ANKLE IMPAIRMENT OF

M. HYLAND · 2025 · Case ID: 25015204

MIXED

Summary

The veteran, who served from June 2009 to June 2014, appeals the denial of an increased rating for his service-connected lumbar strain and left lower extremity radiculopathy, and the denial of service connection for a right ankle disability. The Board granted service connection for right ankle range-of-motion loss, finding it secondary to his service-connected right lower extremity radiculopathy, applying the benefit of the doubt due to conflicting evidence regarding diagnosis and the Board's interpretation of functional impairment. The Board also granted an earlier effective date of March 1, 2016, for the 20 percent rating assigned for lumbar strain status post laminectomy and microdiscectomy, finding the evidence supported an increase in disability during flare-ups, referencing private treatment records and VA examinations. However, the Board denied an increased rating above 20 percent for the lumbar strain, finding the evidence did not support a higher evaluation based on the General Rating Formula for Diseases and Injuries of the Spine, as the Veteran's condition did not meet the criteria for ankylosis or more severe functional impairment. Similarly, the Board denied an increased rating above 10 percent for left lower extremity radiculopathy, finding the evidence persuasively supported only mild incomplete paralysis, consistent with VA examiner opinions, and did not meet the criteria for moderate or severe impairment.

Rationale

Service connection granted based on secondary to service-connected radiculopathy; Benefit of the doubt applied due to conflicting evidence; Functional impairment considered despite lack of formal diagnosis

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-03 197

Full Decision Text

Citation Nr: 25015204
Decision Date: 12/23/25 Archive Date: 12/23/25

DOCKET NO. 19-03 197
DATE: December 23, 2025

ORDER

Entitlement to service connection for right ankle range-of-motion loss, secondary to right lower extremity radiculopathy associated with lumbar strain status post laminectomy and microdiscectomy, is granted.

Entitlement to an effective date of March 1, 2016, but no earlier, for the 20 percent rating assigned for lumbar strain status post laminectomy and microdiscectomy is granted.

Entitlement to a rating in excess of 20 percent for lumbar strain status post laminectomy and microdiscectomy since March 1, 2016, is denied.

Entitlement to an effective date of March 1, 2016, but no earlier, for the 10 percent rating assigned for left lower extremity radiculopathy is granted.

Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy since March 1, 2016, is denied.

FINDINGS OF FACT

1. The Veteran's right ankle range-of-motion loss is at least as likely as not due to his service-connected right lower extremity radiculopathy associated with lumbar strain status post laminectomy and microdiscectomy.

2. The Veteran has at least as likely as not experienced functional impairment approximating the 20 percent rating criteria under the General Rating Formula for Disease and Injuries of the Spine throughout the applicable rating period based on his July 7, 2016, increased rating claim for his service-connected lumbar spine disability; the evidence further establishes a factually ascertainable increase in disability on approximately March 1, 2016, in the one-year period prior to his date of claim.

3. The evidence is persuasively against findings that the Veteran has had forward flexion of the thoracolumbar spine 30 degrees or less since; any degree of ankylosis of the thoracolumbar spine, or the functional equivalent thereof; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks (or more) during a 12-month period at any point in the applicable rating period since March 1, 2016.

4. The Veteran has at least as likely as not experienced functional impairment approximating mild incomplete paralysis of the left sciatic nerve throughout the applicable rating period since March 1, 2016.

5. The evidence is persuasively against a finding that the functional impairment resulting from the Veteran's left lower extremity radiculopathy has more nearly approximated a level of disability beyond mild incomplete paralysis at any point in the applicable rating period since March 1, 2016.

CONCLUSIONS OF LAW

1. The criteria for service connection for right ankle range-of-motion loss, secondary to right lower extremity radiculopathy associated with lumbar strain status post laminectomy and microdiscectomy, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

2. The criteria for an effective date of March 1, 2016, but no earlier, for the 20 percent rating assigned for lumbar strain status post laminectomy and microdiscectomy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.71a.

3. The criteria for a rating in excess of 20 percent for lumbar strain status post laminectomy and microdiscectomy since March 1, 2016, (other than a period to a temporary total rating for convalescence from December 8, 2017, to January 31, 2018) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a.

4. The criteria for an effective date of March 1, 2016, but no earlier, for the 10 percent rating assigned for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.124a.

5. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy since March 1, 2016, have not been met. 38
met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a.

5. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy since March 1, 2016, have not been met. 38 U.S.C. § 1155, 38 C.F.R. § 4.124a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from June 2009 to June 2014.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Board initially remanded the Veteran's appeal in August 2019 to schedule new examinations to assess the functional impairment resulting from his service-connected lumbar strain status post laminectomy and microdiscectomy and obtain a nexus opinion regarding his related service connection claim for a right ankle disability. The Agency of Original Jurisdiction (AOJ) completed this development and returned the appeal to the Board after issuing a March 2020 supplemental statement of the case.

In March 2023, the Board issued a decision denying service connection for a right ankle disability but remanding the appeal of the rating assigned for lumbar strain status post laminectomy and microdiscectomy for a new examination due to treatment records that suggested an increase in disability since the Veteran's most recent examination - particularly during flare-ups. Thereafter, the AOJ obtained an examination report that led to the assignment of a 20 percent rating for lumbar strain status post laminectomy and microdiscectomy, effective April 10, 2023, the date of the post-remand examination, as well as an additional 10 percent rating for associated left lower extremity radiculopathy.

In October 2024, the United States Court of Appeals for Veterans Claims granted a joint motion for remand (JMR) that vacated the Board's March 2023 denying service connection for a right ankle disability. The parties to the October 2024 JMR agreed the Board provided an inadequate statement of reasons and bases for its finding regarding a lack of a current disability to the extent that it did not discuss private treatment records noting limitation of right ankle range of motion.

In March 2025, the Board remanded the right ankle claim, recently returned from the Court, in addition to the rating appeal for lumbar strain status post laminectomy and microdiscectomy and associated left lower extremity radiculopathy, which was awarded following the Board's March 2023 remand, to obtain a new opinion regarding the right ankle claim and a new opinion addressing a recently raised assertion regarding the presence of intervertebral disc syndrome in the Veteran's case. The AOJ completed the development required by the March 2025 remand directives and returned the issues on appeal to the Board after the issuance of an October 2025 supplemental statement of the case. The adequacy of the opinions obtained pursuant to the March 2025 remand directives will be discussed in more detail in the following analysis, but the Board finds the AOJ has substantially complied with its prior remand directives in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board notes the Veteran separately appealed the effective date and initial rating assigned for right lower extremity radiculopathy in the modernized review system under the Appeals Modernization Act (AMA) following a March 2020 rating decision that awarded an initial 10 percent rating for right lower extremity radiculopathy, effective December 16, 2019; therefore, these issues will not be addressed in the context of his legacy appeal of the rating assigned for his service-connected lumbar strain status post laminectomy and microdiscectomy.

1. Entitlement to service connection for right ankle range-of-motion loss, secondary to right lower extremity radiculopathy associated with lumbar strain status post laminectomy and microdiscectomy, is granted.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires evidence of (1) a current disability
, effective December 16, 2019; therefore, these issues will not be addressed in the context of his legacy appeal of the rating assigned for his service-connected lumbar strain status post laminectomy and microdiscectomy.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In accordance with these principles, service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310.

When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (holding evidence is not in approximate balance, or nearly equal, when the evidence "persuasively favors one side or the other").

Here, the Veteran seeks service connection for a right ankle disability. Most of the development in his case, to include that after the Board's most recent remand in March 2025, has focused on the presence of a current disability because the Veteran has generally asserted the claimed right ankle disability is secondary to his service-connected lumbar strain status post laminectomy and microdiscectomy rather than directly related to service. See 38 C.F.R. § 3.310. VA examiners have consistently reported the Veteran does not have a right ankle diagnosis despite evidence suggesting pain and limitation of motion of the right ankle, but the Board notes a diagnosis is not required to establish service connection for symptoms that result in functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Limitation of motion with pain is typically considered functional impairment in earning capacity in accordance with 38 C.F.R. § 4.59; therefore, the Veteran appears to have a current right ankle disability when considering the holding in Saunders.

Following the Board's March 2025 remand, a VA examiner provided an opinion in June 2025 that corroborates previous opinions that conclude the Veteran does not have a right ankle diagnosis, but this post-remand opinion indicates his right ankle symptomatology is due to his service-connected right lower extremity radiculopathy. Although the Veteran's right ankle pain is possibly contemplated by the rating assigned for radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520, the Board notes Diagnostic Code 8520 does not appear to compensate for right ankle range-of-motion loss, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Resolving reasonable doubt in the Veteran's favor, the Board finds service connection for right ankle range-of-motion loss, secondary to right lower extremity radiculopathy associated with lumbar strain status post laminectomy and microdiscectomy, is warranted - despite the lack of diagnosis consistent with the holding in Saunders - to ensure consideration of the applicable rating criteria under Diagnostic Code 5271 in his case. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting the benefit-of-the-doubt rule is a unique burden of proof by which "the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."); see also 38 C.F.R. § 3.310(a). To this extent, the Veteran's appeal is granted.

