Case A26037071

LESLEY A. REIN · 2026 · Case ID: A26037071

MIXED

Summary

The veteran, who served from August 1968 to October 1971, appeals the denial of earlier effective dates for several granted benefits, including service connection for bilateral hip replacements and left foot hallux valgus with pes planus, as well as TDIU and Dependents' Educational Assistance (DEA). The Board denied earlier effective dates for these benefits prior to October 26, 2014, finding that the veteran's prior claims for left hip disability became final due to failure to appeal or submit new and material evidence, and that no informal claims for right hip or left foot disabilities were received prior to October 26, 2014. The Board also denied an earlier effective date for TDIU, stating it was not factually ascertainable that the veteran's service-connected disabilities prevented substantially gainful employment within one year prior to the October 26, 2014 claim. The Board granted a separate 30 percent rating for left foot pes planus effective December 10, 2025, resolving reasonable doubt in the veteran's favor based on his testimony at the Board hearing. However, the claims for increased ratings for bilateral hip replacements were remanded due to pre-decisional duty to assist errors, specifically the failure to obtain a VA medical opinion discounting the ameliorative effects of medication on the hip conditions, as required by Ingram v. Collins and Jones v. Shinseki.

Rationale

Prior claim for left hip disability became final due to failure to appeal or submit new and material evidence.; No informal claim for left hip disability received prior to October 26, 2014.

Special Benefit

TDIU

Docket No.

250801-561043

Full Decision Text

Citation Nr: A26037071
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 250801-561043
DATE: April 21, 2026

ORDER

Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for left hip replacement is denied.

Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for right hip replacement is denied.

Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for left foot hallux valgus with pes planus and arthritis is denied.

Entitlement to an effective date earlier than October 26, 2014, for the award of a total disability based on individual unemployability (TDIU) is denied.

Entitlement to an effective date earlier than October 26, 2014, for the award of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied.

Prior to December 10, 2025, entitlement to an initial rating in excess of 10 percent for service-connected left foot hallux valgus with pes planus and arthritis is denied.

From December 10, 2025, entitlement to a separate 30 percent rating, but no higher, for service-connected left foot pes planus is granted.

REMANDED

Entitlement to an initial rating in excess of 50 percent for service-connected left hip replacement is remanded.

Entitlement to an initial rating in excess of 50 percent for service-connected right hip replacement is remanded.

FINDINGS OF FACT

1. The Veteran did not timely appeal the January 1999 or May 2003 rating decisions that denied service connection and found that new and material evidence had not been received to reopen the claim for service connection for a left hip disability, respectively, and therefore, they became final.

2. The Veteran next filed an informal claim for service connection for a left hip disability on October 26, 2014 with the submission of a VA Form 21-4138.

3. On October 26, 2014, the Veteran filed an informal claim seeking service connection for right hip and left foot disabilities.

4. There was no communication prior to October 26, 2014, that could be construed as an intent to file a claim for entitlement to service connection for right hip or left foot disabilities.

5. The Veteran's TDIU claim is part and parcel of the Veteran's informal claims for an increased rating and service connection for received on October 26, 2014, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). More than one year prior to this claim, it was not factually ascertainable that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation.

6. Prior to October 26, 2014, the Veteran was not permanently and totally disabled due to a service-connected disability and did not meet the criteria for DEA benefits.

7. Prior to December 10, 2025, the Veteran's left foot disability was manifested by painful motion, and he received the maximum schedular rating under the applicable diagnostic code.

8. Resolving reasonable doubt in favor of the Veteran, from December 10, 2025, the Veteran's left foot disability manifests by unilateral flatfoot, acquired, pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date earlier than October 26, 2014, for the granted of service connection for left hip replacement have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400.

2. The criteria for entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for right hip replacement have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400.

3. The criteria for entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for left foot hallux valgus with pes planus and arthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400.

to an effective date earlier than October 26, 2014, for the grant of service connection for right hip replacement have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400.

4. The criteria for entitlement to an effective date earlier than October 26, 2014, for the award of a TDIU have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

5. The criteria for an effective date prior to October 26, 2014, for eligibility for DEA benefits are not met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.400, 3.807 (a), 21.3021.

6. Prior to December 10, 2025, the criteria for an increased disability rating higher than 10 percent, the maximum schedular rating, for left foot hallux with pes planus and arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.96, 4.97, Diagnostic Code 5280.

7. From December 10, 2025, the criteria for a separate 30 percent rating, but no higher, for service-connected left foot pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.96, 4.97, Diagnostic Code 5276.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 23, 1968 to October 18, 1971.

