Case A26037015

M. HYLAND · 2026 · Case ID: A26037015

MIXED

Summary

The Veteran, who served from September 1968 to September 1970, appeals the denial of an earlier effective date for hypertension and increased ratings for tinnitus, type II diabetes mellitus (DM II), bilateral upper extremity diabetic neuropathy, bilateral lower extremity polyneuropathy, PTSD, and back and neck disabilities. The Veteran also appeals the denial of an increased rating for PTSD and back/neck conditions. The Board granted entitlement to an earlier effective date of August 10, 2022, for a total disability rating based on individual unemployability (TDIU) and for Dependents' Educational Assistance (DEA). Service connection for hypertension was granted at 10%, and specific ratings were granted for right and left upper extremity diabetic neuropathy (40% and 30% respectively), right and left lower extremity sciatic nerve polyneuropathy (40% each), and right and left femoral nerve polyneuropathy (30% each). The Board denied increased ratings for tinnitus, DM II, PTSD, and back and neck conditions. Special monthly compensation at the housebound rate was granted. The Board found that the evidence established it was at least as likely as not that the Veteran's hypertension met criteria for a 10% rating, and similarly found it likely that his diabetic neuropathies met specific criteria for moderate to severe incomplete paralysis. However, the evidence was persuasively against higher ratings for DM II, PTSD, and the back and neck conditions, and against the Veteran's claim for an earlier effective date for hypertension.

Rationale

Evidence establishes it is at least as likely as not that hypertension manifested with diastolic pressure predominantly 100 mm/Hg or more, or systolic pressure predominantly 160 mm/Hg or more, or requires continuous medication for control.; Evidence is persuasively against a finding of more severe manifestations during the appeal period.; Granted 10% rating.

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

260209-632006

Full Decision Text

Citation Nr: A26037015
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 260209-632006
DATE: April 21, 2026

ORDER

Entitlement to an effective date prior to August 10, 2022 for the award of service connection for hypertension is denied.

Entitlement to an effective date of August 10, 2022, for a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of August 10, 2022, for basic eligibility for Dependents' Educational Assistance (DEA) is granted.

Entitlement to an initial rating of 10 percent, but no higher, for hypertension, is granted.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a rating in excess of 20 percent for type II diabetes mellitus (DM II) is denied.

Entitlement to a 40 percent rating, but no higher, for right upper extremity diabetic neuropathy is granted.

Entitlement to a 30 percent rating, but no higher, for left upper extremity diabetic neuropathy is granted.

Entitlement to a rating of 40 percent, but no higher, for right lower extremity polyneuropathy of the sciatic nerve is granted.

Entitlement to a separate 30 percent rating for right lower extremity polyneuropathy of the femoral nerve is granted, subject to the amputation rule of 38 C.F.R. § 4.68.

Entitlement to a rating of 40 percent, but no higher, for left lower extremity polyneuropathy of the sciatic nerve is granted.

Entitlement to a separate 30 percent rating for left lower extremity polyneuropathy of the femoral nerve is granted, subject to the amputation rule of 38 C.F.R. § 4.68.

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome, lumbosacral strain with degenerative joint disease, and thoracic degenerative joint disease, (back disability) is denied.

Entitlement to a rating in excess of 30 percent for cervical strain with fibromyositis, arthritis, and limitation of motion (neck disability) is denied.

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

FINDINGS OF FACT

1. The Veteran initially filed a claim for service connection for hypertension in March 2023 and the earliest effective date for the grant of service connection for hypertension is August 10, 2022, the date the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted.

2. The Veteran's claim of entitlement to a TDIU was part and parcel of his claim of entitlement to service connection for hypertension, which was granted effective August 10, 2022.

3. The Veteran has totally disabling service-connected disabilities, which are permanent in nature, as of August 10, 2022.

4. Resolving reasonable doubt in favor of the Veteran, the evidence establishes that it is at least as likely as not that his service-connected hypertension more nearly approximates manifestation with diastolic pressure predominantly 100 mm/Hg or more, or systolic pressure predominantly 160 mm/Hg or more, or, he has a history of diastolic pressure predominantly 100 mm/Hg or more and requires continuous medication for control, but is persuasively against a finding that it has manifested with diastolic pressure predominantly 110 mm/Hg or more, or systolic pressure predominantly 200 mm/Hg or more at any time during the appeal period.

5. The Veteran has been assigned the maximum schedular rating available for tinnitus.

6. The evidence is persuasively against a finding that the Veteran's DM II has required the regulation of activities at any point during the appeal period.

7. The evidence establishes that it is at least as likely as not that the Veteran's right upper extremity diabetic neuropathy manifested in moderate incomplete paralysis of the major extremity, however, the evidence is persuasively against a finding that it manifested in severe incomplete paralysis at any time during the appeal period.

8. The evidence establishes that it is at least as likely as not that the Veteran's left upper extremity diabetic neuropathy manifested in moderate incomplete paralysis of the minor extremity, however, the evidence is persuasively against a finding that it manifested in severe incomplete paralysis at any time during the appeal period.

9. The evidence establishes that the Veteran has moderately severe incomplete paralysis
required the regulation of activities at any point during the appeal period.

9. The evidence establishes that the Veteran has moderately severe incomplete paralysis of the right sciatic nerve, however, the evidence is persuasively against a finding that the Veteran has muscle atrophy.

10. The evidence establishes that the Veteran has severe incomplete paralysis of the right femoral nerve.

11. The evidence establishes that the Veteran has moderately severe incomplete paralysis of the left sciatic nerve, however, the evidence is persuasively against a finding that the Veteran has muscle atrophy.

12. The evidence establishes that the Veteran has severe incomplete paralysis of the left femoral nerve.

13. The evidence is persuasively against a finding that the Veteran's PTSD manifested in total social impairment at any time during the appeal period.

14. The evidence is persuasively against a finding that the Veteran had unfavorable ankylosis of the thoracolumbar or entire spine, or its functional equivalent, at any time during the appeal period.

15. The evidence is persuasively against a finding that the Veteran had unfavorable ankylosis of the cervical or entire spine, or its functional equivalent, at any time during the appeal period.

16. During the appeal period, the functional impairment resulting from the Veteran's service-connected PTSD, standing alone, at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him and warrants a TDIU, and the Veteran had additional service-connected disabilities independently ratable at 60 percent disabling or more, separate and distinct, and involving different anatomical segments or bodily systems.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to August 10, 2022 for the grant of service connection for hypertension have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1, 3.151, 3.114, 3.400.

2. The criteria for entitlement to an effective date of August 10, 2022, for a TDIU have been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.156(b).

3. The criteria for basic eligibility for DEA benefits have been met effective August 10, 2022. 38 U.S.C. § 3501; 38 C.F.R. § 21.3021.

4. The criteria for an initial 10 percent rating, but no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.104, Diagnostic Code 7101.

5. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.

6. The criteria for an initial rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

7. The criteria for a rating of 40 percent, but no higher, for right upper extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

8. The criteria for a rating of 30 percent, but no higher, for left upper extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

9. The criteria for a rating of 40 percent, but no higher, for right lower
no higher, for right upper extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

9. The criteria for a rating of 40 percent, but no higher, for right lower extremity polyneuropathy of the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

10. The criteria for a 30 percent rating for severe incomplete paralysis of the right femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526.

11. The criteria for a rating of 40 percent, but no higher, for left lower extremity polyneuropathy of the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

12. The criteria for a 30 percent rating for severe incomplete paralysis of the left femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526.

13. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411.

14. The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5242.

15. The criteria for a rating in excess of 30 percent for a neck disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5242.

16. The criteria for special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s) have been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.350, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1968 to September 1970.

