DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

ERIC S. LEBOFF · 2025 · Case ID: A25061643

DENIED

Summary

The veteran, who served from June 1987 to January 1989, appeals the denial of increased initial ratings for lumbosacral strain with degenerative arthritis, spinal stenosis, and facet arthropathy, and for radiculopathy of the right lower extremity. The veteran also sought service connection for a right lower leg condition other than radiculopathy as secondary to a lower back injury, and appealed prior denials of service connection for a lower back injury and a right lower leg condition from July 2014. The Board found that the evidence persuasively weighed against a rating in excess of 20 percent for the lumbar spine condition, noting that while pain and functional loss were present, the objective findings did not meet the criteria for a higher rating. For the radiculopathy, the Board acknowledged conflicting evidence between VA examinations but concluded the impairment was most analogous to moderate incomplete paralysis, warranting no more than a 20 percent rating. The claim for a right lower leg condition other than radiculopathy was denied as no current disability separate from the service-connected radiculopathy was established. The Board dismissed the appeals related to the July 2014 denials, finding them untimely under the legacy appeal system and, for the back injury, rendered moot by the subsequent grant of service connection. Therefore, the increased ratings and the secondary claim were denied, and the prior denials were dismissed.

Rationale

Evidence persuasively weighs against rating in excess of 20 percent.; Objective findings do not meet criteria for higher rating (e.g., flexion to 30 degrees or less, ankylosis).; Pain and functional loss noted but not sufficient for higher rating.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240703-452466

Full Decision Text

Citation Nr: A25061643
Decision Date: 07/21/25 Archive Date: 07/21/25

DOCKET NO. 240703-452466
DATE: July 21, 2025

ORDER

An increased initial rating in excess of 20 percent disabling for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy (claimed as low back strain) is denied.

An increased initial rating in excess of 20 percent for radiculopathy, sciatic right lower is granted with an evaluation is denied.

Service connection for right lower leg condition other than radiculopathy as secondary to lower back injury is denied.

Service connection for lower back injury denied in a July 2014 rating decision is dismissed.

Service connection for a lower right leg condition denied in a July 2014 rating decision is dismissed.

FINDINGS OF FACT

1. Throughout the rating period on appeal, the evidence is persuasively against finding that the Veteran's lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy (claimed as low back strain) has been manifested by findings consistent with forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the thoracolumbar spine, or intervertebral disc syndrome.

2. Throughout the rating period on appeal, the evidence is persuasively against finding that the Veteran's radiculopathy, sciatic right lower extremity, has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

3. There is no current right lower extremity disability other than radiculopathy.

4. To the extent the Veteran is attempting to appeal the denial of service connection for a low back strain disorder in a July 2014 rating, (later granted in a July 2024 rating), he submitted an improper and untimely VA Form 10182 in July 2024.

5. To the extent the Veteran is attempting to appeal the denial of service connection for a right lower leg condition in a July 2014 rating, he submitted an improper and untimely VA Form 10182 in July 2024.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

2. The criteria for a disability rating in excess of 20 percent for radiculopathy, sciatic right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Codes 8520, 8620, 8720.

3. The criteria for service connection for right lower extremity disability other than radiculopathy due to service or service-connected disease or injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

4. There is no valid appeal of the July 2014 denial of service connection for lower back injury (previously claimed as low back strain) and the criteria for dismissal of this matter have been met. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.2500 (b), 20.205 (2024).

5. There is no valid appeal of the July 2014 denial of service connection for lower right leg condition and the criteria for dismissal of this matter have been met. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.2500 (b), 20.205 (2024).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1987 to January 1989.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1987 to January 1989.

In December 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of issues of service connection for a lumbar spine disorder and a right lower leg condition most recently addressed in a July 2014 rating decision. In June 2024 the agency of original jurisdiction (AOJ) issued a supplemental claim decision that deferred the lumbar spine issue but confirmed and continued a prior denial of service connection for a right lower leg condition. In July 2024, the agency of original jurisdiction (AOJ) issued a supplemental claim decision, which found that new and relevant evidence had been received and granted service connection for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy with an initial 20 percent rating assigned, and granted service connection for radiculopathy, sciatic right lower extremity with an initial 20 percent rating assigned.

