PES PLANUS

S.C. KREMBS · 2026 · Case ID: A26034692

MIXED

Summary

The veteran, who served in the Army from October 2014 to March 2016, appeals the denial of service connection for an acquired psychiatric condition and a sleep condition, as well as the rating for his right foot plantar fasciitis and left foot pes planus. The Board granted service connection for left foot pes planus at 30% effective March 28, 2016, and for right foot plantar fasciitis at 30% effective March 28, 2016, and for slight right foot instability at 10% effective February 22, 2017. The Board also granted a total disability based on individual unemployability (TDIU) effective March 28, 2016, based on the severity of the right foot conditions, and special monthly compensation (SMC) at the housebound rate effective March 28, 2016. The Board found the veteran's right foot conditions precluded substantially gainful employment and that her marginal employment and protected work environment at the Salvation Army met the TDIU criteria. The Board also found that the combined rating for the right foot conditions, along with other service-connected disabilities, met the criteria for housebound SMC. The claims for acquired psychiatric condition, sleep disorder, bilateral hips, and right knee conditions were remanded due to duty to assist errors, as the veteran reported symptoms potentially related to service or secondary to her service-connected foot conditions, and VA failed to obtain adequate examinations.

Rationale

Left foot pes planus rated 30 percent; Extreme tenderness on plantar surface; Pain on use, not improved by orthopedic shoes

Service Branch

ARMY

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

210526-162422

Full Decision Text

Citation Nr: A26034692
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 210526-162422
DATE: April 14, 2026

ORDER

A separate evaluation of 30 percent for left foot pes planus is granted effective March 28, 2016.

An initial rating of 30 percent for the right foot plantar fasciitis is granted effective March 28, 2016.

A separate rating of 10 percent for slight instability of the right foot is granted effective February 22, 2017.

A total disability rating based on individual unemployability (TDIU) for a single service-connected condition is granted effective March 28, 2016.

A special monthly compensation (SMC) at the housebound rate is granted effective March 28, 2016.

REMANDED

Service connection for an acquired psychiatric disorder is remanded.

Service connection for a sleep condition is remanded.

Service connection for right knee condition is remanded.

Service connection for a left hip condition is remanded.

Service connection for a right hip condition is remanded.

FINDINGS OF FACT

1. Beginning March 28, 2016, the left foot pes planus was manifested by extreme tenderness of plantar surfaces of the left foot that is not improved by orthopedic shoes or appliances.

2. Beginning March 28, 2016, the right foot plantar fasciitis was manifested by no relief from both non-surgical and surgical treatment.

3. Beginning February 22, 2017, the right foot plantar fasciitis has produced mild instability - symptoms analogous to slight recurrent subluxation of the knee.

4. Beginning March 28, 2016, the service-connected right foot conditions have precluded her from securing or following substantially gainful employment that is consistent with her education and occupational experience.

5. Beginning Marh 28, 2016, a TDIU has been assigned solely based on the severity of the Veteran's service-connected right foot conditions and the Veteran has other service-connected disabilities that combine to a 60 percent rating.

CONCLUSIONS OF LAW

1. The criteria for a separate rating of 30 percent for left foot pes planus are not met effective March 28, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276.

2. The criteria for a separate rating of 20 percent for right foot plantar fasciitis, but no higher, are met effective March 28, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284.

3. The criteria for a separate rating of 10 percent for right foot instability, but no higher, are met effective February 22, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2020).

4. The criteria for a TDIU are met effective March 28, 2016. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.340, 3.341, 4.16, 4.19.

5. he criteria for SMC at the housebound rate are met effective March 28, 2016. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2014 to March 2016. This matter comes before the Board of Veteran's Appeal (Board) on appeal from the March 2021 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

As background, on July 7, 2018, the Veteran submitted an intent to file a claim, and submitted statements related to her right foot condition and requested a TDIU. In June 2019, the RO denied an increased rating for the foot conditions and denied a TDIU. In March 2020, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application. The Veteran also submitted a July 2020 claim for service connection for an acquired psychiatric condition. In July 2020, the RO denied the acquired psychiatric condition claim.

In September 2020, the RO issued a rating decision proposing to reduce the rating for the conditions and
of Veterans Affairs (VA) Regional Office (RO).

