IMPAIRMENT OF THE UPPER RADICULAR GROUP

A. C. MACKENZIE · 2026 · Case ID: A26040475

MIXED

Summary

The veteran, who served from July 1968 to July 1972 and again from August 1978 to August 1982, appeals multiple rating decisions. The Board granted service connection with a 40 percent rating for right upper extremity peripheral neuropathy and a 30 percent rating for left upper extremity peripheral neuropathy. The Board also granted entitlement to Total Disability based on Individual Unemployability (TDIU) and Dependents' Educational Assistance (DEA), each with an effective date of February 4, 2019. Additionally, special monthly compensation (SMC) at the housebound rate was granted from February 4, 2019. The veteran sought an increased rating for his back disability, but this claim, along with claims for cervical strain, intervertebral disc syndrome, cervical spondylosis with osteoarthritis, and scoliosis with degenerative disc disease, were remanded. The remand is due to inadequate VA examinations that failed to properly consider the ameliorative effects of medication and provide sufficient rationale for the findings, particularly regarding range of motion and pain.

Rationale

Granted 40% rating; Rated under DC 8510; Moderate incomplete paralysis of major extremity

Special Benefit

SMC - HOUSEBOUND; TDIU

Diagnostic Code

8510

Docket No.

260206-630696

Full Decision Text

Citation Nr: A26040475
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 260206-630696
DATE: April 30, 2026

ORDER

Entitlement to a 40 percent disability rating for right upper extremity peripheral neuropathy is granted.

Entitlement to a 30 percent disability rating for left upper extremity peripheral neuropathy is granted.

Entitlement to an effective date of February 4, 2019 for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted.

Entitlement to an effective date prior of February 4, 2019 for the grant of eligibility for Dependents' Educational Assistance under 38 U.S.C. chapter 35 is granted.

Entitlement to special monthly compensation (SMC) at the (s) level (housebound rate) from February 4, 2019 onward is granted.

REMANDED

Entitlement to a disability rating in excess of 20 percent for cervical strain, intervertebral disc syndrome (IVDS), and cervical spondylosis with osteoarthritis is remanded.

Entitlement to a disability rating in excess of 20 percent for scoliosis lower back, with degenerative disc disease (DDD) other than IVDS, is remanded.

FINDINGS OF FACT

1. The evidence of record indicates that the Veteran is right-hand dominant.

2. For the entire period on appeal, the evidence of record is at least in approximate balance as to whether the Veteran's right upper extremity peripheral neuropathy disability resulted in, at most, moderate incomplete paralysis.

3. For the entire period on appeal, the evidence of record is at least in approximate balance as to whether the Veteran's left upper extremity peripheral neuropathy disability resulted in, at most, moderate incomplete paralysis.

4. From February 4, 2019 onward, the evidence of record is at least in approximate balance as to whether the Veteran's psychiatric disability, alone, has prevented him from securing or following a substantially gainful occupation.

5. From February 4, 2019 onward, the Veteran met the criteria for the grant of eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35.

6. From February 4, 2019 onward, the Veteran has a single service-connected disability rated as totally disabling, as he is unable to secure and follow a substantially gainful occupation due solely due to his service-connected unspecified depressive disorder disability, and he also has additional service-connected disabilities that are, when considered together, rated at least at 60 percent and which are separate and distinct from his psychiatric disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 40 percent disability rating for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8510.

2. The criteria for entitlement to a 30 percent disability rating for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.124a, DC 8510.

3. The criteria for entitlement to an effective date of February 4, 2019 for the grant of TDIU have been met. 38 U.S.C. §§ 1155, 3501, 3510, 5110; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.

4. The criteria for entitlement to an effective date of February 4, 2019 for the grant of eligibility for Dependents' Educational Assistance under 38 U.S.C. chapter 35 have been met. 38 U.S.C. §§ 1155, 3501, 3510, 5110; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.