The rating decisions on appeal were issued in May 2024 and in October 2024 and constitute initial decisions; therefore the modernized review system known as the Appeals Modernization Act (AMA) applies. Modernization Act (AMA), applies.

On August 1, 2025, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). The Veteran elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. §20.302(a).

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 Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2025. A transcript of the hearing is of record.

Earlier Effective Date

Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1 (p); 3.155(a) (2014). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). The regulation governing informal claims provides that any communication or action from a claimant, indicating an intent to apply for one or more benefits under the laws administered by VA, may be considered an informal claim. 38 C.F.R. § 3.155 (2014). Any such informal claim must identify the benefit sought. Id.

VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38
.1 (p); 3.155(a) (2014). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). The regulation governing informal claims provides that any communication or action from a claimant, indicating an intent to apply for one or more benefits under the laws administered by VA, may be considered an informal claim. 38 C.F.R. § 3.155 (2014). Any such informal claim must identify the benefit sought. Id.

VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). However, as the present claims on appeal were filed before these amendments took effect, the prior regulatory provisions concerning informal claims may apply.

Generally, if a formal application for benefits is received within a year of an intent to file, the date of claim for effective date purposes is the date the intent to file was received. 38 C.F.R. § 3.155(d)(1)(ii). Notably, in a recent decision, Military-Veterans Advocacy v. McDonough, 7 F.4th 1110 (Fed. Cir. 2021), the U.S. Court of Appeals for the Federal Circuit held that if a supplemental claim is received within one year of an intent to file, the date the intent to file was received is the date of claim for effective date purposes (invalidating 38 C.F.R. § 3.155 in part).

Furthermore, once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision. The claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed. VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed conditions. 38 C.F.R. § 3.155(d)(2).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

1. Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for left hip replacement is denied.

2. Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for right hip replacement is denied.

3. Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for left foot hallux valgus with pes planus and arthritis is denied.

The Veteran's claim for service connection for a left hip disability was originally denied in a January 1999 rating decision.

The Veteran was properly notified of the denial, but did not submit a Notice of Disagreement, nor did he submit new and material evidence within the one-year appeal period following the rating decision. Therefore, the January
grant of service connection for left hip replacement is denied.

2. Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for right hip replacement is denied.

3. Entitlement to an effective date earlier than October 26, 2014, for the grant of service connection for left foot hallux valgus with pes planus and arthritis is denied.

The Veteran's claim for service connection for a left hip disability was originally denied in a January 1999 rating decision.

The Veteran was properly notified of the denial, but did not submit a Notice of Disagreement, nor did he submit new and material evidence within the one-year appeal period following the rating decision. Therefore, the January 1999 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104 (a).

VA next received an informal claim from the Veteran concerning his left hip on September 16, 2002. See September 16, 2002 VA 21-4138 Statement in Support of Claim

A May 2003 rating decision found that new and material evidence had not been received to reopen the Veteran's previously denied claim for service connection for left hip arthritis. Again, although duly notified of the denial, the Veteran did not appeal that decision or submit new and material evidence within the prescribed period, resulting in the decision becoming final. Therefore, neither of the prior application dates are appropriate for consideration of the effective date.

On October 26, 2014, VA received the Veteran's informal claim for clear and unmistakable error in the prior denial of his left hip claim, and new claims for service connection for right hip and left foot disabilities conditions, secondary to his service-connected lumbar spine disability, and entitlement to a total disability rating based on individual unemployability (TDIU).

A July 2015 rating decision found that a revision of the prior denial of the Veteran's claim for service connection for a left hip disability was not warranted. The same decision denied the claims for right hip and left foot disabilities and entitlement to a TDIU. The Veteran filed a timely NOD in August 2015 as to all of these issues.

A June 2019 Statement of the Case (SOC) continued prior denial and the Veteran timely appealed all issues in July 2019.

In an April 2023 decision in the Legacy system, the Board remanded the claims for further development.

A May 2024 Supplemental Statement of the Case (SSOC) continued denial of the claims for service connection for bilateral hip and left foot disabilities.

In the May 2024 rating decision on appeal, the AOJ awarded the Veteran a TDIU and basic eligibility to Dependents' Educational Assistance, each, effective October 26, 2014.

In the October 2024 rating decision on appeal, the AOJ granted service connection for bilateral hip replacement and left foot hallux valgus with pes planus, each effective October 26, 2014 (date of receipt of informal claim).

