INTERVERTEBRAL DISC SYNDROME

K. MILLIKAN · 2025 · Case ID: 25012366

MIXED

Summary

The veteran, who served from December 2007 to December 2011, appeals the denial of an increased rating for chronic thoracolumbar spine strain and the remand of his right knee chronic patella tendonitis with patellofemoral pain claim. The Board denied the thoracolumbar spine claim, finding that the veteran's range of motion and symptoms did not meet the criteria for a rating higher than the current 10 percent. The Board noted that while the veteran reported pain and functional loss, the VA examinations did not objectively document limitations severe enough to warrant a higher rating, even when considering flare-ups. For the right knee claim, the Board remanded the issue, finding the December 2020 VA examination inadequate. The examiner did not adequately address the veteran's reported knee flare-ups, leaving a crucial section of the examination report blank. The Board requires a new examination to assess the severity, frequency, and functional loss during flare-ups, potentially including a retrospective opinion to address past symptoms.

Rationale

Range of motion and pain limitations did not meet criteria for higher rating.; VA examinations did not document objective findings for abnormal gait, spinal contour, or severe muscle spasm.; No evidence of favorable or unfavorable ankylosis or incapacitating episodes.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5242

Docket No.

17-09 052

Full Decision Text

Citation Nr: 25012366
Decision Date: 10/02/25 Archive Date: 10/02/25

DOCKET NO. 17-09 052
DATE: October 2, 2025

ORDER

Entitlement to an initial evaluation in excess of 10 percent for service-connected chronic thoracolumbar spine strain is denied.

REMANDED

Entitlement to an initial evaluation in excess of 10 percent for service-connected right knee chronic patella tendonitis with patellofemoral pain is remanded.

FINDING OF FACT

The evidence of record does not support that the Veteran has 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.

CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for service-connected chronic thoracolumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.71a, Diagnostic Codes 5242-5237.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 2007 to December 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO).

The Veteran testified at a November 2019 Board hearing. A transcript is of record.

In January 2020, the Board remanded the issues on appeal and the issue of entitlement to service connection for left knee disorder. In a February 2021 rating decision, the RO granted an increase rating for right knee chronic patella tendinitis with patellofemoral pain from noncompensable to 10 percent disabling, effective October 24, 2013. Further, in the February 2021 rating decision, the RO granted service connection for left knee patellofemoral pain syndrome. As this represents a grant of the full benefit sought, the left knee issue is no longer before the Board on appeal. The increased rating for right knee and increase rating for thoracolumbar spine issues have been returned to the Board for appellate review.

Increased Rating

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 degrees of disability 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.

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 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. 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 such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App.
). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to an initial evaluation in excess of 10 percent for service-connected chronic thoracolumbar spine strain disability is denied.

During the pendency of the claim, some of the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). However, these amendments are not applicable any earlier than their effective date. As there is no evidence dated after February 2021, the amended regulations are not for application.

The Veteran's service-connected chronic thoracolumbar spine strain (back disability) it is currently rated 10 percent disabling under Diagnostic Codes 5242-5237. 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning hyphenated ratings).

Disabilities of the spine are rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. For the lumbar spine, a 10 percent rating for forward flexion 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 for forward flexion greater than 30 degrees but not greater than 60 degrees; or a combined range of motion 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 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned due to unfavorable ankylosis of the entire spine. Id.

Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1).

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2).

An August 2014 VA examination was conducted. The Veteran reported daily pain with stiffness and soreness in the morning. He denied any radicular symptoms into the lower extremities. He reported that repetitive bending, lifting, running, and prolonged standing is aggravating for him. The Veteran reported flare-ups impacted the function of the thoracolumbar spine (back), described as him needing to use his spouse as a crutch to make it out of bed. Initial range of motion testing revealed forward flexion to 75 degrees with objective evidence of painful motion beginning at 75 degrees; extension to 20 degrees with objective evidence of painful motion beginning at 20 degrees; right lateral flexion to 20 degrees with objective evidence of painful motion beginning at 20 degrees; left lateral flexion to 25 degrees with objective evidence of painful motion beginning at 25 degrees; right lateral rotation to 30 degrees or greater with objective evidence of painful motion beginning at 30 degrees; left lateral rotation to 30 degrees with no objective evidence of painful motion. The Veteran did not have additional limitation in ROM of the thoracolumbar spine (back) following repetitive-use testing.

