BACK DISABILITY, INCREASED RATING

M. C. WILSON · 2025 · Case ID: 25009862

MIXED

Summary

The veteran served on active duty from September 1968 to June 1976. This case comes before the Board of Veterans' Appeals (Board) following previous remands. The veteran sought an increased rating for a back disability and service connection for headaches. The Board granted an increased rating for the back disability to 40 percent, finding that the September 2024 VA examination adequately supported this rating for the entire appeal period, considering the veteran's pain-limited range of motion and applying the benefit of the doubt. The Board determined that a higher rating was not warranted as the evidence did not establish unfavorable ankylosis or meet the criteria for incapacitating episodes under the IVDS formula. The Board also granted entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s), noting the veteran's 100 percent rating for a psychiatric disability and a combined rating exceeding 60 percent for other service-connected disabilities, which were distinct from the psychiatric condition. Service connection for headaches was denied. The Board found the August 2024 VA examination persuasive, concluding that there was no medical or scientific evidence linking headaches to herbicide exposure or the service-connected back disability, and that the veteran's lay belief was not competent medical evidence. The evidence weighed against both direct and secondary service connection for headaches.

Special Benefit

SMC

Docket No.

16-63 689

Full Decision Text

Citation Nr: 25009862
Decision Date: 07/30/25 Archive Date: 07/30/25

DOCKET NO. 16-63 689
DATE: July 30, 2025

ORDER

Entitlement to a 40 percent disability rating for a back disability is granted.

Entitlement to special monthly compensation (SMC) under?38 U.S.C. § 1114(s) is granted.

Entitlement to service connection for headaches is denied.

FINDINGS OF FACT

1. For the entire appeal period, the Veteran's back disability approximates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

2. The Veteran is now in receipt of a 100 percent rating for a single disability (psychiatric) and a combined rating of at least 60 percent for his other service-connected disabilities.

3. The persuasive evidence weighs against finding that the Veteran's headaches are related to service or caused or aggravated by service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 40 percent for a back disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5237.

2. . The criteria for entitlement to?SMC?under?38 U.S.C. § 1114(s) have been met.?38 U.S.C. § 1114(s);?38 C.F.R. § 3.350(i).

3. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1968 to June 1976.

These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2014 Department of Veterans Affairs (VA) regional office (RO) rating decision.

The Board recently remanded the claims in October 2023 and July 2024 for further development. The issue of entitlement to service connection for a psychiatric disability was recently granted in full by an October 2024 rating decision; it is no longer for Board consideration. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The Veteran's back disability is currently rated at 20 percent disabling for the entire appeal period. In addition, he was recently service connected for bilateral lower extremity radiculopathy as secondary to this back disability. However, as the radiculopathy claims were subject of an October 2024 AMA rating decision and are not currently and specifically challenged by the Veteran, they are removed from current legacy consideration. De Hart v. McDonough, 37 Vet. App. 371 (2024).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is
structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995).

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.

Pursuant to?Jones?v. Shinseki,?26?Vet. App.?56?(2012), VA may not consider the?ameliorative?effects of medication where such effects are not explicitly contemplated by the rating criteria. And more recently, the Court clarified the Jones holding in?Ingram?v. Collins,?38 Vet. App. 130 (2025), that "because the applicable diagnostic codes (DCs) and special musculoskeletal regulations do not reference medication, the Board must discount beneficial medication effects when assigning an evaluation." Id. at 131.

Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing DCs 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, 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 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 rating is warranted for unfavorable ankylosis of the entire spine.

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees.
the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine.

The United States Court of Appeals for Veterans Claims (CAVC or Court) recently has held that, while in the past the focus of applying the factors contained in 38 C.F.R. §§ 4.40 and 4.45 were limited to that of range of motion, nothing "suggests that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion." Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, the "application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."

VA has defined unfavorable ankylosis 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. Fixation of a spinal segment in neutral position always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235, 5242 at Note (5).

When rating degenerative arthritis of the spine (DC 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a.

DC 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 Intervertebral Disc Syndrome 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 Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id.

Note (1) to DC 5243 provides that, for purposes of ratings under DC 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of
in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board notes as the Veteran's disability does not warrant an increased rating under DC 5243, as will be demonstrated by the evidence below, the new criteria are not for application. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5242, 5243, 5244).

Entitlement to a disability rating in excess of 20 percent for a back disability

The September 2014 and March 2024 VA examinations were previously deemed inadequate by the Board. As such, they are afforded no probative weight and will not be discussed further.

In a September 2024 VA examination, the Veteran complained of joint pain and stiffness resulting in difficulty walking, standing, and sitting for long periods due to pain. The Veteran used NSAIDs and Tylenol as needed to treat the pain. Initial range of motion testing revealed forward flexion to 55 degrees and extension to 5 degrees. However, the point at which pain resulted in limited motion was 5 degrees flexion and 5 degrees extension.

Based on the above, a disability rating of 40 percent is warranted for the entire appeal period. The Board notes that the only adequate VA examination of record was obtained in September 2024. The Board will therefore apply these readings for the entire appeal period. Therein, the examiner noted the point at which pain resulted in limited motion was 5 degrees flexion and 5 degrees extension. This estimate falls squarely within the 40 percent criteria. As such, the Board has applied the benefit of the doubt and Mitchell to find that the Veteran's back disability approximates the 40 percent criteria for the entire appeal period.

However, a rating in excess of 40 percent is not warranted. Under DC 5237, a 50 percent rating requires the Veteran to have unfavorable ankylosis of the thoracolumbar spine. However, at no point in the record is the Veteran shown to have unfavorable ankylosis, even considering the ruling in Chavis, under the defined terms provided by 38 C.F.R. § 4.71a, DCs 5235, 5242 at Note (5). Even after affording him the benefit of the doubt and taking the Court's recent holding in Chavis into consideration, the Board finds that the functional impairment caused by the Veteran's service-connected back disability is not more nearly approximated as unfavorable ankylosis of the entire thoracolumbar spine. At all times during the appeal period the Veteran has had some, albeit limited, movement of his back. As such, a 50 percent rating is not warranted.

The Board also acknowledges the Court's recent holding in Ingram. However, given that the Veteran is not prescribed medication for his disability and only takes it as needed, the Board finds that the level of severity without the medication would not result in a higher rating. Indeed, the Board is awarding the highest allowable rating based on limited range of motion vis a vis a medical finding of ankylosis as explained above.

The Board recognizes the Veteran's reports of pain and functional limitations that impact his everyday life, such as difficulty standing, walking, and sitting for prolonged periods. However, while the Board is sympathetic to the Veteran's difficulties brought on by his back disability, these symptoms do not equivalate to unfavorable ankylosis as required under the 50 percent rating criteria.

Further, the next highest 60 percent disability rating under the IVDS criteria require incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. However, none of the evidence of record during the relevant appeal period shows that these criteria have been met. Indeed, while the Veteran's back disability is severe, the Veteran has never received prescribed bedrest during this period. Further consideration under DC 5243 is thus not warranted.

In sum, a
difficulty standing, walking, and sitting for prolonged periods. However, while the Board is sympathetic to the Veteran's difficulties brought on by his back disability, these symptoms do not equivalate to unfavorable ankylosis as required under the 50 percent rating criteria.

In sum, a rating of 40 percent for his back disability is warranted for the entire appeal period. To this extent, the claim is granted.

SMC

The Veteran has been awarded a 100 percent rating for the entire appeal period for a psychiatric disability, and the issue of entitlement to?SMC?has not been raised or adjudicated. However, such a claim is inherently part of an appealed rating claim where the criteria are raised. See Buie v. Shinseki,?24?Vet. App.?242, 250?(2011); Bradley v. Peake,?22?Vet. App.?280?(2008).

As it pertains to the instant case,?SMC?is a special statutory benefit that is payable if a veteran has a single service-connected disability rated at 100-percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.?38 U.S.C. § 1114(s);?38 C.F.R. § 3.350(i).

Here, the Veteran's other service-connected disabilities, including a back disability, tinnitus, bilateral lower extremity radiculopathy, and hypertension are separate and distinct from his psychiatric disability. When taken together, and excluding the 100 percent rating, the Veteran's additional service-connected disabilities have a combined schedular rating of over 60 percent for the entire appeal period. Accordingly,?SMC?is warranted. See?38 U.S.C. § 1114(s). The claim is granted.

Service Connection

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

Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

Entitlement to service connection for headaches

The Veteran has been seen for headaches at some point during the appeal period, see April 2020 medical treatment records and July 2024 Board Remand (conceding 2014 diagnosis), was presumed exposed to herbicides in service, and is service connected for a back disability. As such, the remaining link is whether there is a direct or secondary connection to service.

As previously held in the July 2024 Board decision, the March 2024 VA examination is inadequate. As such, it will not be afforded any probative weight.

In an August 2024 VA medical opinion, the examiner opined that it was less likely than not that his headaches were due to herbicide exposure. The examiner reasoned that there is "no medical or scientific evidence" that identifies a causal relationship between herbicide exposure and headaches; the examiner added that there was a "lack of substantiating evidence supporting a nexus" as there was no "chronicity" during or after service.

On secondary service connection, the examiner likewise provided a negative opinion. He reasoned that headaches are a "separate condition and unrelated" to the service-connected back disability because the "pathologies of these two conditions do not interact or have causality with
, it will not be afforded any probative weight.

First, the Board finds that while headaches are not presumed related to herbicide exposure, he may still prevail on a direct theory of causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, even considering this direct theory, the Board finds that the persuasive evidence weighs against the claim. The August 2024 VA examination is provided probative weight as it is well reasoned in its conclusion that there is "no medical or scientific evidence" that identifies a causal relationship between herbicide exposure and headaches, and that there was a "lack of substantiating evidence supporting a nexus" to service as there was no "chronicity" during such or after separation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). There is no medical opinion to the contrary and the Board is not allowed to ignore or disregard the medical conclusions of a VA physician and is not permitted to substitute its own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991).

Second, the Board finds that the persuasive evidence weighs against a secondary theory of causation. Namely, the August 2024 VA examination is provided probative weight as it is well reasoned in its conclusion that headaches are a "separate condition and unrelated" to the service-connected back disability because the "pathologies of these two conditions do not interact or have causality with one another." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). There is no medical opinion to the contrary and the Board is not allowed to ignore or disregard the medical conclusions of a VA physician and is not permitted to substitute its own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991).

The Board has considered the Veteran's belief relating his headaches to service and to his service-connected disabilities. However, the Board cannot consider this belief as competent as he neither has the medical training nor knowledge required to provide such an opinion. Jandreau v. Nicholson, 492 F. 3d 1372 (2009).

In sum, the competent evidence does not establish that the Veteran's headaches are related to his active duty, to include the conceded in-service herbicide exposure, or that it has been caused or aggravated by his service-connected back disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is denied.

M. C. WILSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Finelli, Christopher

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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