CERVICAL SPINE LIMITATION OF MOTION

A. C. MACKENZIE · 2026 · Case ID: 26001303

MIXED

Summary

The veteran, who served from October 1967 to August 1970, including service in Vietnam, appeals the denial of increased ratings for a low back condition, right knee condition (flexion and instability), bilateral hearing loss, and eczema. The veteran also appeals the denial of service connection for a cervical spine condition and a skin condition other than eczema, as well as entitlement to TDIU prior to October 29, 2018. The Board granted service connection for a cervical spine condition, finding it proximately caused by the service-connected right knee and right lower extremity radiculopathy, citing conflicting but ultimately probative opinions from a VA examiner. The Board affirmed the 20 percent rating for the low back condition, finding it warranted for the entire appeal period despite some range of motion testing deficiencies, but denied higher ratings. For the right knee condition, the Board affirmed the 10 percent ratings for both limitation of flexion and instability, finding no evidence of greater impairment or the need for higher ratings. Bilateral hearing loss was denied as non-compensable based on VA audiology testing. Eczema was granted at 60 percent from October 29, 2018, but the period prior to that date was remanded for further adjudication. The issues of increased ratings for right lower extremity radiculopathy, a skin condition other than eczema, and TDIU prior to October 29, 2018, were also remanded for further adjudication by the agency of original jurisdiction.

Rationale

Evidence supports secondary service connection; Conflicting VA examiner opinions ultimately favored positive nexus; Medical literature supports link between lower extremity impairment and cervical spine issues

Special Benefit

TDIU

Docket No.

19-18 444

Full Decision Text

Citation Nr: 26001303
Decision Date: 01/29/26 Archive Date: 01/29/26

DOCKET NO. 19-18 444
DATE: January 29, 2026

ORDER

Entitlement to service connection for a cervical spine condition is granted.

Entitlement to a 20 percent rating, but no more, for a low back condition from May 17, 2016, is granted.

Entitlement to a rating in excess of 10 percent for a right knee condition manifested by limitation of flexion is denied.

Entitlement to a rating in excess of 10 percent from July 25, 2023, for a right knee condition manifested by instability is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a rating in excess of 60 percent for eczema from October 29, 2018, is denied.

REMANDED

Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded.

Entitlement to a rating in excess of 10 percent for eczema prior to October 29, 2018, is remanded.

Entitlement to service connection for a skin condition other than eczema is remanded.

Entitlement to a total disability rating based on unemployability due to service connected disabilities (TDIU) prior to October 29, 2018, is remanded.

FINDINGS OF FACT

1. The evidence is at least in equipoise as to the question of whether the diagnosed cervical spine condition was proximately caused by the service connected right knee condition together with the right lower extremity radiculopathy.

2. For the entirety of the appeal period, the Veteran's low back condition has been manifested by symptoms of pain and stiffness which equate to forward flexion reduced to at least 60 degrees; however, there is no evidence to suggest that the symptoms of the condition are commensurate with forward flexion reduced to 30 degrees or less; moreover, there is no evidence of ankylosis, even when considering the increase in severity during flare-ups and the ameliorative impact of his use of medication.

3. For the entirety of the appeal period, the Veteran's right knee strain is manifested by flexion limited to no less than 90 degrees, full extension, and no ankylosis, impairment of the tibia or fibula, or dislocated semilunar cartilage.

4. From July 25, 2023, the Veteran has exhibited slight instability of the right knee; however, at no point has the right knee exhibited moderate or worse instability, nor is there any indication that the instability is persistent or that it requires a prescribed assistive device.

5. For the entirety of the appeal period, the Veteran's?hearing loss?was not manifested by more than Level I?hearing loss?in either ear.

6. From October 29, 2018, the Veteran is already in receipt of the maximum schedular rating that can be assigned for the service connected eczema; moreover, he has not asserted that an extraschedular rating is warranted for the condition.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a cervical spine condition have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.310.

2. The criteria for a 20 percent rating, but no more, for a low back condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242.

3. The criteria for entitlement to a rating in excess of 10 percent for a right knee condition manifested by limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260.

4. The criteria for entitlement to a rating in excess of 10 percent from July 25, 2023, for a right knee condition manifested by instability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5257.

5. The criteria for a compensable rating for bilateral?hearing loss?have not been met.?38 U.S.C. §§ 1155, 5103
, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260.

5. The criteria for a compensable rating for bilateral?hearing loss?have not been met.?38 U.S.C. §§ 1155, 5103, 5103A, 5107;?38 C.F.R. § 4.85, Diagnostic Code 6100.

6. The criteria for a rating in excess of 60 percent for eczema have not been met. 38 U.S.C. §§ 1155, 5107;?38 C.F.R. § 4.118, Diagnostic Code 7806.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1967 to August 1970, with verified service in the Republic of Vietnam during the Vietnam War era. These matters were previously before the Board in June 2023, whereupon they were remanded to the agency of original jurisdiction (AOJ) for further development of the record. Additionally, the Board remanded the issue of entitlement to service connection for a condition manifested by throat pain.

In a February 2024 rating decision, the AOJ granted a 60 percent rating for the service connected eczema effective October 29, 2018, as well as awarded a separate 20 percent rating for left lower extremity radiculopathy effective July 25, 2023.

Thereafter, in an August 2024 rating decision, the AOJ granted a 30 percent rating for sinusitis as well as a 10 percent rating for rhinitis, both effective May 17, 2017. The AOJ indicated that these separate grants are intended to fulfill the Veteran's claim seeking service connection for a condition manifested by throat pain. Additionally, the AOJ in that August 2024 rating decision assigned a separate 10 percent rating for right knee instability, effective July 25, 2023.

In an October 2025 rating decision, the AOJ granted entitlement to TDIU, effective October 29, 2018. Furthermore, in the corresponding October 2025 supplemental statement of the case, the AOJ denied entitlement to increased ratings for eczema, right knee limitation of flexion, low back condition, bilateral hearing loss, sinusitis, and rhinitis.