In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran disagreed with the initial 20 percent rating assigned for the lumbar spine disorder and the initial 20 percent rating assigned for the right lower extremity that were adjudicated in the July 2024 rating. The Veteran also disagreed with the June 2024 rating that denied service connection for a right lower leg condition. Finally, the Veteran expressed disagreement with a prior adjudication of July 19, 2014 that denied service connection for a lower back injury and a right lower leg condition. The Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

In light of the grant of service connection for radiculopathy in the July 2024 rating, the Board has classified the appeal of the service connection claim for a right leg condition denied in the June 2024 rating to be that of entitlement to service connection for a right leg disorder other than radiculopathy.

1. Increased rating for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy (claimed as low back strain) currently evaluated at 20 percent effective December 19, 2023.

The Veteran is seeking a higher rating for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy.

Note: The criteria for evaluating spine disabilities were amended effective September 23, 2002, September 26, 2003, and February 7, 2021.

As of February 7, 2021, the amended version of Diagnostic Code 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references Diagnostic Codes 5003 and 5010. Under the amended criteria, Diagnostic Code 5003 now provides criteria for degenerative arthritis, other than for post-traumatic (but the rating criteria itself, including that applicable to spine disorders, has remained the same as the pre-amendment version). The amended Diagnostic Code 5010 provides criteria for post-traumatic arthritis and directs ratings be based on "limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25."

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral or cervical strain. 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.

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. [Include any other relevant Note(s).]

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 background 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).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of
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).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.]

In this case, the Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for lumbosacral strain with degenerative arthritis, spinal stenosis, and facet arthropathy.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain described as "constant" in her July 2024 NOD. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by her contentions of constant pain would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, based on the evidence discussed below.

The relevant evidence includes November 2023 VA lumbar X ray findings that included degenerative changes with diagnosis of 1. No acute bony abnormality. 5 lumbar type vertebrae. 2. Grade 1 anterolisthesis of L4 over L5. Slight convex left rotatory curvature may be positional. 3. Disc space narrowing is moderate to severe at L5-S1. Endplate osteophytes are seen at this level. 4. Moderately advanced facet arthropathy throughout the lumbar levels, more severe at the lumbosacral junction where it may result in foraminal stenosis. See 18 pg. CAPRI received 5/21/24 at pg. 1.

Private treatment records reveal that in December 2023 the Veteran underwent initial physical therapy (PT) evaluation for low back pain, and right sided hip and leg pain. She reported continued fluctuation of symptoms over the last 20 years not helped by medications, injections or prior therapy. The symptoms were described as of high severity with most motion and all movement increasing pain in back and right leg. Pain was increased with walking, standing, sitting, bending, lifting, laying down, exercise. Pain was decreased with rest, ice, medication, previous injections. The Veteran's sleep was disturbed due to pain. Physical examination revealed an antalgic gait. Lumbar active range of motion (AROM) revealed forward, and backward bending and right rotation were all 50%, while left rotation right side bending and left side bending were all 25%. Gross muscle tests of the lower extremities were said to be grossly normal at 4/5. Dermatomes lower bilaterally were all normal from L1-2 mid anterior thigh extending all the way down LE including lateral foot and S2 mid gastroc hamstring. Straight leg raise (SLR) was positive bilaterally, as was slump test, and seated dural stretch. S1 compression was positive bilaterally. She had tenderness to palpation of the lumbar paraspinals, quad, HS, hip flexor on right. The assessment was of signs and symptoms consistent with lumbar disc dysfunction, DJD, DDD, lumbar radiculopathy, and peripheral neurogenic pain. Her impairments included increased pain, decreased strength, decreased joint mobility, and decreased muscular endurance. Functional limitations included decreased sitting tolerance, laying down, standing, walking, bending, and lifting. Her restrictions included self-care tasks and community mobility. She would benefit from skilled PT services to address above stated deficits.

