HEARING LOSS

TIMOTHY COTHREL · 2026 · Case ID: A26036983

MIXED

Summary

The veteran, who served from March 1980 to March 1983, appeals the denial of increased disability ratings for bilateral hearing loss, depressive disorder, lumbar spine disability, left and right sciatic nerve radiculopathy, left and right femoral nerve radiculopathy, and right ankle disability. The veteran also appeals the denial of special monthly compensation (SMC) for housebound status and aid and attendance. The Board reviewed the evidence, including VA rating decisions and the veteran's claims. For bilateral hearing loss, the Board found the criteria for a compensable rating were not met prior to August 19, 2024, and since that date, the criteria for a rating exceeding 20 percent were not met. Similarly, for depressive disorder, the Board found the criteria for a rating exceeding 30 percent were not met. For lumbar spine disability, the Board denied increased ratings for periods prior to December 1, 2022, and since that date, finding the criteria for higher ratings were not met. For sciatic and femoral nerve radiculopathy in both lower extremities, the Board granted 20 percent ratings since August 3, 2024, finding moderate paralysis, but denied higher ratings. The right ankle disability claim was denied for periods prior to and since August 27, 2024, as the criteria for higher ratings were not met. The Board granted an earlier effective date of March 4, 2013, for the grant of TDIU and Dependents' Educational Assistance (DEA), but denied SMC for housebound status and aid and attendance.

Rationale

Prior to August 19, 2024, no worse than Level IV hearing loss in the right ear and Level II in the left ear.; Since August 19, 2024, no worse than Level V hearing loss in both ears.; Criteria for higher ratings not met.

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND; TDIU; EARLIER EFFECTIVE DATE

Diagnostic Code

6100

Docket No.

250630-561587

Full Decision Text

Citation Nr: A26036983
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 250630-561587
DATE: April 21, 2026

ORDER

Entitlement to a compensable disability rating for service-connected bilateral hearing loss, prior to August 19, 2024, is denied.

Entitlement to a disability rating in excess of 20 percent for service-connected bilateral hearing loss, since August 19, 2024, is denied.

Entitlement to an initial disability rating in excess of 30 percent for service-connected depressive disorder is denied.

Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spine disability, prior to December 1, 2022, is denied.

Entitlement to a disability rating in excess of 40 percent for service-connected lumbar spine disability, since December 1, 2022, is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected left lower extremity sciatic nerve radiculopathy, prior to August 3, 2024, is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected right lower extremity sciatic nerve radiculopathy, prior to August 3, 2024, is denied.

Entitlement to a disability rating of 20 percent, but no higher, for service-connected left lower extremity sciatic nerve radiculopathy, since August 3, 2024, is granted.

Entitlement to a disability rating of 20 percent, but no higher, for service-connected right lower extremity sciatic nerve radiculopathy, since August 3, 2024, is granted.

Entitlement to a disability rating of 20 percent, but no higher, for service-connected left lower extremity femoral nerve radiculopathy, since August 3, 2024, is granted.

Entitlement to a disability rating of 20 percent, but no higher, for service-connected right lower extremity femoral nerve radiculopathy, since August 3, 2024, is granted.

Entitlement to a disability rating in excess of 10 for service-connected right ankle disability, prior to August 27, 2024, is denied.

Entitlement to a disability rating in excess of 20 for service-connected right ankle disability, since August 27, 2024, is denied.

Entitlement to an earlier effective date of March 4, 2013 for the grant of entitlement to total disability based on individual unemployability (TDIU) is granted.

Entitlement to an earlier effective date of March 4, 2013 for the grant of Dependents' Educational Assistance (DEA) pursuant 38 USC chapter 35 is granted.

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

Entitlement to SMC for aid and attendance is denied.

FINDINGS OF FACT

1. Prior to August 19, 2024, the Veteran has no worse than Level IV hearing loss in the right ear and Level II hearing loss in the left ear.

2. Since August 19, 2024, the Veteran has no worse than Level V hearing loss in the right ear and Level V hearing loss in the left ear.

3. The severity, frequency, and duration of the Veteran's service-connected depressive disorder symptoms has not more closely approximate occupational and social impairment with reduced reliability and productivity, or worse impairment.

4. Prior to December 1, 2022, the evidence does not show that the Veteran's lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes.

5. Since December 1, 2022, the evidence does not show that the Veteran's lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve months which required bed rest prescribed by a physician and treatment by a physician.

6. Prior to August 3, 2024, the Veteran's left lower extremity sciatic nerve radiculopathy manifested as no more than mild incomplete paralysis of the sciatic nerve.

7. Prior to August 3, 2024, the Veteran's service-connected right lower extremity sciatic nerve radiculopathy manifested as no more than mild incomplete paralysis of the sciatic nerve.

8. Since August 3, 2024, the Veteran's left lower extremity sciatic nerve radiculopathy was characterized by moderate paralysis; moderately severe paralysis has
, or incapacitating episodes having a total duration of at least six weeks during the past twelve months which required bed rest prescribed by a physician and treatment by a physician.

6. Prior to August 3, 2024, the Veteran's left lower extremity sciatic nerve radiculopathy manifested as no more than mild incomplete paralysis of the sciatic nerve.

7. Prior to August 3, 2024, the Veteran's service-connected right lower extremity sciatic nerve radiculopathy manifested as no more than mild incomplete paralysis of the sciatic nerve.

8. Since August 3, 2024, the Veteran's left lower extremity sciatic nerve radiculopathy was characterized by moderate paralysis; moderately severe paralysis has not been shown.

9. Since August 3, 2024, the Veteran's right lower extremity sciatic nerve radiculopathy was characterized by moderate paralysis; moderately severe paralysis has not been shown.

10. Since August 3, 2024, the Veteran's left lower extremity femoral nerve radiculopathy was characterized by moderate paralysis; moderately severe paralysis has not been shown.

11. Since August 3, 2024, the Veteran's right lower extremity femoral nerve radiculopathy was characterized by moderate paralysis; moderately severe paralysis has not been shown.

12. Prior to August 27, 2024, the Veteran's right ankle disability more closely approximated marked limitation of motion of the left ankle, dorsiflexion less than 5 degrees, or plantar flexion less than 10 degrees.

13. Since August 27, 2024, the Veteran's right ankle sprain is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle.

14. The Veteran filed claims on March 4, 2013 for service connection for a lumbar spine disability and for a right ankle disability, and has continued the appeal since that time. The evidence supports that he is unable to obtain and maintain substantially gainful employment due to the combination of his education and work history, and his service-connected disabilities for the entire period on appeal.