In the February 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2025 rating decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the Agency of Original Jurisdiction (AOJ) issued the April 2025 rating decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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

The Board notes that pursuant to 38 C.F.R. § 20.202(c)(2), a claimant may modify the VA Form
20.300, 20.301, 20.801.

The Board notes that pursuant to 38 C.F.R. § 20.202(c)(2), a claimant may modify the VA Form 10182 to change the Board docket being requested. The time limit for such modification is "within one year from the date that the [AOJ] mails notice of the decision on appeal, or within 60 days of the date that the Board receives the [NOD], whichever is later." 38 C.F.R. § 20.202(c)(2). "[T]he Board ordinarily may not decide an appeal before this time period is up." Williams v. McDonough, 37 Vet. App. 305 (2024). Here, the Veteran waived the remaining time to select a different Board review option in the February 2026 VA Form 10182. Accordingly, the Board will proceed with adjudication of the appeal.

As an initial matter, the Board notes that the appeal for an increased rating for (1) intervertebral disc syndrome, lumbosacral strain with degenerative joint disease, and thoracic degenerative joint disease, (2) cervical strain with fibromyositis, arthritis, and limitation of motion, (3) PTSD, (4) DM II, (5) bilateral upper extremity diabetic neuropathy, (6) bilateral lower extremity polyneuropathy, and (7) tinnitus, arise from a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which the Veteran filed in January 2025, and which was taken as an increased rating claim for all of the Veteran's service connected disabilities. In this regard, the Veteran first filed an intent to file a claim on March 25, 2024, followed by the January 2025 VA Form 21-8940. As to the Veteran's claims regarding his hypertension, he has continuously pursued these claims since filing a supplemental claim in March 2023.

Earlier Effective Dates

1. Entitlement to an effective date prior to August 10, 2022 for the award of service connection for hypertension is denied.

The effective date of a service connection award based on an initial or supplemental claim for compensation benefits made more than one year following separation from service is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r).

Where a claim has been finally adjudicated and then reopened at a later date, the effective date of any subsequent award is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002).

However, VA regulations provide that where a service connection claim is received by VA within one year after a change in law and all the requirements were met for a grant of service connection on the effective date of the change in law, the proper effective date shall be the date of the change in the law. 38 C.F.R. § 3.114

On August 10, 2022, the PACT Act was enacted which, in relevant part, established a presumption for service connection for hypertension for Veterans who were exposed to herbicide agents. PACT Act of 2022, Pub. L. No. 117-168, § 403(d)(2) (2022).

Here, the Veteran filed a claim of entitlement to service connection for high blood pressure in May 1988, which was denied in a January 1989 rating decision. The Veteran did not appeal this decision, and therefore, it is a final decision. 38 U.S.C
the date of the change in the law. 38 C.F.R. § 3.114

On March 27, 2023, the Veteran filed a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking entitlement to service connection for hypertension. The United States Court of Appeals for Veterans Claims (Court) recently held that "while a supplemental claim needs to be filed on a form prescribed by the Secretary, it doesn't need to be filed on a supplemental claim form." Chisholm v. Collins, 38 Vet. App. 140, 143 (2025). In this regard, the Court noted that "supplemental claims can either reengage VA to address a benefit once denied, or continuously pursue an initial claim. But in either scenario, the claimant filing the supplemental claim must have previously filed a claim for the same or similar benefits on the same or similar basis. That is, after all, the statutory definition of a supplemental claim." Id. at 146-47 (quotations, citations, and alterations omitted). Accordingly, the Board finds the Veteran's March 27, 2023 VA Form 21-526EZ to be a supplemental claim for service connection for hypertension. In a December 2023 decision, the AOJ granted service connection for hypertension, effective August 10, 2022.

The Board finds that, because the Veteran submitted his March 2023 Supplemental Claim within one year of August 10, 2022, the requirements were met for a grant of service connection effective August 10, 2022, the effective date of the PACT Act. However, the Board notes that, because the Veteran's claim for service connection was granted pursuant to the newly created presumption for hypertension that existed only upon enactment of the PACT Act, the effective date provisions provided to Nehmer class members are not applicable to the Veteran's hypertension claim. See 38 C.F.R. §§ 3.309(e), 3.816; see also VBA Letter 20-22-10, Processing Claims Involving the PACT Act, 87 Fed. Reg. 78543 (Dec. 22, 2022).

Accordingly, the Board finds that the evidence is persuasively against a finding that an effective date earlier than August 10, 2022, is warranted for the award of service connection for the Veteran's hypertension, and to this extent, the appeal must be denied. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

2. Entitlement to an effective date of August 10, 2022, for a TDIU is granted.

In the April 2025 AOJ decision on appeal, the Veteran was granted entitlement to a TDIU, effective August 1, 2023. In this regard, the AOJ determined that VA received a prior claim, a decision was made on that claim, and within one year from the notification of that decision, the Veteran submitted a claim for individual unemployability. In addition, the AOJ found that, because the evidence established that entitlement to a TDIU was an issue eventually associated with that prior claim, the effective date is the date VA received that prior claim.

In other words, the AOJ found that the Veteran filed a claim of entitlement to service connection for hypertension, which was granted in a December 2023 rating decision, and within one year of that decision, the Veteran filed his claim of entitlement to a TDIU, which the AOJ found to be associated with the claim of entitlement to service connection for hypertension. Thus, the AOJ has made the favorable finding that the Veteran's claim of entitlement to a TDIU was raised as part of his claim of entitlement to
In addition, the AOJ found that, because the evidence established that entitlement to a TDIU was an issue eventually associated with that prior claim, the effective date is the date VA received that prior claim.

In other words, the AOJ found that the Veteran filed a claim of entitlement to service connection for hypertension, which was granted in a December 2023 rating decision, and within one year of that decision, the Veteran filed his claim of entitlement to a TDIU, which the AOJ found to be associated with the claim of entitlement to service connection for hypertension. Thus, the AOJ has made the favorable finding that the Veteran's claim of entitlement to a TDIU was raised as part of his claim of entitlement to service connection for hypertension. The Board is bound by this favorable finding.

However, the Board finds that the AOJ did not assign the proper effective date for entitlement to a TDIU. Specifically, as stated above, the Veteran filed a VA Form 21-526EZ seeking entitlement to service connection for hypertension on March 27, 2023, which the Board finds is a supplemental claim for service connection for hypertension. See Chisholm v. Collins, 38 Vet. App. 140, 143 (2025). Thus, the date of the claim of entitlement to service connection is March 27, 2023. In addition, a TDIU claim, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.

Accordingly, because (1) the Veteran was entitled to an effective date of August 10, 2022 for service connection for hypertension, (2) the claim for a TDIU was part and parcel of that claim, rather than a separate claim for benefits, and (3) the Veteran met the criteria for entitlement to a TDIU as of August 10, 2022, the Veteran is entitled to an effective date of August 10, 2022 for a TDIU. To this extent the appeal is granted.

3. Entitlement to an effective date of August 10, 2022 for basic eligibility for DEA is granted.

Basic eligibility for DEA exists when a Veteran has a permanent total service-connected disability or disabilities. Based on the Board's decisions above, the Veteran now has totally disabling service-connected disabilities, which are permanent in nature, as of August 10, 2022. Accordingly, the criteria for basic eligibility for DEA is warranted effective August 10, 2022, and to this extent, the appeal is granted.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10.

