Case A26040691

Summary

The veteran, who served from February 1968 to October 1969 and June 1970 to June 1973, appeals the denial of increased ratings for several service-connected conditions and the effective dates assigned to those grants. The veteran withdrew his appeal regarding Dependents' Educational Assistance (DEA) benefits. The Board dismissed the appeal for an earlier effective date for the right foot disability, citing a final prior decision and the nature of freestanding claims. For the left foot disability, COPD, ASHD, IVDS, bilateral sciatic radiculopathy, and hypertension, the Board denied earlier effective dates, finding the evidence did not support a claim prior to the dates of claim or the PACT Act enactment for hypertension. The Board granted 30 percent ratings for both the right and left foot disabilities, finding the evidence supported severe foot injury but not actual loss of use. For ASHD, the Board granted a 60 percent rating, finding the evidence supported the METs level for that rating but not the higher 100 percent rating. The claims for increased ratings for IVDS, bilateral sciatic radiculopathy, and hypertension were denied, with the Board finding the evidence did not support higher evaluations. The case was remanded for an initial rating in excess of 60 percent for COPD, as the VA examiner's opinion was incomplete regarding cardiopulmonary complications, and for adjudication of the veteran's claim for Total Disability based on Individual Unemployability (TDIU).

Full Decision Text

Citation Nr: A26040691
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250812-565307
DATE: April 30, 2026

ORDER

The appeal as to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of Dependents' Educational Assistance (DEA) benefits is dismissed.

Entitlement to an effective date prior to July 25, 2023, for the grant of a 20 percent rating for right foot disability status post Mitchell's bunionectomy is dismissed.

Entitlement to an effective date prior to July 25, 2023, for the grant of a 20 percent rating for left foot disability status post Mitchell's bunionectomy is denied.

Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for chronic obstructive pulmonary disease (COPD) is denied.

Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for arteriosclerotic heart disease (ASHD) is denied.

Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for intervertebral disc syndrome (IVDS) is denied.

Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for left lower extremity sciatic radiculopathy is denied.

Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for right lower extremity sciatic radiculopathy is denied.

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

Entitlement to a rating of 30 percent, but no higher, for right foot disability status post Mitchell's bunionectomy is granted subject to the law and regulations governing the payment of monetary benefits.

Entitlement to a rating of 30 percent, but no higher, for left foot disability status post Mitchell's bunionectomy is granted subject to the law and regulations governing the payment of monetary benefits.

Entitlement to an initial rating in excess of 60 percent for ASHD is denied.

Entitlement to an initial rating in excess of 40 percent for IVDS with right sided lumbar scoliosis is denied.

Entitlement to an initial rating in excess of 40 percent for left lower extremity sciatic radiculopathy is denied.

Entitlement to an initial rating in excess of 20 percent for right lower extremity sciatic radiculopathy is denied.

Entitlement to an initial rating in excess of 10 percent for hypertension is denied.

REMANDED

Entitlement to an initial rating in excess of 60 percent for COPD is remanded.

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

FINDINGS OF FACT

1. During the December 2025 Board hearing, prior to the promulgation of a decision, the Veteran withdrew his appeal with respect to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of DEA benefits.

2. The Veteran's appeal with respect to an effective date prior to July 25, 2023, for the grant of an increased rating for right foot disability status post Mitchell's bunionectomy is a stand-alone claim.

3. Prior to July 24, 2023, there was not a pending and unadjudicated claim for the Veteran's left foot disability status post Mitchell's bunionectomy; in the year prior to July 24, 2023, it was not factually ascertainable that the Veteran met the criteria for a 20 percent rating for his left foot disability.

4. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for COPD.

5. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for ASHD.

6. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for IVDS.

7. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for left lower extremity sciatic radiculopathy.

8. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for right lower extremity sciatic radiculopathy.

9. Prior to August 10, 2022, there was not a pending and unadjudicated claim for service connection for hypertension; service connection was granted pursuant
judicated claim for service connection for ASHD.

6. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for IVDS.

7. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for left lower extremity sciatic radiculopathy.

8. Prior to July 25, 2023, there was not a pending and unadjudicated claim for service connection for right lower extremity sciatic radiculopathy.

9. Prior to August 10, 2022, there was not a pending and unadjudicated claim for service connection for hypertension; service connection was granted pursuant to the PACT Act, for which the earliest effective date is August 10, 2022.

