Case A26019120

Summary

The Veteran, who served from October 1983 to July 1992, appeals a November 2024 rating decision. The Veteran sought an increased rating for thyroid cancer, TDIU, and increased ratings for back, neck, bilateral upper extremity nerve conditions, and right lower extremity radiculopathy, as well as service connection for bilateral knee and hip conditions. The Board granted an earlier effective date of December 28, 2021, for a 100 percent rating for thyroid cancer, finding it was active and malignant from that date, resolving doubt in the Veteran's favor. The Board also granted TDIU, finding the Veteran's service-connected back, neck, and bilateral upper extremity nerve disabilities precluded substantially gainful employment, relying on a persuasive private vocational opinion. However, the Board denied an increased rating for the hysterectomy residuals, as the Veteran was already receiving the maximum schedular rating and the evidence did not support an extraschedular rating. The Board remanded claims for increased ratings for the back, neck, bilateral upper extremity nerve conditions, and right lower extremity radiculopathy, citing AOJ errors in failing to consider the ameliorative effects of medication and in rating the right lower extremity radiculopathy. The Board also remanded claims for service connection for bilateral knee and hip conditions, as the Veteran had not received a VA examination to determine the nature and likely etiology of these conditions.

Rationale

Evidence reasonably shows active malignant thyroid cancer from December 28, 2021.; Resolving doubt in Veteran's favor per 38 C.F.R. § 4.3.; 100 percent rating warranted due to active malignant thyroid cancer.

Full Decision Text

Citation Nr: A26019120
Decision Date: 03/03/26	Archive Date: 03/03/26

DOCKET NO. 251001-593253
DATE: March 3, 2026

ORDER

1. An earlier effective date of December 28, 2021, but not earlier, is granted for the award of the increased 100 percent rating for thyroid cancer, subject to the regulations governing payment of monetary awards.

2. From December 28, 2021, a 100 percent rating for thyroid cancer is granted throughout, subject to the regulations governing payment of monetary awards. 

3. Entitlement to a total disability rating based on individual unemployability due to service-connected back, neck, and bilateral upper extremity nerve disabilities (TDIU) is granted, subject to the regulations governing the payment of monetary awards.

4. Entitlement to a rating in excess of 50 percent for post operative total abdominal hysterectomy with bilateral salpingo-oophorectomy is denied.

REMANDED

5. Entitlement to a rating in excess of 40 percent for a neck disability is remanded.

6. Entitlement to a rating in excess of 40 percent for a back disability is remanded.

7. Entitlement to increased staged (10 percent prior to January 6, 2023 and 40 percent from that date) ratings for right upper extremity radiculopathy and carpal tunnel syndrome is remanded.

8. Entitlement to increased staged (10 percent prior to January 6, 2023 and 30 percent from that date) ratings for left upper extremity radiculopathy and carpal tunnel syndrome is remanded.

9. Entitlement to a separate rating for right lower extremity radiculopathy is remanded.

10. Entitlement to service connection for a left knee disability is remanded.

11. Entitlement to service connection for a right knee disability is remanded.

12. Entitlement to service connection for a left hip disability is remanded.

13. Entitlement to service connection for a right hip disability is remanded.

FINDINGS OF FACT

1. On December 8, 2021, VA received an intent to file a claim for compensation.

2. On February 3, 2022, VA received a formal claim seeking an increased rating for the thyroid disability.

3. From December 28, 2021, the record reasonably shows the Veteran has active, malignant thyroid cancer.

4. The Veteran's service-connected back, neck, and upper extremity nerve disabilities are shown to have been of such nature and severity as to render her unable to maintain regular substantially gainful employment, consistent with her education and experience.

5. The Veteran has been in receipt of the maximum schedular disability rating for post operative total abdominal hysterectomy with bilateral salpingo-oophorectomy for the entire appeal period, and there is no evidence or argument for a separate or higher disability rating.

CONCLUSIONS OF LAW

1. A 100 percent rating is warranted for thyroid cancer from the earlier effective date of December 28, 2021 and throughout the period on appeal. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.151, 3.400(o)(2), 4.1, 4.3, 4.119, Diagnostic Code (Code) 7914.

2. The schedular criteria for TDIU have been met, and TDIU is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a).

3. A rating in excess of 50 percent for post operative total abdominal hysterectomy with bilateral salpingo-oophorectomy is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.116, Code 7617.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1983 to July 1992. 

