Case A26037962

JIMMY L. BARDIN · 2026 · Case ID: A26037962

MIXED

Summary

The veteran, who served from March 1984 to January 1990, appeals the denial of an earlier effective date for an increased rating for bilateral pes planus, and seeks increased ratings for scoliosis, left lower extremity shin splints, right lower extremity shin splints, and Total Disability based on Individual Unemployability (TDIU). The Board denied the earlier effective date for bilateral pes planus, finding that the evidence did not factually ascertain an increase in disability within the one-year look-back period, and that the evidence weighed against the claim, making the benefit of the doubt doctrine inapplicable. For bilateral pes planus, the Board granted a 50 percent rating, relying on a December 2024 consultation that detailed marked pronation, extreme plantar tenderness, and limited improvement with orthopedic appliances, finding this met the criteria for the highest schedular rating. For scoliosis, the Board granted a 40 percent rating, interpreting a December 2024 consultation's findings of limited forward flexion and pain to align with the criteria for that rating, despite the examiner not stating the exact degree of flexion. For left and right lower extremity shin splints, the Board granted a 20 percent rating for each, based on a December 2024 consultation finding the conditions required treatment for no less than 12 consecutive months and were unresponsive to conservative treatment and surgery, aligning with the criteria for that rating. Finally, the Board granted entitlement to TDIU, adopting a favorable vocational assessment that concluded the veteran's combined service-connected disabilities rendered her unable to secure or follow substantially gainful employment since at least December 2002.

Rationale

December 2024 consultation provided detailed findings on pronation, tenderness, and limited improvement; Examiner opined condition aligned with 40% criteria, but Board found it met 50% criteria based on overall assessment; Benefit of doubt resolved in favor of veteran for the 50% rating

Special Benefit

TDIU

Docket No.

210709-171401

Full Decision Text

Citation Nr: A26037962
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 210709-171401
DATE: April 22, 2026

ORDER

Entitlement to an effective date earlier than November 5, 2020, for the increased rating for bilateral pes planus is denied.

Entitlement to a 50 percent rating for bilateral pes planus is granted.

Entitlement to a 40 percent rating for scoliosis is granted.

Entitlement to a 20 percent rating for left lower extremity shin splints is granted.

Entitlement to a 20 percent rating for right lower extremity shin splints is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted.

FINDINGS OF FACT

1. The effective date is based on the date of receipt of the supplemental claim filed following the May 2005 final denial and it is not factually ascertainable that the bilateral pes planus increased in severity during the one-year look back period.

2. The Veteran's bilateral pes planus has been characterized by bilateral acquired flatfoot that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, and not improved by orthopedic shoes or appliances.

3. The Veteran's scoliosis has been characterized by forward flexion of the thoracolumbar spine 30 degrees or less.

4. The Veteran's left lower extremity shin splints required treatment for no less than 12 consecutive months and was unresponsive to surgery and either shoe orthotics or other conservative treatment.

5. The Veteran's right lower extremity shin splints required treatment for no less than 12 consecutive months and was unresponsive to surgery and either shoe orthotics or other conservative treatment.

6. The Veteran's service-connected disabilities prevented her from being able to secure and maintain substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than November 5, 2020, for the increased rating for bilateral pes planus have not been met. 38?U.S.C. §§?1155, 5110;?38?C.F.R. §§ 3.2500, 3.400.

2. The criteria for a 50 percent rating for bilateral pes planus for the period on appeal have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5276.

3. The criteria for a 40 percent rating for scoliosis for the period on appeal have been met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5239.

4. The criteria for a 20 percent rating for left lower extremity shin splints for the period on appeal have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5299-5262.

5. The criteria for a 20 percent rating for right lower extremity shin splints for the period on appeal have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5299-5262.

6. The criteria for a TDIU have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1984 to January 1990.

In November 2020, the
1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5299-5262.

6. The criteria for a TDIU have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1984 to January 1990.

In November 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of bilateral pes planus, scoliosis, left lower extremity shin splints, right lower extremity shin splints, and TDIU most recently addressed in a May 2005 Board decision and April 2016, September 2009, and July 2015 rating decisions, respectively. In June 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal. Notably, the AOJ did not address new and relevant evidence. However, by taking up the merits of the issues, the Board infers the AOJ determined there was new and relevant evidence to readjudicate the claims. As such, the Board will not address the issue of new and relevant evidence to readjudicate the claims, but it acknowledges favorable findings of new and relevant evidence is of record to proceed to the merits of the issues on appeal.

