EPILEPSY

CORY M. PICTON · 2026 · Case ID: A26012099

DENIED

Summary

The Veteran, an Army Veteran who served from April 1974 to March 1976, appeals the denial of increased evaluations for his service-connected epilepsy and back disability, as well as the denial of Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s). The Veteran's epilepsy, rated at 40 percent, was found by the Board to be manifested by one major seizure in the last two years with no minor seizures, consistent with a 20 percent rating. The Board found the December 2019 VA examination probative for this condition. For his back disability, the Veteran sought an increased rating beyond the 20 percent prior to October 23, 2019, and beyond the 40 percent thereafter. The Board reviewed the December 2019 VA examination, which noted pain on all planes of motion but no functional loss from repetitive use, and found the evidence did not support ratings higher than those already assigned. The Board acknowledged the Veteran's lay statements about pain during flare-ups but concluded these did not meet the criteria for higher ratings based on ankylosis or significant functional loss. The Veteran's claim for SMC under § 1114(s) was denied because, while his back disability alone rendered him unemployable (supporting TDIU), his epilepsy was not found to independently preclude substantially gainful employment, and the combined rating did not meet the SMC criteria. The Board also addressed a procedural issue regarding a prior appeal, concluding it lacked jurisdiction over a claim raised outside the appeal period.

Rationale

December 2019 VA examination confirmed diagnosis of tonic-clonic seizures.; Veteran had 1 major seizure in the past 2 years, no minor seizures.; Evidence consistent with 20 percent rating criteria.

Service Branch

ARMY

Special Benefit

SMC

Diagnostic Code

8910

Docket No.

210129-138724

Full Decision Text

Citation Nr: A26012099
Decision Date: 02/10/26 Archive Date: 02/10/26

DOCKET NO. 210129-138724
DATE: February 10, 2026

ORDER

Entitlement to an evaluation in excess of 40 percent for tonic-colonic seizures or grand mal (epilepsy) is denied.

Entitlement to an evaluation in excess of 20 percent for mild scoliosis, mild central spinal canal stenosis at L4-L5, lumbar spondylosis, and decreased bone mineral of lumbar spine (back disability), prior to October 23, 2019, is denied.

Entitlement to an evaluation in excess of 40 percent for back disability, since October 23, 2019, is denied.

Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is denied.

FINDINGS OF FACT

1. Throughout the course of this appeal, the Veteran's epilepsy has been manifested by not more than 1 major seizure over the past 2 years and no minor seizures.

2. Prior to October 23, 2019, the Veteran's back disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less and a combined range of motion of the thoracolumbar spine not greater than 120 degrees.

3. Since October 23, 2019, the Veteran's back disability has been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less.

4. Throughout the course of this appeal, service connection was established for the following: epilepsy, evaluated as 40 percent disabling; and back disability, evaluated as 20 percent disabling prior to October 23, 2019, and 40 percent disabling since October 23, 2019.

5. Throughout the course of this appeal, the Veteran's service-connected back disability alone supported a total disability rating due to individual unemployability, and his additional service-connected disability was 40 percent.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 40 percent for epilepsy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8910, 8911.

2. The criteria for an evaluation in excess of 20 percent for back disability, prior to October 23, 2019, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243.

3. The criteria for an evaluation in excess of 40 percent for back disability, since October 23, 2019, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243.

4. The criteria for entitlement to SMC under 38 U.S.C. § 1114(s) were not met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from April 1974 to March 1976. For his meritorious service, the Veteran was awarded (among other decorations) a National Defense Service Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In his January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the January 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form
VA) Regional Office (RO).

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

In October 2024, the Board issued a decision which, in pertinent part, denied an increased evaluation in excess of 40 percent for epilepsy; denied an increased evaluation in excess of 20 percent for back disability, prior to October 23, 2019; denied an increased evaluation in excess of 40 percent for back disability, since October 23, 2019; and granted entitlement to a total disability rating based on individual unemployability (TDIU benefits), effective October 23, 2019.