5. The criteria for entitlement to special monthly compensation (SMC) at the (s) level (housebound rate) from February 4, 2019 have been met. 38 U.S.C. § 1114; 38 C.F.R
, 21.3021.

5. The criteria for entitlement to special monthly compensation (SMC) at the (s) level (housebound rate) from February 4, 2019 have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.35.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from July 1968 to July 1972 and from August 1978 to August 1982.

The Board notes that the two February 2025 rating decisions and April 2025 rating decision on appeal were issued after February 19, 2019, so they are subject to the Appeals Modernization Act (2019) (herein after "AMA"). 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (codified at 38 C.F.R. § 19.2(d)). The Veteran timely appealed these rating decisions to the Board of Veterans' Appeals (Board) and, in a February 2026 VA Form 10182, Decision Review Request, requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ).

Before considering the merits of the issues on appeal, the Board must address its characterization of the issue regarding the Veteran's back disability. In an April 2025 rating decision, the AOJ granted service connection for the Veteran's back disability and assigned a 20 percent disability rating, effective February 4, 2019. In April 2025, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review (HLR) and indicated his disagreement with the rating and effective date assigned in the April 2025 rating decision. Later in April 2025, the AOJ issued a HLR rating decision in which it indicated that it denied the Veteran's claim for an earlier effective date for his back disability. In the body of the decision, the AOJ addressed denials for an earlier effective date and for an increased rating for the Veteran's back disability. In the February 2026 VA Form 10182, the Veteran indicated that he was appealing the April 2025 HLR rating decision, and he sought an increased rating for his back disability. He indicated that he sought an earlier effective date for TDIU, but not for his back disability. Consequently, the Board has characterized the Veteran's back issue as a claim for an increased rating, which is appropriately on appeal as the AOJ denied the Veteran's claim for an increased rating for his back disability in the body of the April 2025 rating decision.

1. and 2. Entitlement to disability ratings in excess of 20 percent for right and left upper extremity peripheral neuropathy

The Veteran asserts that his left and right upper extremity peripheral neuropathy (PN) disabilities are more severe than reflected by his current evaluations for those disabilities. As these claims involve largely the same law and evidence, they are considered together in this decision.

The Veteran's left and right upper extremity PN disabilities are each rated as 20 percent disabling under DC 8510. See April 2025 codesheet.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

The 20 percent ratings are assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8510, which corresponds to impairment of the upper radicular group. Under Diagnostic Code 8510, a 20 percent rating is warranted for mild incomplete paralysis of the minor or major extremity; a
endency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

The 20 percent ratings are assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8510, which corresponds to impairment of the upper radicular group. Under Diagnostic Code 8510, a 20 percent rating is warranted for mild incomplete paralysis of the minor or major extremity; a 30 percent rating is warranted for moderate incomplete paralysis of the minor extremity, and a 40 percent rating is provided for the major extremity; a 40 percent rating is warranted for severe incomplete paralysis of the minor extremity, and a 50 percent rating is provided for the major extremity; and a 60 percent rating is warranted for complete paralysis of the minor extremity and a 70 percent rating for complete paralysis of the major extremity with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510.

Moving on, the Board notes that, in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

The words "mild," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive. Instead, all evidence must be evaluated. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

In this case, the Veteran filed an Intent to File a Claim (ITF) with VA on February 4, 2019, followed by a formal claim for service connection for PN in April 2019. Consequently, February 4, 2019 represents the beginning of the period on appeal for these issues.

The Board has reviewed the Veteran's VA and private treatment records; however, they are negative for evidence of symptoms consistent with separate or higher disability ratings.

During the Veteran's December 2024 VA examination for neck conditions, the VA examiner indicated that he was right-hand dominant. The Veteran was positive for peripheral neuropathy in both upper extremities, with no sign or symptoms that were not wholly sensory in nature. The Veteran was positive for moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness in both limbs. There was no evidence of complete paralysis in either limb.