In July 2021, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Hearing docket. A Board hearing was held on October 9, 2024. Therefore, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

EARLIER EFFECTIVE DATE

The Veteran generally seeks an earlier effective date for the increased rating for her service-connected bilateral pes planus. See July 2021 VA Form 10182.

Applicable Law

Under the Appeals Modernization Act, except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later.? 38?U.S.C. §?5110;?38?C.F.R. §?3.400.? An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating.? See?38?C.F.R. §?3.1(p).?

In the AMA legal framework and as relevant to the current matter, a claimant may continuously pursue a claim or an issue by timely and properly filing one of the following administrative review options after any decision by the AOJ: a supplemental claim, request for higher level review, or appeal to the Board.? 38?C.F.R. §?3.2500(c) (2020).? The effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options.? 38?C.F.R. §?3.2500(h).?

When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred in
the AOJ: a supplemental claim, request for higher level review, or appeal to the Board.? 38?C.F.R. §?3.2500(c) (2020).? The effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options.? 38?C.F.R. §?3.2500(h).?

When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred in that timeframe. See Hart v. Mansfield,?21?Vet. App.?505, 509?(2007); see also?38 C.F.R. § 3.400(o)(2) (allowing for an?earlier effective date?for an increased rating grant to the extent the worsened severity is factually ascertainable within the year preceding the filed claim). Known as the "one year look back" provision, it is essentially a one-year grace period for a veteran to file an increased rating claim following some incident of worsening.

Notwithstanding the foregoing, the Court has indicated that in order for entitlement to an increase in disability compensation to arise, it is axiomatic that the fact must be found that the service-connected disability increased in severity to a degree warranting an increase in compensation.? See Hazan v. Gober,?10?Vet. App.?511, 519?(1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability).? Therefore, in assigning an effective date for an award of increased compensation, VA must make two essential determinations: (1) when a claim for increased compensation was received, and (2) when a factually ascertainable increase in disability occurred.? See Id. at 521.?

Where 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;?38?C.F.R. §?3.102; see also Lynch v. McDonough,?21 F.4th 776 (2021).?

Procedural History

By way of procedural history, the Veteran was granted service connection for bilateral pes planus with an evaluation of 10 percent effective February 1, 2001, in a June 2001 rating decision. On June 22, 2001, a notification letter was issued informing the Veteran of the June 2001 rating decision. The Veteran did not appeal the rating decision. However, the Veteran sought an increase, and a September 2002 rating decision was issued continuing the 10 percent disabling rating. On September 19, 2002, a notification letter was issued informing the Veteran of the September 2002 rating decision. The Veteran filed a timely Notice of Disagreement with the September 2002 rating decision, and a Statement of the Case was issued in November 2002 continuing the 10 percent disabling rating. The Veteran filed a timely VA Form 9 appealing to the Board. In March 2004, the Board remanded the issue regarding an increased rating for bilateral pes planus.

The AOJ readjudicated the issue in a December 2004 Supplemental Statement of the Case and continued the 10 percent disabling rating. In May 2005, the Board issued a decision denying a rating higher than 10 percent disabling. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In November 2007, the Court issued a Memorandum Decision affirming the Board's May 2005 decision denying a higher rating for bilateral pes planus. The Veteran did not challenge the Court's decision.

On November 5, 2020, the Veteran filed a VA Form 20-0995, Supplemental Claim Application, seeking review of the Board's May 2005 decision denying a rating higher than 10 percent for bilateral pes planus. In June 2021, the AOJ issued the rating decision on appeal increasing the Veteran's rating to 30 percent disabling from November 5, 2020. The Veteran filed a timely VA Form 10182 in July 2021 challenging the June 2021 rating decision.

Court issued a Memorandum Decision affirming the Board's May 2005 decision denying a higher rating for bilateral pes planus. The Veteran did not challenge the Court's decision.

Analysis

The Veteran has not specified an earlier effective date in which she believes her increased rating for bilateral pes planus is warranted. To the extent the Veteran intends to reach back to an effective date prior to November 5, 2020, the Veteran's claim is denied. As detailed by the above procedural history, all decisions prior to November 5, 2020, have become final. The effective date assigned of November 5, 2020, is based on the date of receipt of the supplemental claim filed following the previous May 2005 final denial, and the effective date shall not be earlier than November 5, 2020. 38?U.S.C. §§?1155, 5110;?38?C.F.R. §§ 3.2500, 3.400.