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

1. Entitlement to an initial rating of 10 percent, but no higher, for hypertension, is granted
for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

1. Entitlement to an initial rating of 10 percent, but no higher, for hypertension, is granted.

The Veteran's service-connected hypertension is currently rated as noncompensable under Diagnostic Code 7101. Under this rating criteria, a 10 percent rating is warranted when a veteran's diastolic pressure is predominantly 100 mm/Hg or more, or systolic pressure is predominantly 160 mm/Hg or more, or, if the veteran has a history of diastolic pressure predominantly 100 mm/Hg or more and requires continuous medication for control. A 20 percent rating is warranted when a veteran's diastolic pressure is predominantly 110 mm/Hg or more, or systolic pressure is predominantly 200 mm/Hg or more. A 40 percent rating is warranted when a veteran's diastolic pressure is predominantly 120 mm/Hg or more. A 60 percent rating is warranted when a veteran's diastolic pressure is predominantly 130 mm/Hg or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Although undefined in the rating criteria, Meriam-Webster's Collegiate Dictionary defines the word predominantly as "for the most part." https://www.merriam-webster.com/dictionary/predominantly (last visited March 17, 2026).

Turning to the evidence of record, a March 17, 1975 private treatment record reflects a blood pressure reading of 180/100. The same treatment note reflects that the Veteran was not taking any medication and that the clinician suspected hypertension. The Veteran was prescribed Valium, and in a March 24, 1975 treatment record it was noted that his blood pressure was much improved, to 134/80.

The medical evidence of record also contains the following blood pressure readings: 138/90 in September 1975, 150/84 in March 1976, 130/90 in January 1979; 126/86 and 130/86 in April 1979; 120/80 in March 1981; 120/90 in July 1982, 100/70 in March 1983; 150/100 in January 1988; 142/90 in February 1988; 140/96 in April 1988, 134/88 in June 1988, 128/98 in August 1988; 160/102, 150/98, and 120/90 in September 1988; 142/90, 114/80, and 140/90, in January 1992; 130/90, 142/96, and 142/94 in February 1992; 142/92, 140/96, and 138/100 in March 1992; 120/80 in May 1992, and 120/80 in June 1992; 122/90 in October 1992; 150/80 in November 1992, 148/105 and 170/110 and 158/92 in December 1992; 126/84 and 122/80 in January 1993; 130/90, 150/98, and 146/94 in February 1993; 140/93 and 150/92 in April 1993; 118/80 in August 1993; 130/90 in April 1994; 157/100 in April 2001; 148/98 and 152/92 in September 2001; 152/96, 177/104, and 135/70 in December 2001; 159/87 in October 2002; 139/89 and 148/79 in April 2003; 132/83 in June 2003; 139/85 in August 2003; 149/87 in September 2003; 142/80 in October 2003; 147/86 in December 2003; 133/89 in March 2004; 129/77 in June 2004; 127/67 in
1994; 157/100 in April 2001; 148/98 and 152/92 in September 2001; 152/96, 177/104, and 135/70 in December 2001; 159/87 in October 2002; 139/89 and 148/79 in April 2003; 132/83 in June 2003; 139/85 in August 2003; 149/87 in September 2003; 142/80 in October 2003; 147/86 in December 2003; 133/89 in March 2004; 129/77 in June 2004; 127/67 in August 2004; 143/94 in October 2004; 167/100 in April 2005; 151/92 in October 2005; 132/92 in December 2005; 145/75 and 176/99 in April 2006; 146/67, 147/91, and 140/82 in May 2006; 152/90 in August 2006; 158/98 in September 2006; 144/86 in October 2006; 132/80 in December 2006; 145/93 in March 2007; 155/94 in July 2007; 138/90 in October 2007; 114/74 in December 2007; 146/83 in February 2008; 134/84 in June 2008; 127/88 in September 2008; 156/94 in December 2008; 156/96 in June 2009; 141/93 in August 2009; 127/87 in September 2009; 156/89 in October 2009; 112/65 in December 2010; 127/86 and 133/82 in January 2011; 130/80 in May 2011; 130/80 in July 2011; 128/91 in January 2012; 150/98 in March 2012; 124/87 in May 2012; 169/98 in July 2012; 144/96 in December 2012; 122/84 in July 2013; 138/80 in January 2014; 143/70 in July 2014; 129/83 in August 2014; 131/86 in January 2015; 150/91 and 132/84 in May 2015; 139/78 in November 2015; 101/59, 121/58, 98/56, 136/64, 105/56, 137/77, 112/60, 139/73, 129/74, 141/70, 142/77, 124/62, 132/59, 136/66, 96/58, 119/58, 124/66, 130/66, 102/62, 125/59, 117/56, 136/66, 123/64, 124/56, 124/66, 120/69, 113/55, 139/64, 136/66, 125/56, 120/60, 123/62, 119/61, 125/56, 112/55, 118/68, 131/62, 120/60, 126/68,110/57, 108/53, 120/62, 132/70, 97/44, 127/65, 120/61, and 106/58 in February 2016; 125/61, 120/61, 120/62, 126/68, 102/56, 117/56, 132/68, 113/57, 115/55, 118/61, 112/56, 103/55, 108/54, 119/60, 111/62, 108/54, 113/58, 131/62, 104/56, 132/68, 126/84, 115/56, 124/97, 126/79, 121/64, 118/68, 131/63, 114/59, 126/79, 124/67, 138/70, 104/57, 148/72, 124/57, 132/64, 133/69, 125/61 in March 2016; 126/60 in June 2016
, 112/56, 103/55, 108/54, 119/60, 111/62, 108/54, 113/58, 131/62, 104/56, 132/68, 126/84, 115/56, 124/97, 126/79, 121/64, 118/68, 131/63, 114/59, 126/79, 124/67, 138/70, 104/57, 148/72, 124/57, 132/64, 133/69, 125/61 in March 2016; 126/60 in June 2016; 85/51 in December 2016; 124/69 in February 2017; 141/66 in August 2017; 142/77 in October 2017; 170/99 and 138/88 in May 2018; 136/76 and 158/91 in January 2019; 187/87 and 166/72 in May 2019; 157/90 in July 2019; 163/93 and 147/94 in August 2019; 173/92 in September 2019; 132/70 in October 2019; 132/70 and 144/79 in October 2020; 118/82 and 129/67 in November 2020; 186/85 in December 2020; 187/89, 164/77, 102/52, and 147/89 in February 2021; 145/76 and 159/89 in May 2021; 134/77in June 2021; 148/76 and 126/66 in July 2021; 118/74 in October 2021; 136/81 in December 2021; 143/75 in March 2022; 126/84 in May 2022; 164/77 in December 2022; 141/77 in March 2023; 140/83, 132/80, and 141/86 in July 2023; 123/74 in December 2023; 108/56, 96/64 and 125/75 in January 2024; 123/77, 90/59, 107/59, and 149/81 in February 2024; 128/73 in March 2024; 105/92 110/65, 116/92, 150/82, 158/89, and 156/86 in April 2024; and 150/78 and 132/74 in July 2024.

An April 2023 VA hypertension examination reflects that the Veteran reported that his hypertension had its onset in the mid-1990s and had worsened since onset. The Veteran did not report any symptoms related to his hypertension and that he treated with Losartan and metoprolol. Thus, the examiner found that the Veteran's treatment plan included taking continuous medication. The examiner also found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. On the date of the examination, the Veteran's blood pressure readings were 153/95, 152/91, and 150/89. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's hypertension, however, it was noted that, with uncontrolled hypertension, the Veteran would not qualify to fly a commercial plane.

A September 2023 VA hypertension examination reflects that the Veteran reported experiencing headaches, dizziness, anxiety, and tiredness due to his hypertension, which affects his daily function. The Veteran's treatment plan included taking continuous medication, specifically, Metoprolol Tartrate twice daily and Losartan once daily. The examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. On the date of the examination, the Veteran's blood pressure readings were 142/78, 140/78, and 142/78. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's hypertension, however, it was noted that, the Veteran's hypertension would have difficulty participating in activities/exercises that increase stress on the heart.

