symptoms have varied in severity, the Veteran's symptoms more nearly approximated symptoms of irritability, depression, social isolation, memory impairment, and difficulty focusing. 

Examiners throughout the course of the appeal indicated the Veteran's symptoms impacted his employment. In 2007 he was found to have symptoms that resulted in deficiencies in his ability to think, relate and work. In 2010 he was hospitalized due to suicidal ideation. The 2019 examiner indicated that the Veteran had difficulty interacting with supervisors, co-workers, and customers. However, no examiner has found that his dysthymia with PTSD resulted in total occupational impairment.  

With regard to social impairment, as it relates to his judgment and thinking, throughout the period on appeal the Veteran has been described as having mild fair judgment. There have been periodic thoughts of harming himself and he was hospitalized as a result of suicidal ideation; however, those are accounted for in the current 70 percent rating. Though there are reports of visual hallucinations, there has been no evidence of gross impairment of thought processes or communication, persistent delusions or hallucinations, or disorientation to time or place. He has been capable of managing his financial affairs. Considering the type, severity, duration, and frequency of these manifestations, the Veteran does not have deficiencies in the areas of judgment and thinking that give rise to the next higher evaluation of 100 percent. 

The Veteran has difficulty maintaining relationships. VA treatment records and the examinations reveal the Veteran has a challenging marital relationship; with a report the Veteran lives separately from his wife, however, she does visit regularly. He has had strained relationships with his children on occasion; however, most recently he reported a good relationship with his children. He has reported isolating and avoidance behaviors. The Veteran reported depression, anxiety, insomnia, fatigue, anger, irritability, disturbance of motivation, and memory loss, but there was no evidence of near continuous panic, obsessional rituals, incoherent speech, or spatial disorientation. He has on occasion throughout the period on appeal battled with polysubstance abuse, however more recently he has refrained from all substance abuse. This is indicative significantly impaired social relationships and meets the criteria for a 70 percent rating. 

There is no indication of total social impairment due to symptoms such as grossly inappropriate behavior, or an inability to perform activities of daily living. There is no evidence of more severe deficiencies in this area, as such entitlement to a 100 percent is not warranted. Based on the overall evidence of record, including the Veteran's lay statements, the effects of the symptoms of the Veteran's psychiatric disability are of a type, nature, frequency, and severity consistent with a 70 percent rating and no higher. At no point during the appeal period did the Veteran's symptoms most nearly approximate a 100 percent rating. 

The Board notes that, because the General Rating Formula explicitly references medication in rating mental disorders (specifically under the 10 percent rating criteria, which contemplates "symptoms controlled by continuous medication," see 38 C.F.R. § 4.130), the holdings of Jones and Ingram, which provide that the Board must discount beneficial medication effects when assigning an evaluation, are inapplicable. Jones, 
 the overall evidence of record, including the Veteran's lay statements, the effects of the symptoms of the Veteran's psychiatric disability are of a type, nature, frequency, and severity consistent with a 70 percent rating and no higher. At no point during the appeal period did the Veteran's symptoms most nearly approximate a 100 percent rating. 

The Board notes that, because the General Rating Formula explicitly references medication in rating mental disorders (specifically under the 10 percent rating criteria, which contemplates "symptoms controlled by continuous medication," see 38 C.F.R. § 4.130), the holdings of Jones and Ingram, which provide that the Board must discount beneficial medication effects when assigning an evaluation, are inapplicable. Jones, 26 Vet. App. at 63; Ingram, 38 Vet. App. at 131.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a total disability rating for dysthymic disorder with PTSD. As the evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra.  

Entitlement to an effective date earlier than September 28, 2006, for the grant of TDIU

The Veteran seeks an earlier effective date for the grant of a TDIU. The current effective date is September 28, 2006, the date the Veteran met the schedular criteria for TDIU. The Veteran generally argues that the effective date for his TDIU should be earlier.

The Board notes that a January 2022 Board decision granted the Veteran's claim for a TDIU, and a January 2022 rating decision set the effective date as September 28, 2006.

Generally, the effective date of an award of compensation based on an original or an initial claim shall not be earlier than the date of receipt of the application therefore. 38 U.S.C. §5110(a); 38 C.F.R. § 3.400.