That stated, the Board is cognizant that 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) allow for an increase in disability compensation of up to one year prior to the date of claim, in this case November 5, 2019, if it is factually ascertainable based on all evidence of record that an increase in the Veteran's bilateral pes planus disability had occurred. After careful review and consideration, the Board finds that it was not factually ascertainable from the pertinent records that an increase in disability occurred in the one year prior to the Veteran's date of claim. Significantly, the Veteran provided a private opinion opining that her disability reached its increased disabling rating from November 5, 2020. See December 2024 Dr. R.T. Consultation. Accordingly, in this instance, the one-year look back period does not apply to afford the Veteran an earlier effective date prior to November 5, 2020.

The evidence is neither evenly balanced nor approximately so whether the Veteran is entitled to an effective date earlier than November 5, 2020, for the increased rating for her bilateral pes planus. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, codified in 38?U.S.C. §?5107(b), is therefore not for application as to this claim.? See Lynch,?21 F.4th at 776 (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).???

INCREASED RATING

The Veteran seeks an increased rating for her service-connected bilateral pes planus, scoliosis, left lower extremity shin splints, and right lower extremity shin splints. See July 2021 VA Form 10182.

Applicable Law

Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38?U.S.C. §?1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38?U.S.C. §?1155;?38?C.F.R. §?4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38?C.F.R. §?4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.? 38?C.F
ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38?C.F.R. §?4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.? 38?C.F.R. §?3.102, 4.3.

A veteran's entire history is to be considered when making disability evaluations. See generally 38?C.F.R. §?4.1; see also Schafrath v. Derwinski, 1?Vet. App.?589 (1995). In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. See Fenderson v. West, 12?Vet. App.?119 (1999).

Musculoskeletal Disability

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior on motion. 38?C.F.R. §?4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38?C.F.R. §?4.40. Under?38?C.F.R. §?4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under?38?C.F.R. §?4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald,?28?Vet. App.?158, 168?(2016).

Where functional loss is alleged due to pain upon motion, the provisions of?38?C.F.R. §?4.40?and § 4.45 must be considered. See DeLuca v. Brown,?8?Vet. App.?202, 207-08?(1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown,?10?Vet. App.?80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki,?25?Vet. App.?32, 43 (2011).

Analysis for Bilateral Pes Planus

The Veteran is in receipt of a 30 percent rating for her bilateral pes planus under Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 30 percent rating is warranted for bilateral acquired flatfoot that is severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use
§ 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki,?25?Vet. App.?32, 43 (2011).

Analysis for Bilateral Pes Planus

The Veteran is in receipt of a 30 percent rating for her bilateral pes planus under Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 30 percent rating is warranted for bilateral acquired flatfoot that is severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent rating is warranted for bilateral acquired flatfoot that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276.

Turning to the facts of this case, in May 2021, the Veteran underwent a Foot Conditions VA Examination. The examiner noted the Veteran's pes planus, flat foot, diagnosis. The Veteran stated that she used orthotics daily but still experienced foot pain. She endorsed bilateral foot pain when weight bearing and functional impairment of decreased capacity for extended weight bearing. She declined experiencing flareups. The Veteran had pain on use of both feet, pain accentuated on use of both feet, pain on manipulation of both feet, and pain accentuated on manipulation of both feet. She did not have swelling on use or characteristic calluses. She used arch supports but did not have relief on both feet. She had decreased longitudinal arch height on weight-bearing. She did not have extreme tenderness of plantar surfaces, objective evidence of marked deformity, or marked pronation, weight bearing line over or medial to the great toe, lower extremity deformity other than pes planus causing alteration of the weight bearing line, inward bowing of achilles tendon, marked inward displacement and severe spasm of the achilles tendon on manipulation of the feet, or any other foot injury or condition not already described. See May 2021 Foot Conditions VA Examination.

In October 2024, the Veteran testified before the Board that due to her bilateral pes planus and shin splints she gets sore when walking and must sit down and rest. She endorsed pain when sitting and getting up. She explained that the pain began in the morning upon waking and that she utilized pain medicine, lidocaine, bengay, heating pads, and hot showers for temporary relief. She stated that her pain gradually worsened. See generally October 2024 Hearing Transcript.

In December 2024, the Veteran underwent a medical consultation. The examiner stated that an assessment of the Veteran revealed marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spasm of tendo achilles on manipulation, and limited improvement with orthopedic appliances. As to marked pronation, the examiner explained that the Veteran's feet had significant pronation with an obvious collapse of the medial arch when standing and walking, structural issues that contributed to pronounced gain alterations, and discomfort with weight-bearing activities. As to extreme tenderness of plantar surfaces, the examiner explained that the Veteran reported severe pain upon palpation of the plantar surfaces of both feet, persistent tenderness that interfered with daily activities requiring continuous pain management, and intense pain unrelieved despite the consistent use of prescribed orthopedic shoes. See December 2024 Dr. R.T. Consultation.

