SHOULDER IMPAIRMENT OF

NATHANIEL DOAN · 2026 · Case ID: 26003891

MIXED

Summary

The Veteran, an Air Force Veteran who served from December 1985 to September 1990, appeals the denial of an increased rating for his right hand, status post fracture, and the initial grant of service connection for multiple musculoskeletal and neurological conditions. The Board granted service connection for right and left shoulder strains, right and left hip osteoarthritis, right and left knee osteoarthritis, right and left ankle sprains, and bilateral upper and lower extremity peripheral neuropathies. The Board found these conditions to be related to service, with the hip and knee osteoarthritis being secondary to the service-connected back disability, with obesity as an intermediate step. The peripheral neuropathies were found to be a progression of the service-connected lumbar spine disability. The Board also granted a 40 percent rating for lumbar degenerative disc disease effective December 28, 2011, based on findings of painful motion and limited forward flexion. The claim for an increased rating for the right hand, status post fracture, was denied as the criteria for a rating in excess of 10 percent were not met.

Rationale

Resolving doubt in Veteran's favor; Related to service

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-29 046A

Full Decision Text

Citation Nr: 26003891
Decision Date: 03/27/26 Archive Date: 03/27/26

DOCKET NO. 14-29 046A
DATE: March 27, 2026

ORDER

Service connection for right shoulder strain is granted.

Service connection for left shoulder strain is granted.

Service connection for right hip arthritis is granted.

Service connection for left hip arthritis is granted

Service connection for right knee arthritis is granted.

Service connection for left knee arthritis is granted.

Service connection for right ankle sprain is granted.

Service connection for left ankle sprain is granted.

Service connection for right upper peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for left upper peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for right lower peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for left lower peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits.

A rating in excess of 10 percent for right hand, status post fracture, is denied.

From December 28, 2011, a rating of 40 percent, but no higher, for lumbar degenerative disc disease is granted.

FINDINGS OF FACT

1. Resolving doubt in the Veteran's favor, his right and left shoulder strain is related to service.

2. Resolving doubt in the Veteran's favor, his right and left hip osteoarthritis is related to his service-connected back disability, with obesity as an intermediate step.

3. Resolving doubt in the Veteran's favor, his right and left knee osteoarthritis is related to his service-connected back disability, with obesity as an intermediate step.

4. Resolving doubt in the Veteran's favor, his right and left ankle sprain is related to his service-connected back disability, with obesity as an intermediate step.

5. The Veteran's right and left upper extremity peripheral neuropathy is due to service.

6. The Veteran's right and left lower extremity peripheral neuropathy is a progression of his service-connected lumbar spine disability.

7. The Veteran's right hand, status post fracture, is productive of painful motion without ankylosis.

8. Resolving doubt in the Veteran's favor, from December 28, 2011, after repetitive use, the Veteran's lumbar degenerative disc disease is productive of forward flexion limited to less than 30 degrees.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for right shoulder disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for left shoulder disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for a right hip disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for entitlement to service connection for a left hip disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

6. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

8. The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

9. The criteria for entitlement to service connection for right upper peripheral neuropathy have been met. 38 U.S.C. §§ 1131,
303, 3.310.

7. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

8. The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

9. The criteria for entitlement to service connection for right upper peripheral neuropathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

10. The criteria for entitlement to service connection for left upper peripheral neuropathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

11. The criteria for entitlement to service connection for right lower peripheral neuropathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

12. The criteria for entitlement to service connection for left lower peripheral neuropathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

13. The criteria for a rating in excess of 10 percent for right hand, status post fracture, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5002-5215.

14. From December 28, 2011, the criteria for a rating of 40 percent, but no higher, for lumbar degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242, 5243.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1985 to September 1990 in the United States Air Force.

These matters come before the Board of Veterans' Appeals (Board) from September 2012 and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ).

In May 2018, August 2022, and August 2024 the Board remanded the issues on appeal for additional development. Subsequent to the most recent remand, the AOJ granted claims of service for radiculopathy as well as total disability based on individual unemployability (TDIU) from the date of evidence reflects he stopped substantially gainful employment. On this basis, the record reflects that the issues that remain are those listed on the above title page.

The Board observes that the August 2024 Board remand directed the AOJ to attempt to locate any missing service treatment records (STRs), including the separation examination, and if such were not located, to issue a formal finding, and issue notice of such finding to the Veteran. Upon review of the record, the Board observes that the AOJ did attempt to locate the missing STRs, however, such were not located. Unfortunately, the AOJ did not make a formal finding regarding the unavailability of the STRs, and notice was not provided to the Veteran. Generally, the Board has a duty to ensure compliance with the terms of its remand. Stegall v. West, 11 Vet. App. 268 (1998). However, in the instant case, the Board will proceed with the adjudication as the Board is granting the full benefit sought by the Veteran pertaining to service connection, rendering non-prejudicial any Stegall or duty to assist requirements.