A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

Here, prior to September 28, 2006, the Veteran was service connected for a lumbar spine disability with a 20 percent disability rating from July 22, 1999, and for residuals of a left ankle fracture with a 20 percent disability rating from July 22, 1999. The Veteran's disabilities have not met the schedular requirements for a TDIU prior to September 28, 2006. 

However, in October 2025, the United States Court of Appeals for Veteran's Claims (CAVC) issued an en banc decision in Witkowski. In Witkowski, CAVC overruled the decision in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), removing the requirements to remand an extraschedular claim for a TDIU to the Director of Compensation Service, and allows the Board to consider an extraschedular TDIU claim in the first instance. Therefore, the Board shall proceed evaluating the TDIU claim in the first instance on an extraschedular basis.

On May 20, 2002, the Veteran filed a VA 21-8940 claim for a TDIU, based on his service-connected lumbar spine and left ankle disabilities. In this filing, the Veteran asserted that he was forced to leave his employment as a postal worker in 1997 due to his lumbar spine and left ankle disabilities. In May 2003, the RO denied the claim for a TDIU, and the Veteran filed a Notice of Disagreement (NOD) in August 2003. In June 2004, the RO issued a Statement of the Case, and the Veteran appealed the claim to the Board in a September 2004 Form 9. In September 2005, the Board denied the Veteran's claim for a TDIU.

In November 2005, the Veteran filed claims for increased ratings for his service-connected lumbar spine disability and left ankle disability and also requested to continue his claim for a TDIU. The November 2005
 postal worker in 1997 due to his lumbar spine and left ankle disabilities. In May 2003, the RO denied the claim for a TDIU, and the Veteran filed a Notice of Disagreement (NOD) in August 2003. In June 2004, the RO issued a Statement of the Case, and the Veteran appealed the claim to the Board in a September 2004 Form 9. In September 2005, the Board denied the Veteran's claim for a TDIU.

In November 2005, the Veteran filed claims for increased ratings for his service-connected lumbar spine disability and left ankle disability and also requested to continue his claim for a TDIU. The November 2005 claim led to the September 2006 rating decision, and resulted in another NOD in September 2006, which also requested service connection for the Veteran's psychiatric disorder. After the claim for service connection for a psychiatric disorder was granted, the Veteran met the schedular criteria for a TDIU.  

The Board notes that there is substantial evidence that the Veteran was forced to retire in September 1997 from his employment in the post office due to his service-connected lumbar spine and left ankle disabilities. This includes an August 2009 general medical examination, in which the examiner concluded the Veteran is fully unemployable for physical or sedentary labor based on the conditions of peripheral vascular disease, degenerative disc disease of the lumbar spine and left ankle fusion.

CAVC reiterated that TDIU is not a separate claim but is instead a rating option available whenever a claimant attempts to get service connection or a higher rating from VA and the record includes evidence of unemployability. Phillips v. McDonough, 37 Vet. App. 394, 397 (2024). CAVC also explained that when VA must consider entitlement to a TDIU is dependent upon when a veteran submits evidence of unemployability. If a veteran applies for service connection and VA learns the veteran cannot work, then VA must consider TDIU when assigning the appropriate rating. When a veteran already has service connection for a disability and applies for a higher rating, then VA needs to consider TDIU when it receives evidence of unemployability. Id. at 401.

Here, VA received evidence that the Veteran's lumbar spine and left ankle disabilities prevented him from working since September 1997. The issue of entitlement to a TDIU was raised by the Veteran in his filing of the VA Form 21-8940 in May 2002, and the Veteran has continued to pursue a claim since that initial filing.

In sum, evidence that the Veteran's service-connected disabilities caused him to be unemployable was received during the pendency of his claim for TDIU, to include on an extraschedular basis. Consequently, TDIU is warranted as of May 20, 2002. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Entitlement to SMC based on the need for A&A

The Veteran asserts that he is entitled to SMC based on his service-connected psychiatric disorder.  See May 2023 Brief.  The Board finds that the competent medical evidence of record reveals that the Veteran's service-connected dysthymic disorder with PTSD alone does not render him in need of aid and attendance.  However, his service-connected psychiatric disability, in combination with his other service-connected conditions, to include bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness, does require aid and assistance for his daily activities, since January 11, 2018. See January 2025 Rating Code Sheet, Bilateral Leg Amputations, 100% from January 11, 2018. 