The Veteran appealed the denials for increased evaluations for his epilepsy and back disability to the United States Court of Appeals for Veterans Claims (Court). The Veteran also contested the award of TDIU benefits solely to the extent it did not include consideration for a higher rate of SMC under 38 U.S.C. § 1114(s). In September 2025, the Court granted a Joint Motion for Remand (JMR), which set aside this portion of the October 2024 Board decision and remanded the matter for further adjudication consistent with the JMR.

Accordingly, the Board now adjudicates the case consistent with the terms of the JMR.

A. Untimely Substantive Appeal of October 2010 Rating Decision

In April 2021, the Veteran's representative raised the issue of whether a substantive appeal had been properly filed following the issuance of a Statement of the Case (SOC) back on November 18, 2010. According to the Veteran's representative, a timely notice of disagreement was filed by the Veteran contesting the November 2010 rating decision. In November 2010, the RO issued the SOC addressing the issues of entitlement to an increased evaluation for epilepsy; and entitlement to service connection for heart condition, brain condition, hypertension, and thyroid condition.

In the April 2021 submission, the Veteran's representative argued that a timely substantive appeal contesting the November 2010 SOC was then filed in January 2011, and that the Veteran was not notified of the RO's decision not to accept the substantive appeal as timely, which was not proper.

The Board concludes that it does not have jurisdiction to address the Veteran's newly raised claim.

According to the Veterans Appeals Control and Locator System (VACOLS), the Veteran's appeal was closed based upon a failure to respond on January 31, 2011. In the absence of a properly perfected appeal, the AOJ may close the appeal and the decision becomes final. 38 U.S.C. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. Whether a substantive appeal has been timely filed is an appealable issue. 38 C.F.R. § 19.34.

The present appeal before the Board arises from the AOJ's January 2020 rating decision. The Veteran's January 2021 Notice of Disagreement was, in pertinent part, limited to the evaluation assigned to the Veteran's epilepsy. See 38 C.F.R. § 20.202. His argument concerning the timeliness of the January 2011 substantive appeal was first proffered in April 2021, well beyond the one year time limit for contesting the January
. 554, 556 (1993); 38 C.F.R. § 19.32. Whether a substantive appeal has been timely filed is an appealable issue. 38 C.F.R. § 19.34.

The present appeal before the Board arises from the AOJ's January 2020 rating decision. The Veteran's January 2021 Notice of Disagreement was, in pertinent part, limited to the evaluation assigned to the Veteran's epilepsy. See 38 C.F.R. § 20.202. His argument concerning the timeliness of the January 2011 substantive appeal was first proffered in April 2021, well beyond the one year time limit for contesting the January 2020 rating decision. 38 C.F.R. § 20.203. Thus, not only was this issue not addressed in the January 2020 rating decision, there was no mention of it during the time limit for an appeal herein.

Whether a substantive appeal has been timely filed or not is an appealable issue. This determination, however, was made by the RO back in January 2011; and it is not an issue arising out of the January 2020 rating decision currently before the Board. 38 C.F.R. § 19.34. Given the Veteran's contentions herein, and without making any determination as to the merits of such claim, the Veteran and his representative should consider the pursuit of a Clear and Unmistakable Error claim regarding the AOJ's January 2011 determination. 38 C.F.R. § 3.105(a).

Claims for Increased Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378,
will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to them. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The appeal period before the Board begins on October 23, 2018, the date VA received the Veteran's increased rating claim, to include the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

1. Entitlement to an evaluation in excess of 40 percent for epilepsy.

The Veteran contends that he is entitled to an evaluation in excess of 40 percent for his service-connected seizures. See January 2021 VA Form 10182.

The Veteran's disability is currently rated as grand mal epilepsy under the general rating formula for major seizures. The General Rating Formula for Major and Minor Epileptic Seizures provides that both the frequency and type of seizures experienced will determine the appropriate rating. See 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911.

Under the General Rating Formula, a 20 percent rating is warranted for at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent rating is assigned for at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted for an average of 1 major seizure in 4 months over the last year (i.e., averaging 3 major seizures in the last year); or 9-10 minor seizures per week. An 80 percent rating is assigned for 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly. A 100 percent rating is warranted for 1 major seizure per month over the last year. See id.

