MIGRAINE VARIANTS

R. CASADEI · 2026 · Case ID: A26038755

DENIED

Summary

The veteran, who served in the U.S. Army from September 1980 to September 1991 and subsequently in the Air National Guard of Washington, appeals the denial of service connection for headaches, an earlier effective date for his service-connected lumbar spine disability and bilateral radiculopathy, increased disability ratings for these conditions, a higher rating for his major depressive disorder, entitlement to TDIU, and SMC housebound benefits. The Board denied service connection for headaches, finding the evidence weighed against a nexus to the in-service head injury due to a lack of continuity of symptoms and the probative weight of VA medical opinions. The Board denied an earlier effective date for the lumbar spine and radiculopathy claims, finding the earliest possible effective date was February 7, 2021, based on the intent to file, and that the presumption of administrative regularity for the 1992 denial notice was not rebutted. Regarding increased ratings, the Board found the evidence did not support ratings higher than 40% for the lumbar spine and 10% for each lower extremity radiculopathy, as the veteran's symptoms did not meet the criteria for unfavorable ankylosis or moderate incomplete paralysis. For major depressive disorder, the Board found the evidence did not support a rating higher than 70%, as the veteran retained some social functioning and cognitive abilities inconsistent with total occupational impairment. The TDIU claim was denied because the veteran's combined rating did not meet the schedular threshold for the period of February 7, 2021, to February 11, 2021, and the evidence did not establish total unemployability thereafter. The SMC housebound claim was denied as a matter of law because the veteran does not have a single service-connected disability rated as 100% disabling.

Rationale

No nexus between current headaches and in-service head injury; Lack of continuity of symptoms since service; VA medical opinions found less likely than not related to service

Service Branch

ARMY

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

250714-564453

Full Decision Text

Citation Nr: A26038755
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 250714-564453
DATE: April 27, 2026

ORDER

Service connection for headaches is denied.

An effective date for the grant of service connection for the lumbar spine disability prior to February 7, 2021, is denied.

An effective date for the grant of service connection for left lower extremity radiculopathy, prior to February 7, 2021, is denied.

An effective date for the grant of service connection for right lower extremity radiculopathy, prior to February 7, 2021, is denied.

An initial disability rating in excess of 40 percent for the service-connected lumbar spine disability is denied.

An initial disability rating in excess of 10 percent for the service-connected left lower extremity radiculopathy is denied.

An initial disability rating in excess of 10 percent for the service-connected right lower extremity radiculopathy is denied.

An initial disability rating in excess of 70 percent for the service-connected depressive disorder with major depressive like episode with anxious distress (major depressive disorder) is denied.

A total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied.

Special monthly compensation (SMC) for housebound benefits is denied.

FINDINGS OF FACT

1. The Veteran's headache disability did not have its onset during service, did not manifest within one year of separation from service, and is not otherwise related to an in-service injury, event or disease.

2. A December 1991 rating decision denied service connection for a low back disability and the Veteran was notified of that decision in a January 1992 notification letter, which became final as no new and material evidence or a Notice of Disagreement was received within one year of notice of the decision. The rating decision became final one year later.

3. Following the submission of an intent to file on February 7, 2021, on February 11, 2021, the Veteran filed a claim for service connection for lumbar spine disability and the RO granted service connection for lumbar spine disability and for left and right radiculopathy as secondary to the service-connected lumbar spine disability, effective the February 7, 2021, intent to file was received. There is no evidence of an earlier pending formal or informal claim seeking entitlement to VA compensation benefits based on a lumbar spine disability or associated bilateral radiculopathy.

4. The Veteran's service-connected lumbar spine disability is manifested by symptoms approximating forward flexion of the thoracolumbar spine limited to 20 degrees or less; but does not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or entire spine.

5. The Veteran's service-connected radiculopathy of the left lower extremity does not more nearly approximate moderate (or worse) incomplete paralysis of the sciatic nerve.

6. The Veteran's service-connected radiculopathy of the right lower extremity does not more nearly approximate moderate (or worse) incomplete paralysis of the sciatic nerve.

7. The evidence of record shows that Veteran's symptoms and overall impairment caused by service-connected major depressive disorder do not more nearly approximate total occupational and social impairment.

8. The Veteran's service-connected disabilities are not shown to result in functional impairment that precludes him from securing and following a substantially gainful occupation consistent with his education and work history.

9. At the time of the rating decision on appeal, the Veteran did not have a single disability ratable as 100 percent disabling.

CONCLUSIONS OF LAW

1. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

2. The criteria for an earlier effective date for the grant of service connection for a lumbar spine disability prior to February 7, 2021, have not been met. 38 U.S.C. §§ 5110, 7104(b), 7105; 38 C.F.R. §§ 3.155, 3.400, 20.1103.

3. The criteria for an earlier effective date for the grant of service connection for radiculopathy of the left lower extremity, prior to February 7, 2021, have not been met. 38 U.S.C. §§ 5110, 7104(b), 7105; 38 C.F.R. §§ 3.155, 3.400, 20.1103.

4. The criteria for an earlier effective date for the grant of
1, have not been met. 38 U.S.C. §§ 5110, 7104(b), 7105; 38 C.F.R. §§ 3.155, 3.400, 20.1103.

4. The criteria for an earlier effective date for the grant of service connection for radiculopathy of the right lower extremity, prior to February 7, 2021, have not been met. 38 U.S.C. §§ 5110, 7104(b), 7105; 38 C.F.R. §§ 3.155, 3.400, 20.1103.

5. The criteria for an initial disability rating in excess of 40 percent for the service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

6. The criteria for an initial disability rating in excess of 10 percent for the service-connected radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

7. The criteria for an initial disability rating in excess of 10 percent for the service-connected radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

8. The criteria for an initial disability rating in excess of 70 percent for service-connected depressive disorders are not met. 38 U.S.C. §§ 1155, 5107;?38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code?9435.

9. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a).

10. The criteria for an award of SMC housebound benefits are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1980 to September 1991. He subsequently served in the Air National Guard of Washington.

This case comes to the Board of Veterans' Appeals (Board) on appeal from July 2024, January 2025, and March 2025 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction (AOJ). In July 2024 rating decision, the RO denied service connection for headaches. In a January 2025 rating decision, RO denied an effective date earlier than February 7, 2021, for his service-connected lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. The January 2025 rating decision also continued a 40 percent rating for the service-connected disability and also continued the 10 percent ratings for radiculopathy of the left and right lower extremities, each. In the March 2025 rating decision, the RO continued a 70 percent rating for major depressive disorder and denied the claim of TDIU.