With regard to the claims for increased ratings for the right wrist and back disability, the Board finds that substantial compliance has been completed as the AOJ provided the Veteran with VA examinations to determine the current severity of the already service-connected disabilities, as directed by the Board in August 2024. Moreover, the Veteran separated from service in 1990 and the ratings on appeal began in December 2011. Accordingly
and. Stegall v. West, 11 Vet. App. 268 (1998). However, in the instant case, the Board will proceed with the adjudication as the Board is granting the full benefit sought by the Veteran pertaining to service connection, rendering non-prejudicial any Stegall or duty to assist requirements.

With regard to the claims for increased ratings for the right wrist and back disability, the Board finds that substantial compliance has been completed as the AOJ provided the Veteran with VA examinations to determine the current severity of the already service-connected disabilities, as directed by the Board in August 2024. Moreover, the Veteran separated from service in 1990 and the ratings on appeal began in December 2011. Accordingly, the lack of formal finding and notice to the Veteran regarding the STRs is not relevant to the appeal of such issue and proceeding to adjudicate the issues without such is not prejudicial to the Veteran.

As a final note, the Board observes that the Veteran requested a copy of his claims file and such request was fulfilled on February 4, 2026.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.?38?C.F.R. §?3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.? 38?C.F.R. §?3.303(d).?Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7?Vet. App.?498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder has caused or aggravated a nonservice connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995).

The Board notes that although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner, supra.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102.

1. Entitlement to service connection for right shoulder strain.

2. Entitlement to service connection for left shoulder strain.

The Veteran contends that his shoulder disability is related to service.

Upon VA examination in November 2024, the VA examiner indicated that the Veteran has bilateral shoulder strain with a 1993 date of diagnosis. The Veteran reported that his bilateral shoulder pain had a gradual onset with limited range of motion and pain in 1992 or 1993. The Veteran currently experiences pain when he moves or lifts his arms.

The VA examiner opined that the Veteran's shoulder disability is not related to service. The rationale appears to have been copied from opinions regarding other disabilities and indicates that the Veteran "related on today's exam that his ailment started approximately 15 years ago, and there are no records documenting bilateral shoulder issues or any history that would correlate it directly to service." The Board notes that the Veteran indicated that his shoulder disability began 32 years prior to the examination. The examiner relied on inaccurate facts in providing an opinion and improperly relied on the lack of documented evidence. Accordingly, the Board finds the November 2024 medical opinion has no probative value.

The Board finds that additional delay of adjudication of this appeal on the merits is not warranted. The Board will resolve doubt in the Veteran's favor and find that he has been experiencing symptoms of his right and left shoulder disability since service. The Veteran is competent to report that his symptoms had a gradual onset and that such began shortly after his separation from service. Further
there are no records documenting bilateral shoulder issues or any history that would correlate it directly to service." The Board notes that the Veteran indicated that his shoulder disability began 32 years prior to the examination. The examiner relied on inaccurate facts in providing an opinion and improperly relied on the lack of documented evidence. Accordingly, the Board finds the November 2024 medical opinion has no probative value.

The Board finds that additional delay of adjudication of this appeal on the merits is not warranted. The Board will resolve doubt in the Veteran's favor and find that he has been experiencing symptoms of his right and left shoulder disability since service. The Veteran is competent to report that his symptoms had a gradual onset and that such began shortly after his separation from service. Further, as the Veteran's STRs may not be complete, the Board will resolve doubt in the Veteran's favor and find that his right and left shoulder disability is related to service. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

3. Entitlement to service connection for right hip osteoarthritis.

4. Entitlement to service connection for left hip osteoarthritis.

5. Entitlement to service connection for right knee osteoarthritis.

6. Entitlement to service connection for left knee osteoarthritis.

7. Entitlement to service connection for right ankle sprain.

8. Entitlement to service connection for left ankle sprain.

The Veteran contends he is entitled to service connection for his bilateral hip, knee, and ankle disabilities.

Upon VA examinations in November 2024, the Veteran was diagnosed with bilateral hip osteoarthritis, bilateral knee joint osteoarthritis, and bilateral ankle sprain. Accordingly, the Board finds that the Veteran has a current disability pertaining to each claimed disability.

At each of the examinations, the Veteran reported that his pain began about 15 years prior and began with gradual onset of pain.