As to marked inward displacement and severe spasm of tendo achilles on manipulation, the examiner stated that a physical assessment of the Veteran revealed manipulation of the feet resulting in pronounced inward displacement and severe spasm of the achilles tendon. The examiner explained that the condition was bilateral and significantly affected the Veteran's mobility and balance. As to limited improvement with orthopedic appliances, the examiner stated that the Veteran consistently used custom orthopedic shoes and supportive devices with minimal relief and persistent severe symptoms. Based on the foregoing, the examiner opined that the Veteran demonstrated bilateral involvement with pronounced symptoms, including marked pronation, extreme plantar tenderness, significant inward displacement, and severe spasm of the tendo achilles. The examiner further opined that the Veteran's lack of substantial improvement with orthopedic support substantiated the severity of her condition. Finally, the examiner opined the foregoing has been the Veteran's condition since November 5, 2020. See id.

The Veteran's additional lay statements and medical records reiterate her
balance. As to limited improvement with orthopedic appliances, the examiner stated that the Veteran consistently used custom orthopedic shoes and supportive devices with minimal relief and persistent severe symptoms. Based on the foregoing, the examiner opined that the Veteran demonstrated bilateral involvement with pronounced symptoms, including marked pronation, extreme plantar tenderness, significant inward displacement, and severe spasm of the tendo achilles. The examiner further opined that the Veteran's lack of substantial improvement with orthopedic support substantiated the severity of her condition. Finally, the examiner opined the foregoing has been the Veteran's condition since November 5, 2020. See id.

The Veteran's additional lay statements and medical records reiterate her complaints of pain and limitations due to her bilateral pes planus. However, the records do not offer any objective material different from what was detailed above. Therefore, the Board will not discuss those records in further detail.

Applying the pertinent facts to the applicable law, the Board relies on the highly detailed December 2024 consultation and finds the Veteran is entitled to a 50 percent rating for the entire period on appeal as her bilateral pes planus has been characterized by bilateral acquired flatfoot that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. The examiner assessed the Veteran and explained the opinions regarding her condition with sufficient detail and specificity. While the Veteran's bilateral pes planus may have been slightly better in 2020 than reflected during the December 2024 consultation, per her hearing testimony, the Board relies on Dr. R.T.'s opinion, a medical professional, that the Veteran's condition has been in the present condition since November 5, 2020.

In sum, the Board resolves all doubt in favor of the Veteran and finds her bilateral pes planus acquired flatfoot that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. Therefore, the Board affords the Veteran a 50 percent rating for her bilateral pes planus for the period on appeal. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5276.

As the Veteran is now in receipt of the highest schedular rating for acquired flat foot, there is no basis to award a higher rating. However, the Board has considered whether a higher or separate rating is applicable under another appropriately applied diagnostic code. In this case, the Veteran does not contend, and the evidence weighs against a finding that the Veteran has plantar fasciitis, bilateral weak foot, pes cavus, Morton's disease, hallux valgus, hallux rigidus, hammer toe, tarsal, metatarsal bones, or other foot injuries. Therefore, neither a separate nor higher rating for the Veteran's bilateral pes planus is warranted under Diagnostic Codes 5269, 5277, 5278, 5279, 5280, 5281, 5282, 5283, and 5284.??

As to a higher rating, the evidence is neither evenly balanced nor approximately so whether a rating higher than 50 percent is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, codified in 38?U.S.C. §?5107(b), is therefore not for application as to this claim.? See Lynch,?21 F.4th at 776 (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).???

Analysis for Scoliosis

The Veteran is in receipt of a 10 percent rating for her scoliosis under Diagnostic Code 5299-5239. Hyphenated?diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. See?38 C.F.R. § 4.27. The provisions of?38?C.F.R. §?4.27?provide that when an unlisted disability requires rating by analogy, the code will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the body part or system involved, and the last two digits will be "99." Here, the hyphenated Diagnostic Code indicates that
10 percent rating for her scoliosis under Diagnostic Code 5299-5239. Hyphenated?diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. See?38 C.F.R. § 4.27. The provisions of?38?C.F.R. §?4.27?provide that when an unlisted disability requires rating by analogy, the code will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the body part or system involved, and the last two digits will be "99." Here, the hyphenated Diagnostic Code indicates that an unlisted spine condition (Diagnostic Code 5299) is rated under the criteria for spondylolisthesis or segment instability (Diagnostic Code 5239). 38?C.F.R. §?4.20.

Effective February 7, 2021, VA's Schedule,?38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at?38?C.F.R. §?4.71a). While the text of Diagnostic Code 5239 changed slightly, the General Rating Formula applicable here has remained the same. As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021, regulations are not required.