The Veteran underwent PT for her lumbar spine symptoms from December 2023 through February 2024. Symptoms continued to be aggravated by sitting, standing, walking, stairs, and bending. She reported fluctuating issues with symptoms throughout the therapy sessions, including a December 2023 session where she noted increased neural symptoms and radicular
disc dysfunction, DJD, DDD, lumbar radiculopathy, and peripheral neurogenic pain. Her impairments included increased pain, decreased strength, decreased joint mobility, and decreased muscular endurance. Functional limitations included decreased sitting tolerance, laying down, standing, walking, bending, and lifting. Her restrictions included self-care tasks and community mobility. She would benefit from skilled PT services to address above stated deficits.

The Veteran underwent PT for her lumbar spine symptoms from December 2023 through February 2024. Symptoms continued to be aggravated by sitting, standing, walking, stairs, and bending. She reported fluctuating issues with symptoms throughout the therapy sessions, including a December 2023 session where she noted increased neural symptoms and radicular distribution pain after a prior session, and complaints of being unable to wear high heel shoes. Later in a January 2024 she reported increased pain after getting out of bed "wrong" two days ago. Later the same month she complained of poor sleep and being unable to walk, with pain reported no matter what she does. Records from February 2024 suggested that she was responded well to therapy modalities but with a high degree of fluctuation of baseline symptoms. There was mild improvement with lower extremity mobility and nerve sliders. However, one of the February 2024 records indicated she had increased pain since her last PT session. Towards the end of February 2024, she tolerated skilled therapy well but reported no changes in low back pain despite multiple changes in position.

The Veteran underwent VA examinations of the lumbar spine in May 2024 and June 2024. In the May 2024 VA examination, which limited the diagnosis to lumbosacral strain, the Veteran reported a treatment history that included physical therapy for her back, as well as the use of pain medications and back patches. Current symptoms were pain in the back and legs treated by heat, back patches and pain medications. Regarding functional loss, she reported that due to pain she could not perform normal house chores. However, she denied flare-ups.

On physical examination her range of motion was abnormal, with 80 degrees flexion, 10 degrees extension, and the rest of her motions (bilateral lateral flexion and rotation) were all 20 degrees. There was pain only for extension and a different endpoint was not given for this pain. Passive was the same as active motion and there was pain on both active and passive which does not cause functional loss. There was no additional loss of motion after 3 repetitions. She was being examined immediately after repeated use over time with no evidence of pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. Flare-ups were denied. There was no guarding and muscle pain (spasm and localized tenderness left blank) and no additional factors contributing to disability. Her muscle strength was 5/5 throughout his bilateral lower extremities with no atrophy. Her reflexes were 2+, and sensory exam was normal in the bilateral lower extremities with negative straight leg raise. She had no radiculopathy. There was no ankylosis, no other neurological abnormalities and no intervertebral disc syndrome (IVDS) requiring bedrest. She used no assistive devices and had no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. No other pertinent findings were noted. There was no imaging of vertebral fracture. However, X-ray findings from January 1995 were significant for unremarkable thoracic spine. There was no functional impact in her ability to perform any type of work due to the spine disorder.