Here, following review of the available documents in the claims file, the Board finds that effective dates for the awards of service connection for bilateral hip and left foot disabilities prior to October 26, 2014, are not warranted. Notably, the prior claim for a left hip disability became final when the Veteran failed to appeal the January 1999 and subsequent May 2003 rating decision. As to the other claims, the available documents in the file do not show or suggest that a claim for benefits, formal or informal, was received prior to October 26, 2014. That is, the available documents in the claims file do not reveal any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from the Veteran or his representative prior to October 26, 2014.

The Board acknowledges the Veteran's contention that he originally applied between [19]97 and [19]99 and that he is entitled to an effective date of "1975." As discussed above, the Veteran's claim for a left hip disability became final when he did not appeal the May 2003 rating decision, and the next claim for service connection was received on October 26, 2014. The earliest claims for service connection for right hip and left foot disabilities were received on October 26, 2014. Neither the Veteran nor his representative have presented specific arguments (other than the general assertions) in support of an earlier effective date, nor have they otherwise identified a claim (formal or informal) for service connection prior to October 26, 2014, that remained unadjudicated or pending.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Here, in the absence of any indication in the claims
disability became final when he did not appeal the May 2003 rating decision, and the next claim for service connection was received on October 26, 2014. The earliest claims for service connection for right hip and left foot disabilities were received on October 26, 2014. Neither the Veteran nor his representative have presented specific arguments (other than the general assertions) in support of an earlier effective date, nor have they otherwise identified a claim (formal or informal) for service connection prior to October 26, 2014, that remained unadjudicated or pending.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Here, in the absence of any indication in the claims file that a claim for benefits was presented prior to October 26, 2014, an effective date for the awards of service connection for bilateral hip and left foot disabilities earlier than October 26, 2014, is not available as a matter of law.

Accordingly, the Board finds that an effective date prior to October 26, 2014, for the awards of service connection for bilateral hip and left foot disabilities is not warranted. Accordingly, the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

4. Entitlement to an effective date earlier than October 26, 2014, for the award of a TDIU is denied.

The Veteran generally seeks an earlier effective date for the award of a TDIU.

With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000).

Therefore, three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).

If an increase in disability precedes the claim by more than a year, the proper effective date is the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Based on a review of the lay and medical evidence, the Board finds that it was not factually ascertainable that the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment during the one year prior to the October 26, 2014, informal claim. In fact, there is no evidence submitted within one year of the claim showing that the Veteran was unable to secure or maintain substantially gainful employment due to his service-connected disabilities. Accordingly, an earlier effective date for TDIU is not warranted.

5. Entitlement to an effective date earlier than October 26, 2014, for the award of basic eligibility to DEA is denied.

DEA benefits are provided pursuant to 38 United States Code, Chapter 35 to certain qualifying dependents of certain classes of veterans. Eligible dependents include child, surviving spouse, and spouse of a Veteran. 38 C.F.R. § 21.3021. In relevant part, basic eligibility for DEA benefits requires that a veteran be rated as permanent and totally (P&T) disabled by a service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 21.3021.

In this case, the Veteran did not file a claim for DEA benefits. The AOJ, however, granted this as part and parcel of the grant of TDIU. As noted above, the record does not reflect that the Veteran is entitled to an earlier effective date for his TDIU.

Since eligibility for DEA benefits is predicated on a finding of P&T in this case, the effective date of such eligibility is consistent with the effective date of the TDIU, October 26, 2014. Therefore, entitlement to basic eligibility to DEA benefits does not arise prior to October 26, 2014. The Veteran and his attorney have not identified any document that
38 C.F.R. § 21.3021.

Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether entitlement to an earlier effective date for basic eligibility to DEA is warranted. Rather, the evidence persuasively weighs against finding a pending claim or entitlement arose prior to October 26, 2014. The benefit of the doubt doctrine does not apply. 38 U.S.C. §5107 (b), Lynch, 21 F.4th 776. Therefore, the claim is denied.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

6. Prior to December 10, 2025, entitlement to an initial rating in excess of 10 percent for service-connected left foot hallux valgus with pes planus and arthritis is denied.