In August 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 18, 2023 Department of Veterans Affairs (VA) rating decision. In November 2024, the Agency of Original Jurisdiction (AOJ) issued the HLR decision on appeal. The Veteran timely appealed this rating decision to the Board of Veterans' Appeals (Board) and requested the direct review option. Therefore, the Board's review is limited to evidence on record at the time of the August 18
ASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1983 to July 1992. 

In August 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 18, 2023 Department of Veterans Affairs (VA) rating decision. In November 2024, the Agency of Original Jurisdiction (AOJ) issued the HLR decision on appeal. The Veteran timely appealed this rating decision to the Board of Veterans' Appeals (Board) and requested the direct review option. Therefore, the Board's review is limited to evidence on record at the time of the August 18, 2023 rating decision.

At the outset, the Board notes in January 2023, VA received a supplemental claim seeking, in part, an increased rating for the thyroid disability, and, in July 2023, VA received a formal claim seeking a temporary total rating for convalescence due to her thyroid disability. The August 2023 rating decision appears to have characterized the thyroid claim as "A temporary evaluation of 100 percent has been assigned effective December 6, 2022 based on surgical or other treatment necessitating convalescence." However, the rationale in the body of the rating decision shows the Agency of Original Jurisdiction (AOJ) assigned a 100 percent rating based on active malignancy. It was noted the 100 percent rating should continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure and an examination will be scheduled on/about October 1, 2023 to determine further residuals. The Board finds that such rating is based on the rating criteria under Code 7914 for malignant neoplasm of a part of the endocrine system. 

In the August 2024 request for higher level review, the Veteran characterized the thyroid matter as "Entitlement to a temporary evaluation of 100-percent based on surgical or other treatment necessitating convalescence for thyroid papillary carcinoma, prior to and since December 6, 2022."

The November 2024 rating decision again characterized the thyroid matter as "A temporary evaluation of 100 percent has been assigned effective December 6, 2022 based on surgical or other treatment necessitating convalescence. around about October 1, 2023 to determine residuals for rating purposes." Yet again, the rationale in the body of the rating decision shows the AOJ assigned a 100 percent rating based on active, malignant thyroid cancer and that the effective date was based on the evidence first showing thyroid papillary carcinoma. It noted if there has been no local reoccurrence or metastasis, to rate on the residuals. The corresponding codesheet noted the thyroid papillary carcinoma was rated "100% from 12/6/2022 to 11/01/2023, Reduction" and the combined rating from November 1, 2023 was 90 percent.

In the October 2025 VA Form 10182, the Veteran, via her representative, characterized the thyroid matter as "Extension of a temporary evaluation of 100 percent prior to December 6, 2022, and after October 1, 2023, based on surgical or other treatment necessitating convalescence."

The Board will construe her arguments in a liberal matter for the purposes of determining what issues she raised on appeal. 38 C.F.R. § 20.202(a). Therefore, the Board will interpret the AOJ's determinations and her October 2025 VA Form 10182 as expressing disagreement with the effective date of the 100 percent rating for active thyroid cancer and the appropriate evaluation for thyroid cancer throughout the pendency of the appeal.

The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Increased Ratings and Effective Date

Except as otherwise provided, the effective date of an award of compensation based on an original claim or a claim to reopen will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and
 the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a).

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). 

When medical records indicate an increase in a service-connected disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. 38 C.F.R. § 3.400(o)(2).

A specific claim on the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). Under the Appeals Modernization Act (AMA), an "initial claim" or "original claim" is a first initial new claim requesting service connection for a disability or grant of a new benefit submitted on an application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p)(1)(ii), 3.160. A "supplemental claim" is a claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided. 38 C.F.R. §§ 3.1(p)(2), 3.2501.

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an intent to file. Such intent to file must identify the general benefit sought (e.g., compensation, pension). Upon receipt of an intent to file, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If the formal claim is received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the intent to file. 38 C.F.R. § 3.155. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012). 

In the AMA appeals system, VA regulations provide that a claimant may continuously pursue a claim for effective date purposes by "timely and properly" filing certain decision review requests (including a request for higher level review and a supplemental claim) after an AOJ decision. See 38 C.F.R. § 3.2500(c). Moreover, the provision governing the effective date of continuously pursued claims states that a review request must be "timely" filed after within a year from the date on which the AOJ issues a notice of a decision on a claim to establish continuous pursuit. 38 C.F.R. § 3.2500(a), (h).