At the outset, the Board highlights that the issues of entitlement to increased ratings for the sinusitis and rhinitis are not before the Board, as the Veteran did not specifically contest the evaluations or effective dates assigned for either condition through the submission of a timely notice of disagreement. The ratings and effective dates assigned for both conditions are considered final and will not be further discussed herein.

With regards to the separate grant of a 20 percent rating for left lower extremity radiculopathy, the Board similarly finds that the issue is not before the Board as the Veteran did not specifically contest the evaluation or effective date assigned for the condition through the submission of a timely notice of disagreement. See DeHart v. McDonough, 37 Vet. App. 371 (2024) (finding that neurological complications of a spine disability do not remain part of an increased rating claim for a spine disability once the neurological complications are adjudicated).

Conversely, with regards to the separate grant of a 10 percent rating for right knee instability, the Board instead finds that this distinct manifestation of the right knee condition on appeal is properly before it, in light of the fact that it was granted on the basis of evidence procured in support of the same right knee condition addressed herein, and there is the possibility of awarding additional benefits for the condition. AB v. Brown, 6 Vet. App. 35 (1993).

Additionally, the Board highlights that in the prior June 2023 decision it had before it only the question of entitlement to a compensable disability rating for right ear hearing loss, as this was the issue appealed via the June 2019 VA Form 9. Moreover, this was the only issue addressed during the August 2022 videoconference hearing. Nevertheless, upon receipt of the case, the regional office in the subsequent February 2024 rating code sheet listed the issue on appeal as entitlement to a compensable rating for bilateral hearing loss. Thereafter,
addressed herein, and there is the possibility of awarding additional benefits for the condition. AB v. Brown, 6 Vet. App. 35 (1993).

Additionally, the Board highlights that in the prior June 2023 decision it had before it only the question of entitlement to a compensable disability rating for right ear hearing loss, as this was the issue appealed via the June 2019 VA Form 9. Moreover, this was the only issue addressed during the August 2022 videoconference hearing. Nevertheless, upon receipt of the case, the regional office in the subsequent February 2024 rating code sheet listed the issue on appeal as entitlement to a compensable rating for bilateral hearing loss. Thereafter, in the October 2025 supplemental statement of the case, the regional office continued the denial of a compensable rating for bilateral hearing loss, as opposed to right ear hearing loss. The regional office provided no explanation for this recharacterization.

Under these circumstances, and in an effort to construe the Veteran's claims as liberally as possible, the Board will maintain this characterization of the appeal before it and continue to evaluate the appeal as one seeking a compensable rating for bilateral hearing loss, as opposed to right ear hearing loss alone.

As a reminder, the Veteran testified at an August 2022 videoconference hearing before the undersigned Veterans Law Judge.

Entitlement to Service Connection for a Cervical Spine Condition

The Veteran contends that he has a diagnosable cervical spine condition that is directly attributable to service, specifically the impact of repeated physical activity as well as riding in a service vehicle multiple times as it drove over bumpy roads. In the alternative, he asserts that the cervical spine condition is secondary to his service-connected right knee condition and right lower extremity radiculopathy. Without addressing the direct theory of entitlement, the Board finds that the evidence of record supports a determination that service connection is warranted for a cervical spine condition as proximately attributable to the right knee condition and right lower extremity radiculopathy.

Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995).

At the outset, the Board highlights that the Veteran was afforded a VA cervical spine examination in July 2023, wherein he was diagnosed with a cervical strain as well as degenerative arthritis and spinal stenosis. The Board's review of the record also reflects that the Veteran underwent an MRI examination in September 2016 and was diagnosed with multilevel multifactorial cervical spine stenosis. Ever since this diagnosis, he has been followed for a cervical spine condition at his local VA medical center. Thus, the first element of the service connection claim, that being the existence of a current disability, is fulfilled. The remaining question is whether there is a nexus between service and this diagnosed cervical spine condition.

To that end, the Board notes that the July 2023 examiner in a separate opinion report found that it was at least as likely as not that the cervical spine condition was incurred in or is otherwise attributable to service. Specifically, the examiner highlighted that the Veteran has consistently reported experiencing neck pain that began in service and has continued to the present, ever since he was first diagnosed with the condition following the September 2016 MRI examination. In the alternative, the July 2023 examiner also endorsed a determination that the cervical spine condition is proximately caused by the service connected right lower extremity radiculopathy and right knee condition, and cited to medical literature establishing that lower extremity impairment is known to cause posture misalignment, which in turn can contribute to the development of cervical spine issues.

When asked to clarify his prior opinion report, the July 2023 examiner in a February 2024 addendum report confirmed that it was at least as likely as not that the cervical spine condition is directly attributable to service. He did not offer any further rationale in support of this conclusion.

However, when asked to clarify yet again, the July 2023 examiner in a July 2024 addendum report reversed
3 examiner also endorsed a determination that the cervical spine condition is proximately caused by the service connected right lower extremity radiculopathy and right knee condition, and cited to medical literature establishing that lower extremity impairment is known to cause posture misalignment, which in turn can contribute to the development of cervical spine issues.

However, when asked to clarify yet again, the July 2023 examiner in a July 2024 addendum report reversed course and found that it was less likely than not that the cervical spine condition is directly attributable to service. Once again, the examiner offered no rationale in support of his contrary determination. Additionally, in the same addendum report, the July 2023 examiner found that it was less likely than not that the cervical spine condition is proximately due to the service connected right knee condition, low back condition, or bilateral lower extremity radiculopathy. As a rationale, the July 2023 examiner asserted that there was no medical literature to support a determination that posture misalignment due to lower extremity impairment can contribute to the development of cervical spine issues. Ultimately, the July 2023 examiner found that the cervical spine condition is of unknown etiology.