The report of the June 2024 VA examination of the lumbar spine diagnosed degenerative arthritis, lumbosacral strain, spinal stenosis, and facet arthropathy. This examination disclosed current symptoms of constant throbbing in the lower back just above the buttocks, but more so on the right side. She described that it radiates to the buttocks and lower extremities. Her current treatment included Lidocaine patches; APAP; but it was not effective. No flareups were reported. There was no functional loss or functional impairment of the joint or extremity being evaluated on this questionnaire, including but not limited to after repeated use over time. On physical examination, her active initial range of motion measurements of the thoracolumbar spine were all normal (90 degrees flexion with the rest of motions all 30 degrees). There was no additional loss of motion after 3 repetitions. She did endorse pain on forward flexion, extension and right and left lateral rotation. A degree endpoint was not marked as different from above and her motion unchanged after repetitive use over time. Passive testing not done,
extremities. Her current treatment included Lidocaine patches; APAP; but it was not effective. No flareups were reported. There was no functional loss or functional impairment of the joint or extremity being evaluated on this questionnaire, including but not limited to after repeated use over time. On physical examination, her active initial range of motion measurements of the thoracolumbar spine were all normal (90 degrees flexion with the rest of motions all 30 degrees). There was no additional loss of motion after 3 repetitions. She did endorse pain on forward flexion, extension and right and left lateral rotation. A degree endpoint was not marked as different from above and her motion unchanged after repetitive use over time. Passive testing not done, as it was not deemed necessary. However, there was painful motion which caused functional loss but no crepitus. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. She was examined immediately after repeated use over time, with factors of pain and lack of endurance. She was not examined during flareups but there was no evidence of pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. She did have localized tenderness not resulting in abnormal gait or abnormal spinal contour. She did have muscle spasm resulting in abnormal gait or abnormal spinal contour, but no guarding. There were no additional factors contributing to disability. Muscle strength testing was 5/5 throughout the bilateral lower extremities, except that knee extension bilaterally was 4/5.

Her reflexes were 2+, and sensory exam was normal in the bilateral lower extremities, although there was positive straight leg raise. There was no ankylosis, no other neurological abnormalities and no intervertebral disc syndrome (IVDS) requiring bedrest. She used no assistive devices and had no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. No other pertinent findings were noted.

The Veteran was diagnosis with did right lower extremity radiculopathy, with severe constant pain, and severe paresthesias/dysesthesias in this extremity, but with no other radicular symptoms noted (including no intermittent pain and numbness). There were no radicular symptoms in the left lower extremity. The involvement was of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of the right lower extremity.

Further details regarding her right lower extremity included discussion of right muscle strength with pain in the right knee after injuring her back during service and then shifting weight from side to side as her back spasms. Regarding left muscle strength, she reported that she had fallen 3 days prior and hurt her left knee. Regarding left and right straight leg raising, she had possible L4/L5 nerve root involvement bilaterally. She had right radiculopathy with radiating pain and possible nerve damage from injury. She had no other neurologic abnormalities besides the right lower extremity radiculopathy. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions listed in the diagnosis section above. X-ray results from November 2023 were noted to show moderate disc space narrowing; moderately advanced facet arthropathy through the lumbar levels more severe at the lumbosacral junction where it may result in foraminal stenosis; endplate osteophytes are seen at this level; slight convex left rotatory curvature may be positional.

The Board finds that the evidence, although showing the Veteran to have issues with limited painful motion and functional loss, does not reflect a limited motion to the extent that more closely resembles forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. As the June 2024 examination showed fully normal thoracolumbar motion, the May 2024 VA examination is the only examination that showed limited motion. However, her flexion was 80 degrees, and it was not shown to be decreased further either by pain, flareups or repeated use, including over time. Both examinations were negative for ankylosis. The PT records are noted to show the Veteran had limited motion of 50 percent flexion, with other motions including backward bending and right bending also reported as 50 percent. Although not listed in degrees, this suggests his motion was 50 percent of normal, which would be 45 degrees flexion. Even the most restricted motions at left rotation and bilateral side bending at 25 percent do not rise to the level of ankylosis. Although the PT records did include some findings of pain interfering
that showed limited motion. However, her flexion was 80 degrees, and it was not shown to be decreased further either by pain, flareups or repeated use, including over time. Both examinations were negative for ankylosis. The PT records are noted to show the Veteran had limited motion of 50 percent flexion, with other motions including backward bending and right bending also reported as 50 percent. Although not listed in degrees, this suggests his motion was 50 percent of normal, which would be 45 degrees flexion. Even the most restricted motions at left rotation and bilateral side bending at 25 percent do not rise to the level of ankylosis. Although the PT records did include some findings of pain interfering with sleep and difficulty walking, these records do not reflect findings consistent with forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the thoracolumbar spine.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." This is not for application as there is not shown to be disc herniation.