While "the date entitlement arose" is not defined in statute or regulation, the United States Court of Appeals for Veterans Claims (the CAVC) has interpreted it as the date
 purposes by "timely and properly" filing certain decision review requests (including a request for higher level review and a supplemental claim) after an AOJ decision. See 38 C.F.R. § 3.2500(c). Moreover, the provision governing the effective date of continuously pursued claims states that a review request must be "timely" filed after within a year from the date on which the AOJ issues a notice of a decision on a claim to establish continuous pursuit. 38 C.F.R. § 3.2500(a), (h).

While "the date entitlement arose" is not defined in statute or regulation, the United States Court of Appeals for Veterans Claims (the CAVC) has interpreted it as the date the claimant met the requirements for the benefit sought. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000).

Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods when varying degrees of disability were shown can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

1. 2. Entitlement to a 100 percent rating for thyroid cancer from an earlier effective date and throughout the period on appeal.

An August 1994 rating decision continued the 10 percent rating for the thyroid disability. The Veteran did not file a notice of disagreement or submit new and material evidence as to that matter within one year of the rating decision. That decision is final. 38 U.S.C. § 7105.

Following the August 1994 rating decision, the Veteran submitted several claims seeking increased ratings for disabilities other than her thyroid disability.

In September 2020 and October 2020, VA received a formal TDIU application, where the Veteran specified she was unable to maintain substantial gainful employment due to her back disability.

In March 2021, VA received a formal TDIU application where the Veteran specified she was unable to maintain substantial gainful employment due to her service-connected back, neck, hysterectomy, and bilateral upper extremity carpal tunnel disabilities as well as a nonservice-connected right shoulder condition.

On December 8, 2021, VA received an intent to file a claim for compensation. 

On February 3, 2022, VA received a VA Form 21-526EZ, a formal claim seeking, in notable part, an increased rating for the thyroid disability.

An August 18, 2023 rating decision awarded a 100 percent rating from December 6, 2022 for active, malignant thyroid cancer.

On August 14, 2024, VA received a request for higher level review in part for the 100 percent rating for thyroid cancer.

As discussed above, the November 2024 rating decision adjudicated the 100 percent rating for thyroid cancer, effective December 6, 2022. The corresponding codesheet noted the thyroid papillary carcinoma was rated "100% from 12/6/2022 to 11/01/2023, Reduction" and the combined rating from November 1,
 formal claim seeking, in notable part, an increased rating for the thyroid disability.

An August 18, 2023 rating decision awarded a 100 percent rating from December 6, 2022 for active, malignant thyroid cancer.

On August 14, 2024, VA received a request for higher level review in part for the 100 percent rating for thyroid cancer.

As discussed above, the November 2024 rating decision adjudicated the 100 percent rating for thyroid cancer, effective December 6, 2022. The corresponding codesheet noted the thyroid papillary carcinoma was rated "100% from 12/6/2022 to 11/01/2023, Reduction" and the combined rating from November 1, 2023 was 90 percent.

The initial critical question is when the claim seeking an increased rating for thyroid cancer was received. There is nothing in the record received from the Veteran between the August 1994 and the December 8, 2021 intent to file expressing an intent to file an increased rating claim for her thyroid disability. While several formal TDIU claims were received prior to December 8, 2021, it is notable that the Veteran did not allege that she was unable to maintain substantial gainful employment due to her thyroid disability. Accordingly, the Board finds an increased rating for a thyroid disability was not raised by the September 2020, October 2020, and March 2021 TDIU applications. 

Following the December 8, 2021 intent to file, the next, completed formal claim was the February 3, 2022 VA Form 21-526EZ, seeking, in notable part, an increased rating for the thyroid disability. Accordingly, applying the benefit of the doubt, the December 8, 2021 intent to file remained active when VA received the February 3, 2022 VA Form 21-526EZ claim seeking an increased rating for the thyroid disability. Therefore, the Veteran's claim for an increased rating for her thyroid disability was received on December 8, 2021, the date the intent to file was received.

Thus, the next critical question is (1) whether there was an ascertainable increase to a 100 percent rating between December 8, 2020 and December 8, 2021; (2) whether entitlement to the increased (100) percent rating for thyroid cancer arose between December 8, 2021 and December 6, 2022; and (3) whether the Veteran's cancer remained active and malignant during the period on review.