Prior to July 2024 rating decision, the claim of service connection for headaches was denied in a June 2021 rating decision, and the Veteran selected Higher-Level Review of that decision in March 2022. An April 2022 rating decision followed, which concluded that a duty to assist error had been identified, and the decision was deferred until further development. Subsequently, the June 2022 rating decision noted that as a duty to assist error was discovered, the Veteran's claim was being decided under the supplemental claim lane, and decided the claim and confirmed and continued the previous denial of service connection for headaches, and the Veteran selected Higher-Level Review of that decision in June 2023. An October 2023 rating followed, which concluded that a duty to assist error had been identified, and the decision was deferred until further development. A July 2024 rating decision confirmed and continued the previous denial of service connection for headaches. Upon discovering a duty to assist error, the higher-level review request was automatically switched to the Supplemental Claim Lane to allow for additional claim development. In the July 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Thus, the record did not close until the claim was readjudicated in the July 2024 rating decision.

Prior to January 2025 rating decision, the claim of service connection for lumbar spine disability was granted in an October 2023 rating decision, and the Veteran selected higher level review of that decision in October 2024. The January 2025 rating decision followed. In the July 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2023 rating decision. 38?C.F.R. § 20.301. The Board cannot consider evidence submitted after the October 2023 decision on appeal. Id.

With respect to March 2025 rating decision, In the July 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38?C.F.R. § 20.301. The Board cannot consider evidence submitted after the AOJ issued the March 2025 decision on appeal. Id.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claims. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

1. Service connection for headaches

The Veteran asserts that his current headache disability began following an in-service head injury. At the May 2022 VA examination, he reported an incident in service in which he sustained trauma to the nose and face after a fall with headaches becoming prevalent thereafter.

1. Service connection for headaches

As an initial matter, the record establishes a current disability. The May 2022 VA examination reflects a diagnosis of migraine variants, and the June 2022 rating decision made a favorable finding of a current headache disability. 38 C.F.R. § 3.104(c). The record also establishes an in-service injury. The June 2022 rating decision made a favorable finding that the Veteran sustained a head injury during service, including a fall in approximately 1982 with injury to the head. Id. Accordingly, the remaining question is whether the current headache disability is related to the conceded in-service injury. Accordingly, the remaining question is whether the current headache disability is related to conceded in-service injury.

The most probative evidence weighs against such a relationship. In this regard, VA medical opinions obtained in May 2022 and November 2023 both conclude that the Veteran's headaches are less likely than not related to service. The May 2022 examiner acknowledged the Veteran's report of onset following in-service trauma but explained that the record does not document complaints or treatment for headaches in service or for many years thereafter. The November 2023 examiner likewise considered the reported in-service fall and head injury but found no indication of a chronic headache pathology arising from that incident, noting that service treatment records are silent for headache complaints, no loss of consciousness or sequelae were documented, and there is no evidence of treatment or follow-up for headaches until many years after service. The examiner further emphasized the significant gap in time between the reported in-service injury and the eventual diagnosis of migraines. These opinions reflect consideration of the Veteran's contentions and relevant medical history and are supported by reasoned explanations. Thus, the May 2022 and November 2023 VA opinions are afforded significant probative weight.

The record also does not support continuity of symptomatology. Although the Veteran reports that headaches began following his in-service injury, contemporaneous evidence weighs against a finding of ongoing symptoms since service. Notably, a 1991 report of medical examination and report of medical history are silent for complaints of headaches. Further, post-service treatment records dated in 2013 and 2015 document various medical conditions but do not include headaches among the Veteran's active problems. It is not until many years later that the headaches are documented, and at that time, they were associated with sinus-related pathology. The absence of documented complaints for decades after service, particularly where the record reflects treatment for other conditions, weighs against a finding of continuous symptoms since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

To the extent the Veteran's headache disability has been characterized as chronic disease, such as an organic disease of the nervous system, service connection may be established on a presumptive basis or through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). However, the evidence does not show that headaches manifested to a compensable degree within one year of separation from service, nor does it demonstrate continuity of symptoms since service for the reasons discussed above. Accordingly, service connection on a presumptive basis or through continuity of symptomatology is not warranted.

The Board has considered the Veteran's lay assertions regarding onset and continuity of headaches. He is competent to report observable symptoms such as head pain. However, determining the etiology of a headache disorder, including whether it is related to a remote in-service injury as opposed to other causes such as a sinus pathology, is a medically complex question that requires specialized knowledge. As such, his lay opinion as to the nexus is afforded less probative weight than the medical opinions of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, his reports of longstanding symptoms are not fully consistent with the contemporaneous medical evidence, including the absence of complaints at separation and for many years thereafter.

In sum, while the record establishes a current headache disability and an in-service head injury, the most probative evidence is against a nexus between the two. The absence of complaints or treatment for many years after service, the lack of continuity of symptoms, and the reasoned medical opinions weighing against the claim all support this conclusion. Accordingly, service connection for headaches is not warranted.

Effective Dates

Entitlement to an earlier effective date for the grant of service
. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, his reports of longstanding symptoms are not fully consistent with the contemporaneous medical evidence, including the absence of complaints at separation and for many years thereafter.

Effective Dates

Entitlement to an earlier effective date for the grant of service connection for a lumbar spine disability prior to February 7, 2021.

Entitlement to an earlier effective date prior to February 7, 2021, for the grant of service connection for left lower extremity radiculopathy is denied.

Entitlement to an earlier effective date prior to February 7, 2021, for the grant of service connection for right lower extremity radiculopathy is denied.

The Veteran is seeking an earlier effective date for his service-connected lumbar spine disability and the associated bilateral radiculopathy of the lower extremities.

Under 38 U.S.C. § § 5110(b)(1) and 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later.

When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The fact that a claimant had previously submitted claim applications which had been denied, is not relevant to the assignment of an effective date based on his current application. "Nothing in the statute indicates that an effective date can be set based upon an application that resulted in a final disallowance of the claim." Wright v. Gober, 10 Vet. App. 343, 347 (1997).

The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244, 248 (2002). For a veteran to be awarded an effective date based on an earlier claim, he or she must show clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995); Rudd v. Nicholson, 20 Vet. App. 296, 299 -00 (2006). However, in this case, the issue of CUE in a specific, prior RO decision has not been raised by the Veteran or his representative, and, therefore, it is not before the Board.

"Claim" is defined broadly as a written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by the claimant. In other words, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.

Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that
12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a) (2014). An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim needed to be written, see Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995).

In other words, in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, the Court has held that a Veteran's attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet. App. 327, 330 (1993).

The Veteran contends that an effective date earlier than February 7, 2007, is warranted for the grant of service connection for his lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. Presumably he believes that the earliest effective date was not assigned since his original service connection claim for his lumbar spine disability was received by VA in 1991. The Veteran also contends that he never received the 1992 denial correspondence because he had moved residences.