The Veteran has consistently asserted that his PN disabilities are more severe than reflected by the current evaluations for those disabilities. While the Veteran is competent to observe his PN symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his PN symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board finds that the evidence of record is at least in approximate balance as to whether the Veteran's PN disabilities have resulted in moderate incomplete paralysis; however, there is no evidence of severe incomplete paralysis or complete paralysis in either limb or of non-sensory symptoms due to his PN disabilities. The Board notes that the December 2024 VA examination indicates that his PN symptoms were wholly sensory, and they resulted in moderate levels of symptoms such as intermittent pain, numbness, and paresthesias/dysesthesias. The Board finds that the evidence of record is at least in approximate balance as to whether the criteria have been met for a 40 percent disability rating for the Veteran's right upper extremity PN disability, as he is right-hand dominant. Additionally, the criteria have been met for a 30 percent disability rating for the Veteran's left upper extremity PN disability.

Accordingly, entitlement to a 40 percent disability rating for right upper extremity peripheral neuropathy is granted.

Additionally, entitlement to a 30 percent disability rating for left
the December 2024 VA examination indicates that his PN symptoms were wholly sensory, and they resulted in moderate levels of symptoms such as intermittent pain, numbness, and paresthesias/dysesthesias. The Board finds that the evidence of record is at least in approximate balance as to whether the criteria have been met for a 40 percent disability rating for the Veteran's right upper extremity PN disability, as he is right-hand dominant. Additionally, the criteria have been met for a 30 percent disability rating for the Veteran's left upper extremity PN disability.

Accordingly, entitlement to a 40 percent disability rating for right upper extremity peripheral neuropathy is granted.

Additionally, entitlement to a 30 percent disability rating for left upper extremity peripheral neuropathy is granted.

3. Entitlement to an effective date prior to April 11, 2020 for the grant of TDIU

The Veteran asserts that he is entitled to an effective date prior to April 11, 2020 for the grant of TDIU.

The law regarding effective dates states that generally, unless specifically provided, the effective date of a compensation award based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an award of direct service connection may be established on the day following separation from service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the general rule applies. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155.

Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file which may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Under the AMA, a determination on a claim by the Agency of Original Jurisdiction (AOJ) becomes final unless the claimant continuously pursues the claim by filing a supplemental claim, a request for higher-level review, or an appeal to the Board within one year of the date the AOJ mails notice of the decision. 38 C.F.R. §§ 20.1103, 3.2500(c)(1). If a claimant continuously pursues an issue by filing one of these administrative review options within one year, the effective date will be the date of receipt of the initial claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1). If a supplemental claim is received more than one year after the date on which the AOJ issued notice of a decision, the effective date will be the date of receipt of the supplemental claim, or the date entitlement arose, whichever was later. 38 C.F.R. §§ 3.400, 3.2500(h)(2).

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

TDIU may be assigned where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of
ular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

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 non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

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

Before addressing whether the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation, the Board must clarify the period on appeal.

In this case, in April 2017, the Veteran filed a claim for an increased rating for his psychiatric disability. In a June 2017 rating decision, the AOJ granted his claim and assigned a 70 percent disability rating, effective April 6, 2017. The Veteran did not appeal this decision within 12 months of notification of the decision; therefore, it became final.

On February 4, 2019, the Veteran filed an Intent to File a Claim (ITF).

In April 2019, the Veteran filed a formal claim for service connection for multiple conditions, including peripheral neuropathy and arthritis.

In April 2020, the Veteran filed a claim for service connection for chloracne and PN, among other issues.

In a January 2021 rating decision, the AOJ granted service connection for chloracne, effective February 4, 2019, and denied service connection for peripheral neuropathy of the left and right upper extremities, among other conditions.

In January 2022, the Veteran filed a timely VA Form 20-0996 Request for Higher-Level Review (HLR), indicating disagreement with the denials in the January 2021 rating decision.