Under 38 C.F.R. § 4.119 (Code 7914), a 100 percent rating is assigned for malignant neoplasms of the endocrine system. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals.

A December 28, 2021 private treatment record noted an indication of malignant thyroid cancer and subsequent diagnostic testing confirmed the diagnosis of thyroid cancer.

On the February 2022 VA thyroid and parathyroid conditions examination, the examiner found active malignant thyroid cancer.

On the June 2023 VA thyroid and parathyroid conditions examination, the examiner found active malignant thyroid cancer. It was noted that the Veteran underwent a right thyroidectomy with lymph node dissection on December 6, 2022 and a left thyroidectomy on March 28, 2023. 

On longitudinal review of the record, the Board finds that the evidence reasonably shows that thyroid cancer is first shown from December 28, 2021 private treatment record, warranting a 100 percent rating due to active malignant thyroid cancer from December 28, 2021. The private provider's indication of thyroid cancer, as noted in the December 28, 2021 private provider, was confirmed on subsequent diagnostic testing. Thus, resolving any reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 4.3), the Board finds that the severity of her thyroid disability warrants a 100 percent rating from the earlier effective date of December 28, 2021, the date of the private treatment record notation.

Moreover, the Board finds that the evidence reasonably shows that her thyroid cancer remained active and malignant following her first and second thyroid procedures. Notably, while the AOJ scheduled the mandatory examination less than 5 months after her second surgery, the August 2023 VA examiner continued to find the Veteran had active, malignant thyroid cancer. Remand for an additional VA examination to determine whether her thyroid cancer
 on subsequent diagnostic testing. Thus, resolving any reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 4.3), the Board finds that the severity of her thyroid disability warrants a 100 percent rating from the earlier effective date of December 28, 2021, the date of the private treatment record notation.

Moreover, the Board finds that the evidence reasonably shows that her thyroid cancer remained active and malignant following her first and second thyroid procedures. Notably, while the AOJ scheduled the mandatory examination less than 5 months after her second surgery, the August 2023 VA examiner continued to find the Veteran had active, malignant thyroid cancer. Remand for an additional VA examination to determine whether her thyroid cancer remains active and malignant in this matter would constitute the development of negative evidence, and such action is prohibited. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because VA may not develop negative evidence, it "must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose").

The evidence of record fails to show that the reduction in the rating of the Veteran's thyroid cancer was supported by the facts shown. According, the 100 percent rating for thyroid cancer is warranted from December 28, 2021 and after November 1, 2023.

3. Entitlement to a TDIU is granted.

As an initial matter, during the period for consideration, the record raises that the Veteran was unable to maintain substantial gainful employment due to her service-connected back disability. See September 2020 TDIU application. A claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Once entitlement to a TDIU is at issue as part of a claim for an increased rating (here, an increased rating for her back disability), a claimant does not need to appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019). Accordingly, the Board has jurisdiction to address the issue of entitlement to a TDIU.

VA regulations provide that a claimant may continuously pursue a claim for effective date purposes by "timely and properly" filing certain decision review requests (including a supplemental claim, request for higher level review (HLR), or appeal to the Board) on the prescribed forms after an AOJ decision. See 38 C.F.R. § 3.2500(c). Moreover, the provision governing the effective date of continuously pursued claims states that a review request must be "timely" filed after within a year from the date on which the AOJ issues a notice of a decision on a claim to establish continuous pursuit. 38 C.F.R. § 3.2500(a), (h).

A February 2021 rating decision adjudicated the matter of an increased rating for the back disability. In January 2022, VA received a request for HLR and a January 24, 2022 rating decision readjudicated the matter. On January 6, 2023, VA received a supplemental claim seeking readjudication for the increased rating for the back disability. An August 2023 rating decision continued the rating for the back disability. On August 14, 2024, VA received a request for HLR in the matter. The November 2024 rating decision, which is on appeal, again continued the rating for the back disability. 

The Board finds the requests for higher level review and supplemental claim were properly filed and accepted by VA; each subsequent decision adjudicated the same issue of an increased the back disability. This satisfies continuous pursuit of the increased rating for the back disability stemming from the February 2021 rating decision. See 38 C.F.R. §§ 3.155, 3.2500.