The examination report indicated that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine (back). The Veteran had functional loss, functional impairment and/or additional limitation of range of motion of the thoracolumbar spine (back) after repetitive use, with contributing factors of less movement than normal; pain on movement; and interference with sitting, standing and/or weight-bearing. The examiner determined that the Veteran would have 10-degree loss of flexion, five-degree loss of extension, five-degree loss of right lateral flexion, five-degree loss of left lateral flexion, five-degree loss of right lateral rotation, and five-degree loss of left lateral rotation with mild weakness moderate fatigability and mild to moderate loss of coordination secondary to repetitive activity painful flareup episodes of the thoracolumbar spine.

The examiner found there was not muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour; muscle spasms of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour; guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour; or guarding of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour.

Sensory examination was normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). He did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examination report indicated the Veteran used brace(s) occasionally. Due to a thoracolumbar spine (back) condition, the Veteran did not have 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 (Functions of the upper extremity include grasping, manipulation, etc.; functions of the lower extremity include balance and propulsion, etc.).

A December 2020 VA back examination was conducted. See December 2020 VA back examination report. The Veteran reported flare-ups of the thoracolumbar spine described as flare-ups of the back that occur daily. The back flare-ups are mild to moderate, last 30 to 40 minutes, are precipitated randomly, and are alleviated by rest. Initial range of motion testing revealed forward flexion to 65 degrees; extension to 25; right lateral flexion to 30; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Pain was noted on examination for forward flexion, extension, right lateral flexion, and left lateral flexion, but did not result in /cause functional loss. Range of motion itself contribute to a functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with repetitions and there was no additional loss of function or range of motion after three repetitions.

The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. In support of this determination, the examiner explained that the Veteran reports that after repetitive use over time, the loss of range of motion is variable depending on how strenuously the joint is used/moved. At its worst, the Veteran cannot move it due to pain and fatigue but there are other times where loss of range of motion during repetitive use over time is minimal. Review of the medical records, the Veteran's medical history, the medical community at large and all procurable material did not sufficiently identify previous range of motion during repetitive motion or flare ups. General medical knowledge of the Veteran's conditions is insufficient to reasonably estimate range of motion for each plane of motion as there is great variability between Veterans. The Veteran subjectively estimates the range of motion is unaffected after repetitive use and during flare ups period of time and could not describe or demonstrate the decrease range of motion with repeated use over time or during flare ups.

The examination report indicated the Veteran had guarding of the thoracolumbar spine that did not result in abnormal gait or abnormal spinal contour. Sensory examination was normal, and the Veteran did not have the Veteran have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). He did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. Due to a thoracolumbar spine (back) condition, the Veteran did not have 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 (Functions of the upper extremity include grasping, manipulation, etc.; functions of the lower extremity include balance and propulsion, etc.).

The medical and lay evidence includes hearing testimony, additional treatment records noting the Veteran's complaints, the Veteran's own statements, and lay statements from the Veteran's spouse. This evidence is consistent with VA and contract examinations of record.

Based on the medical and lay evidence of record, the Board finds that the Veteran does not more nearly approximate the criteria for a disability rating in excess of 10 percent for his service-connected low back disability at any point during the period on appeal.

The competent and credible evidence of record reveals that the Veteran's forward flexion has never been 60 degrees or less and his combined range of motion has not been 120 degrees or less, nor has the Veteran contended experiencing such limitation even during a flare up or due to pain. Significantly, the December 2020 VA examiner addressed flare-ups in the December 2020 VA examination report and indicated the examination was not being conducted during a flare-up. The examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare up and the Veteran subjectively estimates range of motion is unaffected during flare ups and could not describe or demonstrate the decrease range of motion during flare ups. Moreover, the August 2014 VA examiner determined that the Veteran would have 10 degree loss of flexion which would equal 65 degrees, five degree loss of extension which would equal 15 degrees, five degree loss of right lateral flexion which would equal 15 degrees, five degree loss of left lateral flexion which would equal 20 degrees, five degree loss of right lateral rotation which would equal 25 degrees, and five degree loss of left lateral rotation which would equal 25 degrees, secondary to repetitive activity painful flareup episodes of the thoracolumbar spine. Even taking into consideration these additional losses in range of motion, the Veteran's forward flexion has never been 60 degrees or less and his combined range of motion has not been 120 degrees or less. Moreover, Veteran has not had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was also no evidence of favorable or unfavorable ankylosis of any segment of the spine or any incapacitating episodes.