In a November 2022 HLR rating decision, the AOJ found that clear and unmistakable error had occurred regarding the effective date for the grant of service connection for chloracne, and it assigned a new effective date of April
chloracne and PN, among other issues.

In January 2022, the Veteran filed a timely VA Form 20-0996 Request for Higher-Level Review (HLR), indicating disagreement with the denials in the January 2021 rating decision.

In February 2023, the Veteran filed a VA Form 20-0995 Supplemental Claim Application in which he indicated disagreement with the November 2022 rating decision and that he sought a higher rating for his chloracne disability as well as entitlement to TDIU.

On the same day in February 2023, the Veteran filed a timely VA Form 10182 Notice of Disagreement (NOD), in which he indicated his disagreement with the denial of service connection for arthritis and PN in the February 2022 rating decision.

In a May 2023 rating decision, the AOJ denied the Veteran's claims for an increased rating for his chloracne disability and for entitlement to TDIU.

In December 2023, the Veteran filed a VA Form 10182 Notice of Disagreement and appealed the May 2023 rating decision to the Board.

In November 2024, the Board issued two decisions. In the first decision, it remanded the Veteran's claims for service connection for neck, back, and PN disabilities. In the second decision, it granted TDIU and denied the Veteran's claim for an increased rating for his chloracne disability.

In a November 2024 rating decision, the AOJ granted TDIU and DEA, each effective February 6, 2023.

In December 2024, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review in response to the November 2024 rating decision and indicated that he sought earlier effective dates for the grants of TDIU and DEA.

In February 2025, the AOJ issued a HLR rating decision, in which it granted earlier effective dates for the Veteran's TDIU and DEA grants, assigning a new effective date of April 11, 2020 for each disability-the date of his claim for service connection for chloracne.

Later in February 2025, the AOJ issued a second rating decision in which it granted service connection for the Veteran's neck and PN disabilities, effective February 4, 2019.

In the February 2026 VA Form 10182, the Board appealed these decisions to the Board, leading to the current appeal.

Based on these facts, the Board finds that the Veteran's claims for increased ratings for his back, neck, and PN disabilities have been continuously pursued since his February 4, 2019 ITF, which led to his April 2019 claim for service connection and to his subsequent appeals for increased ratings for his back, neck, and PN disabilities. A claim for TDIU is also a claim for an increased rating. As the Veteran's current increased rating appeals date to February 4, 2019, he may also seek entitlement to TDIU during that same period. Accordingly, February 4, 2019 represents the beginning of the period on appeal.

Next, the Board must determine when the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation during the period in question.

From February 4, 2019 onward, the Veteran's psychiatric disability is rated as 70 percent disabling, and his neck, back, and left and right PN disabilities are each rated as 20 percent disabling. Consequently, he meets the criteria for schedular consideration for TDIU throughout the period on appeal.

In his February 2023 TDIU application, the Veteran reported that he last worked fulltime in 2008, when he became too disabled to work.

The Veteran submitted a November 2023 private employability evaluation based on a review of the claims folder. The examiner opined that his unspecified depressive disorder with anxious distress has precluded his ability to secure and follow substantially gainful employment, to include unskilled, sedentary work, since at least 2008 to the present. His unspecified depressive disorder with anxious distress results in symptoms including depressed mood, sleep impairment, nightmares, intrusive thoughts, anxiety, disturbances of motivation and mood, diminished interest, feelings of detachment or estrangement from others, isolative behavior, trouble managing his emotions, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and irritability and outbursts of anger. As a result, he had not been able to meet the basic non-exertional requirements of substantially gainful employment since at least 2008. The examiner opined that due to the Veteran's inability to interact appropriately and effectively with others in the workplace and inability to meet employer expectations of adequate pace and productivity have precluded him from applying any skills he may have previously obtained through his employment history, educational, and vocational attainments to work tasks at any skill or exertional level in a meaningful and effective manner.