2. Entitlement to an effective date of March 1, 2016, but no earlier, for the 20 percent rating assigned for
- to ensure consideration of the applicable rating criteria under Diagnostic Code 5271 in his case. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting the benefit-of-the-doubt rule is a unique burden of proof by which "the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."); see also 38 C.F.R. § 3.310(a). To this extent, the Veteran's appeal is granted.

2. Entitlement to an effective date of March 1, 2016, but no earlier, for the 20 percent rating assigned for lumbar strain status post laminectomy and microdiscectomy is granted.

Following the Board's March 2023 remand, the AOJ assigned a 20 percent rating for the Veteran's service-connected lumbar strain status post laminectomy and microdiscectomy, effective April 10, 2023, based on an examination report conducted on that date that reflects the combined range of motion of his thoracolumbar spine was limited to than 120 degrees at that time. The Board notes the April 2023 examination report was the first report that includes an estimate of additional range-of-motion loss during flare-ups in the Veteran's case consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran's initial examinations also did not include the full range-of-motion testing required by VA regulation. See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, a private treatment record from May 2016 notes forward flexion limited to 45 degrees at that time when the Veteran sought treatment for a flare-up of back pain, which also supports the 20 percent rating currently assigned. Due to the deficiencies in the initial examination reports, the Board finds the April 2023 examiner's findings persuasive with respect to the Veteran's level of functional impairment during flare-ups throughout the applicable rating period based on his July 7, 2016, increased rating claim; therefore, the evidence supports a finding that he has at least as likely as not experienced functional impairment approximating the 20 percent rating criteria under the General Rating Formula for Disease and Injuries of the Spine throughout the applicable rating period based on his July 7, 2016, claim, when considering the effects of flare-ups. Resolving reasonable doubt in the Veteran's favor, the Board finds an earlier effective date for the 20 percent rating assigned in his case is warranted. See Wise, supra.

As a final matter, the Board notes the effective date of an award of increased compensation can be assigned up to one year prior to the date of claim if it is factually ascertainable that an increase in disability occurred during this period. See 38 C.F.R. § 3.400(o). Here, the previously noted May 2016 private treatment note that reflects the Veteran's forward flexion was limited to 45 degrees at that time also indicates his condition "began on March 1, 2016." Given the private treatment note helps support an earlier effective date for the 20 percent rating assigned in the Veteran's case, the Board finds there is a factually ascertainable increase in disability in the one-year period prior to the Veteran's July 7, 2016, date of claim, warranting an effective date of March 1, 2016, but no earlier, for the 20 percent rating assigned for the Veteran's lumbar spine disability. To this extent, the Veteran's appeal is also granted.

3. Entitlement to a rating in excess of 20 percent for lumbar strain status post laminectomy and microdiscectomy since March 1, 2016, is denied.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage
5; 38 C.F.R. § 4.1.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations VA should obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59.

It is not expected that all cases will show all specified findings; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Under the General Rating Formula for Diseases and Injuries of the Spine, 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. As previously noted, a 20 percent rating has been assigned based on a combined range of motion of the thoracolumbar spine not greater than 120 degrees, which is consistent with examination reports that show reduced lateral flexion and extension due to increase stiffness during flare-ups.

The next higher rating - a 40 percent evaluation - is warranted for forward flexion of the thoracolumbar spine limited 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. Ankylosis is
is warranted for forward flexion of the thoracolumbar spine limited 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