A TDIU may be assigned when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. What remains to be determined is whether the Veteran's service-connected disabilities are of such nature and severity as to have precluded her participation in substantially gainful employment consistent with her education and work experience. In determining whether unemployability exists, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19
 agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. What remains to be determined is whether the Veteran's service-connected disabilities are of such nature and severity as to have precluded her participation in substantially gainful employment consistent with her education and work experience. In determining whether unemployability exists, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 

In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

In the September 2020 TDIU application, the Veteran reported she was unable to maintain substantial gainful employment due to her lumbar spine disability and that she was seeking a temporary total rating following a lumbar spine surgery. 

In a March 2021 TDIU application, the Veteran reported she was unable to maintain substantial gainful employment due to her service-connected lumbar spine, cervical spine, hysterectomy, and bilateral carpal tunnel disabilities as well as her non-service-connected right shoulder condition. She reported she worked as a psychiatrist and last worked in 2004. She reported she has a college education and has not had any other education or training since she became too disabled to work.

?

In the October 2020 VA back examination, the examiner opined her back disability caused her so much pain with activities that involve bending, prolonged sitting, prolonged standing, and twisting that she cannot work. It was noted that her job involved a lot of sitting and standing. 

In the April 2021 VA neck examination, the examiner opined her cervical spine condition impeded her ability to reach or hold her arms overhead, fully rotate her neck, and look up and down. The examiner also opined that she was unable to do any lifting, pushing, or pulling over 10 to 15 pounds.

In the June 2021 VA peripheral nerves examination, the examiner opined that her service-connected disabilities cause difficulty with heavy strenuous lifting but opined that did not preclude her from seeking or maintaining gainful employment in sedentary occupations. 

In a July 2022 a private vocational statement, the Veteran reported she has obtained a Master's degree in public health and became a licensed psychiatrist in 1998. She was last employed as a psychiatrist between 2000 through May 2004. The provider defined sedentary employment as:

[E]xerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of an eight -hour day) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of an eight-hour day) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met. 

The provider opined the Veteran's service-connected neck condition, back condition, and bilateral upper extremity carpal tunnel syndrome have at least as likely as not precluded her ability to secure and follow substantial gainful employment, to include unskilled sedentary employment, since at least July 2020. The provider noted the Veteran's symptoms and limitations from her service-connected neck disability, back disability, and bilateral upper extremity carpal tunnel syndrome resulted in, but were not limited to: limitations in the ability to sit, stand, or walk for extended periods; limitations with movement and range of motion of the neck; inability to utilize the bilateral upper extremities for repetitive fine and gross motor activity; and an inability to meet employer expectations of adequate pace and productivity. The provider explained why such limitations preclude sedentary employment. The provider acknowledged the Veteran's previous work in a skilled capacity. However, he explained that her employment history, education, and vocational attainments do not overcome her significant vocational impairments due to her service-connected conditions, namely her inability to perform the full range of physical requirements of the sedentary exertional level and inability to meet employer expectations of adequate pace and productivity. He concluded she was precluded from her past field of work and all occupations in the competitive
 walk for extended periods; limitations with movement and range of motion of the neck; inability to utilize the bilateral upper extremities for repetitive fine and gross motor activity; and an inability to meet employer expectations of adequate pace and productivity. The provider explained why such limitations preclude sedentary employment. The provider acknowledged the Veteran's previous work in a skilled capacity. However, he explained that her employment history, education, and vocational attainments do not overcome her significant vocational impairments due to her service-connected conditions, namely her inability to perform the full range of physical requirements of the sedentary exertional level and inability to meet employer expectations of adequate pace and productivity. He concluded she was precluded from her past field of work and all occupations in the competitive workforce as her service-connected conditions preclude her from meeting the basic requirements of all competitive employment. 

Ultimately, the provider opined that the Veteran's inability to perform the full range of sedentary physical demands, in addition to reduced pace and productivity, would not be tolerated in even simple, unskilled sedentary occupations and entirely negate any skills she may have acquired throughout her employment history or through her educational and vocational attainments.

The only competent evidence in the record regarding whether the Veteran is able to maintain substantially gainful employment due to a combination of her service-connected disabilities is the private vocational statement in support of the claim. 

