DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

G. WILLIAM RIGGS · 2025 · Case ID: 25010790

GRANTED

Summary

The Veteran, a Marine Corps Veteran who served from March 1974 to October 1985, appeals the denial of a higher disability rating for lumbar degenerative joint disease and the denial of Total Disability based on Individual Unemployability (TDIU) from April 7, 2015. The Board reviewed multiple VA examinations and opinions concerning the Veteran's lumbar spine condition. Evidence from November 2019 indicated forward flexion limited to 22 degrees with pain, and an estimated 10 degrees after repeated use. A January 2025 VA examination noted a longitudinal trend of degenerative changes since 2015 and opined that the condition worsened prior to November 5, 2019. A March 2025 examination provided specific range of motion measurements, while an April 2025 examination found the Veteran's progressive symptomatology consistent with the condition and credible. Resolving doubt in the Veteran's favor, the Board granted a 40 percent rating for the lumbar spine disability from April 7, 2015. For TDIU, the Board considered the Veteran's combined service-connected disabilities, including lumbar degenerative joint disease (rated 40% from April 7, 2015), PTSD (100%), bilateral hearing loss (30%), left ankle degenerative joint disease (20%), radiculopathy (20% and 10%), and tinnitus (10%). A November 2022 Vocational Assessment opined that these disabilities rendered the Veteran unable to secure or follow substantially gainful employment since April 2015, citing limitations in sitting, standing, walking, bending, lifting, and communication difficulties due to hearing loss and tinnitus. Resolving doubt in the Veteran's favor, the Board granted TDIU from April 7, 2015.

Rationale

Forward flexion limited to 22 degrees with pain; Estimated forward flexion to 10 degrees after repeated use; Evidence of guarding not resulting in abnormal gait or spinal contour; Progressive symptomatology consistent with lumbar degenerative joint and disc disease; Resolving all doubt in Veteran's favor

Service Branch

MARINE CORPS

Special Benefit

TDIU

Docket No.

17-44 939

Full Decision Text

Citation Nr: 25010790
Decision Date: 08/21/25 Archive Date: 08/21/25

DOCKET NO. 17-44 939
DATE: August 21, 2025

ORDER

Entitlement to a disability rating of 40 percent for lumbar degenerative joint disease with history of lumbosacral strain/sprain from April 7, 2015, is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) from April 7, 2015, is granted.

FINDINGS OF FACT

1. From April 7, 2015, the Veteran's lumbar spine disability more closely approximates forward flexion of the thoracolumbar spine of 30 degrees or less.

2. From April 7, 2015, the probative evidence demonstrates that the Veteran's service-connected disabilities as likely as not preclude substantially gainful employment that is consistent with his education and occupational experience.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating of 40 percent for lumbar degenerative joint disease with history of lumbosacral strain/sprain from April 7, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242.

2. The criteria for entitlement to TDIU from April 7, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from March 1974 until his honorable discharge in October 1985.

This matter before the Board of Veterans' Appeals (Board) is on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ).

This matter was most recently before the Board in October 2024 and has returned to the Board for further appellate review.

1. Entitlement to a disability rating of 40 percent for lumbar degenerative joint disease with history of lumbosacral strain/sprain from April 7, 2015, is granted.

The Veteran seeks a disability rating higher than 20 percent for his service-connected lumbar spine disability prior to November 5, 2019.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

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).

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted for lumbar spine disabilities where forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or where the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or where there is 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. 38 C.F.R. § 4.71a, General Rating Formula.

Any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1).

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

Upon review of the record, the Board finds that a 40 percent disability rating is warranted for the Veteran's lumbar spine disability from April 7, 2015.

Throughout the appeal period the Veteran underwent multiple VA examinations. Additionally, in accordance with the October 2023 and October 2024 remand directives, opinions were obtained with respect to the severity of the Veteran's lumbar spine disability prior to November 2019.

During VA examination in November 2019, the range of motion testing revealed forward flexion to 22 degrees with pain noted on all ranges of motion, and evidence of pain on weight-bearing. The examiner estimated the Veteran's range of motion as forward flexion to 10 degrees after repeated use over time and during flare ups. The examiner indicated that there was evidence of guarding, not resulting in abnormal gait or spinal contour. Additional factors contributing to the Veteran's disability include less movement than normal and interference with sitting, and the Veteran uses a brace and a cane due to his lumbar spine disability. There was no evidence of muscle atrophy, ankylosis, IVDS, or additional neurological abnormalities related to the lumbar spine.