In a January 2024 statement, the Veteran stated that, in the early seventies, his private doctors put him on medicine for high blood pressure as his blood pressure readings were 160+/100+. He then started being treated only at VA, and his medication was switched several times to keep his blood pressure
to predominantly 100 or more. On the date of the examination, the Veteran's blood pressure readings were 142/78, 140/78, and 142/78. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's hypertension, however, it was noted that, the Veteran's hypertension would have difficulty participating in activities/exercises that increase stress on the heart.

A January 2025 VA hypertension examination reflects that the Veteran did not report any symptoms of hypertension. The Veteran's treatment plan included taking continuous medication, specifically, Metoprolol and Losartan. The examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. On the date of the examination, the Veteran's blood pressure readings were 92/62, 102/59, and 98/63. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's hypertension, however, it impacted his ability to concentrate, walk, sit, or stand due to dizziness.

The United States Court of Appeals for Veterans Claims (Court) held in Wilson v. McDonough, 35 Vet. App. 75 (2021) that, when a veteran is receiving a noncompensable rating for hypertension under Diagnostic Code 7101, the language of Diagnostic Code 7101 relating to "a history of diastolic pressure predominantly 100 or more [that] requires continuous medication for control" refers to blood pressure readings taken before a veteran began medication to control hypertension, and therefore may require analyzing blood pressure readings prior to the period on appeal. Here, a March 1975 treatment record from before the Veteran started medication to control his hypertension reflects a diastolic pressure of 100 or more. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence establishes that it is at least as likely as not that he has a history of diastolic pressure predominantly 100 mm/Hg or more and requires continuous medication for control of his hypertension. Accordingly, an initial rating of 10 percent is warranted for the Veteran's hypertension.

However, the Board also finds that the evidence is persuasively against a finding that the Veteran's hypertension has manifested with diastolic pressure predominantly 110 mm/Hg or more, or systolic pressure predominantly 200 mm/Hg or more. Specifically, the evidence contains only one blood pressure reading with a diastolic pressure of 110 mm/Hg or more in December 1992. In addition, there is no evidence of blood pressure readings with a systolic pressure of 200 mm/Hg or more. The Board finds that this evidence is persuasively against a finding that the Veteran's hypertension resulted in diastolic pressure predominantly 110 mm/Hg or more, or systolic pressure predominantly 200 mm/Hg or more.

In sum, the Board finds that, resolving reasonable doubt in favor of the Veteran, an initial 10 percent rating is warranted for his service-connected hypertension. However, the Board also finds that the evidence is persuasively against a finding that a rating in excess of 10 percent is warranted for the service-connected hypertension. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

The Board acknowledges that the Veteran's blood pressure would likely be elevated without medication. Generally, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, "if [the applicable diagnostic code] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The rating criteria for hypertension specifically contemplates the use of medication to ameliorate symptoms. Id. at 271 (specifically holding that the Board
that the Veteran's blood pressure would likely be elevated without medication. Generally, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, "if [the applicable diagnostic code] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The rating criteria for hypertension specifically contemplates the use of medication to ameliorate symptoms. Id. at 271 (specifically holding that the Board did not err in failing to discount the ameliorative effects of blood pressure medication, as the plain language of Diagnostic Code 7101 contemplates the effects of medications). Accordingly, the holding in Jones does not apply, and the ameliorative effects of medication do not need to be discounted when rating the Veteran's hypertension.

2. Entitlement to a rating in excess of 10 percent for tinnitus is denied.

The Veteran's tinnitus is currently rated as 10 percent disabling pursuant to Diagnostic Code 6260. Under Diagnostic Code 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. This is the maximum schedular rating available for tinnitus under the VA Rating Schedule. As a result, the Veteran has been assigned the maximum schedular rating available for tinnitus. The Veteran seeks a rating in excess of 10 percent for tinnitus; however, no specific argument in support of this claim has been provided. Thus, his appeal of the rating assigned for tinnitus must be denied. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

3. Entitlement to a rating in excess of 20 percent for DM II is denied.

The Veteran's DM II is currently rated as 20 percent disabling pursuant to Diagnostic Code 7913. Diagnostic Code 7913 provides a 10 percent rating for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Note (1) to Diagnostic Code 7913 states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913.

The term "regulation of activities" contained in Diagnostic Code 7913 means that a claimant must have a medical need to avoid strenuous occupational or recreational activities with the intention of avoiding hypoglycemic episodes, and thus medical evidence of limitation of activities is required. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id.

The rating criteria for diabetes are successive and cumulative, meaning the criteria for a higher rating includes the criteria of each lower rating, plus a new distinct criterion that must be satisfied to warrant the higher rating. If a component is not met at any level, the Veteran can
must have a medical need to avoid strenuous occupational or recreational activities with the intention of avoiding hypoglycemic episodes, and thus medical evidence of limitation of activities is required. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id.

Finally, because the criteria for rating diabetes mellitus does contemplate the effects of medication, the ameliorative effects of medication, if any, do not need to be discounted when assigning a disability rating.

Turning to the evidence of record, a January 2025 VA diabetes mellitus examination reflects that the Veteran's DM II was treated with a prescribed oral hypoglycemic agent. The Veteran did not require regulation of activities as part of medical management for his DM II and he visited his provider for episodes of ketoacidosis and/or hypoglycemia less than two times per month. The Veteran had not been hospitalized over the 12 months prior to examination for either ketoacidosis or hypoglycemia. The Veteran had not had progressive unintentional weight loss and loss of strength attributable to his DM II. The Veteran's complications from DM II were diabetic peripheral neuropathy and his hypertension was noted to be at least as likely as not due to his DM II. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's DM II. Finally, it was noted that the Veteran's DM II impacted his occupational functioning in that diabetes it caused the inability to concentrate on tasks due to fatigue, polyuria, polyphagia and polydipsia, as well as the inability to walk, sit, or stand due to no energy/chronic fatigue; resulting in productivity reduced to 25 percent.

The Board finds that the evidence is persuasively against a finding that a rating in excess of 20 percent is warranted for the Veteran's DM II. As stated above, a rating in excess of 20 percent under Diagnostic Code 7913 requires regulation of activities meaning that the Veteran must have a medical need to avoid strenuous occupational or recreational activities with the intention of avoiding hypoglycemic episodes, or in other words, a medical finding that the Veteran's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Camacho, 21 Vet. App. at 366.

Here, the evidence is silent as to the Veteran's medical need to avoid strenuous activity due to his DM II. In fact, the January 2025 VA examination reflects that the Veteran does not require regulation of activities as part of medical management for his DM II. The Veteran does not contend otherwise. Accordingly, the Board finds that the evidence of record is persuasively against a finding that the Veteran requires regulation of activities due to his DM II, and therefore, a rating in excess of 20 percent is not warranted for his DM II. In denying a higher rating for the Veteran's DM II, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

The Board also notes that the Veteran is already rated for the compensable complications of his DM II, specifically bilateral upper and lower extremity neuropathy and hypertension, as discussed otherwise in this decision. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).

4. Entitlement to a 40 percent rating, but no higher, for right upper extremity diabetic neuropathy is granted.

5. Entitlement to a 30 percent rating, but no higher, for left upper extremity diabetic neuropathy is granted.

The Veteran's right upper extremity diabetic neuropathy and left upper extremity diabetic neuropathy are each rated 20 percent disabling pursuant to Diagnostic code 8513. Diagnostic Code 8513 provides the rating criteria
already rated for the compensable complications of his DM II, specifically bilateral upper and lower extremity neuropathy and hypertension, as discussed otherwise in this decision. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).