10. During the appeal period, the Veteran's right foot disability status post Mitchell's bunionectomy was manifested by severe symptoms; it was not manifested by loss of use of the right foot.

11. During the appeal period, the Veteran's left foot disability status post Mitchell's bunionectomy was manifested by severe symptoms; it was not manifested by loss of use of the left foot.

12. During the appeal period, the interview-based metabolic equivalent testing (MET) showed that at a workload of 3.0 METs or less, the Veteran's ASHD did not result in heart failure symptoms.  

13. During the appeal period, the Veteran's IVDS with right sided lumbar scoliosis was not manifested by incapacitating episodes having a total duration of at least 6 weeks during a 12-month period or unfavorable ankylosis of the entire thoracolumbar spine.

14. During the appeal period, the Veteran's left lower extremity sciatic radiculopathy was not manifested by severe incomplete paralysis with marked muscular atrophy.

15. During the appeal period, the Veteran's right lower extremity sciatic radiculopathy was not manifested by moderately severe incomplete paralysis.

16. During the appeal period, the Veteran's hypertension was not manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal with respect to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of DEA benefits have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.  

2. The criteria for dismissal of the appeal with respect to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of an increased rating for right foot disability status post Mitchell's bunionectomy have been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006)

3. The criteria for an effective date prior to July 24, 2023, for the grant of a 20 percent rating for left foot disability status post Mitchell's bunionectomy have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

4. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for COPD have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

5. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for ASHD have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

6. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for IVDS have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

7. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for left lower extremity sciatic radiculopathy have not been met.  38 U.S.C. § 5110
, 3.114, 3.155, 3.400, 3.2500.

6. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for IVDS have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

7. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for left lower extremity sciatic radiculopathy have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

8. The criteria for an effective date prior to July 25, 2023, for the grant of service connection for right lower extremity sciatic radiculopathy have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

9. The criteria for an effective date prior to August 10, 2022, for the award of service connection for hypertension have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.2500.

10. The criteria for a rating of 30 percent, but no higher, for right foot disability status post Mitchell's bunionectomy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.

11. The criteria for a rating of 30 percent, but no higher, for left foot disability status post Mitchell's bunionectomy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.

12. The criteria for an initial rating in excess of 60 percent for ASHD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7005.

13. The criteria for an initial rating in excess of 40 percent for IVDS with right sided lumbar scoliosis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243.

14. The criteria for an initial rating in excess of 40 percent for left lower extremity sciatic radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

15. The criteria for an initial rating in excess of 20 percent for right lower extremity sciatic radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

16. The criteria for an initial rating in excess of 10 percent for service-connected hypertension have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from February 1968 to October 1969 and from June 1970 to June 1973.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 2025 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The rating decision on
 rating in excess of 10 percent for service-connected hypertension have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from February 1968 to October 1969 and from June 1970 to June 1973.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 2025 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  In August 2025, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and elected the Hearing docket.  The Veteran testified at a December 16, 2025, board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file.

Therefore, the Board may only consider the evidence of record at the time of the May 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

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

However, because the Board is remanding the claims of entitlement to an initial higher rating for COPD and entitlement to a TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claims.  38 C.F.R. § 3.103(c)(2)(ii).

?

Withdrawal of Claim

1. Entitlement to an effective date prior to July 25, 2023, for the grant of Dependents' Educational Assistance (DEA) benefits

During the December 2025 Board hearing, prior to the promulgation of a decision, the Veteran, with his attorney, withdrew his appeal with respect to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of DEA benefits.  The Veteran did so unambiguously and with a full understanding of the consequences.  The undersigned clearly identified the withdrawn issue, and the Veteran and his representative both affirmed that the Veteran was requesting a withdrawal as to the issue.  In addition, the undersigned discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences.  See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.205.  Here, the Veteran has followed the procedure outlined in 38 C.F.R. § 20.205 and properly withdrawn his appeal; therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of DEA benefits, and it is dismissed.

Earlier Effective Dates

The Veteran has appealed the effective dates assigned in the May 2025 rating decision.