A claim of entitlement seeking, in part, service connection for a back disability, was received by VA in October 1991. In that application, the Veteran listed his address in Lacey, Washington. In the December 1991 rating decision, the claim of service connection for a low back disorder was denied. In a December 1992 notification letter, the Veteran was informed that his service connection claim for a lower back disability was denied. This letter was addressed to the same address in Lacey, Washington that the Veteran listed in his October 1991 application.

Subsequently, a February 2021 notification letter documented that VA received the Veteran's intent to file on February 7, 2021. On February 11, 2021, the Veteran filed a new claim for his lumbar spine. On February 12, 2021, the VA informed the Veteran that his claim had been previously denied and that he needed to file a claim on the proper form. On February 28, 2021, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application seeking a review of his lumbar spine disability.

In October 2023, the AOJ granted the Veteran service connection for lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity, and assigned an effective date of March 16, 2022. The Veteran disagreed with the effective date assigned and initiated this appeal. In October 2024, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review seeking earlier effective dates for service-connected lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. A January 2025 rating decision granted an earlier effective date of February 7, 2021, the date of the intent to file, for service-connected lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. In July 2025, the Veteran appealed the January 2025 rating decision to the Board.

In this case, the Board finds the AOJ assigned the earliest possible effective date for the grant of service connection for lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. The effective date for the eventual award of service connection would necessarily be assigned based on the earliest claim received after the October 1991 rating decision. Sears, supra. In other words, the proper effective date relates to the February 7, 2021 intent to file leading to the February 28, 2021, claim to reopen, and not the 1991 original claim. The record does not otherwise reflect any claim, formal or informal, requesting or evidencing a belief in entitlement to the benefit between the December 1991 denial and the February 2021 claim. Thus, the Veteran is not entitled to an earlier effective date prior to February 7, 2021.

Regarding the contention that the Veteran never received the January 1992 notification letter informing of the December 1991 rating decision, VA is entitled to a presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran. Kyhn v. Shinseki, 24 Vet. App. 228 (2011); Kyhn v. Shinseki, 26 Vet. App. 371 (2016).

Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, no receipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271 (1994); Schoolman v. West, 12 Vet. App. 307 (1999). Moreover, this presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The presumption is rebuttable. An example of this would be when there is clear evidence of non-delivery, as confirmed by the United States Postal Service returning the mail as undeliverable, and if there is another address on file at which the appellant perhaps could be located.

The Veteran and his representative have provided no evidence beyond their assertions that the Veteran did not receive the January 1992 notification of the December 1991 rating decision. Therefore, there is no clear evidence of non-delivery, and the presumption of administrative regularity has not been rebutted. The Board finds that in the Veteran's October 1991 claim for benefits, he listed his address in Lacey, Washington. This is the address the AOJ sent the Veteran his January 1992 notification letter approximately three months after the claim for benefits. Additionally, there is no record that the January 1992 was undeliverable and was returned back to VA.

Thus, the Board finds that the Veteran is not entitled to an earlier effective date prior to February 7, 2021, for his service-connected lumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity.

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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability
2 notification letter approximately three months after the claim for benefits. Additionally, there is no record that the January 1992 was undeliverable and was returned back to VA.

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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155;?38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b);?38 C.F.R. § 4.3.

It is the Board's responsibility to determine whether the totality of the probative evidence persuasively weighs in favor of the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event; or whether this evidence persuasively weighs again the claim, in which case the claim must be denied. See Gilbert v. Derwinski,?1?Vet. App.?49?(1990). See also, Lynch v. McDonough,?21 F.4th 776?(2021).

Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbar spine disability.

Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of left lower extremity.

The Veteran's service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 and his service-connected radiculopathy of the right and left lower extremity are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. In addition, Intervertebral disc syndrome (IVDS), under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Under the General Rating Formula, the only schedular evaluations in excess of 40 percent are: 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for unfavorable ankylosis of the entire spine. Id.

Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id.

For purposes of the General Rating Formula, unfavorable ankylosis is defined as a condition in which the entire spine or an entire spinal segment is fixed in flexion or extension and the ankylosis results in one or more associated complications. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). In contrast, ankylosis is considered favorable if the fixation is in a neutral position, 0 degrees or does not result in an associated complication. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). VA must also consider whether the Veteran's symptoms constitute the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a maximum 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" under this formula is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. at Note 1.

constitute the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

Diagnostic Code 5243, which rates IVDS, specifically instructs to evaluate IVDS under both Diagnostic Code 5243 and the General Rating Formula and apply whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Under Diagnostic Code 8520, 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.

The schedule of ratings for neurological impairment also include consideration of neuritis (38 C.F.R. § 4.123) and neuralgia (38 C.F.R. § 4.124). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve.

For the sciatic nerve, the diagnostic code for neuritis is 8620 and the diagnostic code for neuralgia is 8720, and each is rated under paralysis of the sciatic nerve pursuant to Diagnostic Code 8520.

While neuritis and neuralgia are rated using the scale provided for paralysis, this rating method does not, as a matter of law, necessarily preclude the assignment of separate compensable ratings for paralysis, neuritis, and neuralgia. Banschbach v. McDonough, 37 Vet. App. 422 (2024). The United States Court of Appeals for Veterans Claims (CAVC or Court) also noted that, when determining how to evaluate separate conditions, adjudicators must first evaluate the ratable conditions before assessing whether compensable conditions present the same manifestation such that it constitutes impermissible pyramiding. See 38 C.F.R. § 4.14. Pyramiding, i.e., evaluation of the same disability under various diagnostic codes must be avoided. See 38 C.F.R. § 4.14. Conditions are to be rated separately unless they are the "same disability" or the "same manifestations" under various diagnoses. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Esteban observed that the "critical element of the anti-pyramiding provision is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of another condition." If it can be shown that separate ratings for neuritis and neuralgia would end up compensating the same manifestation under different diagnoses, then the anti-pyramiding provision may prove relevant.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §
"critical element of the anti-pyramiding provision is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of another condition." If it can be shown that separate ratings for neuritis and neuralgia would end up compensating the same manifestation under different diagnoses, then the anti-pyramiding provision may prove relevant.

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

Terms such as "mild," "moderate," "moderately severe" and "severe" are not defined by the rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence and render factual findings and a decision that is "equitable and just." See 38 C.F.R. § 4.6. The use of the terminology within a VA examination report is not in and of itself dispositive. Id.

Additionally, as noted in greater detail below, VA's Adjudication Procedures Manual (M21-1) provides general guidelines for each level of incomplete paralysis for the upper and peripheral nerves. See M21-1, Part V, Subpart iii, Ch.12, A.2.c.