15. As the Veteran has been provided TDIU from March 4, 2013. The VA granted his DEA benefits based on his entitlement to a TDIU.

16. The Veteran does not have a single service-connected disability rated as 100 percent disabling based on one service-connected disability alone with additional service-connected disabilities independently ratable as at least 60 percent disabling.

17. The Veteran does not require assistance in accomplishing the activities of daily living and is able to protect himself from the hazards and dangers of his daily environment due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. Prior to August 19, 2024, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100.

2. Since August 19, 2024, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100.

3. The criteria for an initial disability rating in excess of 30 percent for a service-connected psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434.

4. Prior to December 1, 2022, the criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243.

5. Since December 1, 2022, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124
. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243.

6. Prior to August 27, 2024, the criteria for an initial disability rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520.

7. Prior to August 27, 2024, the criteria for an initial disability rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520.

8. Since August 27, 2024, the criteria for an initial 20 percent disability rating, but no higher, for left lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520.

9. Since August 27, 2024, the criteria for an initial 20 percent disability rating, but no higher, for left lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520.

10. Since August 27, 2024, the criteria for an initial 20 percent disability rating, but no higher, for left lower extremity femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8526.

11. Since August 27, 2024, the criteria for an initial 20 percent disability rating, but no higher, for left lower extremity femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8526.

12. Prior to August 27, 2024, the criteria for a disability rating in excess of 10 percent for the Veteran's right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271.

13. Since August 27, 2024, the criteria for a disability rating in excess of 20 percent for the Veteran's right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271.

14. The criteria for entitlement to an earlier effective date of March 4, 2013 for the grant of entitlement to total disability based on individual unemployability have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16.

15. The criteria for entitlement to an earlier effective date of March 4, 2013 for DEA have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807 (a), 21.3021.

16. The criteria for SMC at the house
5271.

15. The criteria for entitlement to an earlier effective date of March 4, 2013 for DEA have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807 (a), 21.3021.

16. The criteria for SMC at the housebound rate for the period have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350.

17. The criteria for SMC for aid and attendance have not been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1980 to March 1983.

This matter is before the?Board of Veterans' Appeals?(Board) on appeal from an October 2024 Appeals Modernization Act (AMA) higher-level review (HLR) rating decision by the Department of Veterans Affairs (VA). That rating decision was a HLR of an earlier August 2023 rating decision. Of note, in an August 2024 HLR rating decision, it was noted that a duty to assist error was found regarding the issue on appeal and it was indicated that development would be undertaken. After obtaining additional evidence, the October 2024 rating decision was issued which considered the evidence of record at the time of that decision.

The RO received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in June 2025, and the Veteran requested Evidence Lane under AMA.

Increased Rating Claims

The rating for a service-connected disability is generally determined by applying the criteria in the diagnostic code (DC) associated with that disability, as set forth in the VA rating schedule codified in the Code of Federal Regulations (C.F.R.). See 38 C.F.R. § 4.27; Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015).

The starting point for assigning a rating is the "limitation of activity imposed by the disabling condition," and the veteran's ability "to function under the ordinary conditions of daily life including employment [and] self-support." 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.10. The evidence pertaining to a veteran's impairment must be evaluated "from the point of view of the veteran working or seeking work." 38 C.F.R. § 4.2.

The VA then combines the evaluations for each separate disability to create a single combined rating, which sets the veteran's level of compensation. 38 C.F.R. § 4.25.

If the severity of a disability increases or fluctuates over time, the VA may assign multiple ratings to cover different periods. 38 C.F.R. § 4.1; Breland v. McDonough, 22 F.4th 1347, 1349 (Fed. Cir. 2022). See also, O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007) (assigning multiple ratings is a "sensible mechanism" for ensuring precision while simultaneously accounting for the "dynamic nature" of a disability). This process is commonly referred to as "staging" the ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

When staging ratings, the VA considers the evidence pertaining to the entire period on appeal, assigns a rating to reflect the level of disability for each distinct period, and then assigns the effective dates for each rating. Fenderson, 12 Vet. App. at 127; Hart, 21 Vet. App. at 509. The effective date of a staged rating generally corresponds to the date that level of disability initially became evident. Swain v. McDonald, 27 Vet. App. 219, 224 (2015).

If the criteria and the facts are such that two different disability ratings potentially apply to the disability in question, the lower rating must be assigned unless the veteran's disability picture more nearly approximates the criteria for the higher rating.?38 C.F.R. § 4.7. However, in keeping with the overarching VA's pro-claimant philosophy, if a reasonable doubt arises concerning a veteran's degree of disability, that doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3.

Similarly, in making other findings of fact relevant to the veteran's disability rating, the Board resolves reasonable doubt in favor of the veteran. Specifically, under the benefit-of-the-doubt doctrine, the Board employs a balancing test of positive and negative evidence, and if they are approximately balanced or nearly equal, the veteran receives the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 131, 1365 (Fed. Cir. 2001).

, when adjudicating an appeal of an increased rating claim, the Board employs a one-year "lookback" period, meaning it automatically will consider evidence of symptomatology for one year prior to the date the claim was filed, regardless of the veteran's contentions. 38 C.F.R. § 3.400(o).

Entitlement to a compensable disability rating for service-connected bilateral hearing loss, prior to August 19, 2024, is denied.

1. Entitlement to a disability rating in excess of 20 percent for service-connected bilateral hearing loss, since August 19, 2024.

The Veteran has been assigned a noncompensable disability rating prior to August 19, 2024, and a 20 disability rating thereafter under 38 C.F.R. § 4.85, Diagnostic Code 6100 for his bilateral hearing loss.

Disability ratings for hearing loss generally are derived by the mechanical process of applying the rating schedule to the specific numeric scores obtained by audiometry testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. §§ 4.85, 4.86. Disability ratings for hearing loss range from noncompensable to 100 percent, and they are derived from tables included in the diagnostic code.

Table VI assigns a Roman numeral designation (from Levels I through XI) to a veteran's hearing loss disability based on the "Puretone threshold average" for each ear. Puretone thresholds are a measure of a veteran's hearing sensitivity to specific calibrated tones, measured in decibels. While the VA measures a veteran's Puretone thresholds at seven different frequencies, the Puretone threshold average used in Table VI is calculated using only four of those frequencies: 1000, 2000, 3000 and 4000 Hertz (Hz).

