Case A26032616

K. L. WALLIN · 2026 · Case ID: A26032616

MIXED

Summary

The veteran, who served in the United States Air Force from December 1974 to December 1994, appealed decisions regarding effective dates for his service-connected disabilities and entitlement to TDIU. The appeal focused on whether treatment records from Hill Air Force Base in 2002 and 2003 constituted informal claims for increased ratings for his lumbosacral strain, bilateral knee, bilateral ankle, and right shoulder disabilities, thereby warranting earlier effective dates. The Board reviewed the medical records from 1995 and 2002, applying the criteria for informal claims under 38 C.F.R. § 3.157 as it existed prior to March 2015. The Board found that while the records documented complaints of pain and some temporary issues, they did not demonstrate a worsening of the disabilities since their last evaluation, nor did they meet the criteria for a compensable rating based on limitation of motion or instability. Consequently, the Board denied earlier effective dates for the right knee, bilateral ankles, right shoulder, and lumbosacral strain. However, the Board granted an increased 30 percent rating for the left knee effective October 2, 2021, and granted TDIU effective June 30, 2021, based on the veteran's inability to maintain substantially gainful employment due to his service-connected conditions, resolving reasonable doubt in his favor for the TDIU effective date.

Rationale

Treatment records did not show worsening since last evaluation; Did not meet criteria for compensable rating; No x-ray evidence of arthritis for separate rating

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

250602-552402

Full Decision Text

Citation Nr: A26032616
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 250602-552402
DATE: April 8, 2026

ORDER

Entitlement to an effective date prior to October 2, 2021, for a 30 percent rating for right knee disability is denied.

Entitlement to an effective date of October 2, 2021, and no earlier, for a 30 percent rating for left knee disability is granted.

Entitlement to an effective date prior to October 2, 2021, for a 10 percent rating for right ankle disability is denied.

Entitlement to an effective date prior to October 2, 2021, for a 10 percent rating for left ankle disability is denied.

Entitlement to an effective date prior to October 2, 2021, for a 20 percent rating for right shoulder disability is denied.

Entitlement to an effective date prior to October 2, 2021, for a 40 percent rating for lumbosacral strain is denied.

Entitlement to an effective date of June 30, 2021, and no earlier, for a total disability rating based upon individual unemployability (TDIU), is granted.

FINDINGS OF FACT

1. In an August 1995 rating decision, service connection for lumbosacral strain, bilateral knee disabilities, bilateral ankle disabilities, and right shoulder disability was established effective January 1, 1995.

2. Medical records from Hill Air Force Base (AFB) dated in August 2002 document complaints of back pain; they do not indicate the lumbosacral strain disability had worsened since the last time it was evaluated.

3. Medical records from Hill AFB dated in November 2002 document injury to the bilateral knees and left ankle as a result of an accident on a horse; there was no treatment of the right ankle; they do not indicate the bilateral knee and left ankle disabilities had worsened since the last time they were evaluated.

4. Medical records from Hill AFB dated in June 2003 document complaints of neck pain radiating into the shoulder; they do not indicate the right shoulder disability had worsened since the last time it was evaluated.

5. The Veteran filed an intent to file a claim for increase for his left knee disability on October 2, 2021.

6. The Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities from June 30, 2021.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date prior to October 2, 2021, for a 30 percent rating for right knee disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

2. The criteria for entitlement to an effective date of October 2, 2021, for a 30 percent rating for left knee disability have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

3. The criteria for entitlement to an effective date prior to October 2, 2021, for a 10 percent rating for right ankle disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

4. The criteria for entitlement to an effective date prior to October 2, 2021, for a 10 percent rating for left ankle disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

5. The criteria for entitlement to an effective date prior to October 2, 2021, for a 20 percent rating for right shoulder disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

6. The criteria for entitlement to an effective date prior to October 2, 2021, for a 40 percent rating for lumbosacral strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

7. The criteria for entitlement to a TDIU, as of June 30, 2021
1, for a 20 percent rating for right shoulder disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400.