Although 38 C.F.R. § 4.120, 4.123, and 4.124 are helpful in this regard, VA's Adjudicative Procedures Manual (M21-1) has additional provisions that are useful in guiding this analysis. The M21-1 contains provisions regarding rating peripheral nerve disabilities. The United States Court of Appeals for the Federal Circuit has held that the Board is not bound by the provisions of the M21-1, and the manual does not "carry the force of law." DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. The M21-1 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how the Veterans Benefits Administration applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.1. Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document." 35 Vet. App. 75, 80 (2021).

Pursuant to Wilson, VA's M21-1 does contain guidance relevant to the adjudication of the issues currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of upper and lower peripheral nerves.

Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however, slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. For mild degrees of incomplete paralysis, the M21-1 instructs
uant to Wilson, VA's M21-1 does contain guidance relevant to the adjudication of the issues currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of upper and lower peripheral nerves.

Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however, slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. For mild degrees of incomplete paralysis, the M21-1 instructs to look for a disability "limited to sensory deficits that are lower grade, less persistent, or affecting a small area" and "a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis." Generally, "mild" incomplete paralysis is limited to sensory deficits that are lower graded, less persistent, and affecting a small area and / or a very minimal reflex or motor abnormality.

"Moderate" incomplete paralysis in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment and symptoms are described as "significantly disabling." The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

The M21-1 provides "moderately severe" incomplete paralysis is only applicable for involvement of the sciatic nerve and is described as motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present with moderately severe peripheral neuropathy.

"Severe" incomplete paralysis in general, is expected to include motor and/or reflex impairment (for example atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen with severe longstanding neuropathy. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.

The standards described above are "relevant guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims,' which the Board must consider and address as part of its duty to provide a reasoned explanation for its decision." Chavis, 34 Vet. App. at 18.

In this case, the evidence persuasively weighs against assignment of an initial disability rating in excess of 40 percent for the service-connected lumbar spine disability. In this regard, the lumbar spine disability does not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine and there is no evidence of IVDS. The evidence also persuasively weighs against assignment of initial disability ratings in excess of 10 percent for the service-connected radiculopathy of the right and left lower extremities.

Turning to the evidence of record, in April 2021, the Veteran was afforded a VA examination for the lumbar spine. The examiner diagnosed the Veteran with degenerative arthritis, degenerative disc disease other than IVDS, bilateral lumbar radiculopathy, and status post lumbar fusion and laminectomy. The Veteran reported sharp aches that radiated to his right lower extremity. He reported flare-ups of his back that occurred every day and lasted the entire day. He described flare-ups as sharp aches on the lower back that radiated to both lower extremities and reported the severity of his flare-ups as moderate. He reported that functional impairment during a flare-up was that he was unable to lift heavy objects because of his back pain and could not bend forward and stoop down because of discomfort. On initial range of motion testing, his forward flexion was limited to 40 degrees. He did not have ankylosis or IVDS. The Veteran had signs and symptoms due to radiculopathy, which reflected no constant pain of either lower extremity, but mild intermittent pain, paresthesias, and numbness of both lower extremities. Involvement of sciatic nerve for both lower extremities was noted. He did not have any other neurologic abnormalities or findings. He did not require the use of assistive devices.

In June 2023, the Veteran was afforded a VA examination for the lumbar spine.
back pain and could not bend forward and stoop down because of discomfort. On initial range of motion testing, his forward flexion was limited to 40 degrees. He did not have ankylosis or IVDS. The Veteran had signs and symptoms due to radiculopathy, which reflected no constant pain of either lower extremity, but mild intermittent pain, paresthesias, and numbness of both lower extremities. Involvement of sciatic nerve for both lower extremities was noted. He did not have any other neurologic abnormalities or findings. He did not require the use of assistive devices.

In June 2023, the Veteran was afforded a VA examination for the lumbar spine. He reported flare-ups of the thoracolumbar spine and described that they occur on an almost daily basis. He reported having functional loss which he described as avoiding prolonged standing, walking, and running, frequent stair climbing, deep bending and stooping, and moderate to heavy lifting, pushing and pulling. Initial forward flexion was limited to 25 degrees. Estimated range of motion during flare-ups was noted as forward flexion to 20 degrees. He had signs or symptoms due to radiculopathy, which consisted of no constant pain and mild intermittent pain, paresthesias, and numbness bilaterally. He did not have ankylosis or any other neurologic abnormalities or findings. He also did not have IVDS. He required the use of assistive devices with a regular use of a cane.

Given the above, the evidence persuasively weighs against assignment of an initial disability rating in excess of 40 percent for the service-connected lumbar spine disability. Specifically, the Veteran's lumbar symptoms do not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or the functional equivalent thereof. As noted above, the April 2021 and June 2023 VA examiners indicated that there was no evidence of ankylosis. Furthermore, neither VA examination report reflected any absence of motion. Additionally, the Veteran has not reported any complications associated with unfavorable ankylosis of the thoracolumbar or entire spine. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5).

Furthermore, as the Veteran does not have a diagnosis of IVDS, no higher rating is available on this basis.

As for service-connected radiculopathy of the right and left lower extremities, the right and left lower extremity lumbar radiculopathy do not more nearly approximate moderate incomplete paralysis of the sciatic nerve.

Here, the April 2021 and June 2023 VA examination reports reflect that the Veteran's bilateral lower radiculopathy has been manifested by mild intermittent pain, paresthesias, and numbness, and without constant pain, muscle atrophy, trophic changes, or significant motor impairment. Strength testing remained normal throughout, and while there were some diminished reflex and secondary findings, these were limited and did not reflect more than mild neurologic involvement. As noted above, the Note to 38 C.F.R. § 4.124a provides that when involvement is wholly sensory, the rating should be, at most, for the moderate degree of impairment. In this case, however, the Veteran's symptoms are intermittent and have not shown to result in significant functional impairment, and the overall disability picture does not more nearly approximate moderate incomplete paralysis of the sciatic nerve. Accordingly, ratings in excess of 10 percent for the right and left lower extremity radiculopathy are not warranted.

It is acknowledged that 38 C.F.R. § 4.71a, Diagnostic Code 8520, does not consider the ameliorative effects of medication. Jones, 26 Vet. App.at 63. To the extent that the Veteran reported use of Cymbalta, gabapentin, methocarbamol, and Tylenol during the April 2021 VA examination for the lumbar spine, he has not submitted any statements that may clarify the frequency and extent of his medication. The Veteran has not provided any information regarding the frequency of his medication or dosage. Nonetheless, the April 2021 and June 2023 VA examination reports provide no indication that testing was performed while the Veteran was in a medicated state. Further, there is no indication or assertion by the Veteran that his lumbar spine would result in ankylosis. As such, there is no basis to find that the Veteran's use of Cymbalta, gabapentin, methocarbamol, and Tylenol affected the April 2021 or the June 2023 VA examinations.