4. Entitlement to a 40 percent rating, but no higher, for right upper extremity diabetic neuropathy is granted.

5. Entitlement to a 30 percent rating, but no higher, for left upper extremity diabetic neuropathy is granted.

The Veteran's right upper extremity diabetic neuropathy and left upper extremity diabetic neuropathy are each rated 20 percent disabling pursuant to Diagnostic code 8513. Diagnostic Code 8513 provides the rating criteria for paralysis of all radicular groups. A 20 percent rating is warranted for mild incomplete paralysis for both sides; a 40 percent rating is warranted for moderate incomplete paralysis for the major extremity (30 percent for minor); a 70 percent rating is warranted for severe incomplete paralysis for the major extremity (60 percent for minor); and a 90 percent rating is warranted for complete paralysis for the major extremity (80 percent for minor). 38 C.F.R. § 4.124a, Diagnostic Code 8513.

A note to the rating criteria set forth in 38 C.F.R. § 4.124a for rating diseases of the peripheral nerves of the upper extremities states that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, the rater should consider radicular group ratings.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves.

Turning to the evidence of record, a January 2025 VA diabetic sensory-motor peripheral neuropathy examination reflects that the Veteran reported his symptoms as pain, numbness, tingling, and sharp shooting pain in his arms and hands. He reported treating with over the counter pain medications and gabapentin. The Veteran was noted to be right hand dominant. The examiner found the Veteran's symptoms to be moderate constant pain in both upper extremities, severe intermittent pain in both upper extremities, severe paresthesias and/or dysesthesias in both upper extremities, and severe numbness in both upper extremities. Muscle strength testing revealed less than normal strength in bilateral elbow flexion, bilateral elbow extension, bilateral writs flexion, bilateral wrist extension, bilateral grip, and bilateral pinch (thumb to index finger). Deep tendon reflexes and light touch/monofilament testing were all normal. Position sense and vibration sensation was decreased in both upper extremities. There was no muscle atrophy or trophic changes. The examiner found that the Veteran had moderate incomplete paralysis of the radial, median, and ulnar nerves. Finally, the examiner noted that the Veteran's polyneuropathy resulted in an inability to concentrate on tasks due to pain with sharp shooting pains, and numbness, as well as an inability to walk, or stand due to sharp shooting pains, and numbness, resulting in occupational productivity reduced to 0 percent.

The Board finds that the evidence of record establishes that the Veteran had moderate incomplete paralysis of both the left and right upper extremities during the period on appeal. Therefore, a 40 percent rating is warranted
sensation was decreased in both upper extremities. There was no muscle atrophy or trophic changes. The examiner found that the Veteran had moderate incomplete paralysis of the radial, median, and ulnar nerves. Finally, the examiner noted that the Veteran's polyneuropathy resulted in an inability to concentrate on tasks due to pain with sharp shooting pains, and numbness, as well as an inability to walk, or stand due to sharp shooting pains, and numbness, resulting in occupational productivity reduced to 0 percent.

The Board finds that the evidence of record establishes that the Veteran had moderate incomplete paralysis of both the left and right upper extremities during the period on appeal. Therefore, a 40 percent rating is warranted for right upper extremity diabetic neuropathy, and a 30 percent rating is warranted for left upper extremity diabetic neuropathy.

However, the Board finds that the evidence persuasively establishes that the Veteran did not have severe incomplete paralysis of the right or left upper extremity at any time during the appeal period. In this regard, the Board notes that the evidence establishes that the Veteran experienced severe intermittent pain, paresthesias and/or dysesthesias, and numbness in both upper extremities, however, these symptoms are only sensory. The evidence establishes that the Veteran's non-sensory symptoms were not severe, as the Veteran only had less than normal strength and decreased position sense and vibration sensation. The Veteran had normal deep tendon reflexes, normal light touch/monofilament testing results, no muscle atrophy, and no trophic changes. Accordingly, the Board finds that the evidence is persuasively against a finding that the Veteran had severe incomplete paralysis of either upper extremity at any time during the appeal period.

The Board acknowledges the effective date of an award of an increased evaluation can be assigned up to one year prior to the date of an increased rating claim if it is factually ascertainable that an increase in disability occurred during this period. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the Veteran has not reported experiencing any definitive increase in disability in the year prior to submitting the March 2024 intent to file a claim, and there are no treatment records or examination reports that support any definitive increase in disability in the year prior to March 2024. As such, the Board finds there is not a factually ascertainable increase in disability in the one-year period prior to the Veteran submitting his March 2024 intent to file a claim.

In sum, the Board finds that the evidence establishes that it is at least as likely as not that the Veteran had moderate incomplete paralysis of his upper extremities during the appeal period, and therefore, a 40 percent rating is warranted for right upper extremity diabetic neuropathy, and a 30 percent rating is warranted for left upper extremity diabetic neuropathy. However, the Board also finds that the evidence is persuasively against a finding that the Veteran had severe incomplete paralysis of the upper extremities at any time during the appeal period. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

6. Entitlement to a rating of 40 percent, but no higher, for right lower extremity polyneuropathy of the sciatic nerve is granted.

7. Entitlement to a separate 30 percent rating for right lower extremity polyneuropathy of the femoral nerve is granted, subject to the amputation rule of 38 C.F.R. § 4.68.

8. Entitlement to a rating of 40 percent, but no higher, for left lower extremity polyneuropathy of the sciatic nerve is granted.

9. Entitlement to a separate 30 percent rating for left lower extremity polyneuropathy of the femoral nerve is granted, subject to the amputation rule of 38 C.F.R. § 4.68.

Prior to addressing the Veteran's lower extremity polyneuropathy symptomatology, the Board acknowledges the applicability of the "amputation rule" in this case. The amputation rule provides that the combined rating for disabilities affecting an extremity cannot exceed the rating assigned for an amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The amputation rule does not bar the assignment of ratings which accurately reflect the Veteran's disability picture for an extremity. Instead, it places a limit on the maximum level of compensation that can be paid, which is commensurate with the maximum level of compensation that would be paid were the limb to be amputated. As such, the Board will proceed to assign all necessary ratings for the lower extremity polyneuropathy as appropriate, noting only that the Veteran's overall level of compensation for the disabilities affecting his lower extremities may be limited to the amount payable for amputation of the lower extremity at the elective level. See 38 C.F.R. § 4.68; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5160-5165 (concerning ratings for amputation of the thigh and leg).

The Veteran's right lower extremity polyneuropathy and left lower extremity polyneuropathy are each rated as 10 percent disabling pursuant to Diagnostic Code 8520 for the sciatic nerve. Diagnostic Code 8520 provides for a 10 percent rating for mild incomplete paralysis of the sciatic nerve, a 20 percent rating for moderate incomplete paralysis of the sciatic nerve, and a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve, manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Under Diagnostic Code 8526, mild incomplete paralysis of the femoral nerve is rated 10 percent, moderate incomplete paralysis is rated 20 percent, severe incomplete paralysis is rated 30 percent, and complete paralysis of the nerve, with paralysis of quadriceps extensor muscles, is rated 40 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8526

The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. 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.