As the Veteran's scoliosis is currently evaluated under?38?C.F.R. §?4.71a, Diagnostic Code?5299-5239, it is to be rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38?C.F.R. §?4.71a, Diagnostic Codes 5239.

Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. Id.

Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id.

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id.; see also Plate V,?38?C.F.R. §?4.71a.

Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the
and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id.; see also Plate V,?38?C.F.R. §?4.71a.

Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Id.

Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Id.

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.

Under Diagnostic Code 5243, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. A 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 months. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38?C.F.R. §?4.71a, Diagnostic Code 5243.

Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id.

Note (2) provides that if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the disability will be evaluated for each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id.

Turning to the facts of this case, in May 2021, the Veteran underwent a Thoracolumbar Spine Conditions VA Examination. The examiner noted the Veteran's scoliosis diagnosis. The Veteran endorsed worsening back pain but denied flareups and functional loss or impairment. Her forward flexion was to 80 degrees, extension was to 20 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were to 30 degrees. All ranges of motion exhibited pain. On passive range of motion, her forward flexion decreased to 70 degrees and all other ranges of motion remained the same. Again, she exhibited pain with all ranges of motion. There was evidence of pain with weight-bearing, active motion, and passive motion and it resulted in functional loss including decreased lifting capacity due to pain. The Veteran was able to perform repetitive use without loss of range of motion. See May 2021 Thoracolumbar Spine Conditions VA Examination.

Estimated range of motion immediately after repeated use over time resulted in her forward flexion decreasing to 70 degrees and all other ranges of motion remaining the same. The Veteran had lumbar tenderness, but it did not result in abnormal gait or abnormal spinal contour. She did not have muscle spasm, guarding, or muscle atrophy. Her muscle strength testing, reflex exam, and sensory exam were normal. She did not have radicular pain or signs and symptoms due to radiculopathy. There was no ankylosis of the spine, other neurologic abnormalities, or IVDS and episodes requiring bed rest. She did not use any assistive device. Her scoliosis impacted her
Examination.

In October 2024, the Veteran testified before the Board that her back pain was worse in the morning and required her to stretch. She endorsed never ending back pain, flare ups, daily pain reaching a 9 out of 10, pain when sitting and pain when standing. She explained that she changed positions throughout the day to manage her pain and that she utilized heating pads, hot showers, pain pills, and lidocaine patches for temporary relief. See generally October 2024 Hearing Transcript.

In December 2024, the Veteran underwent a medical consultation. The examiner stated that an assessment of the Veteran revealed range of motion, combined range of motion, functional impairment and pain, and impact on daily activities. As to range of motion, the examiner stated that the Veteran demonstrated significant limitations aligning with a higher rating. As to combined range of motion, the examiner stated that the Veteran's thoracolumbar spine confirmed severe restriction and impairment beyond the 120-degree criterion for lower ratings. As to functional impairment and pain, the examiner stated that the Veteran exhibited severe pain with motion, particularly during forward flexion, which significantly limited her functional ability during repeated use and flareups. The examiner further stated that the Veteran had pain and muscle spasms that led to a visibly altered gait and poor posture indicative of substantial functional loss. As to impact on daily activities, the examiner stated that the Veteran had limitation of motion and associated pain that impacted her ability to perform daily activities, including bending, lifting, and prolonged sitting or standing, which contributed to a reduced quality of life. See December 2024 Dr. R.T. Consultation.

Overall, the examiner opined that based on the observed limitation in forward flexion and combined range of motion, it is at least as likely as not that the Veteran's scoliosis presented with severity aligning with a 40 percent disabling criteria. The examiner further opined that the Veteran's conditions demonstrated significant impairment due to reduced motion, pain, and functional limitations and that the higher 40 percent rating is warranted due to the substantial impact on the Veteran's mobility and daily functioning. See id.

The Veteran's additional lay statements and medical records reiterate her complaints of pain and limitations due to her scoliosis. However, the records do not offer any objective material different from what was detailed above. Therefore, the Board will not discuss those records in further detail.

Applying the pertinent facts to the applicable law, the Board relies on the highly detailed December 2024 consultation and finds the Veteran is entitled to a 40 percent rating for scoliosis for the entire period on appeal as her scoliosis has been characterized by forward flexion of the thoracolumbar spine 30 degrees or less. The Board acknowledges Dr. R.T. did not specifically state that the Veteran's thoracolumbar spine was 30 degrees or less. However, in reliance on the medical professional, the Board interprets Dr. R.T.'s statement that based on the observed limitation in forward flexion and combined range of motion, it is at least as likely as not that the Veteran's scoliosis presented with severity aligning with a 40 percent disabling criteria to mean that the Veteran's scoliosis has been characterized by forward flexion of the thoracolumbar spine 30 degrees or less. Also, while the Veteran's scoliosis may have been slightly better in 2020 than reflected during the December 2024 consultation, per her hearing testimony, the Board relies on Dr. R.T.'s opinion, a medical professional, that the Veteran's condition has been in the present condition since at least November 5, 2020.