7. The criteria for entitlement to a TDIU, as of June 30, 2021, have been met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from December 1974 to December 1994.

These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2024 and September 2024 rating decisions. In June 2025, VA received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Earlier Effective Dates

The Veteran contends that earlier effective dates are warranted for increases awarded for his service-connected bilateral knee, bilateral ankle, right shoulder, and lumbosacral strain disabilities. He maintains that treatment he received for these disabilities in 2002 and 2003 at Hill AFB, a uniformed service, showed worsening and thus, amounted to informal claims for increased disability ratings under 38 C.F.R. § 3.157.

The laws for effective dates are clear. Specifically, except otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

In cases involving claims for increases, reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b) (2014) (repealed effective March 24, 2015).

Prior to March 24, 2015, 38 C.F.R. § 3.157(b)(1)-(3) indicates that, once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by VA or uniformed services, evidence from a private physician or layman, and/or evidence from a state or other institution will be accepted as an informal claim for increased benefits.

To qualify as an informal claim under 38 C.F.R. § 3.157(b)(1), as it existed before March 2015, the VA report in question must (1) identify a specific, particular examination and the date of such examination, and (2) must indicate that the disability has worsened since the last time it was evaluated. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[W]ithout such a requirement
identify a specific, particular examination and the date of such examination, and (2) must indicate that the disability has worsened since the last time it was evaluated. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[W]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1), creating an unnecessary and unwarranted adjudicative burden on VA."

Unlike other informal claims, there is no requirement that an intent to file a claim be shown under § 3.157.

In the present case, in an August 1995 rating decision. Service connection was awarded for bilateral knee, bilateral ankle, right shoulder and lumbosacral strain disabilities. The awards were effective January 1, 1995.

Medical records from Hill Air Force Base (AFB) dated in August 2002 document complaints of back pain. An entry dated in September 2002 documented injury to the bilateral knees and left ankle as a result of an accident on a horse. In June 2003, the Veteran reported neck pain radiating into the shoulder. The records from Hill AFB are from uniformed services and are dated medical examinations, therefore satisfying the first criterion of 38 C.F.R. § 3.157(b)(1). However, these records do not indicate that the disabilities had worsened since the last time they were evaluated. Thus, they do not satisfy the second criterion and do not constitute an informal claim for increased disability ratings under 38 C.F.R. § 3.157. Massie, 25 Vet. App. at 134.

In this regard, disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. § § 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).

Bilateral Knee Disabilities

The Veteran's right knee disability was rated noncompensable prior to October 2, 2021, under Diagnostic Code 5257, and 30 percent thereafter. His left knee was rated noncompensable prior to October 1, 2022 (exclusive of 100% from April 18, 2022, to June 1, 202) and 30 percent thereafter. The Veteran contends that treatment records dated in September 2002 from Hill AFB constituted informal claims for increased rating since his bilateral knee flexion worsened, as did symptoms of pain, patellar laxity, and knee strength. See June 2025 VA Form 10182.

Pursuant to the regulations in effect during the relevant time period, a 10 percent disability evaluation was assigned for slight recurrent subluxation or lateral instability. A 20 percent evaluation required moderate recurrent subluxation or lateral instability. A 30 percent evaluation required severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2002).

When rated for instability of the knee under Diagnostic Code 5257, the Veteran may also be entitled to a separate rating for arthritis under Diagnostic Codes 5003 and 5010 if he has limitation of motion which meets the criteria for at least a zero-percent rating under Diagnostic Code 5260 or 5261. VAOPGCPREC 23-97 (July 1, 1997). A separate rating for arthritis can also be based on x-ray findings and painful motion. 38 C.F.R. § 4.59 (2000); Degmetich v. Brown, 104 F. 3d 1328, 1331 (Fed. Cir. 1997); VAOGCPREC 9-98 (August 14, 1998).

Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2002). Degenerative arthritis (hypertrophic or osteoarthritis), established by x-ray findings will be rated on the basis of limitation of motion under Diagnostic Codes 5260 and 5261. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5260, and 5261 (2002).

Flexion of the leg limited to 15 degrees warrants a 30 percent evaluation; flexion limited to 30 degrees warrants a 20 percent evaluation; and flexion limited to 45 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2001). Extension of the leg limited to 45 degrees warrants a 50 percent evaluation; extension to 30 degrees warrants a 40 percent evaluation; extension to 20 degrees warrants a 30 percent evaluation; extension to 15 degrees warrants a 20 percent evaluation; and extension to 10 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2001).

Report of VA examination dated in April 1995 documented complaints of knee pain, to include with kneeling or climbing stairs. The total range of motion for the knees was 140 degrees. The collateral and cruciate ligaments were intact in both knees. The Veteran had a positive lateral McMurray test on the right knee indicating a lateral meniscus tear. There were no external deformities of the knees. The Veteran was diagnosed with bilateral subpatellar chondromalacia with minimal to moderate symptomatology.

Records from Hill AFB show that in September 2002 the Veteran had multiple joint injuries in an accident involving a horse. A physical therapy consultation dated in November 2002, shows the Veteran had bilateral knee sprains. He also had weakness in his quadriceps and hamstrings. He was off work then light duty since the accident. X-rays were normal. Range of motion was 90 degrees in the right knee and 120 degrees in the left. There was tenderness to palpation. He had a slight antalgic gait. Bilateral straight leg was positive for tight hamstrings. There was no focal motor sensory deficit. Deep tendon reflexes were normal. The Veteran was given exercises. Full range of motion, increased knee strength, and return to full duty was projected within eight weeks.

The provider indicated in November 2002 that most of the joint injury had been resolved. In December 2002, tolerance to activity increased. Pain at worst was 5/10. Strength improved and range of motion was full. There was a notation of increased medial lateral patellar laxity but there was no patellar apprehension or evidence of subluxation. Prognosis was good. Additional treatment notes dated in December 2002 revealed no laxity.

The Board finds that the 2002 records do not demonstrate that the Veteran's bilateral knee disabilities worsened since they were last evaluated in April 1995. At the outset the Board finds that there was no x-ray evidence of arthritis in either 1995 or 2002 to warrant separate ratings based on limitation of motion. The Board notes that even if the Veteran were to have been rated on limitation of motion alone, as opposed to instability, he did not meet the criteria for at least a zero percent rating under Diagnostic Code 5260 or 5261. Notably, both upon examination in 1995 and treatment in 2002, the Veteran reported bilateral knee pain and tenderness. While there was some temporary decrease in flexion in 2002, this was due to an acute injury and returned to full motion shortly thereafter. Nevertheless, even considering the complaints of pain, flexion was limited at worse to 90 degrees in the right knee and 120 degrees in the left in 2002, which did not support a compensable rating under Diagnostic Code 5260. There was no evidence of limited extension. 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra.

The Board finds medical evidence in 2002 is a continuation of previously noted symptoms consistent with a noncompensable rating. In 1995, a right knee lateral meniscal tear was noted; however, the collateral and cruciate ligaments were intact. In 2002, while there was an indication of increased medial lateral patellar laxity, prognosis was good for full recovery, there was no subluxation or complaints of falls or instability. Additional treatment records in 2002 showed no knee laxity. Moreover, there was no joint instability diagnosed in 2002 by testing, to include Lachman's, drawer or varus/valgus tests. The objective medical evidence was more probative than the lay evidence. As such, the competent evidence did not show slight recurrent subluxation or lateral instability in 2002 and thus, it was not shown that the disability had worsened since it was evaluated.