Turning to the evidence of record, a January 2025 VA diabetic sensory-motor peripheral neuropathy examination reflects that the Veteran reported his symptoms as pain, numbness, tingling, and sharp shooting pain in his legs and feet. He reported treating with over the counter pain medications and gabapentin. The examiner found the Veteran's symptoms to be moderate constant pain in both lower extremities, severe intermittent pain in both lower extremities, severe paresthesias and/or dysesthesias in both lower extremities, and severe numbness in both lower extremities. Muscle strength testing revealed no movement against resistance in bilateral knee extension and flexion, as well as bilateral ankle plantar flexion and ankle dorsiflexion. Deep tendon reflexes and light touch/monofilament testing were all normal. Position sense and vibration sensation was decreased in both lower extremities. There was no muscle atrophy or trophic changes. The examiner found that the Veteran had bilateral severe incomplete paralysis of the sciatic and femoral nerves. Finally, the examiner noted that the Veteran's polyneuropathy resulted in an inability to concentrate on tasks due to pain with sharp shooting pains, and numbness, as well as an inability to walk, or stand due to sharp shooting pains, and numbness, resulting in occupational productivity reduced to 0 percent.

The Board finds that the evidence establishes that the Veteran's right and left lower extremity polyneurop
Deep tendon reflexes and light touch/monofilament testing were all normal. Position sense and vibration sensation was decreased in both lower extremities. There was no muscle atrophy or trophic changes. The examiner found that the Veteran had bilateral severe incomplete paralysis of the sciatic and femoral nerves. Finally, the examiner noted that the Veteran's polyneuropathy resulted in an inability to concentrate on tasks due to pain with sharp shooting pains, and numbness, as well as an inability to walk, or stand due to sharp shooting pains, and numbness, resulting in occupational productivity reduced to 0 percent.

The Board finds that the evidence establishes that the Veteran's right and left lower extremity polyneuropathy resulted in moderately severe incomplete paralysis of the sciatic nerve. Accordingly, a rating of 40 percent is warranted for right lower extremity polyneuropathy of the sciatic nerve and a separate 40 percent rating is warranted for left lower extremity polyneuropathy of the sciatic nerve.

However, the Board finds that the evidence persuasively establishes that a higher rating is not warranted for lower extremity polyneuropathy of the sciatic nerve. In this regard, a 60 percent rating under Diagnostic Code 8520 requires marked muscular atrophy. The evidence is silent as to any muscle atrophy of the lower extremities and the Veteran has not alleged such. In fact, the January 2025 VA examination reflects that the Veteran does not have muscle atrophy of the lower extremities. Accordingly, the Board finds that the evidence is persuasively against a finding that the Veteran's incomplete paralysis of the right and left sciatic nerve warrant a higher rating under Diagnostic Code 8520.

The evidence of record establishes that the Veteran also has incomplete paralysis of the right and left femoral nerve. Accordingly, the Board finds that separate ratings are warranted under Diagnostic Code 8526. As to the severity of the Veteran's incomplete paralysis of the right and left femoral nerve, the Board notes that the evidence is very limited, but it establishes that a 30 percent rating is warranted for severe incomplete paralysis of the right femoral nerve and a separate 30 percent rating is warranted for severe incomplete paralysis of the left femoral nerve based on the January 2025 VA examination.

In sum, the Board finds that the evidence establishes that (1) a 40 percent rating is warranted for service-connected incomplete paralysis of the right sciatic nerve, (2) a 40 percent rating is warranted for service-connected incomplete paralysis of the left sciatic nerve, (3) a separate 30 percent rating is warranted for severe incomplete paralysis of the right femoral nerve, and (4) a separate 30 percent rating is warranted for severe incomplete paralysis of the left femoral nerve. However, the Board also finds that the evidence is persuasively against a finding that a higher rating is warranted for the Veteran's service-connected incomplete paralysis of the right and left sciatic nerve under Diagnostic Code 8520, and in this regard, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

10. Entitlement to a rating in excess of 70 percent for PTSD is denied.

The Veteran's PTSD is currently rated as 70 percent disabling under Diagnostic Code 9411 which is part of the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130.

10. Entitlement to a rating in excess of 70 percent for PTSD is denied.

The Veteran's PTSD is currently rated as 70 percent disabling under Diagnostic Code 9411 which is part of the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130.

Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted when there is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130.

A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; 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; and memory loss for names of close relatives, own occupation, or own name. Id.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Since the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. Accordingly, an examiner's classification of the level of psychiatric impairment is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

Turning to the evidence of record, a May 2024 VA mental health treatment note reflects that the Veteran had not been treated for his mental health issues since 2021. The Veteran reported getting easily agitated with people, such as having a verbal altercation with a restaurant employee for an unclear reason. He reported sleeping 5 to 6 hours per night and being woken up by nightmares. He also reported daytime flashbacks triggered by smells, as well as irritability and anxiety. The Veteran had appropriate hygiene and no abnormal movements. His mood was irritable, affect was constricted, thought process was goal directed and organized, speech was not pressured, and language was clear and fluent. He did not have delusions, suicidal or homicidal intent, or audio-visual hallucinations. His insight, judgment, attention, and concentration were appropriate. His recent and remote memory was intact. He was oriented times three. It was noted that the Veteran's PTSD symptoms affected his mood and sleep, and his irritability seemed to affect his relationships with others.

A June 2024 VA mental health treatment record reflects that the Veteran reported sleeping 5 to 6 hours per night, being woken up by nightmares, and having flashbacks triggered by smells. He also reported irritability, anxiety, and depression. He denied suicidal intent, plan, or history. He reported living alone with his dog. He also attributed his mood to isolation and not being able to get out due to physical limitations. The Veteran had appropriate hygiene and no abnormal movements. His mood was depressed, affect was constricted, thought process was goal directed and organized, speech was not pressured, and language was clear and fluent. He did not have delusions, suicidal or homicidal intent, or audio-visual hallucinations. His insight, judgement, attention, and concentration were appropriate. His recent and remote memory was intact. He was oriented times three. It was noted that the Veteran's PTSD symptoms affected his mood and sleep, and his irritability seemed to affect his relationships with others.

A November 2024 VA mental health treatment record reflects that the Veteran reported no improvement with medication. He reported low mood and feeling depressed due to recurring nightmares resulting in waking up startled and shaking. He reported living at home with his dog and having friends and family who rarely visited. He was able to complete activities of daily living and denied any recent falls or memory issues. He denied irritability, mood swings, generalized anxiety, and/or panic attacks. He also denied suicidal ideation, homicidal ideation, and audio-visual hallucinations. The Veteran was casually dressed and his mood was euthymic, speech was non-pressured, language was grossly intact, and thought process was linear. His insight and judgment were grossly intact and he was fully oriented. There were no apparent deficits in his attention and concentration and his recent and remote memory were intact.

A December 2024 VA mental health treatment record reflects that the Veteran reported feeling depressed, which was chronic, but exacerbated by the recent death of one of his children. He was well dressed, polite, and cooperative. His thought process was linear, his affect was euthymic, and his thought content was reality based without any signs of delusions or psychosis. He denied suicidal ideation, homicidal ideation, and audio-visual hallucinations. He reported having a supportive ex-wife and that he planned to spend the holidays with his two other children. His insight and judgment were grossly intact, he was fully oriented, there were no apparent deficits in his attention/concentration, and his memory was grossly intact.

A January 2025 VA PTSD examination reflects the examiner's opinion that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported divorcing his spouse in 2011, after 42 years of marriage, and that he had contact with his two living children and six grandchildren. The Veteran reported working with a mental health therapist in an attempt to manage symptoms. In going through the diagnostic criteria for PTSD, the examiner noted that the Veteran experienced the following: persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; problems with concentration; and sleep disturbance. The following were the Veteran's PTSD symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; flattened affect; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; anhedonia; hopelessness; frustration; and isolation. The Veteran initially presented with angry affect, but was able to gradually settle into the interview process. He appeared frustrated being subjected to another examination. There were no indications of receptive language impairment, and language volume, prosody, and rate were within normal limits.