Regarding a rating in excess of 40 percent, the Board acknowledges the Veteran's complaints of pain, flare ups, and limitation of physical activity, which the record clearly documents. However, the Veteran's forward flexion of the thoracolumbar spine has been limited at most to 30 degrees or less. The Veteran
the thoracolumbar spine 30 degrees or less. Also, while the Veteran's scoliosis may have been slightly better in 2020 than reflected during the December 2024 consultation, per her hearing testimony, the Board relies on Dr. R.T.'s opinion, a medical professional, that the Veteran's condition has been in the present condition since at least November 5, 2020.

Regarding a rating in excess of 40 percent, the Board acknowledges the Veteran's complaints of pain, flare ups, and limitation of physical activity, which the record clearly documents. However, the Veteran's forward flexion of the thoracolumbar spine has been limited at most to 30 degrees or less. The Veteran does not contend, and the evidence does not show that she has unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. Thus, she does not meet the diagnostic criteria for the higher 50 percent rating under Diagnostic Code 5239.

With respect to functional loss, the examiner noted pain and limitation of motion. Regardless, the evidence showed that the Veteran's range of motion was not limited by unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. Therefore, the Board finds that even when considering the functional limitations of less movement than normal as identified in?38?C.F.R. §§?4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v Shinseki, the Veteran's functional loss did not equate to the criteria required for the higher 50 percent rating when considering the cumulative picture of her scoliosis for the period on appeal. 8?Vet. App.?202?(1995),?25?Vet. App.?32?(2011).

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. In this case, the evidence of record is against a finding that the Veteran has been diagnosed with IVDS or that she was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating during the period on appeal. Therefore, a higher evaluation under the rating criteria for IVDS is not warranted. Additionally, there is no evidence that the Veteran suffers from any associated objective neurologic abnormalities to warrant a separate rating under an appropriate diagnostic code.

In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of her scoliosis and limitations. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board is likewise aware of the Veteran's contentions that her disability impacts her daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion. See Layno v. Brown,?6?Vet. App.?465, 469?(1994).

In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to range of motion of the lumbar and functional impairment are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also largely contemplates the Veteran's descriptions of her symptoms, and the lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms for each period.

In sum, the Board resolves all doubt in favor of the Veteran and finds her scoliosis is characterized by forward flexion of the thoracolumbar spine 30 degrees or less. Therefore, the Board affords the Veteran a 40 percent rating for the period on appeal. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5239.

As to a higher rating, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran is entitled to a rating in excess of 40 percent for her scoliosis. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, codified in 38 U.S.C. § 5107 (b), is therefore not for application as to this
5107;?38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5239.

Analysis for Left and Right Lower Extremity Shin Splints

The Veteran is in receipt of a 10 percent rating for her left lower extremity shin splints and a 10 percent rating for her right lower extremity shin splints under Diagnostic Code 5299-5262. Hyphenated?diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. See?38 C.F.R. § 4.27. The provisions of?38?C.F.R. §?4.27?provide that when an unlisted disability requires rating by analogy, the code will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the body part or system involved, and the last two digits will be "99." Here, the hyphenated Diagnostic Code indicates that an unlisted knee and leg condition (Diagnostic Code 5299) is rated under the criteria for tibia and fibula impairment (Diagnostic Code 5262). 38?C.F.R. §?4.20.

Effective February 7, 2021, VA's Schedule,?38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at?38?C.F.R. §?4.71a). Because the revision occurred during the pendency of the Veteran's claim, whichever version is most favorable to the Veteran must be applied. However, the new version can only be applied as of its effective date. February 7, 2021. See 38 U.S.C.?§ 5110(g); 38 C.F.R. § 3.114;?VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi,?341 F.3d 1327, 1328-1329?(Fed. Cir. 2003).

Prior to February 7, 2021, diagnostic code 5262 provided a 10 percent rating for tibia and fibula impairment malunion with slight knee or ankle disability, a 20 percent rating with moderate knee or ankle disability, and a 30 percent rating with marked knee or ankle disability. A tibia and fibula impairment nonunion with loss motion and requiring a brace warranted a 40 percent rating.