Once a hearing loss level for each ear has been established via Table VI, a percentage of disability rating for each ear is then determined by plugging the level from Table VI into Table VII. Specifically, the Roman numeral representing the hearing loss level for the ear with better hearing is located on the horizontal row, and the Roman numeral representing the hearing loss for the ear having poorer hearing is located on the vertical column. The percentage of disability is determined by the point where the horizontal row and the vertical column intersect. 38 C.F.R. § 4.85.

An "exceptional" pattern of hearing impairment occurs when the puretone threshold at each of the four frequencies is 55 decibels or more, or the average puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. In such cases, the VA plugs the audiometric data into both Table VI and Table VIA, and uses whichever hearing loss level is higher in Table VII. § 4.86.

The Veteran was afforded a VA audiological examination in August 2023. On that occasion, puretone thresholds, in decibels, were as follows:

HERTZ CNC

1000 2000 300
" pattern of hearing impairment occurs when the puretone threshold at each of the four frequencies is 55 decibels or more, or the average puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. In such cases, the VA plugs the audiometric data into both Table VI and Table VIA, and uses whichever hearing loss level is higher in Table VII. § 4.86.

The Veteran was afforded a VA audiological examination in August 2023. On that occasion, puretone thresholds, in decibels, were as follows:

HERTZ CNC

1000 2000 3000 4000 Avg %

RIGHT 55 55 60 70 60 84

LEFT 40 45 40 60 46 84

A diagnosis of sensorineural hearing loss was provided. The Board observes that the pure tone threshold recorded for the Veteran's right ear reflects exceptional hearing impairment as defined by 38 C.F.R. § 4.86(a). This exceptional hearing impairment is in effect when each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, as noted in the August 2023 examination report.

Under 38 C.F.R. § 4.86(a), the Veteran's hearing impairment will be evaluated under either Table VI or Table VIA, whichever results in the higher numeral. That numeral is then elevated to the next higher Roman numeral.

Here, the Veteran's right ear hearing impairment, when evaluated under Table VIA, reveals Level IV hearing loss in the right ear. For the left ear, applying the results from the August 2023 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss.

When one ear has Level IV hearing loss and the other ear has Level II hearing loss, a zero percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85.

2. Entitlement to a disability rating in excess of 20 percent for service-connected bilateral hearing loss, since August 19, 2024.

The Veteran was afforded a VA audiological examination in August 2024. On that occasion, puretone thresholds, in decibels, were as follows:

HERTZ CNC

1000 2000 3000 4000 Avg %

RIGHT 60 65 70 80 68.75 88

LEFT 60 65 70 75 67.50 84

A diagnosis of bilateral sensorineural hearing loss was provided. The Board observes that the pure tone threshold recorded for both of the Veteran's ears reflects exceptional hearing impairment as defined by 38 C.F.R. § 4.86(a). This exceptional hearing impairment is in effect when each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, as noted in the August 2024 examination report. Under 38 C.F.R. § 4.86(a), the Veteran's hearing impairment will be evaluated under either Table VI or Table VIA, whichever results in the higher numeral. That numeral is then elevated to the next higher Roman numeral.

Here, the Veteran's right ear hearing impairment, when evaluated under Table VIA, reveals Level V hearing loss. The Veteran's left ear hearing impairment, when evaluated under Table VIA, reveals Level V hearing loss. The Board notes that no further elevation of these numerals is sanctioned for this particular exceptional hearing pattern under 38 C.F.R. § 4.86(a) (unlike the exceptional hearing pattern contemplated by 38 C.F.R. § 4.86(b), which does allow elevation to the next higher Roman numeral). The use of Table VIA is thus clearly less favorable to the Veteran than the use of Table VI. Therefore, the higher numerals are found using Table VI for both ears, and those numerals will be applied and are fully consistent with the currently assigned 20 percent evaluation. There exists no schedular basis for a higher evaluation, and the claim must be denied for this period.

In the absence of any additional medical evidence showing a more severe hearing disability, and based on the results of the VA audiological evaluation discussed above, the Veteran's hearing loss has not approximated the criteria for a compensable evaluation prior to August 19, 2024, or in excess of 20 percent, thereafter.

The Board has considered the Veteran's complaints regarding the impact of hearing loss on his daily life,
the use of Table VI. Therefore, the higher numerals are found using Table VI for both ears, and those numerals will be applied and are fully consistent with the currently assigned 20 percent evaluation. There exists no schedular basis for a higher evaluation, and the claim must be denied for this period.

The Board has considered the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. at 345. Further, the functional effects of hearing loss on his daily life activities and occupational functioning have been discussed by the Veteran at his VA examinations. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

3. Entitlement to an initial disability rating in excess of 30 percent for service-connected depressive disorder.

The Veteran's depressive disorder has been evaluated as 30 percent disabling under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434.

Under this Diagnostic Code, a 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events).

A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.

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

The Board notes that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998).

The Veteran was afforded a VA mental disorders examination in September 2024. A diagnosis of major depressive disorder was provided. It was noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Symptoms of depressed mood and disturbances of motivation and mood were found. The VA examiner noted that the Veteran was dressed appropriately, appeared his stated age, that his posture and motor behavior were normal and his eye contact was appropriate.
disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998).

The Veteran was afforded a VA mental disorders examination in September 2024. A diagnosis of major depressive disorder was provided. It was noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Symptoms of depressed mood and disturbances of motivation and mood were found. The VA examiner noted that the Veteran was dressed appropriately, appeared his stated age, that his posture and motor behavior were normal and his eye contact was appropriate. His speech was fluent and clear. The Veteran's thought process was coherent and goal directed. His affect was full range and appropriate to speech and thought content. He was oriented to all spheres. His attention, concentration, and memory skills were intact.

In this case, when applying the relevant criteria, the Board finds that a rating higher than 30 percent is not warranted. The evidence shows that the Veteran suffers from depressed mood which is described by the 30 percent rating. The VA examiner found the Veteran was properly oriented and his thought process was coherent and goal directed. There is no evidence of, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking or difficulty in establishing and maintaining effective work and social relationships to support a higher rating.

The Board recognizes that the listed symptoms for a 50 percent schedular rating are not all-encompassing, and their presence or absence is not necessarily determinative of the correct rating. However, when considered in light of the Veteran's symptoms as a whole, the disturbances of motivation and mood noted by the VA examiner are simply not of sufficient severity to support a higher rating.