The Board finds that the evidence is persuasively against a finding that a rating in excess of 70 percent is warranted for the Veteran's service-connected PTSD. First, as
once a week; chronic sleep impairment; flattened affect; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; anhedonia; hopelessness; frustration; and isolation. The Veteran initially presented with angry affect, but was able to gradually settle into the interview process. He appeared frustrated being subjected to another examination. There were no indications of receptive language impairment, and language volume, prosody, and rate were within normal limits.

The Board finds that the evidence is persuasively against a finding that a rating in excess of 70 percent is warranted for the Veteran's service-connected PTSD. First, as to the occupational and social impairment resulting from the Veteran's PTSD, the Board finds that the evidence is persuasively against a finding that the Veteran's PTSD resulted in total social impairment. In this regard, the Board acknowledges that the Veteran's symptoms included feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and isolation. However, the evidence also establishes that the Veteran maintained social relationships throughout the appeal period. The Veteran consistently reported having relationships with his children and grandchildren, including spending time with them during holidays. He also reported having friends and a relationship with his ex-wife. Accordingly, although the evidence establishes that the Veteran had difficulty maintaining social relationships and was often isolated, the evidence is persuasively against a finding that his PTSD resulted in total social impairment.

Second, as to the Veteran's PTSD symptoms, the Veteran was consistently found to have linear, goal directed thought processes. He also consistently denied delusions or hallucinations, was always found to be fully oriented, and his memory was always grossly intact. His records are silent as to any grossly inappropriate behavior, persistent danger of hurting self or others, and/or inability to perform activities of daily living (including maintenance of minimal personal hygiene).

In sum, the Board finds that the evidence is persuasively against a finding that the Veteran's PTSD resulted in total social and occupational impairment at any time during the appeal period, and therefore, a rating in excess of 70 percent is not warranted for the Veteran's PTSD. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

11. Entitlement to a rating in excess of 40 percent for a back disability is denied.

12. Entitlement to a rating in excess of 30 percent for a neck disability is denied.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 201
on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.")

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

The Veteran's back disability is currently rated as 40 percent disabling and his neck disability is currently rated as 30 percent disabling, both pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating requires unfavorable ankylosis of the entire spine (thoracolumbar and cervical). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Diagnostic Code 5243 for IVDS states that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. Otherwise Diagnostic Code 5242 is to be assigned for all other disc diagnoses.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a at Note 5. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.

Turning to the evidence of record, a September 2024 VA chiropractic treatment record reflects the following range of motion limitations as to the Veteran's lumbar spine: flexion limited to 30 degrees, extension limited to 12 degrees, left lateral flex
; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a at Note 5. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.

A January 2025 VA back conditions examination reflects that the Veteran reported symptoms of pain, difficulty lifting, and difficulty carrying. The Veteran treated with pain medication, physical therapy, and muscle relaxers. The Veteran reported daily severe flare-ups of his back disability that last most of the day. They are precipitated by increased activity and are alleviated by rest, heat, and medication. The Veteran reported difficulty lifting, walking, bending, squatting and carrying. Initial range of motion testing reflects flexion limited to 40 degrees, extension limited to 10 degrees, and right and left lateral flexion, as well as right and left lateral rotation, each limited to 15 degrees. Pain was noted in all ranges of motion, on weight bearing and non-weight bearing, as well as on active and passive motion. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of range of motion on passive testing and during repetitive use testing. The examiner found that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, resulting in estimated range of motion as follows: flexion limited to 20 degrees, extension limited to 0 degrees, right lateral flexion limited to 0 degrees, and left lateral flexion, right lateral rotation, and left lateral rotation each limited to 5 degrees. The examiner also found that pain significantly limited functional ability during a flare-up, resulting in estimated range of motion as follows: flexion limited to 20 degrees, extension limited to 0 degrees, right lateral flexion limited to 0 degrees, and left lateral flexion, right lateral rotation, and left lateral rotation each limited to 5 degrees. The Veteran did not have localized tenderness, guarding or muscle spasm of the thoracolumbar spine; muscle atrophy; or ankylosis. The examiner noted that the Veteran's back disability resulted in (1) disturbance of locomotion, specifically the inability to walk steady more than 10 to 20 feet without pain and loss of stability, (2) swelling, specifically lower back and lower extremity swelling with pain and decreased range of motion, (3) interference with standing, specifically the inability to stand more than 10 minutes without sitting and resting due to weakness and pain, (4) interference with sitting, specifically continuously having to change positions due to pain and the inability to cross his legs, (5) instability of station, specifically the inability to ambulate on uneven surfaces and difficulty with stairs, including having to rest between each stair, and (6) weakened movement, specifically lower extremity and trunk weakness due to the decreased range of motion and strength in the lower back. Muscle strength testing revealed that the Veteran had active movement against gravity at hip flexion, knee extension, ankle plantar flexion, ankle dorsi-flexion, and great toe extension on both sides. Sensory exam testing was normal. The Veteran had a positive straight leg raising test on both sides and the examiner noted that the Veteran had the following signs and symptoms of radiculopathy on both sides: moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner noted that the nerve roots involved were the femoral and sciatic nerves. No other neurological abnormalities were noted. The examiner noted that the Veteran had IVDS of the thoracolumbar spine. The Board also notes that the examiner noted that the Veteran had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the 12 months prior to the examination, however, the Board finds that it is more likely than not that this was a typographical error as (1) the examiner did not note the duration of the episodes on the examination report, (2) the Veteran's treatment records are silent for any prescribed bed rest by a physician, and (3) the examiner noted that
the nerve roots involved were the femoral and sciatic nerves. No other neurological abnormalities were noted. The examiner noted that the Veteran had IVDS of the thoracolumbar spine. The Board also notes that the examiner noted that the Veteran had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the 12 months prior to the examination, however, the Board finds that it is more likely than not that this was a typographical error as (1) the examiner did not note the duration of the episodes on the examination report, (2) the Veteran's treatment records are silent for any prescribed bed rest by a physician, and (3) the examiner noted that "with lumbar and thoracic spine pain with flare ups and pain [the Veteran] has to lay down with no movement for up to 2 days - could be longer," indicating that the Veteran's "bed rest" is not prescribed by a physician. The Veteran was not noted to use any assistive devices. Finally, the examiner noted that the Veteran's back disability impacted activities such as walking, running, standing, squatting, bending, and lifting, as well as his ability to concentrate on tasks, such that his productivity was reduced to less than 0 percent due to pain and decreased range of motion.

A January 2025 VA neck conditions examination reflects that the Veteran reported his symptoms as pain and difficulty looking in different directions which he treated with pain medication and muscle relaxers. The Veteran reported daily severe flare-ups lasting most of the day. They are precipitated by increased activity and alleviated with rest. Initial range of motion testing reflects flexion limited to 15 degrees, extension limited to 15 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 0 degrees, and right and left lateral rotation each limited to 15 degrees. Pain was noted in all ranges of motion, on weight bearing and non-weight bearing, as well as on active and passive motion. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of range of motion on passive testing and during repetitive use testing. The examiner found that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, resulting in estimated range of motion as follows: flexion limited to 5 degrees, extension limited to 5 degrees, right and left lateral flexion each limited to 0 degrees, and right and left lateral rotation each limited to 5 degrees. The examiner also found that pain significantly limited functional ability during a flare-up, resulting in estimated range of motion as follows: flexion limited to 5 degrees, extension limited to 5 degrees, right and left lateral flexion each limited to 0 degrees, and right and left lateral rotation each limited to 5 degrees. The Veteran did not have localized tenderness, guarding or muscle spasm of the cervical spine; muscle atrophy; or ankylosis. Muscle strength testing revealed active movement against some resistance on both sides at flexion and extension of the elbow, flexion and extension of the wrist, and flexion and abduction of the finger. Sensory and reflex examinations were normal. The examiner noted that the Veteran had the following symptoms of radiculopathy: moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner noted that the nerve roots involved were all of the radicular nerve groups. No other neurological abnormalities were noted. The examiner noted that the Veteran had IVDS of the cervical spine. The Board also notes that the examiner noted that the Veteran had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the 12 months prior to the examination, however, the Board finds that it is more likely than not that this was a typographical error as (1) the examiner did not note the duration of the episodes on the examination report, (2) the Veteran's treatment records are silent for any prescribed bed rest by a physician, and (3) the examiner noted that "with flare-up and increased pain, [the Veteran] has to lay down and not move" which indicates that the Veteran's "bed rest" is not prescribed by a physician. The Veteran was not noted to use any assistive devices. Finally, the examiner noted that the Veteran's inability to concentrate on tasks due to cervical pain, decreased range of motion, and headaches, decreased his productivity to less than 0 percent.