Finally, there is no basis to find that the Veteran has
submitted any statements that may clarify the frequency and extent of his medication. The Veteran has not provided any information regarding the frequency of his medication or dosage. Nonetheless, the April 2021 and June 2023 VA examination reports provide no indication that testing was performed while the Veteran was in a medicated state. Further, there is no indication or assertion by the Veteran that his lumbar spine would result in ankylosis. As such, there is no basis to find that the Veteran's use of Cymbalta, gabapentin, methocarbamol, and Tylenol affected the April 2021 or the June 2023 VA examinations.

Finally, there is no basis to find that the Veteran has separately compensable neuritis or neuralgia that is separate and distinct from his current ratings under 38 C.F.R. § 4.124a, Diagnostic Code 8520. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261.

Given the above, the evidence persuasively weighs against assignment of an initial disability rating in excess of 40 percent for the service-connected lumbar spine disability. The evidence also persuasively weighs against assignment of initial disability ratings in excess of 10 percent for the service-connected radiculopathy of the right and left lower extremity. Accordingly, an initial disability rating in excess of 40 percent for lumbar spine disability and initial disability ratings in excess of 10 percent each for radiculopathy of the right and left lower extremity are not warranted, and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776.

1. Entitlement to an initial disability rating in excess of 70 percent for service-connected major depressive disorder.

When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126.

The Veteran's service-connected major depressive disorder is currently rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9435 for depressive disorder. Depressive disorders are rated pursuant to the General Rating Formula for Mental Disorders. Id. Under the General Rating Formula for Mental Disorders listed in the previous section above, a 70 percent rating is prescribed for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. §?4.130, Diagnostic Code?9435.

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

Under the General Formula for Mental Disorders (General Formula), VA must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin,?29?Vet. App.?10, 22?(2017); 38 C.F.R. § 4.130. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi,?16?Vet. App.?436?(2002). A determination must be made whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. VA must determine whether the associated symptoms, both listed and unlisted, caused
22?(2017); 38 C.F.R. § 4.130. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi,?16?Vet. App.?436?(2002). A determination must be made whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. VA must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki,?713 F.3d 112, 114-118?(Fed. Cir. 2013).

Turning to the evidence of record, in April 2021, the Veteran was afforded a VA examination for mental disorders. The examiner diagnosed the Veteran with unspecified depressive disorder with anxious distress. The examiner summarized the Veteran's occupational and social impairment as with reduced reliability and productivity. He has been married since 2015. He reported his relationship as good. He also reported that he only socializes when he has to because of his wife. As for relevant occupational history, the Veteran reported that he worked for Verizon for 27 years where he took care of maintenance of equipment at the towers, and that he last worked two months prior to this exam, where he worked in robotics but it was too hard on his back and he was in pain all the time. He reported his mental health history as depressed mood, low energy level, decreased motivation, sleep difficulty due to pain, low self-esteem, occasional anxiety feeling, and irritability. The examiner marked the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Behavioral observations reflected that the Veteran was fully oriented and had good eye contact. He was fairly attired. His speech was of normal volume, tone, and goal oriented. Thought process was linear and logical. He was anxious but cooperative during the evaluation.

A May 2022 VA treatment documents the Veteran's report that he is estranged from his youngest daughter and granddaughter. However, another granddaughter continues to live with him and his wife, who he has raised since his daughter passed away in a car accident. He also reported that his wife, brother, and friend are all supportive.

In October 2023, the Veteran was afforded a VA examination for mental disorders. The examiner diagnosed the Veteran with a depressive disorder. The examiner summarized the Veteran's occupational and social impairment as with reduced reliability and productivity. With regard to social history, the Veteran reported that he currently lives with his wife, that they had been married for 8 years but that their relationship is strained at times due to his mental health symptoms and low interest in doing activities, but that they are not talking about getting a divorce. He has two adult children that he is estranged from. He does not have any friends. In his spare time, he mostly stays at home watching television and is trying to learn how to play the saxophone. He reported that he is not currently employed and that he last worked in 2021, but he stopped due to his back pain and is no longer looking for work because of his medical issues, even though he would like to work. He reported that he does not like crowds or to be around conflicts. He reportedly had some morbid ideation but denied having any suicidal ideation with plan or intent. The examiner marked the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. On behavioral observations, he was alert and oriented times four. He was appropriately attired and had adequate hygiene. He had good eye contact, and his behavior was pleasant and cooperative. Psychomotor was within normal limits. Speech was lower in rate and volume. Mood was described as stressed. Affect was dysphoric and tearful during the exam. Thought process was coherent, linear, logical, and goal directed. Thought content was within normal limits. Short term and long-term memory were intact. Insight and judgment were good.

In March 2025,
relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. On behavioral observations, he was alert and oriented times four. He was appropriately attired and had adequate hygiene. He had good eye contact, and his behavior was pleasant and cooperative. Psychomotor was within normal limits. Speech was lower in rate and volume. Mood was described as stressed. Affect was dysphoric and tearful during the exam. Thought process was coherent, linear, logical, and goal directed. Thought content was within normal limits. Short term and long-term memory were intact. Insight and judgment were good.

In March 2025, the Veteran was afforded a VA examination for mental disorders. The examiner summarized the Veteran's occupational and social impairment as with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. For social and family history, the Veteran reported that he resides with his wife and granddaughter who he has raised since his daughter passed away in 2013. His wife described their marriage as tense and the Veteran reported that they have been discussing divorce. He denied any hobbies and spent most of his time watching television. He does not have a relationship with his 36-year-old daughter. The Veteran also noted that he is not employed at this time. He expressed that he fears being out in the public, he becomes overly anxious and that he does not know how to manage. He tends to withdraw and isolate. He sleeps poorly. He endorsed morbid thoughts but denied suicidal ideation and intent. He also reported that he is unable to feel positive emotions and often feels numb. He denied any legal issues. The examiner marked the Veteran's symptoms as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships. On behavioral observations, the examiner noted that the Veteran was dressed casually with no concerns in hygiene. Psychomotor activity was unremarkable. Veteran was alert and cooperative. He appeared to be in a depressed mood with was in accordance with his affect. Eye contact was appropriate. Speech was within normal limits. He was oriented to person, place, time, and situation. Thought process was linear and goal-direct.

Following review, the evidence does not reflect total and social impairment to warrant a higher 100 percent rating.

The record consistently shows that the Veteran retains some degree of social functioning. He has remained married, continues to reside with his wife, and maintains relationships with some family members, including his brother and granddaughter. While his relationship with his wife has been described as strained and he reports limited socialization, such impairment is contemplated by the currently assigned 70 percent rating, which accounts for deficiencies in most areas, including family relations and social functioning. The evidence does not reflect total social impairment, as the Veteran is not shown to be completely isolated or unable to maintain any interpersonal relationships.