Therefore, the Board finds that the treatment records in 2002 did not amount to an informal increased rating claim and did not satisfy the second criterion of 38 C.F.R. § 3.157. The increased 30 percent rating for the right knee was made effective from the date of intent to file claim, October 2, 2021, the earliest effective date available even when considering if an increase in disability precedes the claim by a year or less. Consequently, the claim for an earlier effective date for the right knee on this basis is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

With regard to the left knee, the Veteran filed his intent to file a claim for increase on October 2, 2021, the same date as the right knee. The Veteran underwent surgery on the left knee April 18, 2022. Although the surgery occurred after the date of claim, the Board is resolving reasonable doubt in the Veteran's favor and assigning an effective date of October 2, 2021, the intent to file claim, and no earlier. This is based on the deterioration of the left knee necessitating surgery and since the claim was filed within one year of that procedure. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Bilateral Ankles

The Veteran's bilateral ankle disability was rated noncompensable prior to October 2, 2021, under Diagnostic Codes 5003-5271, 5257, and 10 percent thereafter. The Veteran contends that treatment records dated in September 2002 from Hill AFB constituted informal claims for increased rating since they show swelling of the ankles and that he walked with a slight limp. See June 2025 VA Form 10182.

Pursuant to the regulations in effect during the relevant time period, Diagnostic Code 5003 provided that degenerative arthritis established by X-ray findings would be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved was noncompensable under the appropriate diagnostic codes, a rating of 10 percent would be for application for each such major joint or group of minor joints
. The Veteran contends that treatment records dated in September 2002 from Hill AFB constituted informal claims for increased rating since they show swelling of the ankles and that he walked with a slight limp. See June 2025 VA Form 10182.

Pursuant to the regulations in effect during the relevant time period, Diagnostic Code 5003 provided that degenerative arthritis established by X-ray findings would be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved was noncompensable under the appropriate diagnostic codes, a rating of 10 percent would be for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.

Limitation of motion must have been objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Furthermore, diagnostic Code 5271 provided that moderate limitation of motion of the ankle warranted a 10 percent rating, while marked limitation of motion of the ankle warranted a 20 percent rating. 38 C.F.R. § 4.71a.

Upon examination in 1995, the Veteran complained of twisting his ankles easily. Bilateral range of motion was as follows: dorsiflexion 30 degrees; plantar flexion 60 degrees; inversion 45 degrees and eversion 25 degrees. There was no crepitation, but the Veteran complained of feeling popping when his ankles were rotated. He was diagnosed with bilateral ankle sprains and weakness. The examiner indicated there was no limitation of motion or external deformity.

Physical therapy records from Hill AFB dated in November 2002 show that the Veteran injured his left ankle in September 2002. There was no treatment for the right ankle. The left ankle was said to be sprained. The Veteran reported soreness. X-rays were normal. His current condition was said to be improving. There was no objective testing of the left ankle.

Neither the evidence in 1995 or 2002 showed limitation of range of motion of the left ankle, ankylosis, nonunion, or malunion with impairment. The Veteran simply had the same reports of ankle sprain and pain. There was no objective evidence of any functional loss, which would warrant a compensable rating. 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra.

As the records did not contain treatment of the right ankle or show that the left ankle disability had worsened since the last time the disability was evaluated, the Board finds that the treatment records in 2002 did not amount to informal increased rating claims for the bilateral ankles. Therefore, it did not satisfy the second criterion of 38 C.F.R. § 3.157. The increased 10 percent ratings for the bilateral ankles were made effective from October 2, 2021, the date of the intent to file a claim, the earliest effective date available even when considering if an increase in disability precedes the claims by a year or less. The claims for an earlier effective date are not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Right Shoulder Disability

The Veteran's right shoulder disability is rated as noncompensable under Diagnostic Codes 5024-5201, from January 1, 1995, and 20 percent from October 2, 2021. The Veteran maintains that as of 1995, when service connection was granted, his right shoulder was "essentially normal." However, he claims that as of June 2003, treatment records from Hill AFB constituted an informal claim for increase since he experienced pain that radiated from his neck into his shoulder. See June 2025 VA Form 10182.