The Board finds that the examiner elicited information regarding the Veteran's flare-ups of his back and neck disabilities, which appear to reflect the severity of the Veteran's disabilities
report, (2) the Veteran's treatment records are silent for any prescribed bed rest by a physician, and (3) the examiner noted that "with flare-up and increased pain, [the Veteran] has to lay down and not move" which indicates that the Veteran's "bed rest" is not prescribed by a physician. The Veteran was not noted to use any assistive devices. Finally, the examiner noted that the Veteran's inability to concentrate on tasks due to cervical pain, decreased range of motion, and headaches, decreased his productivity to less than 0 percent.

The Board finds that the examiner elicited information regarding the Veteran's flare-ups of his back and neck disabilities, which appear to reflect the severity of the Veteran's disabilities without accounting for the ameliorative effects of the pain medication he takes for his back and neck disabilities. Accordingly, the Board finds that the January 2025 VA examinations comply with Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that, in assigning a disability rating, the Board may not consider the ameliorative effects of medications where such effects are not explicitly contemplated by the rating criteria).

The Board finds that the evidence is persuasively against finding that (1) a rating in excess of 30 percent is warranted for the Veteran's neck disability and (2) a rating in excess of 40 percent is warranted for the Veteran's back disability. In order for a higher rating to be warranted for the Veteran's neck disability, there must be a finding of unfavorable ankylosis of either the cervical spine or the entire spine, and in order for a higher rating to be warranted for the Veteran's back disability, there must be a finding of unfavorable ankylosis of either the thoracolumbar spine or the entire spine.

Here, the evidence is silent as to any findings of unfavorable ankylosis of the cervical spine, the thoracolumbar spine, or the entire spine, and there are no findings reflecting any of the following symptomatology: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching, even when considering additional functional loss due to pain, weakness, fatigability, incoordination, and other factors. Therefore, at worst, the evidence suggests potential functional loss equivalent to favorable ankylosis of the cervical, thoracolumbar, and/or entire spine during flare ups, but there is no evidence of unfavorable ankylosis of the cervical, thoracolumbar, and/or entire spine or the functional equivalent of unfavorable ankylosis. Indeed, the Veteran does not assert that he has experienced unfavorable ankylosis of the cervical, thoracolumbar, and/or entire spine, or its functional equivalent. In sum, the Board finds that the evidence establishes that the Veteran has not had actual unfavorable ankylosis of the cervical, thoracolumbar, and/or entire spine during the appeal period, or its functional equivalent. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

As to associated neurological abnormalities, the Board finds that the evidence establishes that the Veteran has radiculopathy of the upper and lower bilateral extremities, however, the symptoms of this radiculopathy are already compensated for pursuant to the ratings assigned to his bilateral upper and lower extremity neuropathy, discussed above. Accordingly, additional separate ratings for bilateral upper and lower extremity radiculopathy cannot be assigned as this would violate the rule against pyramiding. In addition, the evidence is silent as to any other associated neurological abnormalities.

In sum, the Board finds that the evidence is persuasively against a finding that the Veteran has had unfavorable ankylosis of the cervical, thoracolumbar, and/or entire spine at any time during the appeal period, and therefore, a rating in excess of 40 percent for a back disability and a rating in excess of 30 percent for a neck disability are not warranted. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

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

VA has a duty to maximize the Veteran's benefits. See Ak
, and therefore, a rating in excess of 40 percent for a back disability and a rating in excess of 30 percent for a neck disability are not warranted. In this regard, the Board finds that the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

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

VA has a duty to maximize the Veteran's benefits. See Akles v. Derwinski, 1 Vet. App. 118 (1991); see also AB v. Brown, 6 Vet. App. 35 (1993). In this regard, the Board notes that special monthly compensation (SMC) at the housebound rate is payable when a claimant has a single service-connected disability rated as 100 percent disabling and (1) has additional service-connected disability or disabilities independently ratable at 60 percent disabling or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, 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). For the purposes of SMC at the housebound rate, a TDIU satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008).

Here, the Veteran does not have a single service-connected disability rated as 100 percent disabling. In this regard, although the Veteran is already in receipt of a TDIU effective August 10, 2022, this was granted based on the combined effect of the Veteran's service-connected disabilities. Thus, in order for the Veteran to qualify for SMC at the housebound rate, the Veteran's TDIU would have to be based solely on one of his service-connected disabilities, and he would have to have 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.

Again, because VA has a duty to maximize the Veteran's benefits, the Board will now consider whether the Veteran is entitled to SMC at the housebound rate.

The first step in this analysis is to determine whether the Veteran is entitled to a TDIU based on a single service-connected disability. VA will grant entitlement to a TDIU when the evidence shows that the 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 sole fact that the veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993).

Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment, 38 C.F.R. § 4.16(a).

The phrase "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." LaBruzza v. McDonough, 37 Vet. App. 111, 123-124 (2024
38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment, 38 C.F.R. § 4.16(a).

The phrase "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." LaBruzza v. McDonough, 37 Vet. App. 111, 123-124 (2024). Employment need not be completely shielded or separated from the employment market to qualify as being in a protected environment, and, "of course, the income that a veteran earns from employment must be relatively low to qualify as 'in a protected environment.'" Id.

In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified, including consideration of education and occupational experience. Neither age nor intercurrent disability may be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19.

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 an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of a TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). 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).

The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Here, the Veteran meets the schedular criteria for a TDIU based solely on his service-connected PTSD which is rated as 70 percent disabling.

Turning to the economic components of a TDIU, the Board notes that there has been a favorable finding that the Veteran is unemployed. The Board is bound by this favorable finding.

As to the non-economic components of a TDIU, the evidence establishes that the Veteran's PTSD symptoms included irritability, anxiety, depression, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, problems with concentration, panic attacks more than once a week, impaired judgement, impaired abstract thinking, disturbances of motivation and mood, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence.

Based on this evidence, the Board finds that the evidence establishes that it is at least as likely as not that the Veteran's service-connected PTSD, standing alone, prevents him from securing and following substantially gainful employment consistent with his education and occupational experience. Therefore, entitlement to a TDIU based solely on the Veteran's service-connected PTSD is warranted. As stated above, for the purposes of SMC at the housebound rate, a TDIU satisfies the requirement of a "service-connected disability rated as total."

The second step of the analysis is
judgement, impaired abstract thinking, disturbances of motivation and mood, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence.

The second step of the analysis is to determine if the Veteran has additional service-connected disability or disabilities independently ratable at 60 percent disabling or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. The Board finds that, during the appeal period, the Veteran had additional service-connected disabilities independently ratable at 60 percent disabling or more, separate and distinct and involving different anatomical segments or bodily systems during the appeal period. Thus, an award of SMC at the housebound rate under 38 U.S.C. § 1114(s) is warranted.

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Elias, M

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

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