With regard to relationship to service, the Veteran contends that his service-connected back disability caused him to gain weight due to pain and sedentary lifestyle.

The November 2024 VA examiner opined that the Veteran's bilateral hip, knee, and ankle disabilities are less likely than not related to service because "there is no evidence to indicate that his condition began during or within one year of service. He related on today's exam that his ailment started approximately 15 years ago. Given that he is obese, limited mobility due to other conditions, and has comorbidity with different situations, it is more likely that his etiology is due to these other factors and much less likely that it was due to an incident while in service." The examiner provided the same opinion, verbatim, for each disability. The Board finds such opinion has low probative value.

The examiner also provided negative secondary medical opinions, ultimately explaining that the Veteran's risk factors for the claimed conditions are his advanced age and his morbid obesity. However, the examiner did not provide adequate opinions regarding obesity as an intermediary step, despite multiple requests for addendum opinions to cure such defect.

Further, the record contains an August 2020 private medical opinion from the Veteran's personal medical doctor, D.C., who reviewed the Veteran's clinical record as of February 2020. D.C. opined that the Veteran's obesity is a direct result of the sedentary lifestyle due to his service-connected back injury; in support of such, he listed the clinical evidence and documented reports that support such finding. The Board finds such opinion has high probative value as it is based on the specific circumstances of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board finds that additional delay of adjudication of this appeal on the merits is not warranted and would only serve to further delay resolution of this appeal, with no benefit flowing to the Veteran. In this regard, there is probative evidence of record in support of these claims.

As previously indicated, the VA examiner the examiner opined that the Veteran's hip, knee, and ankle disorders were most consistent with the Veteran's age and severe obesity that would place considerable strain on the Veteran's hips, knees, and ankles. While the opinions link the Veteran's disabilities to obesity, such do not adequately discuss whether obesity was caused by the Veteran's service-connected disorders. Nevertheless, the August 2020 private medical opinion and the Veteran's assertions regarding the effect of his service-connected back condition support a finding that his obesity is due to his service-connected back disorder.

Accordingly, the Board resolves doubt in the Veteran's favor and finds the necessary factors for the Veteran's obesity to be considered an intermediate step between his bilateral hip, knee, and ankle disabilities and his service-connected back disability have been satisfied
's hip, knee, and ankle disorders were most consistent with the Veteran's age and severe obesity that would place considerable strain on the Veteran's hips, knees, and ankles. While the opinions link the Veteran's disabilities to obesity, such do not adequately discuss whether obesity was caused by the Veteran's service-connected disorders. Nevertheless, the August 2020 private medical opinion and the Veteran's assertions regarding the effect of his service-connected back condition support a finding that his obesity is due to his service-connected back disorder.

9. Entitlement to service connection for right upper extremity peripheral neuropathy.

10. Entitlement to service connection for left upper extremity peripheral neuropathy.

The Veteran contends that he is entitled to service connection for his bilateral upper extremity peripheral neuropathy. The Board agrees.

There are multiple private records reflecting diagnoses of bilateral upper extremity peripheral neuropathy. Notably, in December 2011, private physician, N.O., opined that the Veteran's bilateral upper extremity numbness and pinprick sensation is "more probably than not" caused by the Veteran's back problem. She explained that such caused the Veteran's "nervous problem."

Further, in developing the Veteran's claim for right and left upper extremity peripheral neuropathy, the AOJ obtained medical opinions as to the etiology of such. In June 2025, the VA examiner opined that the Veteran's claimed peripheral neuropathy is caused by the Veteran's in-service injury, event, or illness (the service-connected back disability which was caused by injury during service). In support of such, the examiner explained that the Veteran's radiculopathy is due to such and there is no evidence indicating that the peripheral neuropathy is due to a different etiology than the radiculopathy.

Accordingly, the Board finds that the Veteran's right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy are due to service and service connection is warranted.

The Board observes that the Veteran is also service-connected for right and left upper radiculopathy. In implementing this award, the AOJ shall determine which symptoms pertain to each condition to avoid impermissible pyramiding when rating such disabilities. 38 C.F.R. § 4.14.

11. Entitlement to service connection for right lower extremity peripheral neuropathy.

12. Entitlement to service connection for left lower extremity peripheral neuropathy.

The Veteran contends that he is entitled to service connection for his bilateral lower extremity peripheral neuropathy. The Board agrees.

In this regard, in Wilson v. McDonough, the Court held that VA is obligated to identify, develop, and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level, which may include complications of the primary service-connected disability and claims that logically relate to the pending claim. 35 Vet. App. 103 (2022).