SMC at the aid and attendance rate is payable to a veteran who, as a result of his or her service-connected disabilities (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350 (b)(3).

The Veteran has been service connected for bilateral blindness with an effective date of October 28, 2011. However, his corrected visual acuity is not as severe as indicated in the regulation to meet the criteria. Additionally, as he is not in a nursing home, the Board considers whether he has a factual need for aid and attendance under §3
 or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350 (b)(3).

The Veteran has been service connected for bilateral blindness with an effective date of October 28, 2011. However, his corrected visual acuity is not as severe as indicated in the regulation to meet the criteria. Additionally, as he is not in a nursing home, the Board considers whether he has a factual need for aid and attendance under §3.352(a)(3) due to service-connected disabilities other than the bilateral eye blindness.

Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a).  That regulation provides that the following criteria will be considered in determining whether the veteran is in need of the regular aid and attendance of another person: the inability of the veteran to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; the inability of the veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his or her daily environment.  38 C.F.R. § 3.352(a).

Also, under this section, "bedridden" status will be a proper basis for the determination of the need for regular aid and attendance.  For the purposes of this section, "bedridden" means that condition which, through its essential character, requires that the claimant remain in bed.  The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  Id.

It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made.  The particular personal functions that a veteran is unable to perform should be considered in connection with his or her condition as a whole.  It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need.  Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his or her condition is such as would require him or her to be in bed.  They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a).

Here, again, the Board finds that the evidence does not establish, and the Veteran has not alleged that he is actually bedridden as contemplated by the criteria.  The Board acknowledges that both the Veteran and his family have expressed habits and routines of the Veteran when he may stay in bed, and/or sleep for most of the day.  The Board finds, however, no evidence, medical or lay, demonstrates that the Veteran "staying in bed" all day, was medically induced/required, and/or any service-connected disabilities prevented him from other activities; in other words, there is no evidence that such action was not voluntary.  To this end, neither private nor VA medical evidence show that the Veteran is prescribed to remain in bed.  As such, the Board finds that the "bedridden" criteria are not met by the Veteran's condition.

However, the evidence is in favor of establishing that the Veteran's service-connected disabilities combined, to include dysthymic disorder with PTSD, bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness have caused the Veteran to require aid and attendance for his daily living, from January 11, 2018, when the 100 percent rating for bilateral leg amputation was established.  

An April 2023 lay statement from the Veteran's daughter revealed that the Veteran's overall health had deteriorated greatly over the past years. She noted that her father required assistance to get out of bed and into his wheelchair every day, and to get in and out of the shower. She added that the Veteran spent most of his days either in his wheelchair or in bed, and that he is a
 combined, to include dysthymic disorder with PTSD, bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness have caused the Veteran to require aid and attendance for his daily living, from January 11, 2018, when the 100 percent rating for bilateral leg amputation was established.  

An April 2023 lay statement from the Veteran's daughter revealed that the Veteran's overall health had deteriorated greatly over the past years. She noted that her father required assistance to get out of bed and into his wheelchair every day, and to get in and out of the shower. She added that the Veteran spent most of his days either in his wheelchair or in bed, and that he is a fall risk due to his bilateral amputations.  The Veteran required assistance with cleaning, cooking, washing dishes, washing clothes, and many other tasks in the home. The Veteran was also unable to go grocery shopping. The Veteran needed assistance in preparing his medications every day. 

The Board finds that these reports are corroborated by the medical evidence of record.  The records show that the Veteran's daughter assists the Veteran on a daily basis with transportation and managing his medication.  While the Veteran maintains memory problems as a result of his dysthymic disorder alone render him in need of aid and attendance, the medical evidence of record routinely established that memory loss was mild. See VA examination 2017.  In fact, memory and cognition were intact upon VA examination in May 2021.

Therefore, as the weight of the probative evidence is in favor of finding that the Veteran's service-connected disabilities combined, to include dysthymic disorder with PTSD, bilateral leg amputation, lumbar spine disability, stroke residuals, and left upper extremity muscle weakness renders him in need of aid and attendance of another person, his claim for SMC is granted from January 11, 2018.

 

K. L. WALLIN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.R. Montalvo, 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.