VA laws and regulations provide that unless otherwise provided, the effective
 may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.205.  Here, the Veteran has followed the procedure outlined in 38 C.F.R. § 20.205 and properly withdrawn his appeal; therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the issue of entitlement to an effective date prior to July 25, 2023, for the grant of DEA benefits, and it is dismissed.

Earlier Effective Dates

The Veteran has appealed the effective dates assigned in the May 2025 rating decision.

VA laws and regulations provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

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

Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (o)(1).

The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).  Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2).

2. Entitlement to an effective date prior to July 25, 2023, for the grant of a 20 percent rating for right foot disability status post Mitchell's bunionectomy

The May 2025 rating decision denied an increased rating for the Veteran's right foot disability.  In his VA Form 10182, the Veteran appealed the rating and effective date for the right foot disability.  

Once a decision assigning an effective date becomes final, that assignment cannot be challenged through a freestanding claim for entitlement to an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  Thus, the Board is required to dismiss freestanding claims for entitlement to earlier effective dates.  Id; see also DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no such procedure as a freestanding challenge to the finality of a VA decision).  In other words, if there is disagreement as to the effective date assigned in a given rating action, it must be timely appealed (within one year of notice of the rating decision assigning the effective date). 

Historically, a December 1973 rating decision granted service connection for the Veteran's right and left foot disabilities status post Mitchell's bunionectomies; 10 percent ratings were assigned from June 23, 1973.  The Veteran appealed the ratings assigned; in a June 1974 Board decision, higher ratings were denied.  Temporary total ratings for the Veteran's right foot disability were granted from November 8, 1988 to December 31, 1988, June 23, 1989 to August 30, 1989, July 2, 1990 to August 30, 1990, and from January 1997 to February 28, 1997.  A 20 percent rating was assigned beginning September 1, 1989 and continued for all periods not assigned a temporary total rating with a rating higher than 20 percent last being denied in a July 1997 rating decision.  The Veteran did not appeal this decision, and it became final.

Thus, the current appeal, stemming from a denial of the 20 percent rating for the Veteran's right foot disability has no legal merit since this is a "stand-alone"
 31, 1988, June 23, 1989 to August 30, 1989, July 2, 1990 to August 30, 1990, and from January 1997 to February 28, 1997.  A 20 percent rating was assigned beginning September 1, 1989 and continued for all periods not assigned a temporary total rating with a rating higher than 20 percent last being denied in a July 1997 rating decision.  The Veteran did not appeal this decision, and it became final.

Thus, the current appeal, stemming from a denial of the 20 percent rating for the Veteran's right foot disability has no legal merit since this is a "stand-alone" claim for an earlier effective date.  See Rudd, 20 Vet. App. at 296, 299-300.  There is no basis for a free-standing earlier effective date claim from matters addressed in a final rating decision.  Accordingly, the Board may dismiss the appeal as to an effective date prior to July 25, 2023, for the grant of a 20 percent rating for right foot disability status post Mitchell's bunionectomy as it does not allege specific errors of fact or law in the determinations being appealed.  See 38 U.S.C. § 7105.

3. Entitlement to an effective date prior to July 25, 2023, for the grant of an increased rating for left foot disability status post Mitchell's bunionectomy

At the December 2025 Board hearing, the Veteran's attorney indicated that the Veteran was seeking an earlier effective date during the one year look back period.

In this case, the AOJ assigned an effective date of July 25, 2023, and noted that it was the date the Veteran's Intent to File was received.  In reality, the Veteran's VA Form 21-0966, Intent to File a Claim For Compensation and/or Pension, or Survivor's Pension and/or DIC, was received one day earlier on July 24, 2023.  Although technically this is the actual date of claim, establishing an effective date only one day earlier in the same month offers no benefit to the Veteran in terms of compensation paid.  See 38 C.F.R. § 3.31 (payment of compensation may not be made for any period prior to the first date of the calendar month following the month in which the award became effective).  Thus, the remaining question is whether entitlement to the award is factually ascertainable up to one year prior to July 24, 2023.   

Prior to July 24, 2023, there was no prior pending and unadjudicated claim for the Veteran's left foot disability.  

Further, it was not factually ascertainable that the Veteran met the criteria for a 20 percent rating for his left foot disability within the year prior to July 24, 2023.  The record is absent private medical records received in the year prior to July 24, 2023, or VA treatment records related to the Veteran's left foot dated from July 24, 2022 to July 23, 2023.  Thus, there is no medical evidence demonstrating an increase in the Veteran's left foot disability in the year prior to July 24, 2023.  