In September 2020, the RO issued a rating decision proposing to reduce the rating for the conditions and again denied a TDIU. In November 2020, the Veteran submitted a VA form 20-0996 Higher-Level Review Application. In March 2021, the RO again continued a 50 percent rating for the foot conditions. A day later, the RO issued a higher-level review rating decision for the TDIU and acquired psychiatric claim. In response, the Veteran submitted a May 2021 VA Form 10182 and selected the Hearing with a Veterans Law Judge docket at the Board. On March 17, 2025, the Veteran testified before the undersigned Veterans Law Judge. The hearing transcript is of record.

Based upon the selection of the Hearing docket for the acquired psychiatric condition, the Board may consider the evidence of record as of July 29, 2020-the date of issuance of the rating decision on appeal subject to the November 2020 higher-level request, and evidence submitted at or within 90 days of the March 17, 2025 Board hearing. See 38 C.F.R. §§ 20.302.

Based upon the selection of the Hearing docket for the TDIU claim, the Board may consider the evidence of record as of September 19, 2020-the date of issuance of the rating decision on appeal subject to the November 2020 higher-level request, and evidence submitted at or within 90 days of the March 17, 2025 Board hearing. See 38 C.F.R. §§ 20.302.

Based upon the selection of the Hearing docket for the foot claims, the Board may consider the evidence of record as of March 4, 2021-the date of issuance of the rating decision on appeal, and evidence submitted at or within 90 days of the March 17, 2025 Board hearing. See 38 C.F.R. §§ 20.302. If the Veteran submitted evidence that was added to the record after March 13, 2020 and before the August 12, 2024 Board hearing, or more than 90 days following the Board hearing, the Board did not consider it.

As a final note, in May 2021, the Veteran was informed that she had a year from the date her rating decision was mailed to her or within 60 days of the date the Board received his NOD to switch her Board review option. The Veteran did not respond to the Board's May 2021 letter. However, the Veteran has already testified before the Board, therefore, the Veteran is precluded from switching the Board review option. Accordingly, the Board will adjudicate this appeal.

Period on Appeal

Here, the Board finds that the period on appeal begins on March 28, 2016. In effort to clarify the procedural history of this appeal, the matter before the Board stems from an October 2015 claim for service connection for plantar fasciitis. In May 2016, the RO granted service connection for right foot plantar fasciitis with left foot pes planus and assigned a 50 percent rating effective March 28, 2016, the date after she separated from service. See May 2016 Rating Decision. Subsequently, in January 2017, the Veteran's VA treatment records demonstrated additional right foot symptoms, such as pain in the arch of her foot. See January 2017 VA Treatment Record. The United States Court of Appeals for the Federal Circuit has determined that when post-decision medical records were constructively received by VA within the one-year appeal period of a rating decision, that rating decision does not become final until a determination is made as to whether such evidence is new and material. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Here, the Board finds that the May 2016 rating decision was not finalized. Specifically, the Board finds that 38 C.F.R. § 3.156(b) is applicable because the January 2017 VA treatment record was both new and material evidence. Prior to the issuance of the May 2016 rating decision, the November 2015 VA examiner noted that
Circuit has determined that when post-decision medical records were constructively received by VA within the one-year appeal period of a rating decision, that rating decision does not become final until a determination is made as to whether such evidence is new and material. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Here, the Board finds that the May 2016 rating decision was not finalized. Specifically, the Board finds that 38 C.F.R. § 3.156(b) is applicable because the January 2017 VA treatment record was both new and material evidence. Prior to the issuance of the May 2016 rating decision, the November 2015 VA examiner noted that she had pain on the side and bottom of her foot. However, the January 2017 VA treating clinician noted that she started to develop pain in the arch and heel of her foot. The Board notes that these symptoms relate to an unestablished fact necessary to substantiate her claim, as it shows that her plantar fasciitis is more severe than previously found by the RO. Accordingly, the Board finds that the period on appeal begins on March 28, 2016 because the May 2016 rating decision was never finalized.

Increased Rating

Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Left Foot Pes Planus

As indicated above in the Conclusions of Law section, the Board finds that a separate rating of 30 percent for the left foot pes planus is warranted effective March 28, 2016. Accordingly, to this extent, the Board grants the Veteran's claim.