In yet another addendum report dated in October 2024, the July 2023 examiner reiterated that it was less likely than not that the cervical spine condition was proximately attributable to the various service connected musculoskeletal conditions on appeal. Additionally, the July 2023 examiner contended that it was less likely than not that the cervical spine condition was aggravated by one or more of the various service-connected musculoskeletal conditions on appeal. He offered no rationale in support of this determination that is contrary to his prior conclusions.

In an attempt to reconcile the various conflicting opinions of record, the AOJ asked the July 2023 examiner to clarify his conclusions once more in a December 2024 addendum report. In this report, the July 2023 examiner changed course once again, and found that it was instead at least as likely as not that the cervical spine condition is proximately attributable to the right knee condition as well as the right lower extremity radiculopathy. In support thereof, he again referred to medical literature suggesting that lower extremity impairment can contribute to an increased likelihood of developing cervical spine issue due to posture misalignment.

Without exhaustively detailing the two additional addendum report provided by the July 2023 examiner in February 2025 and again in June 2025, the Board highlights that the examiner confirmed in both reports that it was at least as likely as not that the right knee condition and right lower extremity radiculopathy proximately caused the development of the cervical spine condition. Inexplicably, despite the numerous attempts at clarification and the repeated insistence of the July 2023 examiner that there is a secondary relationship between the service connected right knee condition and right lower extremity radiculopathy and the development of the cervical spine condition, the AOJ still denied entitlement to service connection for a cervical spine condition in the October 2025 supplemental statement of the case.

Although the July 2023 examiner provided conflicting opinions regarding the likely etiology of the cervical spine condition, he ultimately determined that it was at least as likely as not that the condition is proximately caused by the service- connected right knee condition together with the right lower extremity radiculopathy. In light of his thorough review of the record and reference to medical literature, the Board finds his various positive etiology opinions to hold significant probative weight. Sklar v. Brown, 5 Vet. App. 140 (1993). This is further supported by the fact that he repeatedly confirmed his opinions when asked by the AOJ on multiple occasions. Therefore, as there is insufficient evidence weighing against the positive etiology opinion offered by the July 2023 examiner, the Board concludes that the evidence is at least in equipoise as to whether the claimed cervical spine condition is proximately caused by the right knee condition together with the right lower extremity radiculopathy. Service connection is therefore granted on a secondary basis. 38 C.F.R. § 3.310.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. ?Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. ?See?38 U.S.C. §1155;?38 C.F.R. § 4.1. ?In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. ?See generally Fenderson v. West,?12?Vet. App.?119?(1999). ?Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. ?See Francisco v. Brown,?7?Vet. App.?55?(1994);?38 C.F.R. § 4.2. ?Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

Where there is a question as to which of two evaluations shall be applied, 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. ?See?38 C.F.R. § 4.7.

In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8?Vet. App.?202, 206-08?(1995); 38 C.F.R. §4.45. 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. Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint.

Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki,?25?Vet. App.?32, 38?(2011). ?Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. ?Id.;?38 C.F.R. § 4.40. ?Under?38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint.

The Board notes that 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. ?As detailed below, the criteria for evaluation of the Veteran's right knee instability were altered in the February 7, 2021 amendments; the specific changes to those criteria are explained below. Any ancillary impacts to each of the various evaluations detailed below are discussed in due course. When electing whether to apply the amended criteria or the criteria previously in place, the Board will apply those criteria that are most beneficial to the Veteran.

1. Low Back

The Veteran is service connected for a low back condition, rated?as 10?percent disabling. ?He seeks a rating in excess of this 10 percent for the entirety of the appeal period, which extends back to May 17, 2016, so long as any increase in severity was "factually ascertainable" during the?one-year
instability were altered in the February 7, 2021 amendments; the specific changes to those criteria are explained below. Any ancillary impacts to each of the various evaluations detailed below are discussed in due course. When electing whether to apply the amended criteria or the criteria previously in place, the Board will apply those criteria that are most beneficial to the Veteran.

1. Low Back

The 20 percent rating in this matter is assigned pursuant to 38 C.F.R.? § 4.71a, Diagnostic Code 5237.?Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. ?38 C.F.R. § 4.25, 4.71a.?

The General Rating Formula provides for a 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A?20 percent?rating is for application with 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V.

Unfavorable ankylosis is 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; gastro-intestinal 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 (zero degrees) always represents favorable ankylosis. ?Id. at Note (5).

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a?20 percent?rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent rating requires evidence of 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 rating requires evidence of incapacitating episodes having a total duration of at least
or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. ?Id. at Note (5).

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a?20 percent?rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent rating requires evidence of 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 rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS.

An incapacitating episode is defined as 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. Id. at Note (1). ?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 will be evaluated 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. Id. at Note (2).

In any event, in this case there is no evidence of physician-prescribed bedrest. Thus, no further discussion of the provisions of Diagnostic Code 5243 (pertaining to IVDS) is warranted.

The severity of the low back condition was evaluated in an August 2017 VA examination, during which he reported that he experiences chronic low back pain that radiates into the right lower extremities. It was noted that he utilizes gabapentin as well as a topical heating and cooling therapy to alleviate his symptomatology. When queried, he endorsed experiencing flare-ups of additional symptomatology precipitated by sitting or standing for prolonged periods of time.

Range of motion testing on the August 2017 examination revealed forward flexion reduced to 70 degrees, extension reduced to 15 degrees, and bilateral lateral flexion and rotation all reduced to 20 degrees. Additionally, the examiner noted that there was evidence of pain with weight bearing as well as localized tenderness on palpation of the joints. Following repetitive use, the examiner did not find any evidence of additional loss of range of motion; moreover, the examiner declined to offer any estimate as to whether the Veteran would exhibit further loss of range of motion during a flare-up or following repeated use. Muscle strength, sensory, and reflex testing did not reveal any abnormalities, and there was no evidence of ankylosis. The examiner did note, however, that the Veteran exhibited right lower extremity radiculopathy impacting the sciatic nerves and resulting in incomplete paralysis of a moderate severity. In summation, the examiner found that the low back condition contributed to impairment of occupational functioning as the Veteran experienced physical limitations with prolonged standing and sitting.