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an effective date prior to July 25, 2023, for the grant of an increased rating for left foot disability status post Mitchell's bunionectomy is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

4. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for COPD

5. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for ASHD

6. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for IVDS

7. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for left lower extremity sciatic radiculopathy

8. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for right lower extremity sciatic radiculopathy

At the December 2025 Board hearing
 2023, for the grant of service connection for COPD

5. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for ASHD

6. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for IVDS

7. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for left lower extremity sciatic radiculopathy

8. Entitlement to an effective date prior to July 25, 2023, for the grant of service connection for right lower extremity sciatic radiculopathy

At the December 2025 Board hearing, the Veteran's attorney indicated that there may have been an earlier effective date due to an informal claim for a heart condition.

Prior to July 25, 2023, there was no prior pending and unadjudicated claim for a respiratory condition, a heart condition, or a lumbar spine condition.

As such, the evidence is neither evenly balanced nor approximately so with regard to whether an effective date prior to July 25, 2023, for the grant of service connection for COPD, ASHD, IVDS, or right and left lower extremity sciatic radiculopathy is warranted.  Rather, the evidence persuasively weighs against the claims.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

9. Entitlement to an effective date prior to August 10, 2022, for the grant of service connection for hypertension

On August 10, 2022, the President of the United States signed the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) into law, which added hypertension to the list of diseases presumptively associated with exposure to herbicide agents. PACT Act, Pub. L. 117-168, § 404 (2022).  In May 2025, the AOJ granted service connection for hypertension pursuant to the PACT Act.  Because the Veteran filed his Supplemental Claim within one year of the PACT Act, the Veteran's effective date is based on the August 10, 2022, PACT Act enactment date.  See 38 C.F.R. § 3.114.  

Prior to August 10, 2022, there was no prior pending and unadjudicated claim for hypertension.

As such, the evidence is neither evenly balanced nor approximately so with regard to whether an effective date prior to August 10, 2022, for the grant of service connection for hypertension is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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.  38 C.F.R. § 4.7.

As the Veteran is requesting higher ratings for his already established service-connected right and left foot disabilities, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is also appealing the original assignments of disability ratings following awards of service connection for COPD, ASHD, IVDS, right and left lower extremity sciatic radiculopathy, and hypertension.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

When evaluating musculoskeletal disabilities based on limitation
 warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is also appealing the original assignments of disability ratings following awards of service connection for COPD, ASHD, IVDS, right and left lower extremity sciatic radiculopathy, and hypertension.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

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

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

10. Entitlement to a rating in excess of 20 percent for right foot disability status post Mitchell's bunionectomy

11. Entitlement to a rating in excess of 20 percent for left foot disability status post Mitchell's bunionectomy

The Veteran is seeking higher ratings for his right and left foot disabilities status post Mitchell's bunionectomy.  

The Veteran's right and left foot disabilities have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries.  Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries.  A 20 percent rating is warranted for moderately severe other foot injuries.  A 30 percent rating is warranted for severe other foot injuries.  A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5284.

According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension".  See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree".  See www.merriam-webster.com/dictionary/severe.