The Veteran's bilateral foot disability is currently characterized as "right foot plantar fasciitis with pes planus left foot" under DC 5276 (pes planus) with a single 50 percent rating assigned from March 28, 2016 for pes planus symptoms. See June 2019 Rating Decision.

After reviewing the record, the Board concludes that the left foot pes planus itself warrants a separate rating under DC 5276. See November 2018, January 2019, and August 2020 VA Medical Opinion. Under the diagnostic criteria pertaining to pes planus, a 10 percent rating is assigned for moderate pes planus, weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. The next higher rating of 30 percent requires "pronounced" pes planus of either foot (unilateral), with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A 50 percent rating is warranted for bilateral "pronounced" pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.

Here, the Board finds that it a 30 percent rating for left foot pes planus is warranted, but no higher. In this regard, the November 2018 VA examiner stated that the Veteran's left foot exhibited signs of extreme tenderness on the plantar surface. The examiner also noted that the Veteran exhibited signs of pain on use of the left foot, accentuated on use, and on manipulation. The examiner also noted that there was an indication of swelling on use and characteristic calluses. The examiner also noted that although the Veteran was prescribed arch supports, the extreme tenderness on the plantar surface of her left foot was not improved by the arch supports. Aside from the clinical findings, the Veteran consistently reported foot pain that inhibits her ability to get started in the morning. She reported daily flare-ups of the left foot pain that prevented prolonged standing and walking. See VA Medical Opinions.

Based on the foregoing, the Board finds that the Veteran is entitled to a separate 30 percent rating for the left foot pes planus because she exhibited signs of extreme tenderness on the plantar surface of the left foot. The Board notes that a higher rating of 50 percent is not warranted because the evidence does not show that she has right foot pes planus, and the increased 50 percent rating requires bilateral pes planus. See VA Medical Opinions and VA Treatment Records.

Accordingly, the Board finds that a 30 percent rating for left foot pes planus is warranted, but no higher, effective March 28, 2016. Lastly, with regards to the effective date, the Board notes that the Veteran's left foot pes planus diagnosis has been established since at least November 2015. As such, the Board finds that March 28, 2016 is the appropriate effective date because it is the first day following the Veteran's separation from service, the Veteran filed her claim before separating from service, and the May 2016 rating decision was never finalized.

Right Foot Plantar Fasciitis and Instability

As indicated above in the Conclusions of Law section, the Board finds that a separate 30 percent for right foot plantar fasciitis and a 10 percent rating for right foot instability are warranted. Accordingly, to this extent, the Board grants the Veteran's claim.

As noted above, the Veteran's bilateral foot disability is currently characterized as "right foot plantar fasciitis with pes planus left foot" under DC 5276 (pes planus) with a single 50 percent rating assigned from March 28, 2016 for pes planus symptoms. See June 2019 Rating Decision.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S
Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Here, DC 5269 for plantar fasciitis did not exist prior to February 7, 2021. Historically, plantar fasciitis was rated under DC 5284 for other foot injuries. This DC remained unchanged after the amendments to 38 C.F.R. § 4.71a.

Here, the Board finds that it is more favorable to the Veteran to rate the plantar fasciitis under DC 5284. Additionally, the Board finds that a diagnosis of right foot plantar fasciitis itself warrants a separate rating under DC 5284. See November 2018, January 2019, and August 2020 VA Medical Opinion.

Under Diagnostic Code 5284, a moderate foot injury warrants a 10 percent rating, a higher 20 percent rating is warranted for a moderately severe disability of the foot, and a 30 percent rating for a severe disability of the foot. 38 C.F.R. § 4.71a, DC 5284.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. For reference and illustrative purposes, the Board notes that Merriam-Webster dictionary defines "mild" as moderate in action or effect; "moderate" as tending toward the mean or average amount or dimension; and "severe" as "of a great degree." See https://www. merriam-webster.com/ dictionary/slight; www.merriam-webster.com/dictionary/ moderate; www.merriam-webster.com/dictionary/severe. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