The Board finds the July 2022 private vocational opinion in support of the claim probative and persuasive. The private vocational expert explained in great detail the rationale for his opinion that the Veteran's service-connected back, neck, and bilateral carpal tunnel syndrome disabilities prevent substantially gainful employment consistent with her education and experience and described how her back, neck, and upper extremity nerve symptoms would preclude the physical requirements of sedentary employment and preclude her ability to meet the basic exertional and non-exertional requirements of all competitive employment. The Board finds the opinion to be adequate and probative evidence in the matter, sufficient to substantiate the claim. As it supports the claim and there is no evidence of greater probative value to the contrary, the Board finds it persuasive. 

Considering the foregoing, the Board finds it has been reasonably shown that the Veteran's service-connected back, neck, and upper extremity nerve disabilities result in limitations incompatible with any regular substantially gainful employment consistent with her education and work experience as a psychiatrist (from which she has ceased working for over 20 years). Affording the Veteran the benefit of the doubt as required (see 38 C.F.R. § 4.3), the Board finds a TDIU rating based on a combination of her service-connected back, neck, and upper extremity nerve disabilities is warranted.

[The Board notes that due process requires that the AOJ be afforded initial opportunity to decide the downstream issue of the effective date of the award for TDIU.]

4. Entitlement to an increased disability rating in excess of 50 percent for post operative total abdominal hysterectomy and bilateral salpingo-oophorectomy is denied. 

The Veteran generally alleges that an increased rating for residuals of a hysterectomy is warranted. See October 2025 VA Form 10182.

The Veteran's post operative total abdominal hysterectomy and bilateral salpingo-oophorectomy is currently evaluated as 50 percent disabling under Code 7617 from 2005. Code 7617 provides ratings for complete removal of the uterus and both ovaries. Under Code 7617, a 100 percent rating is assigned for the three months after removal, and a 50 percent rating is assigned thereafter. 38 C.F.R. § 4.116.

On the April 2021 VA gynecological conditions examination, it was noted the Veteran underwent a total abdominal hysterectomy with bilateral salpingo-oophorectomy in 2004. The Veteran reported she has been on hormone replacement therapy since the surgery and denied any vaginal bleeding, discharge, or abdominal pain. She reported her current symptoms included vaginal dryness. The Veteran did not have incontinence, and her gynecological condition did not impact her ability to work.

On the June 2023 VA gynecological condition examination, the Veteran reported the hysterectomy resulted in an early onset of menopause symptoms and she has been treated with hormone replacement therapy. She reported current symptoms included vaginal dryness. The Veteran did not have incontinence, and her gynecological condition did not impact her ability to do physical or sedentary activities or to work.

The Board notes the Veteran underwent a total hysterectomy in 2004. Based on Code 7617, the Veteran would only be entitled to a 100 percent rating for hysterectomy for three months after the removal of her uterus and ovaries, which would be nearly 2 decades prior to filing her current claim. Therefore, the highest maximum disability rating the Veteran is entitled to for her residuals
ynecological condition examination, the Veteran reported the hysterectomy resulted in an early onset of menopause symptoms and she has been treated with hormone replacement therapy. She reported current symptoms included vaginal dryness. The Veteran did not have incontinence, and her gynecological condition did not impact her ability to do physical or sedentary activities or to work.

The Board notes the Veteran underwent a total hysterectomy in 2004. Based on Code 7617, the Veteran would only be entitled to a 100 percent rating for hysterectomy for three months after the removal of her uterus and ovaries, which would be nearly 2 decades prior to filing her current claim. Therefore, the highest maximum disability rating the Veteran is entitled to for her residuals of a hysterectomy is a 50 percent rating under Code 7617, which she has been assigned for the entire period on appeal, and there is no evidence or argument for a separate or higher disability rating.

The record also does not support assigning a disability rating greater than 50 percent for the Veteran's service-connected total abdominal hysterectomy with bilateral salpingo-oophorectomy on an extraschedular basis. It shows instead that her symptoms are contemplated within the regular schedular standards which provide only a maximum 50 percent rating. 

In evaluating increased rating claims on an extraschedular basis, the Board notes that the Court defined an exception or unusual disability picture as occurring where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

The Veteran does not allege, and the record evidence does not show, that her service-connected total abdominal hysterectomy with bilateral salpingo-oophorectomy markedly interfered with her employment or required frequent hospitalization at any time during the appeal period. While she claimed in the March 2021 TDIU application that she was unable to maintain substantial gainful employment, in part, due to her service-connected hysterectomy, the July 2022 private vocational provider opined that she was unable to maintain substantial gainful employment for service-connected disabilities other than her hysterectomy disability. 