While the Board is sympathetic to the Veteran's reports and difficulties presented by his psychiatric disorder, it is bound by law, and, as such, by the evidence of record. Here, the evidence does not support an initial rating in excess of 30 percent. Neither the objective findings shown on examination nor the subjective reports from the Veteran are more consistent with a 50 percent evaluation than with a 30 percent evaluation. Accordingly, this appeal must be denied.

4. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine disability, prior to December 1, 2022, is denied.

5. Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbar spine disability, since December 1, 2022, is denied.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints, muscles, or associated structures. It may instead or in addition be due to deformity, adhesions, defective innervation, or other pathology. Also, functional loss may be due to pain or weakness if the evidence a resulting loss of function. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Saunders v. Wilkie, 886 F.3d. 1356, 1362-64 (Fed. Cir. 2018). 38 C.F.R. § 4.40; see also, 38 C.F.R. §§ 4.45, 4.59.

The Veteran's lumbar spine disability is currently evaluated as 20 percent disabling prior to December 1, 2022, and 40 percent thereafter. The service-connected lumbar spine disability is currently rated under Diagnostic Codes 5242.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine
Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992).

The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V, 38 C.F.R. § 4.71a.

Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The IVDS Formula provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

In adjudicating below whether the Veteran meets the criteria for higher evaluations, the Board has not overlooked the United States Court of Appeals for Veterans Claims (Court) holdings in Sharp and Correia. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. An examiner must provide an opinion regarding additional range of motion loss due to pain. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

In this case, the Board notes that the Veteran's appeal regarding his service-connected lumbar spine disability has continuously been pursued since receipt of a March 2013 claim for service connection. While an
, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. An examiner must provide an opinion regarding additional range of motion loss due to pain. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

In this case, the Board notes that the Veteran's appeal regarding his service-connected lumbar spine disability has continuously been pursued since receipt of a March 2013 claim for service connection. While an April 2023 VA letter stated that the Veteran had not submitted the correct form in December 2022 to disagree with a December 2021 rating decision, the Board notes that in December 2022, the Veteran also submitted a VA Form 21-8940 claim for TDIU.

In March 2025, the Court issued a precedential decision in Chisolm v. Collins, holding that in the AMA a supplemental claim need not necessarily be filed on the designated Supplemental Claim form as VA has not restricted supplemental claims to a specific form even though it has the authority to do so. Chisolm v. Collins, 38 Vet. App. 140 (2025). Thus, pursuant to Chisholm, the Board finds that VA Form 21-8940 constituted a supplemental claim to establish continuous pursuit.

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. 76543 (Nov. 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

When the evaluation criteria change during the pendency of a claim, to the extent the law or regulation in question permits, the Board applies whichever version of the criteria is more favorable to the veteran. To determine which version is more favorable, the Board generally applies both versions, and compares the results. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). If the newer version of the evaluation criteria is more favorable, however, it cannot be applied to portions of the claim earlier than the effective date of the relevant law or regulation. 38 U.S.C. § 5110(g); VAOPGCPREC 7-2003 (2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

With respect to the lumbar spine disability, the February 2021 changes limited the circumstances under which a code for intervertebral disc syndrome could be assigned and limited alternative criteria to degenerative or traumatic arthritis. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeals under the criteria in effect prior to February 7, 2021.

The Veteran was afforded a VA back examination in January 2014. Flare-ups were not reported. Upon examination, the Veteran's forward flexion was to 40 degrees, his extension was to 20 degrees, right and left lateral flexion were to 20 degrees, each, and right and left lateral rotation motion were to 20 degrees, each, all with pain on movement at the endpoint. There were no changes to the range of motion on repetitive use. Functional loss of less movement than normal and pain on movement were found. No muscle spasms, guarding or abnormal gait were noted. No muscle atrophy was found. No ankylosis of the spine was found upon examination. No other associated objective neurologic abnormalities or IVDS were shown.

The Veteran was afforded a VA back examination in October 2021. Upon examination, the Veteran's forward flexion was to 50 degrees, his extension was to 10 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 10 degrees, and right and left lateral rotation motion were to 20 degrees, each, all with pain on
the range of motion on repetitive use. Functional loss of less movement than normal and pain on movement were found. No muscle spasms, guarding or abnormal gait were noted. No muscle atrophy was found. No ankylosis of the spine was found upon examination. No other associated objective neurologic abnormalities or IVDS were shown.

The Veteran was afforded a VA back examination in October 2021. Upon examination, the Veteran's forward flexion was to 50 degrees, his extension was to 10 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 10 degrees, and right and left lateral rotation motion were to 20 degrees, each, all with pain on movement. It was noted that passive motion could cause increased pain. Measurements remained the same for repeated use and repetitive use. Flareups were not found. No guarding or muscle spasms were found. No muscle atrophy was found. No ankylosis of the spine was found upon examination. No other associated objective neurologic abnormalities or IVDS were shown. An occasional use of a cane was noted.

The Veteran was afforded a VA back examination in June 2023. The Veteran reported experiencing flare-ups, which were dependent on activity. Flare-ups lasted for one hour and were moderate to severe in pain. Upon examination, the Veteran's forward flexion was to 25 degrees, his extension was to 10 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 15 degrees, and right and left lateral rotation motion were to 15 degrees, each, all with pain on movement. Measurements remained the same for repetitive use and repeated use over time. Estimated flare-ups measured as forward flexion to 20 degrees, extension to 10 degrees, right and left lateral flexion were 10 degrees, and right and left lateral rotation motion were to 10 degrees. Guarding was found, not resulting in abnormal gait or abnormal spinal contour. Disturbance of locomotion was noted. No muscle atrophy was found. No ankylosis of the spine was found upon examination. No other associated objective neurologic abnormalities or IVDS were shown. Regular use of a cane was noted.

The Veteran was afforded a VA back examination in August 2024. The Veteran noted experiencing daily flare ups, lasting 1-2 hr on average, depending on activity. Upon examination, the Veteran's forward flexion was to 20 degrees, his extension to 15 degrees, right and left lateral flexion were to 15 degrees, and right and left lateral rotation motion were to 15 degrees, each, all with pain on movement. On repetitive use, the Veteran's forward flexion was to 10 degrees, movement was found in his extension to 5 degrees, right and left lateral flexion were to 10 degrees, and right and left lateral rotation motion were to 10 degrees. Estimated measurements for repeated use over time and flare-ups, the Veteran's forward flexion was to 5 degrees, his extension to 0 degrees, right and left lateral flexion were to 5 degrees, and right and left lateral rotation motion were to 5 degrees. Guarding, resulting in abnormal gain or abnormal spinal contour was noted. No muscle atrophy was found. No ankylosis or other objective neurologic abnormalities were shown. IVDS, described as episodes of bed rest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months or IVDS were shown. It was noted that this was described by the Veteran only, without documentation by a facility or provider. Constant use of a cane and regular use of a walker was noted.