In its February 2024 rating decision, the AOJ found that the Veteran's TDIU was based solely on his psychiatric disability. The Board will not disturb this favorable finding.

Based on these facts and a review of the claims file, the Board finds that the evidence of record is at least in approximate balance as to whether the Veteran's psychiatric disability has prevented him from securing or following a substantially gainful occupation throughout the period on appeal.

Accordingly, entitlement to an effective date of February 4, 2019 for the award of TDIU is granted.

4. Entitlement to an effective date prior to April 11, 2020 for the grant of eligibility for Dependents' Educational Assistance under 38 U.S.C. chapter 35

For DEA benefits, basic eligibility for such benefits arises if a Veteran is discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7).

As discussed above, an effective date of February 4, 2019 has been assigned for the grant of entitlement to TDIU; therefore, the Veteran is in receipt of a total rating from that date. As such, entitlement to an effective date prior to February 4, 2019 for the grant of DEA benefits is also warranted.

Accordingly, the claim for an effective date prior to April 11, 2020 for DEA benefits is granted, and February 4, 2019 is assigned as the new effective date.

5. Entitlement to SMC at the (s) level (housebound rate)

The Veteran asserts that he is entitled to SMC at the (s) level as his service-connected psychiatric disability alone prevents him from securing or following a substantially gainful occupation, and he has additional disabilities independently ratable at 60 percent or more.

Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350(i). In Bradley, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.350(i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of the 100 percent rating. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010) ("A total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability").

As of this decision, the Veteran has been granted TDIU based solely on his psychiatric disability from
Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.350(i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of the 100 percent rating. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010) ("A total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability").

As of this decision, the Veteran has been granted TDIU based solely on his psychiatric disability from February 4, 2019 onward (the beginning of the period on appeal). Accordingly, his TDIU rating based on a single disability satisfies the statutory requirement of the 100 percent rating.

Additionally, from February 4, 2019 onward, the Veteran is service connected for a cervical spine, lower back, and (as increased above) left and right upper extremity peripheral neuropathy disabilities. See April 2025 codesheet. Considered together, these disabilities are independently ratable as at least 60 percent, and they are separate and distinct from the Veteran's psychiatric disability.

Based on these facts, the Board concludes that the Veteran has additional service-connected disabilities independently rated as at least 60 percent (separate and distinct from the 100 percent service-connected disability) and involving different anatomical segments; therefore, from February 4, 2019 onward, the criteria for SMC at the (s) level/housebound rate have been met.

Accordingly, entitlement to special monthly compensation (SMC) at the (s) level (housebound rate) from February 4, 2019 onward is granted.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 20 percent for cervical strain, IVDS, and cervical spondylosis with osteoarthritis is remanded.

The Veteran asserts that his neck disability is more severe than is reflected by his current evaluation.

The Board shall remand for any pre-decisional error on the part of the Agency of Original Jurisdiction (AOJ) to satisfy its duties under 38 U.S.C. § 5103A and may remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicolson, 21 Vet. App. 303 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

While there is a December 2024 VA examination regarding the severity of the Veteran's neck disability, the Board finds it to be inadequate for rating purposes.

Specifically, the Board notes that in Jones v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." 26 Vet. App. 56, 63 (2012). More specifically, "if [a diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required... to discount the ameliorative effects of medication." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc) (citing Jones, 26 Vet. App. at 63).

Thus, under Jones, the Board is precluded from considering the effects of the Veteran's pain medication when assigning a disability rating under the DC for his lumbar spine.

The Board also acknowledges a recent decision in which the Court held that applicable diagnostic codes and regulations pertaining to musculoskeletal disabilities do not explicitly contemplate medication use, and as such, VA must discount the beneficial effects of medication when assigning an evaluation of a musculoskeletal disability. See Ingram v. Collins, 38 Vet. App. 130 (2025). Examiners must consider and discount the beneficial effects of medications when evaluating musculoskeletal disabilities, to specifically include a discussion of whether a veteran may experience additional functional impairment, to include range of motion loss, without the use of medications.