Note (1) defines a major seizure as one that is characterized by the generalized tonic-clonic convulsion with unconsciousness. Id. at DC 8911, Note (1). Note (2) defines a minor seizure as a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). Id. at Diagnostic Code 8911, Note (2).

During the appeal period, the Board concludes that the Veteran's epilepsy was manifested by no more than 1 major seizure over the past 2 years, with no minor seizures, corresponding to the criteria for a 10 percent rating under DCs 8910-8911.

The Veteran was afforded a December 2019 VA examination to determine the nature and severity of his seizure disorder. A questionnaire was completed in conjunction with an in-person examination and records review. The VA examiner (Dr. T.H.O., M.D., Neurologist) confirmed the Veteran's diagnosis of tonic-clonic seizures or grand mal (generalized convulsive seizures).

There was continuous medication required for control of epilepsy or seizure activity; Keppra 1,000 nightly, Tegretol 400 three times a day, and Valium 5 as needed. There was no other treatment (e.g., surgery) for epilepsy or seizure activity.

The diagnosis of a seizure disorder was confirmed. That is to say that he had a confirmed diagnosis of epilepsy with a history of seizures, to include a seizure witnessed by relatives and hospital personnel. Specifically, he had findings, signs, or symptoms attributable to seizure disorder (epilepsy) activity, to include generalized tonic-clonic convulsions, episodes of unconsciousness, and aura of visual changes (post-tra
ized convulsive seizures).

The Veteran had seizure activity. The approximate date of first seizure activity was 1976. The date of most recent seizure activity was July 2018. The Veteran has never had minor seizures. He has had major seizures (characterized by the generalized tonic-clonic convulsion with unconsciousness). The number of major seizures was at least 1 in the past 2 years; and the average frequency of major seizures was none in the past 6 months.

The Veteran has never had minor or major psychomotor seizures or epilepsy associated with a nonpsychotic or psychotic organic brain syndrome. The examination report also found no other pertinent physical findings complications, conditions, signs, or symptoms (e.g., scars).

The Board finds the December 2019 VA examination probative because it is consistent with the relevant medical evidence, to include the Veteran's lay statements. As pertinent here, a January 2019 VA treatment record shows where the Veteran reported having seizures more than 3 months ago. Similarly, an August 2019 VA treatment record noted that the Veteran's seizures were stable.

Based on the foregoing, the Board concludes that the Veteran's epilepsy manifested by 1 major seizure in the last 2 years during the appeal period. There were no minor seizures. This corresponds to the criteria for a 20 percent rating under the General Rating Formula. See 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911.

A higher 60 percent rating under the General Rating Formula is not warranted unless there is an average of at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. The Board concludes that the frequency and severity of the Veteran's epilepsy did not rise to this level at any time during the appeal period. Accordingly, for the entire appeal period, entitlement to a rating in excess of 40 percent for epilepsy is denied.

2. Entitlement to an evaluation in excess of 20 percent for back disability, prior to October 23, 2019.

3. Entitlement to an evaluation in excess of 40 percent for back disability, since October 23, 2019.

The Veteran seeks a higher evaluation for his service-connected back disability.

The January 2020 rating decision assigned the Veteran's back disability a 20 percent evaluation, effective prior to October 23, 2019; and a 40 percent evaluation thereafter.

The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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.

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.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 this case, the Veteran was afforded a December 2019 VA examination to determine the nature and severity of his service-connected back disability. A questionnaire was completed in conjunction with an in-person examination and records review. The VA examiner confirmed the Veteran's diagnosis of mild scoliosis with mild central spinal canal stenosis at L4-L5, to include lumbar spondylosis and decrease bone mineral of the lumbar spine.