Prior to December 1, 2022

In this case, the objective medical evidence is the most persuasive indication of functional loss, and here it reflects findings falling within the requirements for a 20 percent evaluation. The Board acknowledges the Veteran's pain and functional limitations. However, for this period on appeal, at worst, flexion was measured to 40 degrees, and flare-ups were not noted or found. Thus, the impairment is fully contemplated by the assigned 20 percent evaluation. Accordingly, an evaluation in excess of 20 percent is not warranted for this period on appeal.

The Board has also considered whether there exists a basis for an evaluation in excess of 20 percent under Diagnostic Code 5243, concerning intervertebral disc syndrome. Ratings under this section, however, are entirely predicated on incapacitating episodes, defined as acute signs and symptoms requiring physician-prescribed bed rest. In this case, there simply is no evidence of physician-prescribed bed rest, let alone of
However, for this period on appeal, at worst, flexion was measured to 40 degrees, and flare-ups were not noted or found. Thus, the impairment is fully contemplated by the assigned 20 percent evaluation. Accordingly, an evaluation in excess of 20 percent is not warranted for this period on appeal.

The Board has also considered whether there exists a basis for an evaluation in excess of 20 percent under Diagnostic Code 5243, concerning intervertebral disc syndrome. Ratings under this section, however, are entirely predicated on incapacitating episodes, defined as acute signs and symptoms requiring physician-prescribed bed rest. In this case, there simply is no evidence of physician-prescribed bed rest, let alone of such bed rest of a total duration of at least four weeks but less than 6 weeks during the past 12 months. This Diagnostic Code accordingly provides no basis for an increased evaluation.

Accordingly, an evaluation in excess of 20 percent is not warranted for this period on appeal.

Since December 1, 2022

The Board finds that a rating in excess of 40 percent disabling is not warranted for the period on appeal. During the period on appeal, the Veteran has not been shown to have ankylosis or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, nor has either been reported, and those symptoms thus pose no basis for an increase. There exists no other basis for an increase, as the assigned 40 percent evaluation is the maximum that may be assigned in cases of limitation of flexion. Under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a 50 percent disability rating under the General Rating Formula, the evidence must establish that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The criteria has not been met.

The Board is sympathetic to the Veteran's reports of decreased mobility and its effects on his ability to participate in activities, but all of these symptoms are contemplated by the assigned rating.

Accordingly, an evaluation in excess of 40 percent is not warranted for this period on appeal.

6. Entitlement to an initial disability rating in excess of 10 percent for service-connected left lower extremity sciatic nerve radiculopathy, prior to August 3, 2024.

7. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity sciatic nerve radiculopathy, prior to August 3, 2024.

8. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected left lower extremity sciatic nerve radiculopathy, since August 3, 2024.

9. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected right lower extremity sciatic nerve radiculopathy, since August 3, 2024.

10. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected left lower extremity femoral nerve radiculopathy, since August 3, 2024.

11. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected right lower extremity femoral nerve radiculopathy, since August 3, 2024.

The Veteran seeks ratings in excess of the currently assigned 10 percent evaluations for bilateral lower extremity radiculopathy. As noted above, the lumbar spine disability has continuously been on appeal since a March 2013 claim. In a December 2021 rating decision, service connection was granted for bilateral lower extremity radiculopathy of the sciatic nerve and assigned a 10 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective March 4, 2013. Subsequently, in an October 2024 rating decision, bilateral lower extremity radiculopathy of the femoral nerve and assigned a 10 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8526, effective August 3, 2024.

Diagnostic Code 8520 assigns ratings based upon complete or incomplete paralysis of the lower extremities. When there is incomplete paralysis of the sciatic nerve, a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment, a 40 percent rating is assigned for moderately severe impairment, and a 60 percent rating is assigned for severe impairment with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely
.F.R. § 4.124a, Diagnostic Code 8526, effective August 3, 2024.

Under Diagnostic Code 8526, mild incomplete paralysis of the anterior crural femoral nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the anterior crural femoral nerve is rated as 20 percent disabling. Severe incomplete paralysis of the anterior crural femoral nerve is rated as 30 percent disabling. Complete paralysis of the anterior crural femoral nerve, with paralysis of the quadriceps extensor muscles, is rated as 40 percent disabling.

The words "mild," "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, 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.

To aid its evaluation of the evidence, the Board considered the general definitions of the terms "mild," "moderate" and "severe." "Mild" is defined as "not severe" or temperate; with "temperate" being defined as "keeping or held within limits" and "not extreme or excessive." See www.merriam-webster.com, last accessed August 27, 2024. "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 8526, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code.

Additionally, the Board notes discussion of relevant provisions from VA's Adjudications Procedures Manual (M21-1) may be part of the reasons and bases for a decision. Overton v. Shinseki, 30 Vet. App. 257, 264 (2018). As pertinent to this case, the M21-1 contains general guidelines for distinguishing between "mild," "moderate," "moderately severe," and "severe" levels of incomplete paralysis of the lower extremities, which the Board will consider.

Specifically, the M21-1 provides mild incomplete paralysis is generally limited to sensory deficits that are lower graded, less persistent, or affecting a small area, with very minimal reflex or motor abnormality. Moderate is the maximum evaluation reserved for the most significant cases of sensory only impairment. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other signs and symptoms combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

The moderately severe evaluation level is only applicable for involvement of the sciatic nerve, with motor and/or reflex impairment at a grade reflecting a high level of limitation or disability. For the severe level, motor and/or reflex impairment would be expected at a grade reflecting a very high level of limitation or disability. For the sciatic nerve marked muscular atrophy is required. See M21-1, Part V, Subpart iii, 12.A.2.c.

The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement
for involvement of the sciatic nerve, with motor and/or reflex impairment at a grade reflecting a high level of limitation or disability. For the severe level, motor and/or reflex impairment would be expected at a grade reflecting a very high level of limitation or disability. For the sciatic nerve marked muscular atrophy is required. See M21-1, Part V, Subpart iii, 12.A.2.c.