The Veteran seeks a higher rating for his service-connected left foot hallux valgus with pes planus and arthritis. Specifically, he contends that Diagnostic Code 5276 would provide a higher 30 percent rating for his service-connected left foot disability. See December 10, 2025 Board Hearing Transcript

The Veteran's left foot disability is rated under the criteria for Diagnostic Code 5280 for unilateral hallux valgus. 38 C.F.R. § 4.71a. Specifically, under Diagnostic Code 5280, a maximum 10 percent rating is warranted when the hallux valgus is operated with resection of the metatarsal head. A 10 percent rating is also warranted when the hallux valgus is severe if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.
38 C.F.R. § 4.71a. Specifically, under Diagnostic Code 5280, a maximum 10 percent rating is warranted when the hallux valgus is operated with resection of the metatarsal head. A 10 percent rating is also warranted when the hallux valgus is severe if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Significantly, painful motion is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59.

The February 7, 2021 amendments for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A did not change Diagnostic Codes 5276 or 5280.

The Veteran was afforded a VA foot conditions examinations in March 2024. The Veteran reported no pains at rest or on the day of the examination. The examiner diagnosed the Veteran with bilateral hallux valgus, bilateral pes planus, and right foot arthritis. The Veteran endorsed pain with excessive activity and relief with rest. The Veteran reported bunion surgery, with the date unknown. He denied flareups. The Veteran reported functional loss of the left foot including during repeated use over time, in that excess use causes pains that limit further motion. The examiner indicated that the Veteran's hallux valgus symptoms were found to be mild and noted that he underwent a Tarsal osteotomy/metatarsal head osteotomy (equivalent to metatarsal head resection) on an unknown date. As to pes planus, the Veteran had pain accentuated on use but no pain on manipulation, no swelling, and no characteristic calluses. The examiner noted that the Veteran had built-up shoes effecting complete relief of symptoms. The Veteran did not have extreme tenderness of the plantar surfaces, and there was no objective evidence of marked deformity or marked pronation. The Veteran did not have "inward" bowing of the Achilles' tendon, and there was no marked inward displacement and severe spasm of the Achille's tendon. The Veteran had decreased longitudinal arch heights of both feet on weight-bearing. As to functional loss, the Veteran's condition was productive of less movement than normal. The Veteran did not use an assistive device.

Based on the evidence presented above, the Board finds that prior to December 20, 2025, the Veteran's left foot condition most closely approximates the criteria for a 10 percent rating. The Veteran's symptomatology during this period included pain and functional loss therefrom, including less movement than normal. Additionally, the March 2024 VA examiner found the Veteran's condition to be mild in severity. Nonetheless, Diagnostic Code 5280 allows the maximum 10 percent rating even for severe hallux valgus if it is equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Thus, for the Veteran's disability, he is currently assigned the maximum compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5280.

The Board has considered whether the Veteran's service-connected left foot condition is entitled to a separate and/or higher disability rating under any other diagnostic code.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, pes planus is rated as 0 percent disabling when it is considered mild, with symptoms relieved by built-up shoe or arch support. It is rated as 10 percent disabling when it is moderate. Moderate is defined as pes planus evidenced by the weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, or pain on manipulation and use of the feet. A 30 percent rating will be assigned when it is bilateral and severe and a 20 percent rating will be assigned when it is unilateral and severe. Severe is defined as pes planus evidenced by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating will be assigned when it is bilateral and pronounced and a 30 percent rating will be assigned when it is unilateral and pronounced. Pronounced is defined as pes planus evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tend
or pain on manipulation and use of the feet. A 30 percent rating will be assigned when it is bilateral and severe and a 20 percent rating will be assigned when it is unilateral and severe. Severe is defined as pes planus evidenced by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating will be assigned when it is bilateral and pronounced and a 30 percent rating will be assigned when it is unilateral and pronounced. Pronounced is defined as pes planus evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, DC 5276.

Here, prior to December 10, 2025, the evidence reflects that the Veteran's left foot pes planus symptoms were relieved by built-up shoes, which would be consistent with a noncompensable rating pursuant to D.C. 5276. Thus, prior to December 10, 2025, rating the Veteran's left foot disability under 5276 for pes planus, would not result in a higher rating.

The medical evidence does not show weak foot, claw foot, hallux rigidus, hammer toes, and impairment of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5281, 5282, and 5283. Thus, additional, or separate ratings under said diagnostic codes are not applicable.

At his Board hearing, the Veteran testified that he walks with his left foot turned inward and that his prescription shoes do not work to relieve symptoms. Following his foot surgery, the Veteran testified that the balance in his big toe is gone and that to balance, he has to use his little toes, which have resulted in corns on the bottom of them. The Veteran testified that his toes are painful to the touch. The Veteran testified that when he walks he turns his foot inwards because he has to "try to rest those little toes," and the big toe. He endorsed whole foot spasms.