During the August 2022 hearing, the Veteran attested to his having difficulty standing or sitting for long periods of time due to low back pain. He further detailed that he will experience flare-ups of additional symptomatology about once per month that are significant enough to restrict his ability to ambulate.

Pursuant to the Board's June 2023 remand instructions, the Veteran was scheduled for a new VA back examination in July 2023, during which he reported that he experiences chronic low back pain that radiates into the right lower extremities. It was noted that he utilizes gabapentin as well as over-the-counter pain medication to alleviate his symptomatology. When queried, he endorsed experiencing flare-ups of additional symptomatology almost daily that is precipitated by any activity involving the back. According to the Veteran, during a flare-up he experiences difficulty engaging in nearly any physical activity.

Range of motion testing on the July 2023 examination revealed forward flexion reduced to 72 degrees, extension reduced to 25 degrees, right lateral flexion reduced to 26 degrees, left lateral flexion reduced to 28 degrees, right lateral rotation reduced to 25 degrees, and left lateral rotation reduced to 26 degrees. Additionally, the examiner noted that there was evidence of pain with weight bearing as well as in active and in passive motion. The examiner noted that there was evidence of crepitus as well as localized tenderness on palpation at the lateral and medial lower back. Following repetitive use, the examiner did not find any evidence of additional loss of range of motion; however, following repeated use and/or during a flare-up, the examiner estimated that flexion would be further reduced to 65 degrees. In
, extension reduced to 25 degrees, right lateral flexion reduced to 26 degrees, left lateral flexion reduced to 28 degrees, right lateral rotation reduced to 25 degrees, and left lateral rotation reduced to 26 degrees. Additionally, the examiner noted that there was evidence of pain with weight bearing as well as in active and in passive motion. The examiner noted that there was evidence of crepitus as well as localized tenderness on palpation at the lateral and medial lower back. Following repetitive use, the examiner did not find any evidence of additional loss of range of motion; however, following repeated use and/or during a flare-up, the examiner estimated that flexion would be further reduced to 65 degrees. In the examiner's estimation, the low back condition contributed to interference with standing and sitting, disturbance of locomotion, less movement than normal, and weakened movement.

Muscle strength testing on the July 2023 examination revealed a slight loss of strength with knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Although reflex testing did not reveal any abnormalities, sensory testing did reveal decreased sensation in the thighs, lower legs, and feet, bilaterally. There was no evidence of ankylosis; however, the examiner did note that the Veteran exhibited bilateral lower extremity radiculopathy impacting the sciatic nerves and resulting in incomplete paralysis of a moderate severity. In summation, the examiner found that the low back condition contributed to impairment of occupational functioning as the Veteran would have difficulty in any job or work capacity requiring lifting, pushing, pulling, or carrying moderate to heavy objects.

A review of available VA medical records shows that the Veteran has been receiving treatment for low back symptomatology for the entirety of the appeal period. A September 2016 MRI evaluation revealed lumbar spondylosis. Subsequent records show that the Veteran continued to receive regular treatment in the form of physical therapy as well as chiropractic sessions.

Upon review of the record, the Board concludes that a 20 percent rating, but no more, is warranted for the low back condition for the entirety of the appeal period, that is, from May 17, 2016. Although at no point did the Veteran exhibit range of motion testing results that correspond to a 20 percent under the applicable rating criteria, nevertheless, the Board highlights that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use.? Ingram?v. Collins,?38?Vet. App. 130 (2025).? Here, the Veteran has consistently reported using prescription medication as well as over-the-counter pain medication and other treatment modalities to address the symptoms of the low back condition. As such, the Board concludes that the evidence weighs in favor of establishing a rating commensurate with the 20 percent rating, even if that severity is not otherwise reflected on the two VA examinations.

That being established, the Board does not find that a rating in excess of 20 percent is warranted at any point for the low back condition. Once again, the Board reiterates that the Veteran did not exhibit range-of-motion testing results that warrant even the newly assigned 20 percent rating, let alone an even higher 40 percent rating. Moreover, neither VA examiner found any evidence to suggest that the Veteran had ankylosis or IVDS of such severity that it necessitates doctor-prescribed bed rest.

In denying an increased 40 percent rating, the Board acknowledges that the Veteran reported experiencing flare-ups on the August 2017 examination, and the examiner declined to set forth estimations as to the increased loss of range of motion during such a flare-up. That being said, the Veteran did not exhibit range of motion testing result on the August 2017 examination that come anywhere close to the severity necessary for the higher 40 percent rating. Moreover, during the more contemporary July 2023 examination, the examiner estimated that the Veteran would not exhibit more than 10 degrees of additional lost range of motion in forward flexion, once again coming well short of the severity necessary to warrant a 40 percent rating. These findings and estimations accord with the Veteran's reporting as to the extent of his flare-ups, as he detailed during both examinations that his symptoms interfere with his activities of daily living but do not wholly preclude him from any specific physical movement or are so severe as to equate with forward flexion reduced to 30 degrees or less.

Ultimately, for any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned and/or must reflect additional symptomatology not encompassed within the current assigned ratings which is sufficient to be rated separately, none of which has been shown. Here, there is no indication from the record that
40 percent rating. These findings and estimations accord with the Veteran's reporting as to the extent of his flare-ups, as he detailed during both examinations that his symptoms interfere with his activities of daily living but do not wholly preclude him from any specific physical movement or are so severe as to equate with forward flexion reduced to 30 degrees or less.