Here, the evidence shows that the Veteran's right foot plantar fasciitis symptoms were severe during the period on appeal. The examiners noted that she had extreme tenderness on the plantar surface of the right foot, pain on use, accentuated on use, and on manipulation. The examiners also noted that there was an indication of swelling on use and characteristic calluses of the right foot. The Board also notes that the Veteran reported pain that lasts all day. She also stated that she experienced extreme pain and weakness in her foot, which has caused falls. She reported that her pain is on levels 6 to 9 on a scale of 10. She also reported that she experienced flare-ups from one to three times a month, when her foot pain prevents her from walking. The examiners also noted that she experienced pain with weight-bearing, non weight-bearing, disturbance of locomotion, and interference with standing. In considering this evidence of record, the Board notes that it must consider functional loss due to pain, weakness, excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Accordingly, resolving doubt in the Veteran's favor and when considering painful motion, functional loss after repeated use over time and during flare-ups, the Board finds that the Veteran is entitled to a 30 percent for the right foot plantar fasciitis that is severe, which is the highest schedular rating under DC 5284.

Accordingly, the Board finds that a separate rating of 30 percent for right foot plantar fasciitis is warranted effective March 28, 2016. The Board would also like to note that a 30 percent is the highest schedular rating for plantar fasciitis under DC 5269, such that she is not entitled to a rating higher than 30 percent when considering the revised diagnostic codes. With regards to the effective date, the Board notes
considering painful motion, functional loss after repeated use over time and during flare-ups, the Board finds that the Veteran is entitled to a 30 percent for the right foot plantar fasciitis that is severe, which is the highest schedular rating under DC 5284.

Accordingly, the Board finds that a separate rating of 30 percent for right foot plantar fasciitis is warranted effective March 28, 2016. The Board would also like to note that a 30 percent is the highest schedular rating for plantar fasciitis under DC 5269, such that she is not entitled to a rating higher than 30 percent when considering the revised diagnostic codes. With regards to the effective date, the Board notes that the Veteran's left foot pes planus diagnosis has been established since at least November 2015. As such, the Board finds that March 28, 2016 is the appropriate effective date because it is the first day following the Veteran's separation from service, the Veteran filed her claim before separating from service, and the May 2016 rating decision was never finalized.

Moreover, the Board finds that the criteria for a separate 10 percent rating for slight right foot instability under DC 5257 (2020) are met by analogy effective February 22, 2017. Regarding instability, prior to February 7, 2021, DC 5257 provided a 10 percent evaluation for slight lateral instability or recurrent subluxation of the knee, a 20 percent evaluation was warranted for moderate lateral instability or recurrent subluxation of the knee, and a 30 percent evaluation was warranted for severe lateral instability or recurrent subluxation of the knee. See 38 C.F.R. § 4.71a, DC 5257 (2020).

The terms "slight," "moderate," and "severe" are not defined in the pre-amended diagnostic code and, therefore, rather than applying a mechanical formula, the Board must evaluate all the evidence in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.6. For reference and illustrative purposes, the Board notes that Merriam-Webster dictionary defines "slight" as small of its kind or in amount; "moderate" as tending toward the mean or average amount or dimension; and "severe" as "of a great degree." See https://www. merriam-webster.com/ dictionary/slight; www.merriam-webster.com/dictionary/ moderate; www.merriam-webster.com/dictionary/severe.

Effective February 7, 2021, DC 5257 was amended to provide for more explanation as to the terminology. Although not effective until February 7, 2021, the Board finds the definitions within the amended DC 5257 criteria instructive and, therefore, will apply either the Merriam-Webster dictionary definition or the amended DC 5257 definitions, whichever is most favorable for the Veteran in light of the evidence.

Under the amended DC 5257, with regard to recurrent subluxation or lateral instability, a 10 percent evaluation is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

A 20 percent rating is assigned for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or, (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

Finally, a 30 percent rating is assigned for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

With regard to patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. Finally, a 30 percent rating is assigned for a diagnosed condition involving the
and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

With regard to patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. Finally, a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

Note (1) clarifies that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See 38 C.F.R. § 4.71a, DC 5257 (2022).

Importantly in this matter, objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). By the same token, the Board is mindful that the Veteran is competent to report what she perceives as instability. Id. In so finding, as noted above, the Board observes that under the pre-amendment rating criteria for DC 5257, the terms "slight", "moderate", and "severe" are not defined. 38 C.F.R. § 4.71a, DC 5257 (2020). Here, the Board finds that the pre-amendment criteria are more favorable to the Veteran and will be applying the pre-amendment criteria.