Similarly, the record does not demonstrate total occupational impairment due solely to psychiatric symptoms. While the Veteran is not currently employed and reports difficulty working due in part to his mental health symptoms, the evidence does not show that his psychiatric disability, in and of itself, results in total occupational impairment. Notably, mental status examinations throughout the appeal period reflect that the Veteran has remained alert and oriented, with coherent, logical, and goal directed thought process. His speech has been within normal limits, and he has consistently demonstrated appropriate behavior, intact memory, and adequate insight and judgment. Such findings are inconsistent with the gross impairment in thought processes or communication contemplated by a 100 percent rating.

Further, the evidence does not reflect symptoms of similar severity, frequency, and duration as to those associated with a 100 percent rating. There is no indication of persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name. Although the Veteran has endorsed morbid ideation, he has consistently denied suicidal intent or plan, and there is no indication of a persistent danger of hurting himself or others. Additionally, he has been noted to be appropriately groomed, with no inability to perform activities of daily living.

The Board has considered the Veteran's general assertion that his symptoms warrant a higher rating. However, the Board must evaluate the frequency, severity, and duration of symptoms and their resulting level of occupational and social impairment. See Vazquez-Claudio v. Shinseki,?713 F
, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name. Although the Veteran has endorsed morbid ideation, he has consistently denied suicidal intent or plan, and there is no indication of a persistent danger of hurting himself or others. Additionally, he has been noted to be appropriately groomed, with no inability to perform activities of daily living.

The Board has considered the Veteran's general assertion that his symptoms warrant a higher rating. However, the Board must evaluate the frequency, severity, and duration of symptoms and their resulting level of occupational and social impairment. See Vazquez-Claudio v. Shinseki,?713 F.3d 112, 118?(Fed. Cir. 2013); 38 C.F.R. § 4.126. Here, the overall disability picture does not reflect gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name..

Accordingly, the Board finds that a rating in excess of 70 percent for the service-connected major depressive disorder is not warranted.

2. Entitlement to a TDIU.

Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15.

In order to establish an inability to secure and maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a veteran is not required to submit proof that he or she is 100 percent unemployable. See Roberson v. Principi,?251 F.3d 1378, 1385?(2001). Instead, the regulations contemplate more flexibility in the employability determination. Id.

The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the veteran is able to pursue his or her profession of choice, or indeed any particular job. Rather, the determinative issue is whether the veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown,?4?Vet. App.?361, 363?(1993). The fact that a veteran is unemployed is not enough. It must be determined that his or her service-connected disabilities, without regard to his or her advancing age, make him or her incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See?38 C.F.R. §§ 3.341, 4.16; see also Van Hoose v. Brown,?4?Vet. App.?361?(1993).

The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose,?4 Vet. App. at 363.

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31?Vet. App.?58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

A "protected work environment" means "a lower-income position that due to the Veteran's service-connected disability or disabilities is shielded in some respect from competition in the employment market." Labruzza-McBride v. McDonough, 37?Vet. App.?111 (2024) (also holding, "We use the words 'in some respect' deliberately here to convey that employment need not be completely shielded or separated from the employment market to qualify as being in a protected environment."). On the other hand, the Court further held in Labruzza-McBride, that the purpose of TDIU" is best served by reserving TDIU for veterans whose service-connected disabilities preclude substantially gainful employment, not by awarding TDIU to veterans, even seriously disabled ones, who are capable of performing such employment." Id. Where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28?Vet. App.?382 (2017) (Concurring Opinion, Lance, J., "Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.").

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §?4.16(a).

The Veteran's service-connected disabilities consist of major depressive disorder, rated as 70 percent disabling from February 11, 2021; lumbar spine disability, rated as 40 percent from February 7, 2021; tinnitus, rated as 10 percent from February 7, 2021; radiculopathy of the left lower extremity, rated as 10 percent disabling from February 7, 2021; radiculopathy of the right lower extremity, rated as 10 percent disabling from February 7, 2021; post operative residuals of left wrist fracture , rated as noncompensable from September 27, 1991. Pursuant to 38 C.F.R. § 4.25 (combined ratings table), the Veteran's combined disability rating during the period on appeal is 60 percent from February 7, 2021, and is 90 percent from February 11, 2021. From February 7, 2021, to February 11, 2021, his disabilities combined to 60 percent, and with no single disability rated at 60 percent during this period, his disabilities did not meet the schedular percentage threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). Beginning February 11, 2021, the Veteran's combined rating increased to 90 percent, and the schedular percentage threshold criteria for TDIU under 38 C.F.R. § 4.16(a) are met during the period on appeal from
60 percent from February 7, 2021, and is 90 percent from February 11, 2021. From February 7, 2021, to February 11, 2021, his disabilities combined to 60 percent, and with no single disability rated at 60 percent during this period, his disabilities did not meet the schedular percentage threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). Beginning February 11, 2021, the Veteran's combined rating increased to 90 percent, and the schedular percentage threshold criteria for TDIU under 38 C.F.R. § 4.16(a) are met during the period on appeal from February 11, 2021.

However, even when the above threshold percentage requirements are not met from February 7, 2021, to February 11, 2021, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38?C.F.R. § 4.16(b). The Board has the authority to adjudicate entitlement to TDIU on an extraschedular basis in the first instance. See?Witkowski v. Collins, 38 Vet. App. 459 (2026) (en banc). Accordingly, the Board will consider whether the Veteran's service-connected disabilities preclude substantially gainful employment during the entire period on appeal.

A February 2021 letter, the Veteran stated that he is currently not working due to worsened back problems.

In March 2021, the Veteran submitted a VA Form 8940 application for a TDIU. The Veteran listed that low back and neck are service-connected disabilities that prevent him from securing or following any substantially gainful occupation. He also listed that he last work full-time and became too disabled to work in February 2021. He listed that the most he earned in one year was in 2009 earning $196,563 as a network engineer. He worked as a network engineer from August 1991 to December 2018, robotics tech from July 2019 to March 2020, test tech from March 2020 to July 2020, and maintenance tech from September 2020 to February 2021. He listed his highest level of education as having completed one year of college. He remarked that his back and neck issues are keeping him from working and that he cannot lift weight required of his previous job, that he is having pain from sitting, standing, walking, and working at a computer. He also stated that the medication that he takes for neuropathy for his feet also makes it hard to focus and concentrate. He also remarked that his jobs required him to operate equipment and to work around hazardous conditions, and that he is not allowed to be on medications doing this type of work.