In January 2025, a VA examiner explained that the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop and there is a longitudinal trend of documented evidence of degenerative changes beginning in 2015 and continuing to present. As such, the examiner opined that it is at least as likely as not that there has been a worsening of the Veteran's lumbar spine disability prior to November 5, 2019.

In March 2025, a VA examiner explained that the estimated range of motion The Board notes that in March 2025, a VA examiner explained that the estimated range of motion for the period to November 5, 2019, as forward flexion to 45 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The examiner explained that there would not be any additional loss of range of motion after repetitive use or during flare ups as it would suggest the Veteran's unable to perform activities of daily living and instrumental activities of daily living. However, the Board notes that during the May 2015 VA examination the Veteran indicated that he is unable to continue his daily activities until he lays down for several hours during flare ups. Moreover, during the December 2016 VA examination, the Veteran reported that during flare ups he has increased pain, stiffness, and limited activity.

In April 2025, a VA examiner noted that the Veteran experienced documented periods of increased severity, including between 2015 and 2019. The examiner explained that the multiple VA examinations conducted between 2015 and 2019 document chronic pain, reduced lumbar mobility, and increasing functional limitations, supporting a gradually progressive worsening of the service-connected lumbar condition during this period. Additionally, the examiner found that the Veteran's report of progressive symptomatology is medically consistent with the known pathophysiology of lumbar degenerative joint and disc disease and are credible and plausible.

Thus, after considering the record and resolving all doubt in the Veteran's favor, the Board finds that beginning April 7, 2015, the Veteran's symptoms more closely approximate the criteria for a 40 percent disability rating for his service-connected lumbar spine disability. As such, the Board finds that a 40 percent disability rating is warranted for the Veteran's lumbar degenerative joint disease with history of lumbosacral strain/sprain from April 7, 2015.

2. Entitlement to a TDIU from April 7, 2015, is granted.

VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

Here, the Veteran is currently service-connected for depressive disorder, rated as 100 percent disabling from August 23, 2019; lumbar degenerative joint disease, rated as 20 percent disabling from October 31, 2003, and 40 percent disabling from April 7, 2015; bilateral hearing loss; rated as noncompensable from August 13, 1991, 30 percent disabling from November 8, 2002; left ankle degenerative joint disease, rated as 20 percent disabling from November 8, 2002; left lower extremity radiculopathy, rated as 20 percent disabling from November 5, 2019; tinnitus rated as 10 percent disabling from November 8, 2002; and right lower extremity radiculopathy, rated as 10 percent disabling from November 5, 2019. The Veteran's combined evaluation for compensation 70 percent from April 7, 2015. Thus, the schedular criteria for the assignment of a TDI
rated as noncompensable from August 13, 1991, 30 percent disabling from November 8, 2002; left ankle degenerative joint disease, rated as 20 percent disabling from November 8, 2002; left lower extremity radiculopathy, rated as 20 percent disabling from November 5, 2019; tinnitus rated as 10 percent disabling from November 8, 2002; and right lower extremity radiculopathy, rated as 10 percent disabling from November 5, 2019. The Veteran's combined evaluation for compensation 70 percent from April 7, 2015. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met from that date.

Upon review of the record, the Board finds that the probative evidence of record reflects that the combined effects of the Veteran's service-connected disabilities at least as likely as not render him unable to secure and follow substantially gainful employment from April 7, 2015.

In this regard, the evidence of record reflects that the Veteran last engaged in substantially gainful employment in 1993. During a May 2015 VA examination the Veteran reported that his service-connected lumbar spine disability impacts his ability to work. In December 2016, a VA examiner indicated that the Veteran's service-connected lumbar spine and left ankle disabilities affects his ability to weight bear, ambulate, move, and especially bend and lift. Moreover, in a November 2022 Vocational Assessment, a certified rehabilitation counselor opined that that it is at least as likely as not that the Veteran's service-connected back, left ankle, bilateral hearing loss, and tinnitus have rendered him unable to secure or follow substantially gainful employment, in any occupation regardless of skill or exertional level since at least April 2015. The counselor explained that the limitations and symptoms relating to the Veteran's service-connected back and left ankle disabilities include the inability to perform prolonged sitting, standing or walking and the inability to meet employer expectations of adequate pace and productivity. Additionally, he explained that the Veteran's inability to communicate effectively on a consistent and reliable basis due to his service-connected bilateral hearing loss and tinnitus would further contribute to his inability to work in a substantially gainful capacity.

Considering the above and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran is unemployable based on the combined effects of his service-connected disabilities. Accordingly, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

G. William Riggs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Lance, 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.

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