Turning to the evidence of record, the Board notes that the VA treatment records have shown numerous falls due to the right foot weakness related to the plantar fasciitis. In light of the evidence above, the Board finds that the right foot instability is most analogous to a slight instability of the right foot warranting a separate 10 percent evaluation under DC 5257 effective February 22, 2017. Additionally, given that DC 5269 does not contemplate weakness or instability, which has been shown, the Board finds that a separate 10 percent rating is warranted under DC 5257 as analogous to moderate instability of the foot, insofar as the instability is not otherwise contemplated by the currently assigned diagnostic codes. Further, regarding the effective date, the Board notes that the record demonstrates that she first sought treatment for a fall related to the right foot condition on February 22, 2017. The Board finds that this is the date entitlement arose. See 38 C.F.R § 3.400. As such, the Board finds that February 22, 2017 is the appropriate effective date.

However, a rating higher than 10 percent is not warranted under DC 5257, as the examiners found no instability of station of the right foot. See VA Medical Opinions. Moreover, the Board is precluded from assigning a rating greater than 10 percent for right foot instability because it violates the amputation rule. The "amputation rule" set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. Considering the Board's grant herein, right foot plantar fasciitis is rated as 30 percent disabling, the right foot instability is rated as 10 percent disabling, and her right foot scar is rated as 10 percent disabling; her combined rating for disabilities of the right lower extremity below the knee is 40 percent. See 38 C.F.R. § 4.25. The combined rating for those disabilities may not exceed 40 percent, which is the rating for a foot amputation and loss of use the foot. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5165 and 5167. Thus, pursuant the amputation rule, the 40 percent combined ratings for the right lower extremity disabilities are the maximum ratings available.

Further, the Board finds that entitlement
right foot instability is rated as 10 percent disabling, and her right foot scar is rated as 10 percent disabling; her combined rating for disabilities of the right lower extremity below the knee is 40 percent. See 38 C.F.R. § 4.25. The combined rating for those disabilities may not exceed 40 percent, which is the rating for a foot amputation and loss of use the foot. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5165 and 5167. Thus, pursuant the amputation rule, the 40 percent combined ratings for the right lower extremity disabilities are the maximum ratings available.

Further, the Board finds that entitlement to an extraschedular rating for the right foot condition has been raised. In this regard, the record shows that the right foot condition interfered with the Veteran's employment. The record also shows that she continuously sought treatment for her foot pain. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Director of Compensation Service or delegate is authorized to approve an extraschedular evaluation. The standard is average earning capacity impairment due to a single service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111 (2008).

In consideration of the evidence, the Board finds that any symptoms associated with the service-connected right foot conditions are contemplated by the schedular ratings under DCs 5269 and 5257. Moreover, an extraschedular rating is essentially foreclosed as the next higher schedular rating equates to loss of use of the foot or actual loss of the foot, with no percentage level possible in between as the grades of impairment are in multiples of ten. See 38 U.S.C. § 1155. This is distinguished from King v. Shulkin, 29 Vet. App. 174 (2017). The standard in 38 C.F.R. § 3.321(b)(1) is average impairment in earning capacity. See Kuppamala v. McDonald, 27 Vet. App. 447, 454 (2015). The Rating Schedule shows as a guide that average impairment in earning capacity caused by an amputated foot or equivalent would be 40 percent. Any reading where a symptom of the right foot conditions are greater than the assigned ratings, but not equivalent to loss of use or loss of actual foot (which is not shown here), would result in an absurd result not in compliance with the standard of average impairment in earning capacity as it would be beyond average impairment. This is further supported by the amputation rule of 38 C.F.R. § 4.68.In sum, the Board finds that it is precluded from referring the right foot conditions for extraschedular consideration.

TDIU

As indicated above in the Conclusions of Law section, the Board finds that a TDIU is warranted effective March 28, 2016. Accordingly, to this extent, the Board grants the Veteran's claim.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22?Vet. App.?447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1?Vet. App.?164 (1991); see Friscia v. Brown, 7?Vet. App.?294 (1994); Beaty v. Brown, 6?Vet. App.?532 (1994); Moore v. Derwinski, 1?Vet. App.?356 (1991).