The Board finds the evidence is persuasively against a finding that the Veteran has had forward flexion of the thoracolumbar spine limited to 30 degrees or less; or any degree of ankylosis of the thoracolumbar spine, or the functional equivalent thereof, even with consideration of additional functional impairment due to pain, weakened movement, excess fatigability, incoordination, and flare-ups. The Veteran has been provided multiple examinations during the appeal period and has never been reported to have less than 70 degrees of forward flexion on examination, even during flare-ups, as contemplated by the estimate provided by his April 2023 examiner, which served as the basis for the 20 percent rating assigned in his case. The April 2023 examiner's estimate suggests flare-ups primarily result in less lateral movement, consistent with his lay reports, as opposed to a significant reduction in forward flexion, as required for a higher rating. The April 2023 examiner's report is the most persuasive evidence in this regard; it is the first examination report that includes all range-of-motion testing contemplated by VA regulation and is generally reflective of the highest degree of functional impairment shown during the appeal period. In comparison, a March 2025 examination report includes the necessary information to rate the Veteran's thoracolumbar spine disability but reflects slightly greater range of motion than the April 2023 examination report. The Board acknowledges the May 2016 private treatment note regarding forward flexion being limited to 45 degrees during a flare-up of back pain, but it is unclear whether a goniometer was used to arrive at this number. Further, even this isolated finding, which is not entirely consistent with later testing in VA examinations, fails to support a rating in excess of 20 percent and is rather consistent with the level of impairment contemplated by the April 2023 examination report and supports a 20 percent rating. The May 2016 treatment record also establishes a potential baseline level of disability prior to any intervention or ameliorative effects of medication and does not reflect forward flexion limited to 30 degrees or less. There is also no evidence of ankylosis, or the functional equivalent thereof. The Veteran has never been found to have ankylosis on examination, and his lay reports do not establish the functional equivalent thereof. The Veteran's lay reports have been recorded during numerous examinations and are included in statements to support his claim and private treatment records; they are generally summarized as difficulty bending over due to pain and stiffness. The Board finds these reports suggest significant range-of-motion loss in all directions but do not evidence the functional equivalent of ankylosis because the Veteran has not reported being in a fixed position or unable to bend even during his most severe flare-ups. Accordingly, a rating in excess of the 20 percent rating assigned is not warranted under the General Rating Formula for Diseases and Injuries of the Spine.

The Veteran's representative has rather asserted the Veteran's disability should be rated under the alternate Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula indeed provides for ratings in excess of the 20 percent evaluation currently assigned; however, compensable ratings under the formula require both a finding of intervertebral disc syndrome and periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Board acknowledges there is favorable evidence that suggests the Veteran had intervertebral disc syndrome at the time of his July 7, 2016, claim, but, as explained in an October 2025 opinion obtained pursuant to the Board's most recent
Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula indeed provides for ratings in excess of the 20 percent evaluation currently assigned; however, compensable ratings under the formula require both a finding of intervertebral disc syndrome and periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Board acknowledges there is favorable evidence that suggests the Veteran had intervertebral disc syndrome at the time of his July 7, 2016, claim, but, as explained in an October 2025 opinion obtained pursuant to the Board's most recent remand directives, his intervertebral disc syndrome resolved with his December 2017 laminectomy and microdiscectomy. The Veteran was awarded a temporary total rating for convalescence immediately after this procedure, but, thereafter, his disability is properly rated under the General Rating Formula for Diseases and Injuries of the Spine. The Board notes a rating in excess of the 20 percent rating currently assigned would require a finding of incapacitating episodes having a total duration of at least four weeks but less than six weeks (or more) during a 12-month period. There is no evidence the Veteran was prescribed bed rest by a physician for incapacitating episodes prior to his December 2017 laminectomy and microdiscectomy, or at any point after his temporary total rating for convalescence. To the contrary, private treatment records from 2016 indicate the Veteran was working out five times per week, playing golf, and engaged in other physical activities without an apparent need for bedrest. He sought treatment at that time to help manage his pain that onset with such activity, but this does not support a finding of incapacitating episodes as contemplated by the VA Rating Schedule. Thus, a rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

As a final matter, the Board acknowledges the VA Rating Schedule for musculoskeletal disorders was amended, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The General Rating Formula for Disease and Injuries of the Spine was not affected by the changes. The changes to Diagnostic Codes 5242 and 5243 were largely semantic, adding instructions to classify disabilities associated with intervertebral disc syndrome under Diagnostic Code 5243 and all other intervertebral disc disabilities under Diagnostic Code 5242. As such, Diagnostic Code 5242 now reflects "[d]egenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; Diagnostic Code 5243 now reflects "[i]ntervertebral disc syndrome: [a]ssign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." These limited changes do not impact the Board's analysis in the Veteran's case; therefore, a discussion of the old and new criteria is not necessary because the actual rating criteria remanded the same. See Kuzma v. Principi, 341 F.3d 1327(Fed. Cir. 2003).

In sum, the Board finds the functional impairment resulting from the Veteran's is fully contemplated by the 20 percent rating assigned under the General Rating Formula for Disease and Injuries of the Spine, which compensates him for the reduced range of motion he experiences, to include during flare-ups. The Board, however, finds this rating should be effective from March 1, 2016, at which point the evidence establishes a factually ascertainable increase in disability prior to his July 7, 2016, claim, rather than the date of his April 2023 examination. The neurological impairment of the left lower extremity noted during the April 2023 examination will be discussed in the following subsection.

4. Entitlement to an effective date of March 1, 2016, but no earlier, for the 10 percent rating assigned for left lower extremity radiculopathy is granted.