The record contains multiple VA and private medical records noting the Veteran's diagnosis of right and left lower extremity peripheral neuropathy. The Board finds that the Veteran has a current disability.

Further, upon VA examination in February 2025 for the Veteran's lumbar disability, the VA examiner noted that the Veteran's bilateral lower extremity peripheral neuropathy is a progression of the VA established diagnosis of lumbar degenerative disc disease.

Accordingly, the Board finds that service connection for right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy on a secondary basis is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

The Board observes that the Veteran is also service-connected for right and left lower radiculopathy. In implementing this award, the AOJ shall determine which symptoms pertain to each condition to avoid impermissible pyramiding when rating such disabilities. 38 C.F.R. § 4.14.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016).

VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

13. Entitlement to a rating in excess of 10 percent for right hand, status post fracture.

The Veteran contends that the severity of his right wrist disability warrants an increased rating. The Veteran's right wrist disability is service-connected as right hand, status post fracture, is rated 10 percent disabling, under DC 5215.

Under DC 5215, a 10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or when dorsiflexion is less than 15 degrees. While DC 5215 permits two opportunities for a 10 percent evaluation, a veteran cannot be assigned separate evaluations for palmar flexion and dorsiflexion because the regulations do not expressly authorize two separate evaluations. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Where a compensable evaluation cannot be assigned under DC 5215 for limited plantar flexion or dorsiflexion, a veteran may be assigned a 10 percent evaluation under the DC for painful range of motion. 38 C.F.R. § 4.59. However, 10 percent is the maximum schedular rating based on limitation of motion of the wrist under the DC. A higher rating is only warranted when there is evidence of ankylosis (frozen joint). 38 C.F.R. § 4.71a, DC 5214.

Normal range of motion of the wrist is dorsiflexion from 0 to 70 degrees and palmar flexion from 0-80 degrees. 38 C.F.R. § 4.71, Plate I.

Ankylosis of the wrist is rated under DC 5214. Unfavorable ankylosis, in any degree of palmar flexion or with ulnar and radial deviation warrants a 50 percent rating in the major extremity and a 40 percent rating in the minor extremity. Ankylosis in any other position, except favorable, warrants a 40 percent rating in the major extremity and 30 percent rating in the minor extremity. Favorable ankylosis in 20 degrees to 30 degree dorsiflexion warrants a 30 percent rating in the major extremity and 20 percent rating in the minor extremity. 38 C.F.R. § 4.71a DC 5214.

Ankylosis is a medical term meaning "[i]immobility and consolidation of a joint due to disease, injury, or surgical procedure." Chavis v. McDonough, 34 Vet. App. 1, 8 (2021) (citing Dorland's Illustrated Medical Dictionary 94 (33d ed. 2019)).

To warrant a higher rating the Veteran must demonstrate ankylosis of the right wrist which is not shown in the lay or medical evidence of record. The evidence does not reflect, nor does the Veteran assert that he is unable to move his right wrist and that it is stuck in a single position. The Veteran asserts that he has difficulty with movement but does not assert complete loss of movement. Indeed, the Veteran is able to move his wrist on all directions, though such movement is painful. Further, neither the 2012, 2021, 2024 nor 2025 VA examination reports reflect the presence of ankylosis nor symptoms more nearly approximating such.

Because the Veteran is in receipt of the maximum schedular rating under DC 5215, and a higher rating under DC 5214 requires evidence of ankylosis or the functional equivalent, which is not shown here, entitlement to a rating greater than 10 percent for his right wrist disability is denied. The benefit-of-the-doubt rule does not apply as the evidence of record persuasively weighs against a rating in excess of 10 percent for the right wrist disorder. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; see also Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

14. Entitlement to a rating in excess of 20 percent prior to May 1, 2014, and in excess of 40 percent thereafter for lumbar degenerative disc disease.

The Veteran contends that the severity of his back disability warrants increased ratings. The Veteran's back disability is rated as 20 percent disabling from December 28, 2011, and 40 percent disabling form May 1, 2014. The Veteran is seeking a rating in excess of 20 percent prior to May 1, 2014, and a rating in excess of 40 percent thereafter.

The Veteran's back disability is rated under DC 5242-5243. 38 C.F.R. § 4.71a. Hyphenated
a rating in excess of 20 percent prior to May 1, 2014, and in excess of 40 percent thereafter for lumbar degenerative disc disease.

The Veteran's back disability is rated under DC 5242-5243. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, the Veteran is also diagnosed with IVDS, which is governed by DC 5243, but the Board will ultimately consider which DC affords him a greater rating based on the evidence of record.