The December 2024 VA examiner indicated that the Veteran was taking Gabapentin and Seroquel twice daily for his neck
for his lumbar spine.

The December 2024 VA examiner indicated that the Veteran was taking Gabapentin and Seroquel twice daily for his neck disability; however, the examiner did not indicate whether the Veteran's limitations of range of motion recorded during the examination considered the ameliorative effects of the medication. The Court has held that the VA cannot "assess a veteran's worst-case scenario, including a flare up, if it was also factoring in the beneficial effects of medication." See Ingram, supra.

As such, the Board finds that a remand is required to correct a pre-decisional duty to assist error and provide the Veteran with an adequate VA examination that addresses the severity of his service-connected neck disability.

2. Entitlement to a disability rating in excess of 20 percent for scoliosis lower back is remanded.

The Veteran asserts that his back disability is more severe than is reflected by his current evaluation.

While there is a December 2024 VA examination regarding the severity of the Veteran's back disability, the Board finds it to be inadequate for rating purposes.

Thus, under Jones, the Board is precluded from considering the effects of the Veteran's pain medication when assigning a disability rating under the DC for his lumbar spine.

The December 2024 VA examiner indicated that the Veteran was taking Tylenol for his back disability; however, the examiner did not indicate whether the Veteran's limitations of range of motion recorded during the examination considered the ameliorative effects of the medication. The examiner also did not address whether the medication the Veteran took for his neck disability affected his back disability. Furthermore, the examiner indicated that the Veteran's back disability resulted in pain during flexion and extension; however, they did not indicate the point at which pain began, if that point was different than his recorded range of motion for flexion and extension. The Court has held that the VA cannot "assess a veteran's worst-case scenario, including a flare up, if it was also factoring in the beneficial effects of medication."
the Veteran was taking Tylenol for his back disability; however, the examiner did not indicate whether the Veteran's limitations of range of motion recorded during the examination considered the ameliorative effects of the medication. The examiner also did not address whether the medication the Veteran took for his neck disability affected his back disability. Furthermore, the examiner indicated that the Veteran's back disability resulted in pain during flexion and extension; however, they did not indicate the point at which pain began, if that point was different than his recorded range of motion for flexion and extension. The Court has held that the VA cannot "assess a veteran's worst-case scenario, including a flare up, if it was also factoring in the beneficial effects of medication." See Ingram, supra.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination, with a qualified examiner, to determine the current nature and severity of his cervical spine disability. The claims file should be made available to and reviewed by the examiner, and all necessary tests should be performed.

(a) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.

(b) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or with repeated use over time. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so.

(d) The examiner must indicate whether the Veteran has ankylosis. If ankylosis is not diagnosed then the examiner must answer whether there is evidence demonstrating the functional equivalent of ankylosis-i.e., functional loss consistent with that contemplated by ankylosis.

(e) To the extent possible, the examiner should identify any symptoms and functional impairments due to the claimed disabilities and comment on the effect of these disabilities on any occupational functioning and activities of daily living.

(f) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so.

The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

2. Schedule the Veteran for an appropriate VA examination, with a qualified examiner, to determine the current nature and severity of his lumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.

(a) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. If the examiner is unable to conduct the required testing,
this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

(c) The examiner must expressly consider and discount the beneficial effects of medications when evaluating the Veteran's musculoskeletal disability, to specifically include a discussion of whether the Veteran may experience additional functional impairment, to include range of motion loss, without the use of medications-to include during flare-ups and after repeated use over time. The examiner should consider the effects of medication that may be used or prescribed to treat other disabilities, but which may also affect the Veteran's back disability.

(Continued on the next page)

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Hixon, Evan

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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