However, VA may not consider the individual veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38?C.F.R. §§?3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2?Vet. App.?91, 94 (1992); Faust v. West, 13?Vet. App.?342 (2000).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable
1994); Moore v. Derwinski, 1?Vet. App.?356 (1991).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 or more. 38?C.F.R. §?4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. A veteran need not show 100 percent unemployability to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment-defined as when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)-shall not be considered substantially gainful employment. 38?C.F.R. §?4.16(a).

The determination as to whether the Veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that the Veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of the Veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The Court also held that employment in a "protected environment" means a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market. See LaBruzza v. McDonough, 37 Vet. App. 111 (2024). This definition contemplates workplace accommodations required by the Americans with Disabilities Act (ADA) as "employees who receive reasonable accommodations under the ADA are not being shielded from the competitive labor market; they are working within it under one of the conditions that govern it." LaBruzza, supra. Factors that adjudicators should assess in determining whether employment is in a protected environment include: (1) nature and extent of accommodations; (2) employer behavior (e.g. vet-friendly or family business); and (3) economic (e.g. for profit business vs not for profit). See Arline v. McDonough, 34 Vet. App. 238, 250-52 (2021) (Bartley, J., dissenting).

Additionally, the Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of [the] particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). However, a veteran receiving the same pay as similarly situated coworkers who are not disabled, for example, is a factor relevant to whether the veteran is employed in a protected environment. Cantrell v. Shulkin, 28 Vet. App. 382, 390 (2017) (concurrence)

Turning to the evidence, the Board finds that the Veteran is entitled to a TDIU award. The Veteran's right foot plantar fasciitis is rated as 30 percent disabling, right foot instability is rated as 10 percent, and the right foot scar is rated as 10 percent disabling, which are considered one disability (disabilities of both lower extremities) ratable at 40 percent or more. As such, the Board is awarding TDIU based on the right foot conditions alone.

Regarding the economic component, the Board notes that although the Veteran reported that she has never worked, her testimony and VA treatment records
kin, 28 Vet. App. 382, 390 (2017) (concurrence)

Regarding the economic component, the Board notes that although the Veteran reported that she has never worked, her testimony and VA treatment records contradict this statement. See December 2018 VA Form 21-0820. The record shows that she worked in medical billing for approximately one month. See August and September 2017 VA Treatment Records. Additionally, the record shows that she worked as a data entry clerk from August 2018 to May 2019. See March 2025 Brd. Hrg. Trans. pg. 4. Next, the Veteran was employed as a cashier from June 2020 to February 2021. Id. at 5. Following her employment in February 2021, she was hired by the Salvation Army, which is her current employer. Id. at 8. After reviewing her social security wages from 2016 to 2022, it is clear that the Veteran maintained marginal employment. Specifically, she was not making more than that the federal poverty threshold for one person during this period on appeal. See March 2025 SSA/SSI Letter. Moreover, the record shows that although she began making more than the poverty threshold in 2023 and 2024, the Board finds that she was employed in a protected environment at the Salvation Army. In this regard, the Veteran and her co-worker testified that the volunteers and her co-workers handle the majority of her physical labor requirements due to the pain from the service-connected conditions. She testified that 80 percent of the labor is physical labor, but her co-workers and the volunteers help her complete these tasks. Based on the foregoing, the Board finds that she has met the economic component of a TDIU because she had marginal employment throughout the period on appeal.

Regarding the noneconomic component, the Board finds that the Veteran has met this component. The Veteran reported that she obtained an associate's degree in social work. See VA Form 21-8940. As noted above, she worked as a data entry clerk, medical billing specialist, cashier, and food pantry supervisor. Turning to the impact of the service-connected conditions on her ability to work, the record shows that it impacts her ability to concentrate because she has to take numerous breaks due to her foot pain. The record shows that she is precluded from standing and/or walking for prolonged periods due to significant foot pain. She also reported that she even in primarily seated positions, walking short distances resulted in her taking excessive breaks. Moreover, the record shows that she had numerous falls due to her right foot conditions.

Based on this evidence, the record demonstrates that the Veteran would be unable to remain gainfully employed while working in a position that required body movement or standing due to the service-connected right foot conditions due to the severity of her foot pain. The Board also finds that jobs that require fine motor skills require her to be able to concentrate, which her foot pain would prevent her from doing. Equally important, the Board finds that her service-connected right foot conditions prevented her from working in a seated environment. The Board acknowledges that the Veteran has the essential skills for predominantly seated work because she can read and do basic math. However, as primarily seated positions would require the Veteran to remain focused and able to sustain focus without excessive breaks, the Board finds that her conditions prevent her from working in primarily seated positions. Accordingly, the record shows that she is unable to meet these basic requirements for full-time work in any type of position for this period on appeal.