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. 83 Fed. Reg. 230 (Nov. 30, 2020). As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Otherwise, the rating criteria under such DC was unchanged.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or a 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

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

Additionally, under the IVDS Formula, which governs DC 5243, a 20 percent rating is awarded for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Id. A 40 percent rating is awarded for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Under Note 1 of the IVDS Formula, for purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed
under the IVDS Formula, which governs DC 5243, a 20 percent rating is awarded for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Id. A 40 percent rating is awarded for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Under Note 1 of the IVDS Formula, for purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.

Turning to the medical evidence, the record contains a June 2011 private MRI report reflecting discogenic disc disease at L4-5 and L5-S1.

Upon VA examination in August 2012, the Veteran's forward flexion was limited to 60 degrees and the combined range of motion of the thoracolumbar spine was 155 degrees. The examiner indicated that guarding and/or muscle spasm is present, but such is do not result in abnormal gait or spinal contour; further, the examination report does not reflect ankylosis. The Veteran reported that his symptoms worsen with prolonged sitting, standing, walking, and bending. The examiner indicated that after repetitive use testing, the Veteran would have additional limitation in range of motion contributing to functional loss due to less movement than normal, weakened movement, and pain on movement. The examiner did not provide an estimated range of motion after repeated use.

Upon VA examination in May 2014, the Veteran indicated that he was not using any oral medication to manage his back condition and that he experiences occasional low back pain. The Veteran's forward flexion was limited to 15 degrees; after repeated use testing, such was limited to 10 degrees. The examiner indicated that the Veteran experienced incapacitating episodes within the prior 12 months having a total duration of at least two weeks but less than four weeks. There was no ankylosis of the spine.

Upon VA examination in August 2019, the Veteran's forward flexion was limited to 20 degrees. After repetitive use testing and during flare-ups, such was limited to 10 degrees. There was no ankylosis of the spine.

Upon VA examination in December 2021, the Veteran's forward flexion was limited to 50 degrees. The Veteran reported no flare-ups. The examiner did not provide estimated ranges of motion after repeated use over time.

Upon VA examination in November 2024, the Veteran's forward flexion was limited to 30 degrees. After repeated use over time and during flare-ups, his forward flexion was estimated to be limited to 20 degrees There was no ankylosis of the spine. Due to his IVDS, the examiner indicated that the Veteran experienced incapacitating episodes within the prior 12 months having a total duration of one week.

Upon VA examination in June 2025, the Veteran's forward flexion was limited to 20 degrees. After repeated use over time and during flare-ups, his forward flexion was estimated to be limited to 15 degrees There was no ankylosis of the spine. Due to his IVDS, the examiner indicated that the Veteran experienced no incapacitating episodes within the prior 12 months.

Upon VA examination in June 2025, the Veteran's forward flexion was limited to 30 degrees. The Veteran reported no flare-ups. The examiner did not provide estimated ranges of motion after repeated use over time. There was no ankylosis of the spine. Due to his IVDS, the examiner indicated that the Veteran experienced no incapacitating episodes within the prior 12 months.

Based on the foregoing, the Board will resolve doubt in the Veteran's favor and grant a rating of 40 percent, but no higher, from December 28, 2011. In this regard, the 2012 examiner indicated that the Veteran's movement would be further limited after repeated use, but did not provide estimated ranges of motion. At his next VA examination (2014), the Veteran's forward flexion was limited to 10 degrees after repeated use. According, the Board will resolve doubt and find that the Veteran is entitled a 40 percent rating from December 28, 2011. However, the evidence does not support a rating in excess of 40 percent at any point during the appeal as such would require unfavorable ankylosis. The evidence of record does not support a finding of ankylosis, favorable or unfavorable. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and repetitive use over time. However, even considering
use, but did not provide estimated ranges of motion. At his next VA examination (2014), the Veteran's forward flexion was limited to 10 degrees after repeated use. According, the Board will resolve doubt and find that the Veteran is entitled a 40 percent rating from December 28, 2011. However, the evidence does not support a rating in excess of 40 percent at any point during the appeal as such would require unfavorable ankylosis. The evidence of record does not support a finding of ankylosis, favorable or unfavorable. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and repetitive use over time. However, even considering these lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. See Chavis, 34 Vet. App. 1.

Notably, while the Veteran has been diagnosed with IVDS, a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted as the Veteran's IVDS produced two to four weeks of bedrest, prescribed by a physician, within a single 12-month period, at worst. 38 C.F.R. § 4.71a. Such corresponds to a 20 percent rating under the criteria. Accordingly, rating the Veteran's back disability under DC 5242 maximizes the Veteran's benefit.

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board N. M. Younan

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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