Regarding neurological impairment, with the exception of the service connected radiculopathy of the right lower extremity which shall be addressed later, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with the spine disability. The VA examinations of May and June 2024 both indicated that there were no other neurological manifestations besides the right lower extremity radiculopathy. The private medical records of PT treatment do not include any clear diagnoses of other neurological manifestations, although they do include treatment for subjective symptoms that include pain down the right lower extremity, and positive tests on straight leg raise, slump and seated dural stretch.

Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

2. Increased rating for radiculopathy, sciatic right lower extremity currently evaluated at 20 percent effective December 19, 2023.

Regarding the radiculopathy of the right lower extremity associated with the lumbar spine disorder, the Veteran is in receipt of a 20 percent disabling based on the criteria for sciatic nerve paralysis.

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. 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
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 term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating 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).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124.

The record contains some conflicting evidence, with the May 2024 VA examination finding no radiculopathy, while the June 2024 VA examination showed findings of a right lower extremity sciatic nerve radiculopathy. The most significant symptoms were described as severe, constant pain, and severe paresthesias/dysesthesias in this extremity. However, there were no other radicular symptoms noted (including no intermittent pain and numbness). Additionally radicular symptoms were described in the December 2023 PT evaluation, with increasing pain in the back and right leg and an antalgic gait noted on examination, which is potentially suggestive of some impairment of motor function.

However, there is no evidence of complete paralysis, trophic changes, muscle atrophy or loss of reflexes shown on the VA examinations, nor are these shown in the PT records. There is mild muscle weakness of 4/5 noted at the knees bilaterally in the June 2024 examination, although the rest of muscle strength findings were normal. Regarding sensory disturbances, her sensory exam was normal in the May and June 2024 VA examinations and the December 2023 PT evaluation showed normal dermatomes bilaterally.

Based on the above, the Board finds that the Veteran's radicular disability is primarily manifested by some severe pain and severe paresthesias/dysesthesias. There is also some evidence of some impairment of motor functions, per the findings of antalgic gait shown on PT evaluation and June 2024 VA examination. However, the June 2024 VA examination also suggested that the gait abnormalities were caused by lumbar spasm rather than lower extremity radiculopathy. The Board thus finds that the level of impairment is most analogous to no more than a moderate incomplete paralysis and does not more closely resemble a moderately severe incomplete paralysis that would warrant a higher rating.

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 that have not already been service-connected. Therefore, a separate or higher rating under a different diagnostic code is not warranted.

In conclusion, the Board finds that the evidence of record persuasively weighs
and June 2024 VA examination. However, the June 2024 VA examination also suggested that the gait abnormalities were caused by lumbar spasm rather than lower extremity radiculopathy. The Board thus finds that the level of impairment is most analogous to no more than a moderate incomplete paralysis and does not more closely resemble a moderately severe incomplete paralysis that would warrant a higher rating.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for his right lower extremity radiculopathy. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Service connection for right lower leg condition other than radiculopathy as secondary to lower back injury.

The Veteran contends that service connected is warranted for a right lower leg disorder. She has specifically appealed the RO's June 2024 rating decision, which determined that new and relevant evidence had been received to reopen a previously denied claim for this disorder. As this is a favorable finding, the Board is bound by this and shall adjudicate this matter on the merits.

Service connection is now in effect for right lower extremity radiculopathy per a July 2024 rating. Because the Veteran has not indicated that this grant of radiculopathy has satisfied her claim for service connection for a right lower leg condition, the Board has characterized the issue to be for a right lower leg condition other than radiculopathy.

Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection.

Service connection may be granted for a disability that is due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

The question for the Board is whether the Veteran has a current disability that is due to or the result of or was aggravated by a service-connected disability.

The Veteran does not have a current diagnosis, or functional impairment in earning capacity, associated with any claimed disability of the right leg separate from her radiculopathy.