In evaluating the Veteran's right shoulder condition, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5024 regarding tenosynovitis are applicable. See 38 C.F.R. § 4.20 (2002) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5024 dictate that the disabilities at issue be rated based upon limitation of motion of the affected parts. As such, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5201 regarding limitation of motion of the arm are for application. This provided that limitation
Diagnostic Code 5024 regarding tenosynovitis are applicable. See 38 C.F.R. § 4.20 (2002) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5024 dictate that the disabilities at issue be rated based upon limitation of motion of the affected parts. As such, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5201 regarding limitation of motion of the arm are for application. This provided that limitation of motion of either the major or minor arm shall be evaluated as 20 percent disabling if such limitation of motion is at the shoulder level. To warrant a higher disability evaluation of 30 percent for the major upper extremity, limitation of motion of the arm must be to midway between the side and shoulder level; such limitation of motion, parenthetically, of the minor extremity still would warrant no more than a 20 percent disability evaluation. To warrant a 40 percent disability evaluation for the major upper extremity or a 30 percent disability evaluation for the minor upper extremity, limitation of motion of the arm must be to 25 degrees from the side.

Upon examination in April 1995, the Veteran reported no problems with his right shoulder. He denied limitation of motion. Abduction was 180 degrees, forward elevation was 180 degrees, internal and external rotation was to 85 degrees. There was no crepitation with motion or tenderness over the bicipital tendon. The Veteran was diagnosed with bicipital tendinitis of the right shoulder with no symptomatology, limitation of motion or external deformity.

Treatment records from Hill AFB dated in June 2003 show the Veteran reported pain in the neck that radiated into his shoulder. No objective findings were recorded for the right shoulder. Notably, there was no indication of limited motion or any functional impairment. 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra.

As the records did not show that the disability had worsened since the last time the disability was evaluated, the treatment records in 2002 did not amount to informal increased rating claim for the right shoulder. Therefore, it did not satisfy the second criterion of 38 C.F.R. § 3.157. The increased 20 percent rating for the right shoulder was made effective from October 2, 2021, the date of the intent to file a claim, and the earliest effective date available even when considering if an increase in disability precedes the claim by a year or less. Consequently, the claim for an earlier effective date is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Lumbar Spine Disability

The Veteran's lumbar spine condition is rated at 10 percent disabling under Diagnostic Code 5237, from January 1, 1995, and 40 percent from October 2, 2021. The Veteran contends that the 10 percent rating was originally based upon pain alone, and that evidence from Hill AFB in August 2002 showed worsening pain, reduced range of motion, abnormal posture and gait, as well as tenderness on palpation. Based upon the foregoing, he contends these records constitute an informal claim for increase. See June 2025 VA Form 10182.

Under the rating criteria for spine disabilities in effect at the time, a noncompensable rating was assigned for lumbosacral strain with slight subjective symptoms only; 10 percent required characteristic pain on motion, 20 percent for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; and 40 percent for severe strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position. Loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002).

Upon VA examination in April 1995, the Veteran reported low back pain occurring approximately once monthly. Lumbar spine range of motion was 90 degrees flexion, extension 15 degrees, lateral flexion 20 degrees bilaterally, and rotation 30 degrees bilaterally. Straight leg raising test was negative. Lumbar curve was slightly decreased. Sciatic notch was not tender. Reflexes were
arthritis changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002).

Upon VA examination in April 1995, the Veteran reported low back pain occurring approximately once monthly. Lumbar spine range of motion was 90 degrees flexion, extension 15 degrees, lateral flexion 20 degrees bilaterally, and rotation 30 degrees bilaterally. Straight leg raising test was negative. Lumbar curve was slightly decreased. Sciatic notch was not tender. Reflexes were equal. Sensation was intact in lower extremities and very slight paravertebral muscle spasm in the lumbar area. The Veteran was diagnosed with lumbosacral strain with no evidence of radiculopathy and mild paravertebral muscle spasm with moderate to intermittently severe symptomatology.