In sum, the service-connected foot conditions and the associated functional limitations prevent her from engaging in work requiring heavy strenuous physical exertion, work requiring body movement or standing, and seated work. Accordingly, the impact of the Veteran's service-connected retinopathy symptoms makes it impossible for the Veteran to secure and maintain substantially gainful employment.

Therefore, affording the Veteran the benefit of the doubt, the Board finds that the Veteran has been unable to obtain or maintain a substantially gainful occupation as a result of his service-connected condition effective March 28, 2016, and an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49,
heavy strenuous physical exertion, work requiring body movement or standing, and seated work. Accordingly, the impact of the Veteran's service-connected retinopathy symptoms makes it impossible for the Veteran to secure and maintain substantially gainful employment.

SMC Statutory Housebound

VA has a duty to maximize benefits. This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim").

SMC provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. See 38 C.F.R. § 3.350.

A TDIU was granted solely on the basis of the effects of the service-connected right foot condition effective March 28, 2016. As explained above, the right foot conditions are considered as one disability. Therefore, a TDIU may satisfy the requirement for a single disability ratable at 100 percent. Service connection has also been in effect for sinusitis (rated as 10 percent disabling), tinnitus (rated as 10 percent disabling), temporomandibular joint dysfunction (rated as 30 percent disabling), right foot scar (rated as 10 percent disabling), and left foot pes planus (rated as 30 percent disabling). The combination of those additional disabilities yields a rating of at least 60 percent. Thus, the criteria for SMC based on the housebound rate are met effective March 28, 2016.

REASONS FOR REMAND

Service Connection - Acquired Psychiatric Condition

After reviewing the evidence of record, the Board finds that remand is required to correct a duty to assist error that occurred prior to the issuance of the March 2021 rating decision.

VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).? Further, as emphasized in Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021), VA has a general practice of identifying and adjudicating issues and claims that logically relate to and arise in connection with a claim pending before VA. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,672 (Sep. 25, 2014); Wilson v. McDonough, 35 Vet. App. 103, 107 (2022).

Here, the Veteran reported that her current depressive symptoms are related to an in-service incident where a servicemember took unauthorized photographs of her and disseminated them around the military base. See February 2020 and March 2020 VA Treatment Records. She also reported that she was not the same person after service in terms of mood. See September 2018 VA Form 21
adjudicating issues and claims that logically relate to and arise in connection with a claim pending before VA. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,672 (Sep. 25, 2014); Wilson v. McDonough, 35 Vet. App. 103, 107 (2022).

Here, the Veteran reported that her current depressive symptoms are related to an in-service incident where a servicemember took unauthorized photographs of her and disseminated them around the military base. See February 2020 and March 2020 VA Treatment Records. She also reported that she was not the same person after service in terms of mood. See September 2018 VA Form 21-4138. Moreover, the record shows multiple psychological diagnoses, including intermittent explosive disorder, bipolar disorder, and depression, that were diagnosed before service. See SSA Records. However, the RO failed to ascertain whether these conditions preexisted service and were aggravated by service. Based on the foregoing, the Board finds that the Veteran should have been afforded a VA examination addressing whether these conditions may be related to service versus other factors.

Accordingly, the Board finds that these issues must be remanded. See, McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also, 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4). In ordering?a?remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.? Rather, the Board is merely requesting that the?examiner?on remand consider the Veteran's own descriptions of the history of her .??See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020).

Service Connection - Sleep Condition

Here, the Board finds that a remand is required to correct a duty to assist error that occurred prior to the issuance of the March 2021 rating decision.

VA will adjudicate as part of a claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, including entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (holding that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim). Significantly, the claimant need not assert entitlement to such ancillary benefits at the time the claim is filed. Id.; see also Grimes v. McDonough, 34 Vet. App. 84 (2021) (holding that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream). Here, over the course of the development of the increased rating claims, the Veteran consistently reported problems sleeping due to right foot pain. Id. As the record evidence tends to show that she may have a sleep condition otherwise related to service, the Board finds that the Veteran should have been afforded a VA examination prior to the issuance of the March 2021 rating decision.