The VA examiner provided a brief summary of the Veteran's medical history regarding his back condition. The Veteran stated that it had progressively worsened in terms of pain since his last VA examination in September 2010. He described pain as constant dull pain that worsened with bending forward, prolonged standing, or ambulation activities. He stated that he follows up at the VAMC. He denied incapacitating episodes requiring bed rest and ER visits in the past 12 months. He reported flare-ups of the thoracolumbar spine but did not report having any functional impairment of the thoracolumbar spine regardless of repetitive use.

Initial range of motion (ROM) and functional loss of the thoracolumbar spine were observed by the examiner and recorded. Forward flexion endpoint was 40 degrees. Extension endpoint was 15 degrees. Right and left lateral flexion endpoints were 20 degrees. Right and left lateral rotation endpoints were 25 degrees. ROM itself did not contribute to functional loss. Pain was noted over all planes of motion on examination, but did not result in functional loss. There was no evidence of pain with weight bearing, on passive ROM testing, or when the joint was used in non-weightbearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine.

The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or ROM after three repetitions. The Veteran was examined immediately after repeated use over time. Pain, fatigability, and weakness did not significantly limit functional ability with repeated use over time.

The Veteran was not examined during a flare-up. Procured evidence, to include statements from the Veteran, suggested that pain significantly limited functional ability with flare-ups. The VA examiner concluded that the examination was medically consistent with his statements describing functional loss during flare-ups. They estimated ROM in degrees during flare-ups based on information procured from relevant sources, to include the Veteran's lay statements. Forward flexion endpoint was 5 degrees. Extension endpoint was 5 degrees. Right and left lateral flexion and rotation endpoints were 10 degrees. See December 2019 VA Examination.

The Board finds the December 2019 VA examination probative because it is consistent with the relevant medical evidence, to include the Veteran's lay statements.

The Board finds
not examined during a flare-up. Procured evidence, to include statements from the Veteran, suggested that pain significantly limited functional ability with flare-ups. The VA examiner concluded that the examination was medically consistent with his statements describing functional loss during flare-ups. They estimated ROM in degrees during flare-ups based on information procured from relevant sources, to include the Veteran's lay statements. Forward flexion endpoint was 5 degrees. Extension endpoint was 5 degrees. Right and left lateral flexion and rotation endpoints were 10 degrees. See December 2019 VA Examination.

The Board finds the December 2019 VA examination probative because it is consistent with the relevant medical evidence, to include the Veteran's lay statements.

The Board finds that the evidence of record persuasively weighs against an evaluation in excess of 20 percent for the Veteran's back disability prior to October 23, 2019, and in excess of 40 percent, thereafter.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during the appeal period. Be that as it may, the degree of additional limitation reflected by statements that constant dull pain that worsened with bending forward, prolonged standing, or ambulation activities would not have resulted in symptoms that more nearly approximated the 40 percent rating criteria prior to October 23, 2019, or the 50 percent rating criteria, thereafter.

Prior to October 23, 2019, a higher evaluation of 40 percent is not warranted for diseases and injuries of the thoracolumbar spine unless the evidence shows forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula.

Thereafter, a higher evaluation of 50 percent is not warranted for diseases and injuries of the thoracolumbar spine unless the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. See id.

As pertinent here, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. at Note 5. Similarly, unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id.

In this case, there was no ankylosis of the spine, to include its functional equivalent, at any point during the appeal period. See December 2019 VA Examination. Even when considering the functional limitation during a flare-up, the Veteran's symptoms did not more nearly approximate the entire spine fixed in flexion or extension. Forward flexion and extension endpoints were not less than 5 degrees. Id. Therefore, the assignment of a higher 40 or 50 percent rating during the appeal period for the Veteran's back disability based on ankylosis would be inappropriate.

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with the spine disability. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a at Note 1.

Here, the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength, deep tendon reflex, and straight leg tests were normal. He did not have muscle atrophy. He did not have radicular pain or any other signs or symptoms due to radiculopathy, or neurologic abnormalities related to the thoracolumbar spine (e.g., bowel or bladder problems, pathologic reflexes).