The Veteran underwent VA examinations in August 2024 and February 2025 at which time he reported that he had had a total of six operations on his feet.  Both feet were operated on in November 1972 for correction of bunions; and in January 1973, the hardware was removed.  In November 1988, fusion of the right first metatarsal were attempted but failed.  In June 1989, the fusion was repeated.  The Veteran reported pain in both feet with difficulty walking.  The examiner noted that diagnoses associated with the Veteran's service-connected foot disabilities included bilateral pes planus, bilateral hammer toes, bilateral hallux valgus, bilateral calluses, right foot degenerative arthritis.  The Veteran described bilateral sharp 10/10 foot pain which was worse when walking.  The Veteran reported daily flare-ups of moderate to severe foot pain lasting eight to ten hours precipitated by walking and alleviated by rest.  With respect to pes planus, the examiner noted that the Veteran had pain accentuated on use,
 1988, fusion of the right first metatarsal were attempted but failed.  In June 1989, the fusion was repeated.  The Veteran reported pain in both feet with difficulty walking.  The examiner noted that diagnoses associated with the Veteran's service-connected foot disabilities included bilateral pes planus, bilateral hammer toes, bilateral hallux valgus, bilateral calluses, right foot degenerative arthritis.  The Veteran described bilateral sharp 10/10 foot pain which was worse when walking.  The Veteran reported daily flare-ups of moderate to severe foot pain lasting eight to ten hours precipitated by walking and alleviated by rest.  With respect to pes planus, the examiner noted that the Veteran had pain accentuated on use, pain on manipulation of both feet, characteristic calluses, and decreased longitudinal arch height of both feet on weight-bearing; there was no indication of swelling on use, no extreme tenderness of plantar surfaces on one or both feet, no objective evidence of marked deformity of one or both feet, and no marked pronation of one or both feet.  The weight-bearing line was not over or medial to the great toe of either foot, there was no other lower extremity deformity causing alteration of the weight-bearing line, there was no "inward" bowing of the Achilles tendon of one or both feet, there was no marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet.  With respect to hammer toe, the great toe of both feet was affected.  With respect to hallux valgus, the severity of the symptoms was mild or moderate for both feet.  The examiner noted that the Veteran had resection of the metatarsal head and tarsal osteotomy/metatarsal head osteotomy of both feet in 1972.  The examiner noted that the right foot arthritis and calluses of both feet were moderately severe and chronically compromised weight-bearing.  The examiner noted that the Veteran's service-connected foot disability caused less movement than normal, deformity, instability of station, disturbance of locomotion, interference with standing, and pain.  The examiner noted that the Veteran was unable to walk for long periods of time without pain and that there was pain with passive motion, active motion, and weight-bearing.  The Veteran reported that he used a cane constantly.      

The Board finds that the evidence of record support ratings of 30 percent for both feet.  The Board finds, however, that the evidence of record persuasively weighs against a rating in excess of 30 percent.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to less movement than normal, deformity, instability of station, disturbance of locomotion, interference with standing, and pain.  However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating actual loss of use of the foot. 

"Loss of use of a foot" is defined by regulation and means no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance.  38 C.F.R. §4.63.  Here, the Veteran does retain function of his feet, albeit severely impaired as contemplated by the 30 percent rating for severe foot injury that is assigned herein.  The VA examiner found that there was no functional impairment of the feet such that no effective functions remain other than that which would be equally served by an amputation with prosthesis.  This conclusion is consistent with the VA examinations and the Veteran's general reports of his symptoms.  The examiner's conclusions are highly probative evidence weighing substantially against finding the Veteran's symptoms more nearly approximate loss of use of the right foot.  As such, the evidence weighs persuasively against finding there is actual loss of use of the right foot to warrant a 40 percent rating at any point during the period on appeal under Code 5284.  

In this regard, with respect to foot disabilities with ratings above 30 percent, the Veteran foot symptoms do not warrant a higher rating under Diagnostic Code 5276 for pes planus.  Under Diagnostic Code 5276, a maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

In this case, on VA examination, there was no indication of swelling on use, no extreme tenderness of plantar surfaces on one or both feet, no objective evidence of marked deformity of one or both feet, and no marked pron
 foot symptoms do not warrant a higher rating under Diagnostic Code 5276 for pes planus.  Under Diagnostic Code 5276, a maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

In this case, on VA examination, there was no indication of swelling on use, no extreme tenderness of plantar surfaces on one or both feet, no objective evidence of marked deformity of one or both feet, and no marked pronation of one or both feet.  The weight-bearing line was not over or medial to the great toe of either foot, there was no other lower extremity deformity causing alteration of the weight-bearing line, there was no "inward" bowing of the Achilles tendon of one or both feet, there was no marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet.

In addition, a 50 percent rating under Diagnostic Code 5278 is not applicable as there is no evidence of claw foot.  

The Board notes that the Veteran has other service-connected foot disabilities.  As noted above, in addition to pes planus, the VA examiner found that the Veteran had diagnoses of bilateral hammer toes, bilateral hallux valgus, bilateral calluses, and right foot degenerative arthritis.  However, the evidence of record is against a finding that the disabilities have distinct manifestations from those that are already being compensated.  See 38 C.F.R. § 4.14.    