Moreover, the 2021 and 2023 VA examiners opined that her hysterectomy disability did not impact her ability to work. The Board finds the opinions by the private provider and the 2021 and 2023 VA examiners probative and persuasive.

The Veteran is already in receipt of the maximum schedular rating for her hysterectomy disability under Code 7617, and no separate or higher disability rating is warranted under any other applicable diagnostic code at any time during the period on appeal. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). 

Considering the foregoing, the Board finds the evidence is persuasively against a rating in excess of 50 percent rating for her hysterectomy disability, and the benefit of the doubt doctrine is therefore inapplicable. Accordingly, the appeal in this matter must be denied. Lynch, 21 F.4th at 781.

REASONS FOR REMAND

At the outset, the Board must address the arguments raised by the Veteran's private attorney in the argument submitted with her October 2025 VA Form 10182. In the filing, the Veteran's representative stated that the Veteran waives her right to further development and asks the Board to promulgate a decision based on the evidence of record. He further argued that the Board must address this argument if it will not accept the waiver. 

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The Board acknowledges this argument but finds that the pre-decisional duty to assist errors and AOJ errors in satisfying a regulatory or statutory duty identified below have resulted in an insufficient record for a decision. The Board therefore finds that VA remains bound by the duty to assist the Veteran and finds that remand is warranted for the pre-decisional duty to assist errors identified below. In addition, the Board further notes that waiver of the right to additional assistance under the duty to assist does not compel the Board to issue a decision if development of the record is incomplete. See, e.g., Clark v. McDonough, 35 Vet. App. 317 (2022) (non-precedential decision) (dismissing appeal of Board remand, where appellant purported to waive duty to assist and requested a final Board decision). Consequently, the Board finds that VA remains bound ineluctably by the duty to assist the Veteran in these matters as in other matters. 

5. 6. 7. 8. 9. Entitlement to an increased rating for back, neck, right upper extremity radiculopathy and carpal tunnel syndrome, left upper extremity radiculopathy
 duty to assist does not compel the Board to issue a decision if development of the record is incomplete. See, e.g., Clark v. McDonough, 35 Vet. App. 317 (2022) (non-precedential decision) (dismissing appeal of Board remand, where appellant purported to waive duty to assist and requested a final Board decision). Consequently, the Board finds that VA remains bound ineluctably by the duty to assist the Veteran in these matters as in other matters. 

5. 6. 7. 8. 9. Entitlement to an increased rating for back, neck, right upper extremity radiculopathy and carpal tunnel syndrome, left upper extremity radiculopathy and carpal tunnel syndrome, and right lower extremity radiculopathy.

The Veteran generally alleges that increased ratings for the neck, back, upper extremity nerve conditions, and right lower extremity radiculopathy are warranted. See October 2025 VA Form 10182.

The Board notes, after the November 2024 rating decision on appeal, the CAVC issued a precedential decision holding that a prior case, Jones v. Shinseki, 26 Vet. App. 56 (2012), applies in evaluating musculoskeletal disabilities if the relevant Diagnostic Code (Code) does not reference medication use. See Ingram v Collins, 38 Vet. App. 130 (2025).

For this case, the Board notes the rating criteria for the spine under Codes 5235 to 5243, for the upper radicular group (fifth and sixth cervicals) under Code 8510, for the median nerve under Code 8515, and for the sciatic nerve under Code 8520 fail to consider the ameliorative effects of medication. Therefore, the Board is obligated to contemplate the severity of the Veteran's back, neck, bilateral upper extremity nerve, and right lower extremity nerve disabilities absent the use of her various medications to control the conditions. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) ("[I]f [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication."); Ingram v. Collins, 38 Vet. App. 130 (2025).

In the October 2020 VA Back, April 2021 VA neck, June 2023 VA neck, and June 2023 VA back examinations, treatment for her back, neck, cervical radiculopathy, and lumber radiculopathy conditions included oral pain medications, Lidocaine patches, Voltaren ointment, acupuncture, and the use of a transcutaneous electrical nerve stimulation (TENS) unit. In the June 2021 and June 2023 VA peripheral nerves examinations, the treatment for her carpal tunnel syndrome included pain medication and cortisone shots. The VA examiners have not stated whether their functional impact assessments, including the range of motion estimates with repeated use over time and during flare ups or functional ankylosis, were made with or without considering the ameliorative effects of the Veteran's medication. 