Following the Board's March 2023 remand, the AOJ assigned a 10 percent rating for left lower extremity radiculopathy associated with the Veteran's service-connected lumbar strain status post laminectomy and microdiscectomy in addition to a previously assigned rating for right lower extremity radiculopathy. As noted in the introduction, the Veteran appealed the effective date and initial rating assigned for right lower extremity radiculopathy in the modernized review system under the AMA; therefore,
discussed in the following subsection.

4. Entitlement to an effective date of March 1, 2016, but no earlier, for the 10 percent rating assigned for left lower extremity radiculopathy is granted.

Although the Veteran's primary neurological impairment throughout the applicable rating period based on the Veteran's July 7, 2016, claim appears to affect his right lower extremity, the Board notes there is some favorable evidence regarding the left lower extremity during this same period. For instance, a May 2016 private treatment note references numbness in the legs and feet - plural. Similarly, a May 2017 private treatment note indicates "paresthesia in legs." The Board finds these plural references to neurological impairment of the lower extremities evidence that some degree of impairment of the left lower extremity has been present throughout the applicable rating period. Resolving reasonable doubt in the Veteran's favor, the Board finds an effective date of March 1, 2016, is warranted for the 10 percent rating for left lower extremity radiculopathy based on the factually ascertainable increase in disability prior to the Veteran's July 7, 2016, claim. See Wise, supra. To this extent, his appeal is also granted.

5. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is denied.

The general rating principles noted above in the context of the Veteran's thoracolumbar spine rating are applicable in the context of the rating assigned for his associated left lower extremity radiculopathy. A 10 percent rating has been assigned in the Veteran's case for left lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is reserved for complete paralysis. Id. The VA Rating Schedule for Disease of the Peripheral Nerves indicates when nerve involvement is wholly sensory the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

The Board observes that the provisions of Diagnostic Code 8520 do not define the terms "mild," "moderate," "moderately severe," and "severe." These terms are not defined elsewhere in the rating schedule in a way that might be applicable to Diagnostic Code 8520. In the absence of an express definition, words are to be given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)). The ordinary meaning of "mild" is "not very severe." Webster's New World Dictionary 694 (2nd ed. 1999), 694. The ordinary meaning of "moderate" is "average in amount, intensity, quality, or degree." New Oxford American Dictionary 1124 (3rd ed. 2010). The ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." New Oxford American Dictionary 1599 (3rd ed. 2010). "Moderately severe" is not defined in the referenced dictionaries but is understood to encompass symptomatology between moderate and severe. The Board defines the terms "mild," "moderate," "moderately severe", and "severe" in Diagnostic Code 8520 according to the definitions set forth in above.

The Board finds the evidence is persuasively against a finding that the functional impairment resulting from the Veteran's left lower extremity radiculopathy has more nearly approx
4 (3rd ed. 2010). The ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." New Oxford American Dictionary 1599 (3rd ed. 2010). "Moderately severe" is not defined in the referenced dictionaries but is understood to encompass symptomatology between moderate and severe. The Board defines the terms "mild," "moderate," "moderately severe", and "severe" in Diagnostic Code 8520 according to the definitions set forth in above.

The Board finds the evidence is persuasively against a finding that the functional impairment resulting from the Veteran's left lower extremity radiculopathy has more nearly approximated a level of disability beyond mild incomplete paralysis at any point in the applicable rating period. References to neurological impairment of the left lower extremity in treatment records are generally vague and limited to symptoms of numbness with the right lower extremity being consistently referenced as the primary concern due to a higher degree of impairment. The Veteran's April 2023 VA and March 2025 VA examiners, the only experts to provide assessments of radiculopathy consistent with the criteria outlined in Diagnostic Code 8520, both reported mild symptoms/impairment. The Board again notes the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the VA Rating Schedule, so they must be given their ordinary meaning. In light of the ordinary meaning of "mild", the Board finds the April 2023 VA and March 2025 VA examiners' assessments are consistent with "not very severe" impairment of the left lower extremity, which is consistent with the guidance in the VA Rating Schedule that indicates the rating assigned for wholly sensory impairment, such as in the Veteran's case, should typically be based on a finding of "mild" incomplete paralysis. There is no competent evidence that outweighs the persuasive value of the consistency of the VA examiners' assessments, and the Veteran has not raised any specific arguments for why a higher rating for left lower extremity radiculopathy may be warranted. Accordingly, a rating in excess of 10 percent for left lower extremity radiculopathy is denied.

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board L. S. Kyle, Counsel

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

Analyze in VA Law Explorer