Records from Hill AFB dated in August 2002 document complaints of back pain. The Veteran denied numbness, pain, or tingling into either leg. There was some tenderness to palpation. The Veteran favored his right side and thus, had abnormal gait and posture. There was decreased range of motion in the right piriformis and the right sciatic was locked. He was advised to do home stretching and strengthening.

The August 2002 treatment record does not show that the lumbar spine disability had worsened since the last evaluation in 1995. The Veteran complained of pain and tenderness on both occasions. There was no objective evidence of limited motion of the lumbar spine in 1995 or 2002. The presence of muscle spasms was not noted in 2002. In fact, it would appear there was an improvement in 2002 since the 1995 evaluation found lumbosacral strain to be productive of moderate to intermittently severe symptomatology.

As the records did not show a worsening since the last time the lumbar spine disability was evaluated, the treatment records in 2002 did not amount to an informal increased rating claim for the Veteran's low back. Therefore, it did not satisfy the second criterion of 38 C.F.R. § 3.157. The increased 40 percent rating for the lumbar spine was made effective from the date of the intent to file, October 2, 2021, the earliest effective date available even when considering if an increase in disability precedes the claim by a year or less. Consequently, the claim for an earlier effective date is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

TDIU

The Veteran submitted an intent to file on October 2, 2021, and claims for increased ratings for his low back, right shoulder, bilateral knee, and bilateral ankle disabilities in April 2022. See October 2021 VA 21-0996; see also April 2022 VA 21-526EZ.

The Veteran's TDIU has been assigned an effective date of October 1, 2022. See September 2024 Rating Decision - Narrative. The Veteran maintains that the correct effective date should either be the date he ceased working (June 30, 2021) or the date in which he submitted his intent to file (October 2, 2021). See June 2025 VA From 10182.

TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to obtain or maintain substantially gainful employment due to service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a).

Generally, a claim for a TDIU is thought of as equivalent to an increased rating and, as such, 38 C.F.R. § 3.400(o) should be applied. See, e.g. Hurd v. West, 13 Vet. App. 449 (2000). An earlier effective date, for an increased rating, will be granted from the date of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). If it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase
. § 4.16(a).

At the outset, the Board has awarded an increased 30 percent rating for the left knee effective from October 2, 2021, in the instant decision. Thus, the Veteran had a combined rating of 90 percent from October 2, 2021, with his lumbosacral strain rated at 40 percent. Therefore, the schedular criteria for TDIU had been met. The record shows the Veteran stopped working June 30, 2021; however, he did not meet the schedular criteria as of that date.

Until recently, the Board was precluded from granting a TDIU on an extraschedular basis in the first instance under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In Witkowski v. Collins, however, CAVC overturned Bowling, holding that 38 C.F.R. § 4.16(b)'s requirement of referral to the Director of Compensation Service does not apply to the Board. Witkowski v. Collins, No. 24-0640 (Vet. App. Oct. 21, 2025). Thus, while the Board will consider relevant evidence of the Veteran's functional limitations documented in records, the issue of whether to refer an extraschedular TDIU to the Director, Compensation Service, is moot in light of Witkowski. Post-Witkowski, the only question for the Board in determining whether to award a TDIU is whether the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment, regardless of whether the schedular threshold is met.

The AOJ made a favorable determination that the Veteran's service-connected conditions prevented him from securing, or following, substantially gainful employment. See September 2024 Rating Decision - Narrative. There is no evidence to the contrary. Entitlement arose on June 30, 2021, when the Veteran ceased working, which is after the filing of the October 2, 2021, intent to file, but within one year of that date, as well as the formal claims for increase.

Thus, the Board finds the evidence persuasively weighs in favor of the assignment of an effective date of June 30, 2021, but no earlier, for the award of a TDIU. 38 U.S.C. § 5110 (b)(2).

K. L. WALLIN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P. Abels, Attorney Advisor.

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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