The Veteran was afforded a VA back examination in January 2014. No signs or symptoms of radicular pain were found upon examination. Reflex testing and strength testing were normal.

The Veteran was afforded a VA back examination in October 2021. Upon examination, mild intermittent pain, paresthesias and/or dysesthesias, and numbness were found for both lower extremities. Involvement of the sciatic nerve was noted. The Veteran's strength and reflexes were normal. No muscle atrophy was found. Muscle strength, reflex testing and sensory testing were normal.

The Veteran was afforded a VA back examination in June 2023. Upon examination, moderate intermittent pain was found for the right lower extremity and mild intermittent pain was found for the left lower extremity. Involvement of the sciatic nerve was noted. Muscle strength was 3/5 for the right side and 4/5 for the left side. Sensory testing was normal.

The Veteran was afforded a VA peripheral nerve condition examination in June 2023. Upon examination, moderate intermittent pain was found for the right lower extremity and mild intermittent pain was found for the left lower extremity. It was found that the Veteran had mild incomplete paralysis of the sciatic nerve, bilaterally. No paralysis of the femoral nerve was found. Muscle strength for knee extension was 3/5, bilaterally. For ankle plantar flexion and ankle dorsiflexion, measurements of 3/5 were found for the right lower extremity and 4/5 for left lower extremity. Reflex and sensory testing were normal.

The Veteran was afforded a VA back examination in August 2024. Upon examination, severe constant pain, paresthesias and/or dysesthesias, and numbness, were found bilaterally. Muscle strength testing was measured as 4/5. Hypoactive reflex and decreased sensory testing were noted, bilaterally. Involvement of both the femoral and sciatic nerves were found.

Prior to August 3, 2024

Regarding the Veteran's bilateral lower extremity radiculopathy of the sciatic nerve, the Board finds that the disability has been manifested by no more than mild incomplete paralysis of the sciatic nerve. The evidence demonstrates that the Veteran's right and left lower extremity radiculopathy more closely approximated mild incomplete paralysis of the sciatic nerve, to include the June 2023 VA peripheral nerve examiner noting that while the Veteran experienced moderate intermittent pain in the right lower extremity, a finding of mild incomplete paralysis of the sciatic nerve was provided.

Thus, evidence shows that the right and left sciatic nerves have not manifested as at least moderate incomplete paralysis of the sciatic nerve, which is needed for the next higher rating of 20 percent.

Accordingly, the Board finds that disability ratings in excess of 10 percent for service-connected right and left lower extremity radiculopathy of the sciatic nerve, prior to August 3, 2024, are not warranted.

Since August 27, 2024

As an initial matter, the Board notes that a review of the medical evidence does not show that radiculopathy of the femoral nerve was found prior to the VA examination dated on August 27, 2024. Thus, an effective date prior to this date is not warranted as there was no evidence of radiculopathy of the femoral nerve, in the record, prior to the assigned effective date.

Next, regarding the Veteran's bilateral lower extremity radiculopathy of the sciatic nerve and the Veteran's bilateral lower extremity radiculopathy of the femoral nerve, rating of 20 percent is for application for the disabilities.

These ratings are based upon a finding that the Veteran does experience "moderate" radiculopathy symptoms
notes that a review of the medical evidence does not show that radiculopathy of the femoral nerve was found prior to the VA examination dated on August 27, 2024. Thus, an effective date prior to this date is not warranted as there was no evidence of radiculopathy of the femoral nerve, in the record, prior to the assigned effective date.

These ratings are based upon a finding that the Veteran does experience "moderate" radiculopathy symptoms. The August 2024 VA back examination report shows that the Veteran experienced severe constant pain, paresthesias and/or dysesthesias, and numbness. Hypoactive reflex and decreased sensory testing were noted, bilaterally. Involvement of both the femoral and sciatic nerves were found. Thus, increased disability ratings are for application.

The Veteran has been treated for this impairment throughout the period on appeal, however, none of that treatment shows either greater than moderate paralysis or marked muscular atrophy.

Therefore, resolving all reasonable doubt in favor of the Veteran the Board finds that a 20 percent is rating is for application for the bilateral lower extremity radiculopathy of the sciatic nerve and the Veteran's bilateral lower extremity radiculopathy of the femoral nerve for this period on appeal. Thus, the appeal is granted.

12. Entitlement to an initial disability rating in excess of 10 for service-connected right ankle disability, prior to August 27, 2024.

13. Entitlement to an initial disability rating in excess of 20 for service-connected right ankle disability, since August 27, 2024.

The Veteran seeks a higher evaluation for his service-connected right ankle disability, which is currently evaluated as 10 percent disabling, prior to August 27, 2024, and 20 percent thereafter, pursuant to Diagnostic Code 5271. 38 C.F. R. § 4.71a. Like the lumbar spine disability claim on appeal, the right ankle claim has been on appeal since March 2013, and has continuously been pursued since that time. Chisolm, supra.

The Board notes that Diagnostic Code 5271 was revised, effective February 7, 2021, while the current appeal was pending. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.

VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from that date. The criteria that is more favorable to the Veteran will be applied.

Under Diagnostic Code 5271, prior to February 7, 2021, a 10 percent rating was warranted for moderate limitation of ankle motion, and a 20 percent rating was assigned for marked limitation. Words such as "moderate" and "marked" were not defined in the VA Rating Schedule. Rather than applying a mechanical formula, it was noted that the Board must have evaluated all of the evidence to the end that its decisions were "equitable and just." 38 C.F.R. § 4.6.

Beginning February 7, 2021, Diagnostic Code 5271 a 10 percent rating was warranted for moderate limitation of motion of the ankle (defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent rating was assigned for marked limitation of motion (defined as less than 5 degrees dorsiflexion or less than
limitation. Words such as "moderate" and "marked" were not defined in the VA Rating Schedule. Rather than applying a mechanical formula, it was noted that the Board must have evaluated all of the evidence to the end that its decisions were "equitable and just." 38 C.F.R. § 4.6.

The Federal Register explained that the definitions for limitation of motion were included in the amended language because "VA currently uses these standards to define marked and moderate." See 82 Fed. Reg. 35719, 35723 (Aug. 1, 2017). Thus, the amendment was merely "intended as a clarification of current policy." Id. As such, the Board finds the amended rating criteria instructive in this case, although not dispositive, with respect to defining the degree of disability that qualifies as moderate or marked limitation of motion, as those terms were not defined in the pre-amended version of Diagnostic Code 5271.