The Board notes that as with any regulatory interpretation where the terms are not defined in the regulation, it is reasonable to presume that those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (holding that where regulatory terms are unambiguous, the plain meaning dictionary definition can be used). Here, the Board finds the relevant descriptive terms to be unambiguous, rendering a plain dictionary meaning appropriate for application. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "slight" means small in amount. Moderate means "tending toward the mean or average amount or dimension." Marked means "having a distinctive or emphasized character." The use of the terminology within a VA examination report is not in and of itself dispositive. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

From February 7, 2021, diagnostic code 5262 provided a noncompensable rating for shin splints requiring treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating was provided for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating was provided for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating was provided for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 40 percent rating was provided for tibia and fibula impairment of nonunion with loss motion requiring brace. Finally, tibia and fibula impairment with malunion was instructed to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever resulted in the highest evaluation.

Turning to the facts of this case, in May 2021, the Veteran underwent a Knee and Lower Leg Conditions VA Examination. The examiner noted the Veteran's bilateral shin splints. The Veteran endorsed worsening pain but denied flareups, functional loss and impairment, instability or recurrent subluxation of the knee, and frequent effusion of the knee. The examiner noted that the Veteran's shin splints required treatment for less than 12 consecutive months and was unresponsive to shoe orthotics or other conservative treatment. The Veteran's shin splints impacted her ability to perform any type of occupational tasks due to a mildly decreased capacity for extended weight bearing. See May 2021 Knee and Lower Leg Conditions VA Examination.

In December 2024, the Veteran underwent a medical consultation. The examiner stated that an assessment of the Veteran revealed chronic symptoms and duration of treatment, imaging evidence, and unresponsive to conservative treatments and surgical intervention. As to chronic symptoms and duration of treatment, the Veteran reported persistent pain and swelling in the left and right lower leg consistent with shin splints that necessitated ongoing treatment for more than 12 consecutive months. The examiner stated that even with adherence to conservative treatments, including physical therapy, rest, and prescribed shoe orthotics, the Veteran's symptoms remained unresponsive and continued to impede her normal activity levels. As to imaging evidence, the examiner stated that diagnostic imaging confirmed the presence of left and right medial tibial stress syndrome and indicated inflammation and microfractures along the medial tibial border supporting the chronic nature of the Veteran's condition. As to unresponsive to conservative treatments and surgical intervention. The examiner stated that orthotic support, prescribed anti-inflammatory medication, and lifestyle modifications provided minimal relief with symptoms that persisted and affected the Veteran's daily mobility and quality of life. The examiner acknowledged that the Veteran did not undergo surgical intervention but that the documented lack of significant improvement with long-term conservative treatment aligns with a higher disabling rating. See December 2024 Dr. R.T. Consultation.

The Veteran's additional lay statements and medical records reiterate her complaints of pain and limitations due to his left lower extremity shin splints and right lower extremity shin splints. However, the records do not offer any objective material different from what was detailed above. Therefore, the Board will not discuss those records in further detail.

Applying the pertinent facts to the applicable law, the Board relies on the highly detailed December 2024 consultation and finds the Veteran is entitled to a 20 percent rating for left lower extremity shin splints for the entire period on appeal and a 20 percent rating for right lower extremity shin splints for the entire period on appeal. The Veteran is entitled to the 20 percent rating based on her left and right lower extremity shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment. The Board acknowledges the Veteran has not undergone surgery; however, Dr. R.T. explained, from a medical perspective, that the Veteran's documented lack of significant improvement with long-term conservative treatment aligns with a higher rating. Here, in reliance on the medical professional, the Board finds that the Veteran is unresponsive to surgery. Also, while the Veteran's left lower extremity shin splints and right lower extremity shin splints may have been slightly better in 2020 than reflected during the December 2024 consultation, per her hearing testimony, the Board relies on Dr. R.T.'s opinion, a medical professional, that the Veteran's condition has been in the present condition since at least November 5, 2020.

In sum, the Board resolves all doubt in favor of the Veteran and finds her left lower extremity shin splints and right lower extremity shin splints required treatment for no less than 12 consecutive months and was unresponsive to surgery and either shoe orthotics or other conservative treatment. Therefore, the Board affords the Veteran a 20 percent rating for her left lower extremity shin splints for the period on appeal and a 20 percent rating for her right lower extremity shin splints for the period on appeal. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5299-5262.

As to a higher rating, the Veteran does not contend and the record does not evidence that her left lower extremity shin splints and right lower extremity shin splints required treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, or that she had tibia and fibula impairment malunion with marked knee or ankle disability. Because the evidence is neither evenly balanced nor approximately so whether a rating higher than 20 percent is warranted and the evidence persuasively weighs against the claim, the benefit of the doubt doctrine, codified in 38?U.S.C. §?5107(b), is not for application as to this claim.? See Lynch,?21 F.4th at 776 (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).???