Resolving reasonable doubt in favor of the Veteran, the Board finds that effective December 10, 2025, the date of the Veteran's hearing during which he attested to worsening left foot symptoms, that the criteria for a separate 30 percent rating, but no higher, pursuant to D.C. 5276 are met for left foot, pes planus.

As of December 10, 2025, there is evidence of unilateral marked pronation, extreme tenderness of the plantar surface of the left foot, marked inward displacement and severe spasm of the tendo achillis, not improved by orthopedic shoes or appliances.

Accordingly, the Board finds that when resolving reasonable doubt in the Veteran's favor, from December 10, 2025, the criteria for an initial 30 percent rating, but no higher, for the Veteran's service-connected left foot hallux valgus with pes planus and arthritis, is warranted.

REASONS FOR REMAND

Unfortunately, remand is required to correct pre-decisional duty to assist errors that occurred prior to the rating decision on appeal. As the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claims. 38 C.F.R. § 3.103 (c)(2)(ii).

1. Entitlement to an initial rating in excess of 50 percent for service-connected left hip replacement is remanded.

2. Entitlement to an initial rating in excess of 50 percent for service-connected right hip replacement is remanded.

The Veteran's hips are each rated 50 percent disabling pursuant to Diagnostic Code (D.C.) 5054.

Under the AMA, only pre-decisional duty to assist errors, including those related to VA examinations and opinions, are eligible for remand.

In a recent decision, Ingram v. Collins, the United States Court of Appeals for Veterans Claims (Court) found that when diagnostic codes and special regulations do not explicitly contemplate medication use when rating a disability, the Board must discount the beneficial effects of medication when assigning an evaluation for that disability. Ingram v. Collins, 38 Vet. App. 130 (2025). The diagnostic code used to evaluate the Veteran's hips (D.C. 5054) does not explicitly contemplate medication use. Therefore, the holding of Ingram applies to the Veteran's claims for an increased rating for his service-connected bilateral hip disability.

In this case, VA treatment records prior to the October 2024 rating decision on appeal indicate that
are eligible for remand.

In this case, VA treatment records prior to the October 2024 rating decision on appeal indicate that the Veteran takes pain medication for his hips, including tramadol and sulindac, methocarbamol (a muscle relaxant), and uses a topical analgesic cream. See February 2, 2024 VA Treatment Note. The Board notes that the March 2024 VA examination does not address the severity of the Veteran's bilateral hip symptoms in the absence of medication, necessitating an addendum opinion.

In Jones v. Shinseki, 26 Vet. App. 56 (2012), the United States Court of Appeals for Veterans Claims (Court) held that when a diagnostic code is silent as to the effects of medication, as is the case here, VA may not deny entitlement to a higher disability rating based on the relief provided by the medication.

The Board is not permitted to substitute its own medical judgment for that of medical professionals. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that the Board may consider only independent medical evidence to support their findings and that if the Board finds that the medical evidence of record is insufficient, then it may supplement the record by seeking an advisory opinion or ordering a medical examination). Here, the March 2024 VA examiner did not provide an opinion as to the difference in the Veteran's functioning or limitations when using medications compared to without, which, per Jones and Ingram, must be considered. As such, the Board finds that a remand is warranted for a VA medical opinion, as the pre-decisional medical record of evidence is insufficient to determine what the symptoms of the Veteran's service-connected hips would be without any of the beneficial effects of his medication.

Accordingly, the matters are REMANDED for the following actions:

1. Arrange for an opinion from an appropriately qualified clinician to determine the severity of the Veteran's service-connected left and right hip when discounting any beneficial effects of medication. Only if deemed necessary to provide an opinion, should a VA examination be provided for the Veteran's headache disability. Otherwise, the examiner should use the ACE (Acceptable Clinical Evidence) process only.

(a) After discounting the beneficial effects of medication, including tramadol, sulindac, methocarbamol, and a topical analgesic cream, the examiner should opine on the severity of the Veteran's service-connected left hip, without considering the ameliorative effects of medication. The examiner should describe what the baseline severity of the Veteran's left hip disability would look like without the impact of his medication. The examiner must provide all information required for rating purposes.

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(b) After discounting the beneficial effects of medication, including tramadol, sulindac, methocarbamol, and a topical analgesic cream, the examiner should opine on the severity of the Veteran's service-connected right hip, without considering the ameliorative effects of medication. The examiner should describe what the baseline severity of the Veteran's right hip disability would look like without the impact of his medication. The examiner must provide all information required for rating purposes.

A complete rationale must be provided for any opinion offered.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Gates

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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