In April 2021, the Veteran was afforded a VA examination for mental disorders. The examiner summarized the Veteran's occupational and social impairment as with reduced reliability and productivity. As for relevant occupational history, the Veteran reported that he worked for Verizon for 27 years where he took care of maintenance of equipment at the towers, and that he last worked two months prior to this exam, where he worked in robotics, but it was too hard on his back, and he was in pain all the time. He reported his mental health history as depressed mood, low energy level, decreased motivation, sleep difficulty due to pain, low self-esteem, occasional anxiety feeling, and irritability. The examiner marked the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Behavioral observations reflected that the Veteran was fully oriented and had good eye contact. He was fairly attired. His speech was of normal volume, tone, and goal oriented. Thought process was linear and logical. He was anxious but cooperative during the evaluation.

An April 2021 VA examiner evaluated the Veteran's lumbar spine and concluded that the Veteran will be limited by the amount of weight that he can lift from the ground. He will have difficulty lifting anything more than 15 pounds. Performance of high-impact activities such as running and jumping will also cause back discomfort. He will need frequent breaks in order to change position from sitting and standing. He is not limited in performing any light or sedentary tasks.

In a May 2021 VA treatment record, the VA clinician noted that the Veteran was
His speech was of normal volume, tone, and goal oriented. Thought process was linear and logical. He was anxious but cooperative during the evaluation.

In a May 2021 VA treatment record, the VA clinician noted that the Veteran was not in acute distress, was alert and oriented, and with clear speech. The Veteran reported good range of motion for his musculoskeletal evaluation.

In a May 2022 VA treatment record, the Veteran reported that he has tightness in his back even on a good day. He has a tendency to lean left for pain relief. He reported that his pain is worse with any prolonged sitting, standing, or doing a lot of activities at home such as mopping or vacuuming.

A separate May 2022 VA treatment record reflects that the Veteran had better range of motion throughout his neck and back since last time but that he has been getting some persistent pain in the left lumbar spine. The Veteran reported some difficulty sleeping throughout the night and doing normal daily activities. He denied any paresthesias, loss of muscle strength, or sciatica. He reported to doing some exercising and stretching.

In a June 2022 letter from a VA physician, he informed the Veteran that due to the extensive amount of surgery, he will always have some back pain, and the VA physician recommended that further surgeries will not help the Veteran as they have not helped him in the past, and that he was referring the Veteran to interventional pain to consider possible spinal cord simulator.

In a June 2023 VA exam for lumbar spine, the examiner noted that the Veteran's lumbar spine impacts his ability to perform occupational tasks and that he should avoid prolonged standing, prolonged walking, running, frequent stair climbing, prolonged sitting, deep bending and stooping, and moderate to heavy lifting, pushing, and pulling.

In October 2023, the Veteran was afforded a VA examination for mental disorders. The examiner summarized the Veteran's occupational and social impairment as with reduced reliability and productivity. He reported that he is not currently employed and that he last worked in 2021, but he stopped due to his back pain and is no longer looking for work because of his medical issues, even though he would like to work. He reported that he does not like crowds or to be around conflicts. The examiner marked the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. On behavioral observations, he was alert and oriented times four. He was appropriately attired and had adequate hygiene. He had good eye contact, and his behavior was pleasant and cooperative. Psychomotor was within normal limits. Speech was lower in rate and volume. Mood was described as stressed. Affect was dysphoric and tearful during the exam. Thought process was coherent, linear, logical, and goal directed. Thought content was within normal limits. Short term and long-term memory were intact. Insight and judgment were good.

In November 2023, the Veteran submitted another VA Form 8940 in which he listed that his service-connected lumbar spine disability prevents him securing or following any substantially gainful employment. He noted that the date he last worked full time and that he became too disabled to work was in February 2021. He listed that the most he earned in a year was as an engineer in 2019 earning $178,168. He listed his occupational history as electronics and engineering maintenance from August 1991 to December 2018, robotics and building maintenance from July 2019 to March 2020, as aircraft test technician from March 2020 to May 2020, and robotics maintenance from September 2020 to February 2021. He listed that the highest education he completed was two years of college. The Veteran also remarked that one of his spine doctors limited him to lifting 10 pounds.

In October 2024, the Veteran submitted a private vocational assessment by Jennifer Anken. Ms. Anken concluded in her vocational opinion that that the Veteran's service-connected depressive disorder has at least as likely as not rendered him unable to secure and follow substantially gainful employment. Ms. Anken reasoned that the Veteran is unable to satisfy the basic requirements of even unskilled sedentary employment, which she listed as sustaining focus and attention for at least two hours at one time throughout the workday, refraining from taking unscheduled or prolonged break away from the work station, attending work on a regular basis, free from excessive absences, tardiness, or early departures, producing a certain, minimal amount of work while on the job, and appropriately and effectively interacting with coworkers and supervisors to maintain a productive and professional workplace. She further concluded that the Veteran's symptoms preclude him from interacting appropriately and effectively with others in the workplace consistently and reliably. In support of this conclusion, Ms. Anken cited the April 2021 VA examination for mental disorders and emphasized the Veteran's statement of socializing that he does so only when he has to because of his wife. She also cited to his reported depressed mood, low energy level, decreased motivation and mood, low-self esteem, occasional anxiety, and irritability, as well as symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Ms. Anken also cited to the October 2023 VA examination in support of her conclusion. Ms. Anken explained that the Veteran's symptoms of difficulty adapting to stressful circumstances, impaired impulse control, irritability, and difficulty establishing and maintaining effective relationships at least as likely as not increase his potential for emotional outburst or other negative interpersonal interactions in the workplace. She also reasoned that the Veteran has no experience working in clerical or sedentary positions.

In March 2025, the Veteran was afforded a VA examination for mental disorders. The examiner summarized the Veteran's occupational and social impairment as with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran also noted that he is not employed at this time. He expressed that he fears if he is out in the public, he becomes overly anxious and that he would not know how to manage. He tends to withdraw and isolate. He sleeps poorly. He endorsed morbid thoughts but denied suicidal ideation and intent. He also reported that he is unable to feel positive emotions and often feels numb. He denied any legal issues. The examiner marked the Veteran's symptoms as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships. On behavioral observations, the examiner noted that the Veteran was dressed casually with no concerns in hygiene. psychomotor activity was unremarkable. Veteran was alert and cooperative. He appeared to be in a depressed mood with was in accordance with his affect. Eye contact was appropriate. Speech was within normal limits. He was oriented to person, place, time, and situation. Thought process was linear and goal-direct.

After a review of the evidence, the Board finds that the Veteran's service-connected disabilities do not preclude him from securing or following substantially gainful employment. The record reflects functional limitations resulting from the lumbar spine disability and associated radiculopathy, as well as occupational impairment from the service-connected major depressive disorder. However, the evidence does not establish that these disabilities render the Veteran incapable of performing the physical and mental acts required by employment.