Accordingly, the Board finds that the issue of service connection for the Veteran's sleep disorder disability must be remanded to obtain a VA examination. See, McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also, 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4).

In ordering?a?remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.? Rather, the Board is merely requesting that the?examiner?on remand consider the Veteran's own descriptions of the history of her possible?sleep disorder?.??See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020).

Service connection - Bilateral Hips and Right Knee Conditions

After reviewing the evidence of record, the Board finds that remand is required to correct a duty to assist error that occurred prior to the issuance of the March 2021 rating decision.

Service connection - Bilateral Hips and Right Knee Conditions

After reviewing the evidence of record, the Board finds that remand is required to correct a duty to assist error that occurred prior to the issuance of the March 2021 rating decision.

VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report her observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).? Further, as emphasized in Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021), VA has a general practice of identifying and adjudicating issues and claims that logically relate to and arise in connection with a claim pending before VA. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,672 (Sep. 25, 2014); Wilson v. McDonough, 35 Vet. App. 103, 107 (2022).

Here, the Veteran sought treatment for the bilateral hip and right knee conditions after falls related to the right foot condition. As the record evidence tends to show that the right foot condition may have caused additional conditions, the Board finds that the Veteran should have been afforded a VA examination addressing whether these conditions may be related to her service-connected foot conditions.

Accordingly, the Board finds that these issues must be remanded. See, McLendon v. Nicholson, 20?Vet. App.?79, 81-83 (2006); see also, 38?U.S.C. §?5103A(d); 38?C.F.R. §?3.159(c)(4). In ordering?a?remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.? Rather, the Board is merely requesting that the?examiner?on remand consider the Veteran's own descriptions of the history of his hypertension and respiratory problems.??See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020).

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology the acquired psychiatric condition. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. For all diagnosed conditions:

(a.) Please identify all psychological diagnoses. See SSA Records dated December 2004, February 2005, May 2005, and August 2008 and VA Treatment Records dated December 2019 and March 2020.

(b.) Did any psychological condition clearly and unmistakably preexist service (is it medically undebatable that the migraine headaches pre-existed the Veteran's entrance into service)? Please explain why or why not.

(c.) If any psychological condition clearly and unmistakably preexisted service, is it clear and unmistakable (medically undebatable) that the condition worsened (were aggravated) due to an event, disease, or injury in service, to include the in-service incident where a servicemember showed unauthorized photographs of her? Please explain why or why not.

(d.) If it is not medically undebatable that the psychological condition preexisted entrance into service, is it at least as likely as not (approximate equipoise) that the psychological condition is related to service, including the in-service incident?

2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of a sleep disorder. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies
that the condition worsened (were aggravated) due to an event, disease, or injury in service, to include the in-service incident where a servicemember showed unauthorized photographs of her? Please explain why or why not.

2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of a sleep disorder. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. For all diagnosed conditions:

(a.) Identify the Veteran's current sleep disorder by medical diagnosis.

(b.) For each diagnosis, please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the sleep condition was caused by the service-connected foot conditions.

(c.) For each diagnosis, please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the sleep disorder worsened because of the service-connected foot conditions.

3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the bilateral hips and right knee conditions. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. For all diagnosed conditions:

(a.) Identify the bilateral hip and right knee conditions by medical diagnosis.

(b.) Please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the right hip condition was caused by the service-connected foot conditions, to include the falls related to the right foot conditions.

(c.) Please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the right hip condition worsened because of the service-connected foot conditions, to include the falls related to the right foot conditions.

(d.) Please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the left hip condition was caused by the service-connected foot conditions, to include the falls related to the right foot conditions.

(e.) Please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the left hip condition worsened because of the service-connected foot conditions, to include the falls related to the right foot conditions.

(f.) Please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the right knee condition was caused by the service-connected foot conditions, to include the falls related to the right foot conditions.

(g.) Please state whether it is at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the right knee condition worsened because of the service-connected foot conditions, to include the falls related to the right foot conditions.

Please keep in mind that the phrase "at least as likely as not" means that "the favorable and unfavorable evidence is in approximate balance or is nearly equal.

(The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements)

A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and?medical literature?or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Foster, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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