The normal range of ankle motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II.

The Veteran was afforded a VA ankle examination in June 2019. The Veteran reported experiencing worsening pain with weight bearing, numbness and pain. Pain was controlled with over the counter acetaminophen. Upon examination, the Veteran's right ankle dorsiflexion was measured to 10, with pain, and his plantar flexion was measured to 20, with pain. No localized tenderness or pain on palpation were noted. The Veteran's ankle strength was 3 out of 5. No instability atrophy or ankylosis were found.

The Veteran was afforded a VA ankle examination in June 2023. The Veteran reported experiencing daily flare-ups, which lasted an hour. Pain was controlled with over the counter acetaminophen. Upon examination, the Veteran's right ankle dorsiflexion was measured 10, with pain, and his plantar flexion was measured to 35, with pain. Estimated measurements for repeated use and flare-ups were not changed. No localized tenderness or pain on palpation were noted. The Veteran's ankle strength was 3 out of 5. No instability, atrophy or ankylosis were found.

The Veteran was afforded a VA ankle examination in August 2024. The Veteran reported experiencing daily flare-ups, which lasted 1-2 hours. Upon examination, the Veteran's right ankle dorsiflexion was measured to 5 degrees, with pain, and his plantar flexion was measured to 15, with pain. Observed repetitive use measurement were right ankle dorsiflexion to 0 degrees, with pain, and his plantar flexion was measured to 10 degrees, with pain. Estimated range of motion for repeated use over time and flare-ups measurements were for dorsiflexion to 0 degrees and his plantar flexion was measured to 5 degrees, with pain. Estimated measurements for repeated use and flare-ups were not changed. No localized tenderness or pain on palpation were noted. The Veteran's ankle strength was 3 out of 5. No atrophy or ankylosis were found.

Prior to August 27, 2024

After a review of the evidence, a rating in excess of 10 percent is not warranted as the Veteran's symptoms have not more closely approximated marked limitation of motion during the period on appeal. As noted above, the Veteran exhibited moderate range of motion. The dorsiflexion and plantar flexion measurements do not represent marked limitation of motion. Moreover, a change in measurement was not found for repeated use and during flare-ups. Thus, under both the old and new criteria, a higher disability rating is not warranted.

Accordingly, the Board finds that a disability rating in excess of 10 percent for service-connected right ankle disability is not warranted.

Since August 27, 2024

The currently assigned 20 percent rating is the maximum rating provided for limitation of motion of the ankle under Diagnostic Code 5271.

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

The Board has considered whether any
iflexion and plantar flexion measurements do not represent marked limitation of motion. Moreover, a change in measurement was not found for repeated use and during flare-ups. Thus, under both the old and new criteria, a higher disability rating is not warranted.

Accordingly, the Board finds that a disability rating in excess of 10 percent for service-connected right ankle disability is not warranted.

Since August 27, 2024

The currently assigned 20 percent rating is the maximum rating provided for limitation of motion of the ankle under Diagnostic Code 5271.

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

The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. However, the evidence does not demonstrate malunion or nonunion of the tibia or fibula, shin splints, or ankylosis of the right ankle. Moreover, the VA examiner did not assert nor does the evidence of record show that the Veteran's right ankle disability was so severe as to equate to the loss of use of the right ankle.

As the Veteran already has the maximum schedular disability rating applicable to this claim, the appeal for a disability rating in excess of 20 percent during the appellate period is denied.

Effective Dates of TDIU and DEA

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The economic component refers to whether a given occupation is "gainful." Employment is gainful when 1) it is outside a "protected environment" (e.g., a family business) and 2) an employee earns more than "marginal" income. Income is classified as "marginal" if it falls below the U.S. Department of Commerce poverty threshold for one person. Id.

The noneconomic component focuses on the ability to actually secure and follow gainful employment. This component focuses on the veteran's work history, education, training, and experience, as well as their physical and mental abilities to perform the tasks required of a job. Factoring into a veteran's abilities are limitations on lifting, bending, sitting, standing, walking, or climbing, as well as the effects of any auditory or visual deficits, and impairments of memory, concentration, communication, collaboration, cooperation, ability to adapt to change and handle workplace stress, reliability, and productivity. Id.

Thus, entitlement to a TDIU is based on an individualized determination, specific to a veteran's particular circumstances. Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

When determining the effective date for a TDIU, it is important to begin with the recognition that a TDIU is not a disability-it is a disability rating based on the impairment caused by the Veteran's service-connected disabilities. As a result, the rules governing effective dates for a TDIU are the same as the rules governing effective dates for increased disability ratings. Phillips v. McDonough, 37 Vet. App. 394, 402 (2024); Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The general rule concerning effective dates is that a benefit will be assigned an effective date corresponding to either the date of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)(1); 38 C.F.R. § 3.400(o)(1).

disability-it is a disability rating based on the impairment caused by the Veteran's service-connected disabilities. As a result, the rules governing effective dates for a TDIU are the same as the rules governing effective dates for increased disability ratings. Phillips v. McDonough, 37 Vet. App. 394, 402 (2024); Dalton v. Nicholson, 21 Vet. App. 23 (2007).

However, when it comes to claims for increased ratings, the VA provides veterans with a one-year "grace period" to file their claims-that is, if the veteran files a claim for an increased rating within one year after the change in the severity of their symptoms or impairment initially becomes "factually ascertainable." 38 U.S.C. §5110(b)(3); 38 C.F.R. §3.400(o)(2).

In the context of a TDIU, this means if the Veteran became unemployable during the one-year "lookback" period before filing a claim for a TDIU, the effective date is based on the date his unemployability became factually ascertainable.

Basic eligibility for DEA benefits may be established for an eligible spouse, child, or surviving spouse of a veteran who has a service-connected permanent and total disability. 38 U.S.C. § 3501. The effective date for an award of DEA benefits therefore typically corresponds to the effective date of the veteran's total disability. 38 U.S.C. § 5113(a). In this instance, because his schedular disability ratings are less than 100 percent, the Veteran's DEA benefits hinged on the grant of his TDIU, and the effective dates for the two benefits are thus inextricably intertwined.

14. Entitlement to an earlier effective date of March 4, 2013 for the grant of entitlement to total disability based on individual unemployability (TDIU).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.