Consideration was also given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes during the appeal period. See 38 C.F.R. § 4.71a. However, the Veteran did not have IVDS, and he expressly denied incapacitating episodes which required bed rest and ER visits over the past year. See December 2019 VA Examination.

For these reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for a back disability prior to October 23, 2019
related to the thoracolumbar spine (e.g., bowel or bladder problems, pathologic reflexes).

For these reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for a back disability prior to October 23, 2019, and in excess of 40 percent, thereafter. 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, supra, at 781. Accordingly, prior to October 23, 2019, entitlement to an evaluation in excess of 20 percent for a back disability, and in excess of 40 percent, thereafter, is denied.

4. Entitlement to Special Monthly Compensation under 38 U.S.C. § 1114(s).

The Veteran's claim for an increased evaluation implicitly includes a claim for any special monthly compensation (SMC) to which he may be entitled, Bradley v. Peake, 22 Vet. App. 280, 294 (2008), and the Board will therefore consider entitlement to SMC as part of its duty to maximize a claimant's benefits. 38 C.F.R. § 3.103(a) (VA decisions must grant every benefit that can be supported in law).

In its October 2024 decision, the Board granted entitlement to TDIU benefits, effective October 19, 2019.

By statute, if a Veteran has a service-connected disability rated as total and has additional service-connected disabilities rated at 60 percent or more, then the Veteran is entitled to SMC under 38 U.S.C. § 1114(s). Where a TDIU is granted based on a single service-connected disability, the requirement for a service-connected disability rated as total is met. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011).

The September 2025 JMR suggested that should the Veteran's award of the TDIU rating in this matter be based solely on his epilepsy or back disability, the remaining service-connected disabilities would combine to be at least 60 percent under 38 C.F.R. § 4.25. The Board notes, however, that this argument incorrectly included consideration of the Veteran's hypothyroidism. The award of service connection for hyperthyroidism was not effective until June 21, 2021, which is outside the course of this appeal.

Throughout the course of this appeal, service connection was established for the following: epilepsy, evaluated as 40 percent disabling; and back disability, evaluated as 20 percent disabling, prior to October 23, 2019, and 40 percent disabling since October 23, 2019. The Veteran's combined disability ratings were 50 percent, prior to October 23, 2019; and 60 percent, since October 23, 2019.

In support of his claim, the Veteran submitted an April 2021 Vocational Assessment report. After reviewing the Veteran's relevant treatment records and conducting a vocational assessment interview of the Veteran, the private examiner opined that the Veteran's back condition, alone, more likely than not rendered him unable to secure and follow substantially gainful employment, regardless of skill or exertional level.

In discussing functional limitations due to the Veteran's back, the December 2019 VA examiner noted that the Veteran was limited to sedentary duty work described as a job in which he can adjust and change body position with certain duty restrictions, such as no extreme bending movements, no heavy lifting, carrying, pushing, pulling, or handling, and no prolonged standing or prolonged ambulation activities.

Resolving all doubt in favor of the Veteran, the Board finds that his back disability alone renders him unemployable.

As for his epilepsy, the Board does not find that this condition alone precluded him from securing and following substantially gainful occupation. In support of the Veteran's claim, the April 2021 private examiner opined that the Veteran's epilepsy, alone, more likely than not renders the Veteran unable to secure and follow substantially gainful employment. The Board, however, gives more weight to the medical evidence of record which indicates that the Veteran's epilepsy has been manifested by no more than one major seizure over the past 2 years and no minor seizures throughout the course of this appeal. In discussing the functional loss attributed to this condition, the December 2019 VA examiner noted that the Veteran was unable to operate motor vehicles and that he should avoid unprotected heights, bodies of water, and moving machinery. While these are valid limitations, the Veteran remained capable of completing work activity tailored for him.

Given the Board's finding above that the Veteran's service-connected back disability alone renders him unemployable, and his remaining service-connected epilepsy being evaluated at 40 percent disabling, the criteria for entitlement to SMC under section 38 U.S.C. 1114(s) are not met. Accordingly, special monthly compensation under section 1114(s) is denied. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1).

Cory M. Picton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Yates, William M.

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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