A rating in excess of 10 percent cannot be granted
five degree loss of left lateral rotation which would equal 25 degrees, secondary to repetitive activity painful flareup episodes of the thoracolumbar spine. Even taking into consideration these additional losses in range of motion, the Veteran's forward flexion has never been 60 degrees or less and his combined range of motion has not been 120 degrees or less. Moreover, Veteran has not had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was also no evidence of favorable or unfavorable ankylosis of any segment of the spine or any incapacitating episodes.

A rating in excess of 10 percent cannot be granted for any period under the General Rating Formula for Diseases and Injuries of the Spine. The record does not show any associated neurological abnormalities. Moreover, as he was not diagnosed with IVDS at any time, a higher rating cannot be assigned under the Formula for Rating IVDS based on Incapacitating Episodes.

The Board has considered the possibility of entitlement to an increased rating under 38 C.F.R. §§ 4.40 and 4.45 on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). However, the mere presence of pain does not, by itself, constitute functional loss. The pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 37-43. In this case, higher ratings are not warranted for his thoracolumbar spine disability based on limitation of motion, even when considering the additional effects of such pain. Those complaints were in fact considered by the examiners when they noted the point where the Veteran was initially limited by pain and additionally limited after repetitive use. Moreover, the Board has considered the Veteran's reports of additional pain during a flare up in evaluating his disability. However, there is no evidence or suggestion from the Veteran that this additional pain resulted in additional functional limitation to warrant a higher rating for either time period. The criteria for a 20 percent rating prior have not nearly been approximated. In summary, when the ranges of motion in the spine are considered together with the evidence showing functional loss, to include the findings pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant rating higher than those already assigned.

There is also no indication in the medical evidence that the Veteran's service-connected lumbar spine disability warranted other than the currently assigned 10 percent disability rating at any point during the appeals period. The assignment of additional staged ratings is not warranted. See Hart, supra. Additionally, the evidence of record does not show incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, as it does not show required bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 10 percent for chronic thoracolumbar spine strain must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, the probative evidence of record does not support the Veteran's claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to an initial evaluation in excess of 10 percent for service-connected right knee chronic patella tendonitis with patellofemoral pain is remanded.

The Board regrets the additional delay, but finds remand is again warranted.

The Board notes that the December 2020 knee examination of record does not adequately consider flare-ups. A VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). In some situations, it may be necessary to obtain a retrospective medical opinion to determine the date of onset or severity of a condition in years past. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008); Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated).

Here, at the December 2020 VA examination, the Veteran did not report knee flare-ups. Thus, the knee examination report does not provide measurements regarding right knee flare-ups and the portion of the December 2020 VA knee examination report that addresses flare-ups was left blank. But at the November 2019 Board hearing, the Veteran testified that he experiences right knee flare-ups. He described his right knee flare-ups as occurring when it gets cold or going up and down an elevation or incline for a long enough period of time, he feels a pinch, and then gets to its absolute worst where he is almost unable to walk. He has to stop, lie down, or sit down on the ground and "just kind of let it do its thing."

The Board notes that the examiner provided a statement about flare-ups as part of his rationale as to why he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time; however, the Board finds this statement does not adequately address the Veteran's right knee flare-ups for rating purposes. Thus, remand is required for new VA knee examination.

The matter is REMANDED for the following action:

Schedule the Veteran for VA examination to determine the current severity of his right knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized.

The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition on any occupational functioning and activities of daily living.

Provide an addendum retrospective opinion for the Veteran's service-connected right knee disability to supplement the December 2020 VA Examination Report that addresses the Veteran's reports of flare-ups at the November 2019 Board hearing. Estimate the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements.

If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

K. MILLIKAN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Schick, Suzanne

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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