With respect to the physical impairment, the evidence reflects limitations with prolonged standing, walking, bending, and similar exertional activities. However, the record does not show that these limitations preclude all forms of work. The April 2021 VA examiner specifically found that the Veteran was not limited in performing light or sedentary tasks. The more recent June 202
disabilities do not preclude him from securing or following substantially gainful employment. The record reflects functional limitations resulting from the lumbar spine disability and associated radiculopathy, as well as occupational impairment from the service-connected major depressive disorder. However, the evidence does not establish that these disabilities render the Veteran incapable of performing the physical and mental acts required by employment.

With respect to the physical impairment, the evidence reflects limitations with prolonged standing, walking, bending, and similar exertional activities. However, the record does not show that these limitations preclude all forms of work. The April 2021 VA examiner specifically found that the Veteran was not limited in performing light or sedentary tasks. The more recent June 2023 VA low back examination reflects continued limitation of motion and functional impairment, including during flare-ups, but does not indicate that the Veteran is unable to sit, perform upper extremity tasks, or otherwise engage in non-physical or less physically demanding work. Pertinently, the June 2023 VA examiner concluded that the Veteran was limited from performing various prolonged activities and from moderate to heavy lifting. Taken together, these findings show restriction from physically demanding labor, but do not demonstrate an inability to perform the physical requirements of sedentary or light-duty employment.

With respect to mental functioning, the evidence reflects symptoms including depressed mood, anxiety, irritability, sleep impairment, and difficulty adapting to stress. However, mental status examinations throughout the appeal period consistently reflect that the Veteran is alert and oriented, with coherent, logical, and goal-directed thought processes, intact memory, and adequate judgment and insight. He has been observed to be cooperative and able to communicate effectively during clinical encounters. These findings reflect preserved cognitive functioning and the ability to understand, remember, and carry out tasks, as well as to engage in appropriate behavior.

The Veteran's educational and occupational history further supports a finding that he retains the capacity for substantially gainful employment. The record reflects that he completed college coursework and maintained long-term employment in electronics, engineering maintenance, and robotics-related work. This history demonstrates the ability to learn, apply technical knowledge, and adapt to complex work environments over an extended period of time. While the Veteran reports that he is no longer able to perform physical aspects of prior work, the relevant inquiry is not whether he can return to his previous occupation, but whether he is capable of performing the acts required by a substantially gainful occupation. See Van Hoose, supra. His demonstrated ability to perform skilled technical work, together with clinical findings reflecting intact cognition, supports a finding that he retains the functional capacity to perform work that does not require significant physical exertion.

The Board has considered the October 2024 vocational assessment submitted by Ms. Anken. However, the opinion is afforded limited probative value because its conclusions are not supported by the underlying medical evidence and are internally inconsistent with the Veteran's demonstrated functioning. Ms. Anken concluded that the veteran's psychiatric symptoms reduce him to the functional equivalent of an individual capable of no more than unskilled work and that he is unable to meet even the basic requirements of such employment. This conclusion is not supported by the record. As discussed above, mental status examinations consistently reflect intact attention, concentration, memory, and thought processes, as well as appropriate behavior and communication. These findings do not support a support a level impairment that would preclude the performance of even simple or routine occupational tasks.

Moreover, several specific limitations identified by Ms. Anken are not supported by objective evidence. For example, she cites impaired impulse control as a basis for unemployment. However, neither her nor the VA psychiatric examination reports discussed above provide examples demonstrating impulse control problems, and specifically impulse control problems of such severity or frequency as to interference with occupational functioning. Similarly, her conclusion that the Veteran is unable to sustain attention for more than two hours at a time is not supported by any identified examination or testing and is inconsistent with examination findings reflecting intact attention and concentration. Her opinion also suggests that the Veteran is unable to perform sedentary or administrative-type work due to a lack of prior experience. However, the absence of prior experience in a particular job type does not establish an inability to perform substantially gainful employment, particularly where, as here, the record reflects both preserved cognitive functioning and a history of skilled work requiring adaptability and problem-solving.

The Board has also considered the Veteran's report that his medications interfere with his ability to operate equipment. However, this statement is general in nature and is not accompanied by specific examples, functional limitations, or medical findings demonstrating that side effects prevent him from performing work-related tasks. Further, any limitation in operating certain types of equipment does not preclude other forms of employment, particularly work that does not involve hazardous machinery or physical exertion.

The Board further notes that the currently assigned disability
However, the absence of prior experience in a particular job type does not establish an inability to perform substantially gainful employment, particularly where, as here, the record reflects both preserved cognitive functioning and a history of skilled work requiring adaptability and problem-solving.

The Board further notes that the currently assigned disability ratings compensate for the average impairment in earning capacity resulting from the Veteran's service-connected disabilities. The question before the Board, however, is whether the Veteran is incapable of performing the physical and mental acts required by substantially gainful employment. See Van Hoose, 4 Vet. App. At 363. Here, the evidence does not demonstrate such incapacity. Rather, as discussed above, the record reflects preserved physical capacity for light or sedentary work, intact cognitive functioning on repeated examinations, and a history of skilled employment demonstrating adaptability, all of which support a finding that the Veteran remains capable of performing the acts required by substantially gainful employment.

Accordingly, entitlement to a TDIU is not warranted.

3. Entitlement to SMC housebound benefits is denied.

In the July 2025 VA Form 10182, the Veteran raised the issue of SMC(s) as part and parcel of the Veteran's appeal for an increased rating. Specifically, the Veteran asserted that he is entitled to SMC(s) on the basis that his psychiatric condition supports a grant of a TDIU and that his service-connected conditions separate from his depressive disorder combine to a 60 percent rating or more.

Under the statute, SMC at the housebound rate under subsection (s) is awarded where the Veteran has a single service-connected disability rated as total (100 percent) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound due to such service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

In this case, the Veteran does not have a single, service-connected disability rated as totally disabling. The Veteran is service connected for a number of disabilities, which are individually rated from noncompensable to 70 percent disabling for a combined disability rating of 60 percent from February 7, 2021, to February 11, 2021, and 90 percent from February 11, 2021.

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However, because the Veteran does not have a single service-connected disability rated as 100 percent, there is no legal basis for awarding SMC at the housebound rate. None of the Veteran's other service-connected disabilities have a total rating. To the extent that any development of the SMC housebound claim was not conducted, the deficiency is harmless as the housebound claim is denied as a matter of law based on the ratings in effect for the Veteran's service-connected disabilities. Because the Veteran does not have a single service-connected disability rated as 100 percent disabling, the Veteran's claim for SMC based on housebound status is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994).

R. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rasul, H.

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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