Ultimately, for any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned and/or must reflect additional symptomatology not encompassed within the current assigned ratings which is sufficient to be rated separately, none of which has been shown. Here, there is no indication from the record that the Veteran would exhibit flare-ups to such a degree that they would result in a dramatic increase in low back impairment that would warrant a rating in excess of 20 percent at any point during the appeal period. Accordingly, the Board does not find that the Veteran's symptoms during a flare-up would be so significant as to equate to forward flexion reduced to 30 degrees or less, or favorable ankylosis, as would be necessary for an evaluation in excess of the currently assigned ratings or which would warrant a separate rating. Sharp, supra; Correia v. McDonald, 28 Vet. App. 158 (2016).

The Board has additionally considered this case in light of the United States Court of Appeals for Veterans Claims (Court's) opinion in Chavis v. McDonough, 34 Vet. App. 1 (2021), wherein the Court held that the application of §§ 4.40 and 4.45 permits consideration of an evaluation based on ankylosis, if a claimant's functional loss is consistent with that contemplated by ankylosis. Essentially, if the demonstrated functional loss is the functional equivalent of ankylosis, the Court in Chavis determined that a rating based on ankylosis may be appropriate for a spine condition despite an explicit determination by a medical professional that ankylosis is not demonstrated in the affected joint.

Ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position").

Here, although the Board acknowledges the Veteran's lay reports of symptoms of pain and difficulty engaging in sustained physical activity, the Board concludes that such asserted functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the thoracolumbar spine comparable to any type of immobility during the time period in question, as the Veteran remained capable of performing some degree of each range of motion. Also, as detailed above, to the extent that the Veteran has experienced functional loss due to the considerations set forth in 38 C.F.R. §§ 4.40 and 4.45, he has not asserted functional impairment comparable to that experienced by an individual with immobility of the thoracolumbar spine.

In summation, the Board finds that a 20 percent rating, but no more, is warranted for the low back condition from May 17, 2016.

2. Right Knee Condition

The Veteran is service connected for a right knee condition, manifested by limitation of flexion as well as instability. As detailed above, since the right knee instability rating was established during the pendency of the appeal, the Board will address it in the present decision. To that end, both right knee flexion and instability are assigned a 10 percent rating, although right knee instability is effective only from July 25, 2023. ?The Veteran seeks ratings in excess of these for the entirety of the appeal period, which extends back to May 17, 2016, so long as any increase in severity was "factually ascertainable" during the?one-year?period prior to the date of the Veteran's increased rating claim.? 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998).

The rating for right knee limitation of flexion is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260, while the rating for right knee instability is assigned pursuant to Diagnostic Code 5003-5257. The use of hyphenated diagnostic codes indicates that the left knee condition is characterized as degenerative arthritis under Diagnostic Code 5003 but
"factually ascertainable" during the?one-year?period prior to the date of the Veteran's increased rating claim.? 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998).

The rating for right knee limitation of flexion is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260, while the rating for right knee instability is assigned pursuant to Diagnostic Code 5003-5257. The use of hyphenated diagnostic codes indicates that the left knee condition is characterized as degenerative arthritis under Diagnostic Code 5003 but is manifested separately as limitation of flexion under Diagnostic Code 5260 and instability under Diagnostic Code 5257.

Diagnostic Code 5003 provides that where limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. ?The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Furthermore, a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.? 38 C.F.R. § 4.71a, Diagnostic Code 5003. ?The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.? Id., Note 1. ?In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024.? Id., Note 2.

Under Diagnostic Code 5260, limitation of flexion of the leg, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.

Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees.

The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a. For VA purposes, "normal" extension and flexion of the knee is from zero to 140 degrees, and references to normal motion below indicate that the Veteran, in fact, had motion from zero to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The VA General Counsel has held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23-97. The Board additionally notes that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004.

Under Diagnostic Code 5257, prior to February 7, 2021, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating.

Diagnostic Code 5257 was amended effective February 7, 2021 to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), cr
instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

Diagnostic Code 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note [1] to Diagnostic Code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to Diagnostic Code 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration.)

The Board will consider additional diagnostic codes pertinent to the evaluation of knee disabilities in order to determine the highest possible evaluation for the bilateral knee conditions during the period of the appeal. In considering the applicability of the remaining available diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (disability of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran experiences this symptomatology in the right knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5263.

The Veteran was afforded a VA knee examination in August 2017, during which he reported that he experiences intermittent pain and stiffness in his right knee. When queried, he endorsed experiencing flare-ups of additional pain with prolonged standing or ambulation. Range of motion testing revealed right knee flexion reduced to 110 degrees, with no loss of extension. Additionally, the examiner noted that the Veteran exhibited pain with weight-bearing as well as crepitus and tenderness to palpation at the lateral, medial, and patella regions. After repetitive use testing, there was no additional loss of range of motion or further functional loss. The examiner neglected to opine as to any additional loss of function following repeated use over time or during a flare-up. Further testing revealed no loss of muscle strength, no ankylosis, and no instability. In summation, the examiner found that the right knee condition contributes to impairment of occupational functioning as the Veteran experiences physical limitations with prolonged standing or ambulation.

During the August 2022 hearing, the Veteran confirmed that he experiences right knee pain with ambulation and asserted that the condition had worsened in severity since the prior knee examination. As such, he was scheduled for a new VA knee examination in July 2023, pursuant to the Board's June 2023 remand instructions, during which he reported that that he experiences pain, numbness, stiffness, and instability in the right knee that he alleviates with the use of gabapentin as well as over-the-counter pain medication. When queried, he endorsed experiencing flare-ups of additional pain after engaging in
examiner found that the right knee condition contributes to impairment of occupational functioning as the Veteran experiences physical limitations with prolonged standing or ambulation.