The Veteran's pes planus, hammer toes, hallux valgus, calluses, and right foot degenerative arthritis symptoms overlap with the severe symptoms that have entitled him to a 30 percent rating under Diagnostic Code 5284.  

VA's General Counsel issued a precedential opinion advising that Code 5284 contemplates such miscellaneous injuries as "trauma to the foot involving the forefoot and toes, the talus and midfoot, and the os calcis and heel cord," as well as "[f]ractures and dislocations [that] may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints."  See VAOPGCPREC 9-98 (citing 2 Disorders of the Foot 1449-1542 (Melvin H. Jahss ed., 1982); C. DeLee, Fractures and dislocations of the foot, in 2 Surgery of the Foot 592 (Roger A. Mann ed., 5th ed. 1986)).  The Board reasons that the Veteran's disability is the type of pathology contemplated by Diagnostic Code 5284.  

As such, the evidence is neither evenly balanced nor approximately so with regard to whether ratings in excess of 30 percent for right and left foot disabilities status post Mitchell's bunionectomy are warranted.  Rather, the evidence persuasively weighs against the claims.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

12. Entitlement to an initial rating in excess of 60 percent for ASHD

The Veteran is seeking a higher rating for his ASHD.

Arteriosclerotic heart disease (coronary artery disease) is rated in accordance with the General Rating Formula for Diseases of the Heart pursuant to Diagnostic Code 7005.  38 C.F.R. § 4.104.  Under the General Rating Formula for Diseases of the Heart, a 10 percent rating is warranted where a workload of 7.1 to 10.0 METs results in heart failure symptoms, or continuous medication is required for control.  A 30 percent rating is warranted where a workload of 5.1 to 7.0 METs results in heart failure symptoms, or where there is cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging).  A 60 percent rating is warranted where a workload of 3.1 to 5.0 METs results in heart failure symptoms.  A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7005.

Note (2) provides that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R.
 or where there is cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging).  A 60 percent rating is warranted where a workload of 3.1 to 5.0 METs results in heart failure symptoms.  A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7005.

Note (2) provides that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104. When the level of METs at which breathlessness, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms may be used. Id.

Note (3) provides that heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 38 C.F.R. § 4.104.

The Veteran underwent VA examination in May 2025 at which time he reported chest pain/pressure, fatigue, weakness, lack of endurance, incoordination, shortness of breath, and dyspnea on exertion.  An interview-based METs test was conducted as the exercise stress testing was not required as part of the Veteran's current treatment plan and the test was not without significant risk.  The examiner noted that the results of the interview-based METs test indicated >3-5 METs (This METs level has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph)).

Considering all relevant evidence of record, the Board concludes that the Veteran's ASHD warrants a 60 percent rating under Diagnostic Code 7005 because the Veteran's heart failure symptoms were estimated at >3-5 METs.  A higher 100 percent rating under Diagnostic Code 7005 is not warranted unless a workload of 3.0 METs or less results in symptoms of heart failure.  

As such, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 60 percent for ASHD is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

13. Entitlement to an initial rating in excess of 40 percent for IVDS with right sided lumbar scoliosis

The Veteran is seeking a higher rating for his IVDS.  

The Veteran's IVDS has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS).  Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a 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 
 with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a 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.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id.  at Note 1.  

Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching."  Id.  at Note 5.  Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis.  Id.  