The Board notes that in an October 2024 rating decision, the RO grant of entitlement to TDIU and assigned an effective date of February 7, 2024. This is the date that the Veteran met the schedular rating. However, the TDIU effective date is still controlled by Rice, and is considered as on appeal from the date of the claim of an initial rating claim that remains on appeal (here: the claims for a back disability and right ankle disability).

A review of the record shows that the Veteran was employed as a forklift operator from 2002 until 2010. Prior to that, he was a grinder machine operator for a year. See Social Security Administration records (SSA). Also shown in the SSA records is that the Veteran completed high school.

The medical evidence shows that an April 2019 VA treatment note indicates that the Veteran was unable to work due to a back injury. A June 2019 ankle conditions examination report shows that the VA examiner noted that the Veteran was unable to run or walk long distances, or stand for prolonged periods of time. The VA examiner indicated that the Veteran's ability to operate machinery/drive was impacted by his chronic right ankle sprain. An October 2021 VA back conditions examination report shows that the VA examiner noted that the Veteran's spinal condition limited his capacity for occupations that required strenuous activities such as heavy lifting, pushing, or pulling. His capacity for sedentary activities was not limited by this condition.

In light of the foregoing, the Board concludes that the Veteran's service-connected disabilities preclude his ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran has not been employed at any time during this claim. It is shown that his musculoskeletal disabilities result in significant limitations in movement. To the degree that the Veteran would be able to perform less physical work, the Board finds that from a practical standpoint, the Veteran would be too limited to perform such occupations. He does not have a work history related to typical sedentary jobs (e.g., sales, customer service, management, or technological support), and he has limitations with sitting for long periods of time.

As such, when affording him the benefit of the doubt, the Board finds the Veteran was unable to maintain substantially
substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran has not been employed at any time during this claim. It is shown that his musculoskeletal disabilities result in significant limitations in movement. To the degree that the Veteran would be able to perform less physical work, the Board finds that from a practical standpoint, the Veteran would be too limited to perform such occupations. He does not have a work history related to typical sedentary jobs (e.g., sales, customer service, management, or technological support), and he has limitations with sitting for long periods of time.

As such, when affording him the benefit of the doubt, the Board finds the Veteran was unable to maintain substantially gainful employment due to the combined impact of his lumbar spine disability, right ankle disability, lower extremity radiculopathy disability, and tinnitus. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because the bulk of the disabilities essential to the finding of unemployability were not service connected until March 4, 2013, that is the earliest date that can be assigned to the Veteran's entitlement to a TDIU. Thus, to that extent, this appeal is granted.

15. Entitlement to an earlier effective date of March 4, 2013 for the grant of Dependents' Educational Assistance (DEA) pursuant 38 USC chapter 35.

In addition, for DEA benefits pursuant to 35, Title 38 of the United States Code, the Veteran was awarded eligibility to DEA based upon the RO's finding that he was permanently unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.

As explained above, the Board has found that the appropriate effective date of the Veteran's TDIU is March 4, 2013. Since the effective date for DEA benefits in this case is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, the Board finds that an effective date of March 4, 2013, for Chapter 35 benefits is warranted.

Entitlement to SMC

A veteran who already has been rated as totally disabled may nevertheless receive additional compensation in the form of Special Monthly Compensation (SMC). SMC is an "ancillary" benefit, meaning it is payable on top of the compensation a veteran receives for service-connected disabilities. There are various types of SMC that address various situations. 38 U.S.C. § 1114.

16. Entitlement to SMC at the housebound rate.

SMC benefits by reason of being housebound are payable under 38 U.S.C. § 1114(s) if the Veteran has a single disability rated as 100 percent disabling (as total) and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1).

Of note, on March 30, 2026, the U. S. Court of Appeals for the Federal Circuit issued the decision in Mackey v. Collins, 2026 U.S. App. LEXIS 9081, addressing the requirement of "a service-connected disability rated as total" to award SMC at the housebound rate under 38 U.S.C. § 1114(s)." The Circuit Court held that the requirement of "a service-connected disability rated as total" for SMC at the housebound rate under 38 U.S.C. § 1114(s) can only be met through a single disability; it cannot be met by a TDIU based on multiple disabilities, or a combination of disabilities that may be considered "one disability" for TDIU purposes under 38 C.F.R. § 4.16(a).

At this time, the record shows that the Veteran does not meet the threshold requirement of SMC benefits at the housebound rate under 38 U.S.C. § 1114(s). The Veteran does not have any single service-connected disability rated at 100 percent. Entitlement to SMC under 38 U.S.C. § 1114(s) fails as a matter of law as the Veteran does not meet the threshold requirements for SMC housebound status. Further, there is no evidence the Veteran is permanently housebound due to his service-connected disabilities
multiple disabilities, or a combination of disabilities that may be considered "one disability" for TDIU purposes under 38 C.F.R. § 4.16(a).

Accordingly, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

17. Entitlement to SMC for aid and attendance.

In addition to SMC at the housebound rate, SMC is also payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to need the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a), 38 U.S.C. § 1114(l), and 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c).

The following factors are considered when assessing the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).

The particular personal functions that the veteran is unable to perform are considered in connection with the veteran's condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the claimant's circumstances are such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a).

As noted above, the Veteran has been granted service connection for a lumbar spine disability, bilateral lower extremity radiculopathy, a right ankle disability, bilateral hearing loss and major depressive disorder.

The record does not show that the Veteran's service-connected disabilities impact his ability to manage activities of daily living. While limitations in movement are noted, there is no evidence to show that the criteria for the award of VA aid and assistance compensation are met. This includes the regular aid and assistance of another person to perform activities of daily living and instrumental activities of daily living as a result of his service-connected disabilities.

The Board also notes that the record does not show that the Veteran is permanently housebound by reason of his service-connected disabilities, substantially confined to his dwelling or immediate premises, or institutionalized as a result of his service-connected disabilities. Further, the Veteran is not blind.

As the Veteran's service-connected disabilities have not caused him to need the regular aid and attendance of another person, entitlement to SMC based upon
of daily living. While limitations in movement are noted, there is no evidence to show that the criteria for the award of VA aid and assistance compensation are met. This includes the regular aid and assistance of another person to perform activities of daily living and instrumental activities of daily living as a result of his service-connected disabilities.

As the Veteran's service-connected disabilities have not caused him to need the regular aid and attendance of another person, entitlement to SMC based upon the need for aid and attendance must be denied. 38 U.S.C. §1114(l).

Timothy Cothrel

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Evans, A-L

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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