TDIU

The Veteran seeks entitlement to a TDIU. See July 2021 VA Form 10182.

Applicable Law

TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38?C.F.R. §?4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id.

In the case of Ray v. Wilkie,?31?Vet. App.?58?(2019), the United States Court of Appeals
60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id.

In the case of Ray v. Wilkie,?31?Vet. App.?58?(2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation that is 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. Age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38?C.F.R. §§?3.341, 4.16, 4.19.

Where 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (2021).

Analysis

The Veteran reported that she last worked over 20 years ago. Furthermore, the AOJ favorably found that the Veteran met the criteria to be eligible for a schedular?TDIU. The Board is bound by the favorable finding.? ?38?C.F.R. §?3.104(c). Therefore, for the entire period on appeal,?the Veteran met the criteria to be eligible for a schedular?TDIU?under?38?C.F.R. §?4.16(a).??

As an initial matter, the Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West,?218 F.3d 1378, 1380-81?(Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see also Timberlake v. Gober,?14?Vet. App.?122?(2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In December 2024, the Veteran underwent a vocational assessment and reported symptoms related to her service-connected disabilities from December 2002 to the present, including: mood swings, depression, anxiety, hypervigilance, low frustration tolerance, isolation, withdrawal, inability to stand or walk for prolonged periods of time, difficulty with bending and lifting, and inability to maintain attention and concentration due to mental health physical pain. The Veteran completed high school and last worked 20 years ago as a farm laborer. She reported that she struggled to perform the prolonged standing and walking on the job and that her anxiety impacted her ability to focus and concentrate.

The vocational assessor explained that she reviewed the Veteran's claims file and that her records are consistent with an individual who is disabled and more likely than not unable to secure or follow substantially gainful employment, including unskilled sedentary employment, since at least December 2002, due to her service-connected conditions. The assessor found the Veteran to be a credible reporter of her symptoms based on her consistent statements during her telephone interview and after a review of her medical records.

The assessor further explained that, based on her professional experience, it is more likely than not that the Veteran would not be able to satisfy most, if not all the basic requirements, including sustaining focus and attention for at least 2 hours at a time throughout the work day, not taking unscheduled breaks or leaving the workstation, except at designated times, attending work on regular schedule free from absences or tardiness, and consistently producing a certain minimal amount of work while on the job, due to the combination of symptoms from her service-connected conditions. For example, the Veteran's anxiety, depression, isolation, withdrawal, and physical pain would cause her to become distracted from work throughout
her telephone interview and after a review of her medical records.

The assessor further explained that, based on her professional experience, it is more likely than not that the Veteran would not be able to satisfy most, if not all the basic requirements, including sustaining focus and attention for at least 2 hours at a time throughout the work day, not taking unscheduled breaks or leaving the workstation, except at designated times, attending work on regular schedule free from absences or tardiness, and consistently producing a certain minimal amount of work while on the job, due to the combination of symptoms from her service-connected conditions. For example, the Veteran's anxiety, depression, isolation, withdrawal, and physical pain would cause her to become distracted from work throughout the day leading to excessive time off task and her concentration impairment would preclude her from retaining information. She would not be able considered reliable and productive, would not meet competitive standards of work, and her symptoms would negatively impact her ability to learn new skills.

In conclusion, the assessor opined that, it is more likely than not that the Veteran has been unable to secure and follow any substantial gainful employment, to include unskilled sedentary employment, since at least December 2002, due to her service-connected conditions. In support of the overall opinion, the assessor stated that while medical professionals are qualified to define physical or mental limitations extended from a condition, medical professionals do not have expertise in translating the information into the degree of impact on the ability to work, particularly when dealing with a combination of physical and mental limitations. The assessor further stated that a vocational expert, such as herself, is uniquely qualified to evaluate how specific limitations impact the performance of work activity. See December 2024 Vocational Assessment.

(Continued on the next page)

In reaching the above conclusion, the Board emphasizes the evidentiary standard for?TDIU?opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of their service-connected disabilities. Thus, when considering this specific Veteran's service-connected disabilities in connection with her employability, the evidence of record establishes entitlement to?TDIU. Affording the Veteran the benefit of the doubt, the claim for entitlement to a TDIU due to service-connected disabilities is granted. See 38?U.S.C. §?5107;?38?C.F.R. §?3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

JIMMY L. BARDIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Ti'a Smith, Associate Counsel

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

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