The Veteran underwent VA examination in March 2025 at which time he reported pain, swelling, limited range of motion, fatigue, weakness, lack of endurance, incoordination, abnormal gait, falls, and radiculopathy of bilateral lower extremities with flare-ups of aching, throbbing pain, swelling and radiation of 10/10 severity occurring two to three times a months for one to three days' duration precipitated by overuse and weight-bearing and alleviated by Gabapentin, cane, RICE, and heat.  The examiner noted that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12-month period.  The Veteran reported constant use of a cane.  Physical examination demonstrated forward flexion limited to 50 degrees; and extension, lateral flexion, and lateral rotation limited to 10 degrees with pain on all motion including weight-bearing, nonweight-bearing, and passive motion.  Passive range of motion was the same as active range of motion.  Although the Veteran was unable to perform repetitive use testing, the examiner estimated that pain, fatigability, weakness, lack of endurance, and incoordination with repeated use over time caused functional loss to the extent that forward flexion would be limited to 40 degrees; and extension, lateral flexion, and lateral rotation would be limited to 5 degrees.  The examiner also estimated that pain, fatigability, weakness, lack of endurance, and incoordination during flare-ups caused functional loss to the extent that forward flex
 lateral flexion, and lateral rotation limited to 10 degrees with pain on all motion including weight-bearing, nonweight-bearing, and passive motion.  Passive range of motion was the same as active range of motion.  Although the Veteran was unable to perform repetitive use testing, the examiner estimated that pain, fatigability, weakness, lack of endurance, and incoordination with repeated use over time caused functional loss to the extent that forward flexion would be limited to 40 degrees; and extension, lateral flexion, and lateral rotation would be limited to 5 degrees.  The examiner also estimated that pain, fatigability, weakness, lack of endurance, and incoordination during flare-ups caused functional loss to the extent that forward flexion would be limited to 30 degrees; and extension, lateral flexion, and lateral rotation would be limited to 5 degrees.  There was muscle spasm and guarding resulting in abnormal contour and gait; there was no ankylosis.  MRI in March 2014 showed moderate sized herniated disc on the left side at L3/4 and scoliosis convex to the right.  MRI in July 2014 showed possible small reherniated disc and possible far lateral herniated disc on the left at L3/4.  

The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for IVDS based on incapacitating episodes.  The evidence of record is against a finding that the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.

The evidence of record also persuasively weighs against a rating in excess of 40 percent for IVDS under the General Rating Criteria.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigability, weakness, lack of endurance, and incoordination.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine.  

As such, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 40 percent for IVDS is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

14. Entitlement to an initial rating in excess of 40 percent for left lower extremity sciatic radiculopathy

15. Entitlement to an initial rating in excess of 20 percent for right lower extremity sciatic radiculopathy

The Veteran is seeking higher ratings for his left and right lower extremity sciatic radiculopathy.  

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.).  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R § 4.124a.  

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "mild" means gentle in nature or behavior.  "
 be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "mild" means gentle in nature or behavior.  "Moderate" means limited in scope or effect.  "Severe" means very painful or harmful or of a great degree.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  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).  

As noted above, the Veteran underwent VA examination in March 2025 at which time he reported radiculopathy of the lower extremities.  Physical examination demonstrated normal muscle strength testing and reflex exam; and there was no muscle atrophy.  Sensory examination demonstrated decreased sensation to light touch bilaterally in the upper anterior thigh (L2), the thigh/knee (L3/4), the lower leg/ankle (L4/L5/S1), and the foot/toes (L5).  Straight leg testing was positive.  The examiner noted that the Veteran had moderate constant pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity and severe constant pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity.  The examiner noted that there was involvement of the sciatic nerve bilaterally caused by likely nerve impingement.   

Based on the above, the Board finds that the disability has been primarily manifested by severe sensory disturbance on the left and moderate sensory disturbance on the right.  The Board also finds that the most probative evidence of record is against a finding that the disability has been manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis.  The Board thus finds that the level of impairment is not most analogous to severe incomplete paralysis with marked muscular atrophy on the left or moderately severe incomplete paralysis on the right.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves.  Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.  

As such, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 40 percent for left lower extremity sciatic radiculopathy or a rating in excess of 20 percent for right lower extremity sciatic radiculopathy is warranted.  Rather, the evidence persuasively weighs against the claims.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

16. Entitlement to an initial rating in excess of 10 percent for hypertension

The Veteran is seeking a higher rating for his hypertension.

Hypertensive vascular disease (hypertension and isolated systolic hypertension) is rated pursuant to Diagnostic Code 7101. 38?C.F.R. §?4.104. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 

A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. 

A 40 percent rating
 is seeking a higher rating for his hypertension.

Hypertensive vascular disease (hypertension and isolated systolic hypertension) is rated pursuant to Diagnostic Code 7101. 38?C.F.R. §?4.104. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 

A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. 

A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. 

A 60 percent rating is warranted for diastolic pressure predominantly 130 or more.  38?C.F.R. §?4.104, Diagnostic Code 7101.

The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant.

Blood pressure readings taken before a Veteran began medication to control hypertension must be considered to determine if the Veteran has a history of diastolic pressure predominantly 100 or more, regardless as to whether such readings were taken during the period on appeal. Wilson v. McDonough, 35 Vet. App. 75 (2021). 