The Board is aware of the difficulty in providing an opinion (here, regarding severity of the back, neck, upper extremity nerve, and lower extremity nerve disabilities without considering ameliorative effects of the Veteran's medications) that in part requires some speculation, particularly when the Veteran might not be observed without the use of ameliorative medications at the time of examinations. 

In addition, the Board notes the August 2023 rating decision recharacterized the back disability to now include right lower extremity radiculopathy. However, the AOJ rated right lower extremity radiculopathy with the back disability under Code 5237 and did not assign a separate rating for right lower extremity.

These constitute AOJ errors in satisfying a regulatory or statutory duty, which might have a reasonable possibility of aiding the substantiation of the Veteran's claims and requires correction on remand. 38 C.F.R. § 20.802(a).

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10. Service connection for a left knee disability.

11. Service connection for a right knee disability.

12. Service connection for a left hip disability.

13. Service connection for a right hip disability.

The Veteran generally alleges her bilateral knee and bilateral hip conditions are related to service. See June 2020 claim. 

The February 2021 rating decision found that degenerative changes of the bilateral hips and bilateral knee osteoarthritis have been diagnosed. The rating decision also found the claimed disabilities are chronic diseases which may be presumptively linked to her military service if manifested to a compensable
 of aiding the substantiation of the Veteran's claims and requires correction on remand. 38 C.F.R. § 20.802(a).

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10. Service connection for a left knee disability.

11. Service connection for a right knee disability.

12. Service connection for a left hip disability.

13. Service connection for a right hip disability.

The Veteran generally alleges her bilateral knee and bilateral hip conditions are related to service. See June 2020 claim. 

The February 2021 rating decision found that degenerative changes of the bilateral hips and bilateral knee osteoarthritis have been diagnosed. The rating decision also found the claimed disabilities are chronic diseases which may be presumptively linked to her military service if manifested to a compensable degree within one year of service. The Board is bound by these favorable findings. 38 C.F.R § 3.104.

The Veteran has not been afforded a VA examination to determine the nature and likely etiology of her right and left hip and knee disabilities. Considering the state of the medical evidence of record, an examination to obtain a medical opinion regarding the nature and etiology of the claimed right and left knee and hip conditions is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The failure to obtain a VA examination that addresses the nature and likely etiology of her claimed right and left and hip knee disabilities is a pre-decisional duty to assist omission that requires correction on remand.

The matters are REMANDED for the following:

1. Return the record to the June 2023 VA provider for review and addendum opinions regarding the severity of her back, neck, bilateral upper extremity nerve conditions, and right lower extremity radiculopathy during the pendency of the appeal without consideration of any ameliorative effects of pain medication (i.e., as if the Veteran were not taking medication). [If that provider is unavailable or unable to give the opinions sought, forward the record to another appropriate clinician. If further examination is deemed necessary, it should be arranged.] 

(a.) The clinician must opine as to what the Veteran's symptoms would be, in terms of the relevant rating criteria, for her back, neck, bilateral upper extremity nerve, and right lower extremity radiculopathy disabilities without the ameliorative effects of medication.

(b.) As to the back and neck disabilities, the examiner specifically is asked to opine whether the back and neck disabilities are manifested by functional ankylosis if the Veteran was not taking pain medication.

A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide an opinion without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or if the examiner does not have the requisite knowledge or training.

(By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

2. Also, arrange for an appropriate examination of the Veteran to confirm the nature and likely etiology of the right knee, left knee, right hip, and left hip disabilities. The examiner must review the Veteran's claims file. On review of the record and examination of the Veteran, the examiner should:

(a.) Identify (by diagnosis) each right knee, left knee, right hip, and left hip disability entity found/ shown by the record during the pendency of the claim.

(b.) Identify the likely etiology for each right knee, left knee, right hip, and left hip disability entity diagnosed. Specifically, whether it is at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that it began in (or is otherwise etiologically related to) the Veteran's military service.

(c.) If the diagnosed right knee, left knee right hip, and/or left hip disabilities are found to be unrelated to service, identify the etiology for the disability that is considered to be more likely, and explain why that is so.

A complete rationale should be provided for any opinion expressed. If an opinion cannot be provided without resort to mere speculation, indicate whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner does not have the requisite knowledge or training. 

(By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim