OTHER FOOT INJURIES

JAMES A. DEFRANK · 2025 · Case ID: 25011609

MIXED

Summary

The Veteran, an Army Veteran who served from September 1977 to October 1981, appeals the denial of an increased rating for his back disability and the initial assignment of ratings for his right foot and bilateral lower extremity radiculopathy. The Board granted a 40 percent disability rating for the Veteran's right foot disability, finding that while not an actual loss of use, the severe pain, instability, and functional limitations, including inability to sit, stand, or walk for prolonged periods, warranted the higher rating. The Board denied an increased rating for the back disability, concluding that the Veteran's range of motion and symptoms, even during flares, did not meet the criteria for unfavorable ankylosis or a higher rating under the applicable diagnostic code. However, the Board granted initial 20 percent disability ratings for both the right and left lower extremity sciatic nerve radiculopathy, finding the Veteran's symptoms of moderate intermittent pain, paresthesias, dysesthesia, and numbness consistent with moderate incomplete paralysis, affording the Veteran the benefit of the doubt. The Board found the VA examinations adequate for decision-making on these issues.

Rationale

Severe pain, instability, and functional loss; Inability to sit/stand/walk for prolonged periods; Symptoms akin to loss of use

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5284

Docket No.

17-17 903

Full Decision Text

Citation Nr: 25011609
Decision Date: 09/11/25 Archive Date: 09/11/25

DOCKET NO. 17-17 903
DATE: September 11, 2025

ORDER

Entitlement to a 40 percent disability rating for the Veteran's right foot injury with great toe fracture ("right foot disability") is granted.

Entitlement to a disability rating higher than 40 percent for the Veteran's back strain and osteoarthritis lumbar spine ("back disability") is denied.

Entitlement to an initial 20 percent disability for the Veteran's right lower extremity sciatic nerve radiculopathy is granted.

Entitlement to an initial 20 percent disability for the Veteran's left lower extremity sciatic nerve radiculopathy is granted.

FINDINGS OF FACT

1. The Veteran's right foot disability manifested in symptoms similar to actual loss of use of the foot.

2. At worst, the Veteran's back disability manifested in forward flexion to 5 degrees

3. The Veteran's bilateral lower extremity sciatic nerve radiculopathy manifested by moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a 40 percent disability rating for the Veteran's right foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1 4.14, 4.71a, Diagnostic Code 5284.

2. The criteria for a disability rating higher than 40 percent for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40 4.45, 4.59, 4.71a, Diagnostic Code 5237.

3. The criteria for an initial 20 percent disability rating for the Veteran's right lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1-4.14, 4.124a, Diagnostic Code 8520.

4. The criteria for an initial 20 percent disability rating for the Veteran's left lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1-4.14, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Army from September 1977 to October 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2020, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge, and a copy of the transcript is associated with the record.

In May 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive new VA examinations for his back and right foot disabilities. The prior VA examination for his back disability failed to address the impact of flareups on his range of motion. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, at the Board hearing, the Veteran testified that his right foot disability had worsened since his last VA examination. In November 2020, the Veteran received new VA examinations for his disabilities.

In July 2024, the Board determined additional development was needed. While the November 2020 VA examiner considered the impact of flares on the Veteran's back disability, a new opinion was needed to determine if his disability manifested in the functional equivalent of ankylosis. The Board also determined that the Veteran's right foot disability manifested in symptoms more severe than contemplated by the schedular rating, and referral to the Director of Compensation Service for extraschedular consideration was warranted.

An October 2024 VA opinion addressed whether the Veteran's disability manifested in ankylosis. He also received a new VA examination for his back disability in January 2025. The Veteran also received another VA examination for his right foot disability in September 2024, and in May 2025, the Director provided an opinion concerning whether an extraschedular rating was warranted. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v
equivalent of ankylosis. The Board also determined that the Veteran's right foot disability manifested in symptoms more severe than contemplated by the schedular rating, and referral to the Director of Compensation Service for extraschedular consideration was warranted.

Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Ratings

Laws and Regulations

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020).

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2021). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021).

In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of his right foot, low back and radiculopathy disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities.

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. 38 C.F.R. § 4.40.
factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of his right foot, low back and radiculopathy disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities.

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. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

1. Right Foot Disability

The Veteran is seeking a disability rating higher than 30 percent for his right foot disability. The Veteran's right foot disability is rated under Diagnostic Code 5284, for other foot injuries.

Under Diagnostic Code 5284, a 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that for actual loss of use of the foot rate the disability as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284.

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. However, this Diagnostic Code was not changed.

The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. When a regulation includes ambiguous or subjective terms, the Board must define those terms so that all who read the decision have a common point of reference. See Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018).

The Veteran's VA treatment records documented his right foot issues. In a September 2015 treatment record, he noted that since his December 2014 surgery, he experienced consistent pain and swelling. He also had pain with weight bearing and daily activities.

In a May 2016 treatment record, he rated his pain as 7 to 8 out of 10.

In February 2017,
38 C.F.R. § 4.6. When a regulation includes ambiguous or subjective terms, the Board must define those terms so that all who read the decision have a common point of reference. See Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018).

In a May 2016 treatment record, he rated his pain as 7 to 8 out of 10.

In February 2017, the Veteran reported chronic pain despite taking medication.

In January 2019, he reiterated that he was in constant pain and had to use the grab bar in his bathroom to avoid falling.

In July 2020, he stated that his pain was so severe, he was unable to walk on his right foot.

The Veteran underwent a VA examination in May 2016. His right foot disability did not manifest in functional impairment or altered gait. The examiner noted that the Veteran had hallux valgus of mild severity.

His next VA examination was in November 2020. He reported constant pain and achiness, which caused instability. He experienced severe flares twice a week that lasted days. His flares were precipitated by walking, standing, and hitting his toes. He experienced numbness, and at times, his right foot would drag and crush his right toe. His disability caused functional loss in the form of pain with movement, pain with weight bearing, instability, disturbance of locomotion, interference with standing, and lack of endurance. He also had pain with active, passive, and non weight bearing. The Veteran occasionally used a cane as an assistive device. He was unable to walk more than 20 yards, sit for more than 5 to 10 minutes, and stand for more than 5 to 10 minutes. His disability was described as severe.

In September 2024, he received another VA examination. He had daily, severe flareups, which were precipitated by walking and standing. He experienced functional loss in the form of disturbance of locomotion, interference with standing, pain, and fatigue. He continued to have pain with all forms of movement including passive, active, weight bearing, and non weight bearing; he even had pain at rest. He was unable to sit, stand, or walk for prolonged periods. His disability was similarly rated as severe.

The Board also notes that the Veteran submitted lay statements describing the impact of his right foot disability. In a January 2015 statement, he reported that his pain was so severe he attempted to end his own life. In April 2016, he wrote that his right foot pain altered his gait.

In the July 2024 remand, the Board determined that the Veteran's right foot disability manifested in symptoms that constituted an exceptional disability picture. His severe functional ability and pain was not adequately contemplated by the current rating criteria. See Thun v. Peak, 22 Vet. App. 111 (2008). Thus, his claim was referred to the Director of Compensation Service for an extraschedular opinion. 38 C.F.R. § 3.321(b)(1).

In May 2025, the Director of Compensation Service provided an opinion on the Veteran's right foot disability. The Director noted the Veteran's prior VA examinations. Specifically, the Director noted that the September 2024 VA examiner concluded that the Veteran's right foot disability did not cause functional impairment to the degree that no effective function remained. Consequently, the Director determined that the evidentiary record did not demonstrate that the Veteran's right foot disability manifested in an unusual or exceptional symptoms such that an extraschedular rating was needed.

The Board finds that the Veteran is entitled to a higher 40 percent disability rating for his right foot disability. The Board acknowledges that the Veteran's right foot disability has not resulted in actual loss of use. Nevertheless, when considering the severity of his symptoms, the Board finds that his disability is best contemplated by the higher 40 percent rating. The VA examinations noted the Veteran's disability resulted in pain with weight bearing, pain with non weight bearing, pain on movement, pain at rest, instability, disturbance of locomotion, and interference with standing. His November 2020 VA examination described that the Veteran was unable to sit or stand for more than 5 to 10 minutes or walk more than 20 yards. In lay statements the Veteran described how his pain was so severe, he contemplated suicide. Therefore, the Board finds that the functional impairment
acknowledges that the Veteran's right foot disability has not resulted in actual loss of use. Nevertheless, when considering the severity of his symptoms, the Board finds that his disability is best contemplated by the higher 40 percent rating. The VA examinations noted the Veteran's disability resulted in pain with weight bearing, pain with non weight bearing, pain on movement, pain at rest, instability, disturbance of locomotion, and interference with standing. His November 2020 VA examination described that the Veteran was unable to sit or stand for more than 5 to 10 minutes or walk more than 20 yards. In lay statements the Veteran described how his pain was so severe, he contemplated suicide. Therefore, the Board finds that the functional impairment caused by the Veteran's right foot disability is most similar to a description of actual loss of use, and a higher 40 percent rating is warranted.

The Board acknowledges the May 2025 extraschedular opinion that the Veteran's disability manifested in symptoms contemplated by the rating criteria. However, the medical and lay evidence of record has consistently documented the severity of his functional loss, and how his disability has manifested in symptoms akin to loss of use. The Veteran was in constant pain, even at rest. He was unable to walk, sit, or stand and had persistent balance issues. Accordingly, the Board finds that the nature of the Veteran's disability manifested in unusual or exceptional symptoms that entitled him to a higher disability rating.

The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016)). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id.

Here, the Veteran's disability is unlisted and rated by analogy. In this regard, other Diagnostic Codes are not applicable. The Board acknowledges that the May 2016 VA examiner stated that the Veteran had hallux valgus. However, this diagnosis was not noted in his other medical records or VA examinations. The Board finds that the evidence of record does not reflect that the Veteran has any other service connected foot disabilities that would warrant a separate rating under a different Diagnostic Code.

2. Back Disability

The Veteran's back disability is rated at 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this Diagnostic Code was also not changed.

A 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id.

"Unfavorable ankylosis" is defined by regulation 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
warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id.

"Unfavorable ankylosis" is defined by regulation 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." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id.

Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V.

The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The Veteran's radiculopathy is addressed below, and the evidence fails to show that he has any other neurologic abnormalities, including bowel or bladder impairment.

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 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.

The Veteran's VA treatment records documented his treatment for his back disability. In an August 2015 record, he reported chronic back pain. He was seeking an increase in his pain medication because he was unable to sleep due to the pain. He recently lost his balance while cleaning his truck and fell. In a December 2016 record, he noted that his back and right foot pain contributed to another fall.

In November 2015, he received a VA examination. He had flareups that caused constant pain. He had functional impairment with leaning forward, bending, reaching out, and lifting. His range of motion was flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. He experienced pain with all range of motion testing. There was no change in his range of motion after repetitive use testing. The examiner was unable to state how the Veteran would be impacted by repeated use over time and during flares without speculation. His disability was additionally impacted by less movement than normal and interference with standing. He did not have ankylosis.

The Veteran's next VA examination was in November 2020. He reported having severe flares once or twice a week that lasted an hour. His flares were precipitated by movement, strain, reaching, falling, and getting out of bed. His range of motion was flexion to 15 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. He continued to experience pain with all range of motion testing, including active, passive, weight bearing, and non weight bearing. There was no additional loss in his range of motion after repetitive use testing and after repeated use over time. However, after repeated use over time, he was impacted by pain, fatigue, weakness, lack of endurance, and incoordination. During flares he was impacted by pain and weakness, and his flexion, extension, right lateral flexion, and left lateral flexion all decreased to 5 degrees.

In an October 2024 VA opinion, the examiner addressed whether the Veteran's documented lumbar spine range
lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. He continued to experience pain with all range of motion testing, including active, passive, weight bearing, and non weight bearing. There was no additional loss in his range of motion after repetitive use testing and after repeated use over time. However, after repeated use over time, he was impacted by pain, fatigue, weakness, lack of endurance, and incoordination. During flares he was impacted by pain and weakness, and his flexion, extension, right lateral flexion, and left lateral flexion all decreased to 5 degrees.

In an October 2024 VA opinion, the examiner addressed whether the Veteran's documented lumbar spine range of motion manifested in the functional equivalent of ankylosis. The examiner noted that there was no evidence of ankylosis to substantiate such a determination. The Veteran still exhibited range of motion such that his spine was able to flex to 90 degrees for sitting up and up to 0 degrees of extension to stand. Accordingly, the examiner opined that a "determination of ankylosis cannot be made."

The Veteran's most recent VA examination was in January 2025. He reported back pain with bilateral lower extremity radiculopathy. He was unable to stand or walk for more than a few minutes and had issues with bending and lifting. Additionally, his back disability resulted in a lack of balance that caused multiple falls. He experienced daily, severe flares that lasted for hours and were precipitated by regular activity. His range of motion was flexion to 10 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. He had pain with all active, passive, weight-bearing, and non weight bearing testing. There was no additional loss in his range of motion after repetitive use testing. After repeated use over time, he was impacted by pain, fatigability, and lack of endurance, but there was no change in his range of motion. During flares, he was impacted by pain, fatigability, weakness, lack of endurance, and incoordination; his flexion also decreased to 5 degrees. He did not have ankylosis.

Based on the evidence of record, the Board finds that the Veteran is adequately compensated for disability by his 40 percent rating. The evidence has consistently documented that the Veteran's flexion has manifested to forward flexion less than 30 degrees. At worst, his forward flexion was to 5 degrees as noted by the January 2025 VA examiner. This degree of flexion is contemplated by the 40 percent rating criteria.

A disability rating higher than 40 percent is not warranted because a higher rating would require a finding of unfavorable ankylosis, which is defined by regulation. While the Veteran experienced functional loss in the form of pain, fatigability, weakness, lack of endurance, and incoordination as well as limitations in standing, walking, and bending, his functional impairment did not result in unfavorable ankylosis. See 38 C.F.R. §§ 4.40, 4.45. The VA examiners also addressed how flares, passive testing, weight bearing testing, and non weight bearing testing impacted the Veteran's range of motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Even considering these factors, the Veteran's back disability did not equate to more than the disability picture contemplated by the 40 percent rating already assigned. 38 C.F.R. § 4.71a.

The evidence of record failed to demonstrate that the Veteran had any of the factors that VA employs to define unfavorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board also notes that the October 2024 VA opinion concluded that the Veteran's limited range of motion did not constitute functional ankylosis. Likewise, the Board finds that the medical and lay evidence failed to show that the Veteran's disability manifested in functional unfavorable ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, there is no probative evidence in the record to suggest that the Veteran's disability manifested in unfavorable ankylosis such that a higher disability rating is warranted.

The Board is cognizant of the fact that the Veteran used medication to treat his back disability.
Diseases and Injuries of the Spine, Note (5). The Board also notes that the October 2024 VA opinion concluded that the Veteran's limited range of motion did not constitute functional ankylosis. Likewise, the Board finds that the medical and lay evidence failed to show that the Veteran's disability manifested in functional unfavorable ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, there is no probative evidence in the record to suggest that the Veteran's disability manifested in unfavorable ankylosis such that a higher disability rating is warranted.

The Board is cognizant of the fact that the Veteran used medication to treat his back disability. Further, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use," unless such effects are otherwise contemplated in a particular diagnostic code. Ingram v. Collins, 38 Vet. App. 130 (2025). The Board notes, however, that Ingram does not address how the Board is to discount the beneficial effects of medication, particularly when used as treatment for musculoskeletal symptoms and where examiners do not have the ability to reasonably assess range of motion both with and without use of medication.

Moreover, in his VA treatment records, the Veteran reported that his pain medication was ineffective. While the VA examiners did not indicate whether the Veteran was on any pain medications at the time of the examinations, in rendering range of motion findings, they noted and considered his lay statements describing functional limitations when his pain and functional impairment was at its worst (e.g., during flare ups, on repetitive motion, due to lack of endurance, lack of coordination, etc.). Additionally, there is no evidence in the record to suggest that the Veteran's disability manifested in the symptoms that constituted unfavorable ankylosis, even accounting for the ameliorative effects of medication. Accordingly, the Board finds the VA examinations and the remainder of the evidentiary record adequate to render a decision that the Veteran is not entitled to a disability rating higher than 40 percent for his back disability.

3. Bilateral Lower Extremity Sciatica Nerve Radiculopathy

As noted above, separate ratings for neurologic complications for thoracolumbar spine disabilities are available. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (1).

Notably, the January 2025 VA examiner indicated that the Veteran had radiculopathy of the left and right lower extremity due to his service-connected lumbar spine disability. Accordingly, a separate rating for the left and right lower extremity radiculopathy is also warranted for neurological symptoms associated with the Veteran's service-connected lumbar spine disability.

As a result, the Board will assess the evaluation for the Veteran's now service-connected left and right lower extremity radiculopathy disabilities.

Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The Veteran's January 2025 VA examination noted that the Veteran's back disability manifested in right and left lower extremity sciatica nerve radiculopathy. The examiner noted that the Veteran's symptoms manifested in moderate intermittent pain, paresthesias and/or dysesthesia, and numbness. His strength and reflexes were normal, and he tested as normal on the sensory
4.124a.

Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that separate initial 20 percent disability ratings, but no higher, for radiculopathy of the right and left lower extremities is warranted for the entire period on appeal.

As noted above, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity.

Notably, the January 2025 VA examiner specifically indicated that the Veteran's symptoms manifested in moderate intermittent pain, paresthesias and/or dysesthesia, and numbness.

As a result, and when affording the Veteran the benefit of the doubt, the Board finds that initial 20 percent disability ratings, but no higher, are warranted for radiculopathy of the bilateral lower extremities, sciatic nerves.

However, initial evaluations in excess of 20 percent for the radiculopathy of the right and left lower extremities, sciatic nerve, have not been demonstrated by the evidence of record at any point.

As noted above, under Diagnostic Code 8520, a 20 percent evaluation is warranted for moderate incomplete paralysis, a 40 percent evaluation is warranted for moderately severe incomplete paralysis, a 60 percent evaluation is warranted for severe incomplete paralysis and an 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity.

On VA examination in January 2025, the VA examiner again specifically indicated that the Veteran had moderate intermittent pain, paresthesias and/or dysesthesia, and numbness.

As a result, the Board finds that the Veteran is accurately compensated for his bilateral lower extremity radiculopathy symptoms. Accordingly, initial ratings in excess of 20 percent for moderately severe incomplete paralysis of the sciatic nerve of the right and left lower extremities are not warranted.

As a result, the Board finds that 20 percent ratings, but no higher, are warranted as the Veteran has exhibited symptoms consistent with moderate incomplete paralysis of the sciatic nerves, in the right and left lower extremities.

James A. DeFrank

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Brunot

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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