During the August 2022 hearing, the Veteran confirmed that he experiences right knee pain with ambulation and asserted that the condition had worsened in severity since the prior knee examination. As such, he was scheduled for a new VA knee examination in July 2023, pursuant to the Board's June 2023 remand instructions, during which he reported that that he experiences pain, numbness, stiffness, and instability in the right knee that he alleviates with the use of gabapentin as well as over-the-counter pain medication. When queried, he endorsed experiencing flare-ups of additional pain after engaging in most physical activities. The Veteran also endorsed experiencing instability when ambulating, especially over uneven surfaces.

Range of motion testing on the July 2023 examination revealed right knee flexion reduced to 100 degrees, with no loss of extension. Additionally, the examiner noted that the Veteran exhibited pain with weight-bearing as well as in active and in passive motion. Furthermore, there was evidence of crepitus and tenderness to palpation at the lateral and medial regions. After repetitive use testing, there was no additional loss of range of motion or further functional loss; however, the examiner did estimate that the Veteran would exhibit a further loss of 10 degrees of forward flexion during a flare-up or following repeated use. Additional testing revealed no loss of muscle strength or ankylosis, but the examiner did find that the Veteran exhibited instability in the right knee without history of a tear or the requirement of an aid for ambulation. In summation, the examiner found that the right knee condition contributes to impairment of occupational functioning as the Veteran experiences interference with standing, disturbance of locomotion, less movement than normal weakened movement, and instability of station as due to the right knee condition which results in the Veteran having difficulty working in a job that requires lifting, pushing, pulling, or carrying moderate to heavy objects.

A review of available post-service medical records reflects that the Veteran has had a right knee condition listed as an active problem in his VA medical records for the entirety of the appeal period. The Board did not find any documentation of the Veteran having sought care for symptoms other than pain in the right knee, to specifically include any instability.

Upon consideration of the record, the Board does not find that a separate rating for right knee instability is warranted prior to July 25, 2023, the current effective date for the grant of the separate rating for instability. The Board cannot establish that, prior to this date, the Veteran was experiencing any of the symptoms of instability that he endorsed on the July 2023 examination. Moreover, the Board also does not find that a rating in excess of 10 percent is warranted for right knee instability. On the July 2023 examination, the Veteran was found to exhibit only slight instability after he underwent testing. There are no further records or lay evidence to rely on, other than the Veteran's own testimony that his knees feel "wobbly" after standing for a long period of time. With this in mind, the Board cannot find that the Veteran's right knee instability would qualify as "persistent" under the newly revised criteria for evaluating knee instability. Of course, the Board will apply the criteria most favorable to the Veteran, and in this instance both the criteria in place prior to the February 2021 amendments as well as the newly revised criteria allow for at least the currently assigned 10 percent disability rating. That being said, the Board cannot establish that the Veteran exhibited any more than slight instability at any point during the appeal period, as again he has never been formally evaluated as having more than slight instability of station due to his right knee condition. Accordingly, a rating in excess of 10 percent for right knee instability is not warranted.

Moving onto the currently assigned 10 percent rating for right knee impairment of motion, the Board does not find that a rating in excess of that 10 percent is warranted for limitation of motion of the right knee at any point during the appeal period. The available evidence, to specifically include the two VA examinations of record, does not reflect that the Veteran experienced any of the symptomatology that would warrant a compensable rating for the right knee under any of the possible applicable diagnostic criteria that evaluate the severity of any limitation of motion. At no point has the Veteran exhibited a loss of flexion or extension that would warrant a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Although crepitus was noted in the right knee on both examinations, there is no indication that he experienced any dislocated semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code
The available evidence, to specifically include the two VA examinations of record, does not reflect that the Veteran experienced any of the symptomatology that would warrant a compensable rating for the right knee under any of the possible applicable diagnostic criteria that evaluate the severity of any limitation of motion. At no point has the Veteran exhibited a loss of flexion or extension that would warrant a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Although crepitus was noted in the right knee on both examinations, there is no indication that he experienced any dislocated semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board also notes that there is no evidence of ankylosis (Diagnostic Code 5256) or impairment of the tibia or fibula (Diagnostic Code 5262).

The Board has reviewed the Veteran's lay testimony and the VA treatment records in the claims file, but this evidence does not tend to show that the symptoms of the right knee condition warranted a rating in excess of 10 percent for limitation of motion at any point during the appeal period. As stated, for any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned, which has not been shown. The Board does acknowledge that the Veteran reported experiencing flare-ups of pain and swelling in his right knee on both examinations. Moreover, the Board concedes that the August 2017 examiner neglected to estimate whether these reported flare-ups of symptomatology would result in any additional loss of range of motion.

That being said, the Veteran did not exhibit range of motion testing results on the August 2017 examination that come anywhere close to the severity necessary for the higher 20 percent rating. Moreover, during the more contemporary July 2023 examination, the examiner estimated that the Veteran would not exhibit more than 10 degrees of additional lost range of motion in forward flexion, once again coming well short of the severity necessary to warrant a 20 percent rating. These findings and estimations accord with the Veteran's reporting as to the extent of his flare-ups, as he detailed during both examinations that his symptoms interfere with his activities of daily living but do not wholly preclude him from any specific physical movement or are so severe as to equate with forward flexion reduced to 30 degrees or less. This is especially true when considering that his documented impairment does not even warrant a compensable rating under the applicable criteria.

Accordingly, the Board does not find that the Veteran's symptoms during a flare-up or following repeated use would be so significant as to equate to flexion reduced to 30 degrees, as would be necessary for an evaluation in excess of the currently assigned rating or which would warrant a separate rating. Thus, despite the acknowledged deficiencies in the December 2017 examination, a remand is not necessary in this instance. The Board acknowledges the Veteran's statements regarding the pain and swelling he experiences in his right knee. However, painful motion is contemplated and compensated by the 10 percent rating that is currently assigned. DeLuca, supra.