As Diagnostic Code 7101 explicitly contemplates the effects of medications, the ameliorative effects of blood pressure medication need not be discounted, and blood pressure readings taken while a Veteran is using medication may be considered. McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016).

VA treatment records indicate that blood pressure readings during the appeal period were 145/87 in September 2023 and 149/75 and 152/79 in May 2024.  In October 2024, the Veteran reported blood pressure readings in the range of 130s/70s at home.

The Veteran underwent VA examination in May 2025 at which time blood pressure readings were 152/81, 158/78, and 150/83.

In this case, the Veteran's hypertension has not manifest in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  Accordingly, the Veteran's hypertension does not more nearly approximate the criteria corresponding to a 20 percent rating.  

As such, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 10 percent for hypertension is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim.  Lynch, 21 F.4th at 776.

REASONS FOR REMAND

1. Entitlement to an initial rating in excess of 60 percent for COPD

The Veteran's COPD has been rated under 38 C.F.R. § 4.97, Diagnostic Code 6604 which provides for a 60 percent rating where there is FEV-1 of 40 to 55 percent, FEV-1/FVC to 40 to 55 percent, DLCO of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent rating is warranted where FEV-1 is less than 40 percent of predicted value, or; the ratio of FEV-1/FVC is less than 40 percent, or DLCO is less than 40 percent predicted, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.

The Veteran underwent VA examination in May 2025 at which time the examiner noted that the Veteran had been followed by his primary care physician at VA for multiple years and is noted to have COPD and right apical 3 mm pulmonary nodule and was under watchful waiting for potential lung cancer.  Pulmonary Function Test (PFT) results showed post-bronchodilator FEV-1 predicted value of 41 percent, FVC predicted value of 66 percent, and FEV-1/FVC value of 61 percent.  The
 right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.

The Veteran underwent VA examination in May 2025 at which time the examiner noted that the Veteran had been followed by his primary care physician at VA for multiple years and is noted to have COPD and right apical 3 mm pulmonary nodule and was under watchful waiting for potential lung cancer.  Pulmonary Function Test (PFT) results showed post-bronchodilator FEV-1 predicted value of 41 percent, FVC predicted value of 66 percent, and FEV-1/FVC value of 61 percent.  The examiner failed to thoroughly complete the Disability Benefits Questionnaire; specifically, whether the Veteran's COPD resulted in cardiopulmonary complications such as cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension.  Although the Spirometry Patient Checklist completed prior to PFT indicated that the Veteran had been diagnosed with pulmonary hypertension but no cor pulmonale; private treatment records indicate that the Veteran underwent echocardiogram in November 2023 and that Doppler findings did not suggest pulmonary hypertension.  

As such, a remand is warranted to correct a duty to assist error that occurred prior to the rating decision on appeal.  

2. Entitlement to a TDIU

The issue of entitlement to a TDIU was raised during the December 2025 Board hearing as part and parcel of the appealed increased rating claims.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Consequently, when a Rice TDIU claim has been raised (that is a TDIU has been raised during the pendency of an underlying increased rating claim), the TDIU is raised for the entire period for consideration as to the rating of the underlying claim.  Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018).  The United States Court of Appeals for Veterans Claims (Court) has also affirmed that Rice is applicable to AMA claims.  However, the period for consideration of TDIU in the AMA system is dependent on the period for review for the underlying claim.  See generally Phillips v. McDonough, 37 Vet. App. 394 (2024).  In other words, while a Rice TDIU may still be raised during the pendency of a claim for increased rating; the issue would still be subject to applicable claims processing rules in the AMA.  In any event, the claim of entitlement to a TDIU has been recognized by the Board as an additional issue on appeal even though it was not addressed in the underlying AMA rating decision on appeal.

However, as the AOJ has not had the opportunity to adjudicate the Veteran's TDIU claim, it is proper to remand the claim for the RO to consider it on the merits in the first instance.

(Continued on the next page)

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion that addresses whether the Veteran's COPD results in cardiopulmonary complications such as cor pulmonale, right ventricular hypertrophy or pulmonary hypertension.

2. Adjudicate the Veteran's claim of entitlement to a TDIU. 

 

 

John R. Doolittle, II

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Olson, Patricia

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.