In a May 2024 VA knee and leg disorders examination, the findings from this examination were fully normal. Her range of motion of the right knee was all normal, with passive as same as active. She had no pain on motion which was unchanged after repetitions. There was no functional loss including after repetitive use over time. There were no additional factors of disability. There was no muscle atrophy and joint stability testing was all normal. The examiner concluded that the Veteran does not have a current diagnosis associated with any claimed conditions listed. The examiner further gave an opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness as there is no pathology to warrant a diagnosis. While the examiner did not address the issue of secondary service connection, in light of the nature of the response provided, this is deemed harmless error. Indeed, current disability (to include impairment in earning capacity) is a predicate for service connection whether on a direct or secondary basis.

The Board notes that the PT records are noted to include a diagnosis of "right leg pain" among the other treatment diagnoses of low back pain, unspecified, M54.16: radiculopathy, lumbar region, other spondylosis with radiculopathy, lumbar region, pain in the right hip and pain in the left hip. See 115 pg. Medical Treatment Records Nongovernment received 3/5/24 at pg. 11. However, the PT notes did not include any other right leg diagnosis besides pain, and also diagnosed radiculopathy. The Board notes that under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Board further notes that pain is the primary symptom of the service connected radiculopathy of the right lower extremity and
Medical Treatment Records Nongovernment received 3/5/24 at pg. 11. However, the PT notes did not include any other right leg diagnosis besides pain, and also diagnosed radiculopathy. The Board notes that under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Board further notes that pain is the primary symptom of the service connected radiculopathy of the right lower extremity and thus is already compensated by the rating criteria for radiculopathy. See 38 C.F.R. § 4.14.

The Board concludes that the Veteran does not have a current diagnosis of a right lower extremity disability separate from the radiculopathy of the right lower extremity and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Having concluded that no such disability exists, the Board finds that it is not necessary to further address whether service connection is warranted on a secondary basis.

4. Whether there is a valid appeal of the July 2014 denial of service connection for lower back injury (previously claimed as low back strain).

5. Whether there is a valid appeal of the July 2014 denial of service connection for lower right leg condition.

In the July 2024 VA Form 10182 NOD, the Veteran specifically expressed disagreement with a July 19, 2014 notice of a July 2014 rating decision that denied service connection for a lower back injury (previously claimed as low back strain) and lower right leg condition.

Turning to the relevant laws and regulations, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.104 (c). In the present case, there is no specific error of fact or law as there are no valid appeals.

Specifically, in August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review and became effective February 19, 2019.

As the July 2014 rating decision predates the effective date of the AMA, the legacy appellate system governs this rating decision. Consequently, the Veteran's filing of VA Form 10182 (appeal to the Board) under AMA, rather than under the prior legacy appeal system, was improper. 38 C.F.R. §§ 3.2400, 19.2(c).

Under the legacy appeals system, an appeal consists of a timely filed notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal via a VA Form 9. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. By regulation, a substantive appeal must consist of a properly completed VA Form 9 or correspondence containing the necessary information. Cuevas v. Principi, 3 Vet. App. 542, 546 (1992); 38 C.F.R. § 20.202.

Further, the substantive appeal must either indicate that all the issues presented in the applicable SOC or supplemental SOC (SSOC) are being appealed or, if only particular issues are being appealed, should specify those. 38 C.F.R. § 20.202. The substantive appeal must be filed within sixty days after the mailing of the SOC, or within the remainder of the one-year period from the mailing of notification of the determination being appealed. 38 C.F.R. § 20.302.

This filing deadline may be extended for a reasonable period on request for good cause shown. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.303. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303.

The July 2024 VA Form 10182 was untimely as to the July 2014 rating decision. In this case, the Veteran did not file a NOD within one year of the January 2014 rating decision and it became final. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105 (c). Additionally, the back disorder issue was rendered moot by the grant of service connection for lumbosacral strain with degenerative arthritis, spinal stenosis and facet arthropathy and right lower extremity radiculopathy.

Accordingly, the Board has no jurisdiction to review the appeals, and they are dismissed.

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Eckart, C.

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

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