In reaching these determinations, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use.? Ingram?v. Collins,?38?Vet. App. 130 (2025).? Here, the Board is aware that the Veteran has consistently reported using over-the-counter and prescription pain medication to address the symptoms of the right knee condition.? Additionally, it is well documented that the Veteran has utilized several other treatment modalities. ?That having been said, entitlement to the increased rating at issue nevertheless still requires objective evidence of impairment.? Even when considering the impact of the pain medication and these other documented treatment modalities, there is still no suggestion that without the use of these modalities the Veteran exhibits impairment commensurate with a rating in excess of 10 percent under the applicable diagnostic code.??

Therefore, the Board finds that the assigned 10 percent ratings for the right knee condition as manifested by both limitation of flexion as well as instability contemplates the impairment exhibited by the Veteran during the appeal period. A rating in excess of these separate 10 percent evaluations is not warranted at any point during the appeal period.

3. Bilateral Hearing Loss

The Veteran seeks a compensable initial rating for bilateral?hearing loss?for the entirety of the appeal period, which extends back to May 17, 2017, the date of the filing of the claim seeking service connection for hearing loss.

The Rating Schedule establishes 11 auditory hearing acuity levels based upon average pure tone thresholds and speech discrimination. ?See?38 C.F.R. § 4.85, Diagnostic Code
percent ratings for the right knee condition as manifested by both limitation of flexion as well as instability contemplates the impairment exhibited by the Veteran during the appeal period. A rating in excess of these separate 10 percent evaluations is not warranted at any point during the appeal period.

3. Bilateral Hearing Loss

The Rating Schedule establishes 11 auditory hearing acuity levels based upon average pure tone thresholds and speech discrimination. ?See?38 C.F.R. § 4.85, Diagnostic Code 6100. ?Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of the 1000, 2000, 3000, and 4000 Hertz (cycles per second). ?The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. ?Id.

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson,?21?Vet. App.?447, 455?(2007). ?Even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. ?Id.

Pursuant to?38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.?

The Veteran was afforded a VA audiology examination in August 2017.? Pure tone thresholds on an audiometric examination were as follows:?

???????? 1000????????????? 2000????????????? 3000????????????? 4000?????????????

RIGHT????????????? 10???????? 20???????? 25??????????? 50?????????????

LEFT????????????? 10?????????? 15??????????? 15????????????? 30?????????????

The average pure tone threshold at 1000, 2000, 3000, and 4000 Hertz was 26 decibels for the right ear and 18 decibels for the left ear. ?The speech discrimination score using the Maryland CNC word list was 100 percent in the right ear and 96 percent in the left ear. ?The examiner confirmed the diagnosis of hearing loss in the right ear but dismissed a diagnosed of left ear hearing loss for VA compensation purposes. ?With regards to the functional impact of the hearing loss, the examiner found no evidence that the condition would contribute to any impairment.?

Applying the August 2017 testing results to Table VI results in Level I hearing acuity in the both ears. ?See?38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying those findings?to?38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable disability rating under Diagnostic Code 6100.?

During the August 2022 hearing, the Veteran asserted that his hearing had worsened significantly since it was last evaluated in the August 2017 VA examination. Therefore, pursuant to the Board's June 2023 remand directives, the Veteran was afforded a new VA audiology examination in July 2023.? Pure tone thresholds on an audiometric examination were as follows:?

???????? 1000????????????? 2000????????????? 3000????????????? 4000?????????????

RIGHT????????????? 20???????? 25???????? 40??????????? 60?????????????

LEFT????????????? 20?????????? 20??????????? 40????????????? 65?????????????

The average pure tone threshold at 1000, 2000, 3000, and 4000 Hertz was 36 decibels in both ears. ?The speech discrimination score using the Maryland CNC word list was 100 percent in both ears. ?With regards to the
????????????? 2000????????????? 3000????????????? 4000?????????????

RIGHT????????????? 20???????? 25???????? 40??????????? 60?????????????

LEFT????????????? 20?????????? 20??????????? 40????????????? 65?????????????

The average pure tone threshold at 1000, 2000, 3000, and 4000 Hertz was 36 decibels in both ears. ?The speech discrimination score using the Maryland CNC word list was 100 percent in both ears. ?With regards to the functional impact of the hearing loss, the examiner noted that the Veteran endorsed missing some parts of conversation.?

Applying the July 2023 testing results to Table VI results in Level I hearing acuity in both ears. ?See?38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying those findings?to?38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable disability rating under Diagnostic Code 6100.?

A review of available VA medical records shows that the Veteran regularly visits with the audiology department at his local VA medical center for evaluation of his hearing loss. There are no audiometric testing results available from the VA records in the claims file which would serve to help in the Board's evaluation of the severity of the right ear hearing loss.

A layperson's testimony is competent evidence regarding the symptoms he experiences.? Heuer v. Brown, 7?Vet. App.?379, 384?(1995).? However, disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.? See Lendenmann v. Principi, 3?Vet. App.?345, 349?(1992).? As such, the medical evidence is considered the most probative evidence with regard to the level of severity of the Veteran's service-connected?hearing loss.? The Veteran has provided no testimony as to the functional impact of his hearing loss which would suggest that the condition has contributed to any substantial impairment of occupational functioning, beyond that contemplated by the assigned evaluation.? Martinak,?21 Vet. App. at 455.??????

Overall, the evidence of record shows that a compensable rating is not warranted for the bilateral?hearing loss at any point during the appeal period.? The Board also notes that the Veteran has not specifically contended that the rating criteria are insufficient for evaluating the severity of his bilateral hearing loss disability.? See Doucette v. Shulkin,?28?Vet. App.?366?(2017).? The appeal is denied.??????

4. Eczema

The Veteran is service connected for eczema. The condition is rated as 10 percent disabling prior to October 29, 2018, and 60 percent disabling therefrom. He seeks ratings in excess of these for the entirety of the appeal period, which extends back to May 17, 2016, a year prior to the date of the submission the claim seeking an increased rating for his eczema condition. 38 U.S.C. § 5110(b)(2);?38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998).

The eczema condition is rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806, which corresponds to dermatitis under the General Rating Formula. ?During the appeal period, VA amended the rating criteria for skin conditions, effective August 13, 2018. ?See?83 Fed. Reg. 32,597?(July 13, 2018);?83 Fed. Reg. 38,663?(Aug. 7, 2018). ?In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. ?Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi,?341 F.3d 1327, 1328?(Fed. Cir. 2003).

Under the prior regulations, Diagnostic Code 7806 provided for a 10 percent rating when affecting at least 5 but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. ?A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. ?A 60 percent rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or where constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period.

The?United States Court of Appeals for the Federal Circuit?(Federal Circuit) addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. ?See Johnson v. Shulkin,?862 F.3d 1351?(Fed. Cir. 2017). ?For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. ?Id. at 1355. ?The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. ?Id.? Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case.? Id. at 1356.

Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin." ?38 C.F.R. § 4.118(a).

Additionally, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. ?Under this formula, a maximum 60 percent rating requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period.

A 30 percent rating requires at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. ?Id.

A 10 percent rating requires at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over the past 12-month period. ?Id.

At the outset, the Board first notes that the 60 percent rating in effect for the eczema condition from October 29, 2018, is the maximum schedular rating that may be assigned for dermatitis. Therefore, as the Veteran has not specifically contended that he is
of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over the past 12-month period. ?Id.

At the outset, the Board first notes that the 60 percent rating in effect for the eczema condition from October 29, 2018, is the maximum schedular rating that may be assigned for dermatitis. Therefore, as the Veteran has not specifically contended that he is entitled to an even greater rating for the eczema condition on an extraschedular basis, the Board need not further consider the propriety of the rating assigned to the condition for the period from October 29, 2018. See Doucette v. Shulkin,?28?Vet. App.?366?(2017).?

As detailed below, the AOJ neglected to address the propriety of the ratings in effect for the eczema prior to October 29, 2018, in any adjudicatory decision issued after the Board's June 2023 remand. Accordingly, the question of whether a rating in excess of 10 percent for eczema prior to October 29, 2018, must be remanded in order to have the AOJ issue ad adjudicatory decision addressing this issue prior to the Board taking any further adjudicatory action of its own. After that date, however, the appeal is denied.

REASONS FOR REMAND

1. Entitlement to an increased rating for right lower extremity radiculopathy is remanded.

2. Entitlement to a rating in excess of 10 percent for eczema prior to October 29, 2018, is remanded.

3. Entitlement to service connection for a skin condition other than eczema is remanded.

The Board remanded the issues of entitlement to an increased rating for right lower extremity radiculopathy as well as an increased rating for eczema in June 2023 in order to have the AOJ secure an updated VA examination to ascertain the current severity of both conditions. To that end, the severity of the right lower extremity radiculopathy was evaluated in separate July 2023 examinations addressing the lumbar spine as well as the peripheral nerves. Moreover, the severity of the eczema was evaluated in a July 2023 skin examination. Nevertheless, the AOJ neglected to issue any adjudicatory decision addressing the propriety of the rating currently in effect for the right lower extremity radiculopathy. As detailed above, although the AOJ issued a February 2024 rating decision granting an increased 60 percent rating for the eczema from October 29, 2018, no adjudicatory decision has addressed the propriety of the rating for the condition prior to this date. Accordingly, remand is necessary to have the AOJ issue an adjudicatory decision determining whether an increased rating is warranted for right lower extremity radiculopathy as well as whether an increased rating is warranted for the eczema prior to October 29, 2018.

Similarly, the Board in June 2023 remanded the issue of entitlement to service connection for a skin condition other than eczema to the AOJ in order to secure an examination and opinion evaluating the nature and likely etiology of any diagnosable skin condition distinct from eczema. Although the AOJ procured a July 2023 opinion report, and then later secured additional addendum opinion reports in July 2025 and in August 2025 concerning the likely etiology of claimed skin condition other than eczema, nevertheless, the AOJ did not promulgate any adjudicatory decision addressing the claimed skin condition other than eczema. Accordingly, remand is also necessary to have the AOJ issue an adjudicatory decision determining whether service connection is warranted for a skin condition other than eczema.

4. Entitlement to TDIU prior to October 29, 2018, is remanded.

The issue of entitlement to TDIU was remanded by the Board in June 2023 as intertwined with the other claims on appeal. In an October 2025 rating decision, the AOJ granted TDIU effective October 29, 2018. However, the period on appeal extends as far back as May 17, 2016. The AOJ did not issue any adjudicatory decision addressing the propriety of entitlement to TDIU for the over two-year period for which TDIU
adjudicatory decision determining whether service connection is warranted for a skin condition other than eczema.

4. Entitlement to TDIU prior to October 29, 2018, is remanded.

The issue of entitlement to TDIU was remanded by the Board in June 2023 as intertwined with the other claims on appeal. In an October 2025 rating decision, the AOJ granted TDIU effective October 29, 2018. However, the period on appeal extends as far back as May 17, 2016. The AOJ did not issue any adjudicatory decision addressing the propriety of entitlement to TDIU for the over two-year period for which TDIU may be applicable. Under these circumstances, remand is necessary to have the AOJ issues an adjudicatory decision concerning entitlement to TDIU for the period prior to October 29, 2018.

The matters are REMANDED for the following action:

Readjudicate the claims seeking an increased rating for right lower extremity radiculopathy as well as an increased rating for eczema prior to October 29, 2018, and entitlement to service connection for a skin condition other than eczema and entitlement to TDIU prior to October 29, 2018. If the maximum benefit sought for each separately claimed issue is not granted to the Veteran's satisfaction, promulgate for the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond before returning the case to the Board.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Christopher M. Collins, 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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