Case 26004467

A. C. MACKENZIE · 2026 · Case ID: 26004467

MIXED

Summary

The veteran, who served in the Air Force from May 1979 to August 2007, appeals a February 2008 rating decision. The appeal primarily concerns increased ratings for a lumbar spine disability and left lower extremity radiculopathy, as well as entitlement to Total Disability based on Individual Unemployability (TDIU). The veteran withdrew appeals related to left knee disability. For the lumbar spine, the Board found a 10% rating warranted prior to January 7, 2014, based on limited range of motion and pain, but not meeting criteria for higher ratings or ankylosis. From January 7, 2014, to December 16, 2019, a 40% rating was granted for the lumbar spine, acknowledging pain and functional loss, though the Board found the evidence did not support ankylosis or higher ratings. For left lower extremity radiculopathy, the Board found entitlement to a 10% rating, noting the veteran's consistent reports of radiating pain despite some examinations not finding objective evidence, and resolving doubt in the veteran's favor. The Board granted TDIU for the entire appeal period, citing the combined impact of service-connected disabilities, including lumbar spine issues and radiculopathy, which precluded substantially gainful employment, supported by medical evidence and a private vocational assessment.

Rationale

Veteran withdrew appeal for increased rating; No allegations of errors of fact or law for appellate consideration

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

10-02 326

Full Decision Text

Citation Nr: 26004467
Decision Date: 04/13/26 Archive Date: 04/13/26

DOCKET NO. 10-02 326
DATE: April 13, 2026

ORDER

Prior to May 24, 2023, entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability has been withdrawn.

Since May 24, 2023, entitlement to a disability rating in excess of 20 percent for a service-connected left knee disability has been withdrawn.

Prior to January 7, 2014, entitlement to a disability rating in excess of 10 percent for a service-connected lumbar disability is denied.

From January 7, 2014 to December 16, 2019, entitlement to a disability rating of 40 percent, but no higher, for a service-connected lumbar disability is granted.

Since January 7, 2014, entitlement to a disability rating in excess of 40 percent for a service-connected lumbar disability is denied.

Entitlement to a separate 10 percent rating for radiculopathy of the left lower extremity, as part of the increased rating claim for lumbar disability, is granted.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted for the entire appeal period.

FINDINGS OF FACT

1. In October 2025, prior to the promulgation of a decision on the current appeals, the Board of Veterans' Appeals (Board) received notification from the Veteran that he wished to withdraw the staged left knee rating issue on appeal.

2. Prior to January 7, 2014, the evidence shows that the Veteran's lumbar spine

disability was manifested by forward flexion greater than 60 degrees and a

combined range of motion greater than 120 degrees, without muscle spasm,

guarding or tenderness severe enough to result in an abnormal gait or spinal

contour. Ankylosis, associated objective neurologic abnormalities, and

incapacitating episodes were not shown.

3. From January 7, 2014 to December 16, 2019, the evidence shows that the Veteran's lumbar spine disability resulted in forward flexion of the thoracolumbar spine of 30 degrees.

4. Since January 7, 2014 the evidence shows that the Veteran's lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past 12 months which required bed rest prescribed by a physician and treatment by a physician.

5. For the entire period on appeal, the evidence establishes that the Veteran's lumbar spine disability resulted in mild left lower extremity radiculopathy.

6. For the entire period on appeal, the Veteran's service-connected disabilities precluded substantially gainful employment consistent with his educational background and occupational experience.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability prior to May 24, 2023 by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal of entitlement to a disability rating in excess of 20 percent for a service-connected left knee disability since May 24, 2023 by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. Prior to January 7, 2014, the criteria for a disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5243.

4. From January 7, 2014 to December 16, 2019, the criteria for a disability rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107;38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243.

5. Since January 7, 2014, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met.
-5243.

5. Since January 7, 2014, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243.

6. For the entire period on appeal, the criteria for a disability rating of 10 percent for left lower extremity radiculopathy due to service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a.

7. For the entire period on appeal, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a) and (b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from May 1979 to August 2007.

This matter comes before the Board on appeal of a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

These matters have a long procedural history. Most recently, the matters were remanded by the Board in a December 2024 decision based on a joint motion for remand issued by the United States Court of Appeals for Veterans Claims (Court).

In October 2025, prior to the promulgation of a decision on the current appeal, the Veteran, through his representative, submitted a written statement indicating that he wished to withdraw his appeals for increased rating for left knee disability.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. Id. In the present case, the Veteran has withdrawn the appealed issues of entitlement to an increased rating for service-connected left knee disability. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed.

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). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.

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.

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year
and an increase in the disability rating is at issue, the present level of disability is of primary concern.

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two evaluations shall be applied to a disability, the higher evaluation will be assigned only if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.

Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In adjudicating below whether the Veteran meets the criteria for higher evaluations, the Board has not overlooked the Court's holdings in Sharp and Correia. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. An examiner must provide an opinion regarding additional range of motion loss due to pain. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The Veteran's lumbar spine disability has been evaluated as 10 percent disabling prior to January 7, 2014, as 20 percent disabling from January 7, 2014 to December 16, 2019, and as 40 percent disabling, thereafter. The disability has been rated under Diagnostic Code 5242 for "degenerative arthritis of the spine." 38 C.F.R. § 4.71a.

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. No changes were made, however, to the criteria for evaluation of the Veteran's lumbar spine condition in these amendments.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolum
criteria for evaluation of the Veteran's lumbar spine condition in these amendments.

The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992).

The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V, 38 C.F.R. § 4.71a.

Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is 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. The Board has reviewed all relevant evidence, with particular attention to the VA examinations from August 2007, January 2014, September 2016, and December 2019
having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is 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. The Board has reviewed all relevant evidence, with particular attention to the VA examinations from August 2007, January 2014, September 2016, and December 2019, in addition to the May 2023 medical addendum. Relevant portions are summarized below.

The August 2007 VA examination report shows that the Veteran experienced pain in his low back that radiated down his left leg. He reported experiencing flare ups when he was more active. He took Motrin for the pain. No periods of incapacitation were reported. Upon examination, the Veteran's forward flexion was to 95 degrees, with pain. His extension was to 35 degrees, with pain. Lateral flexion to the left was to 40 degrees, with pain noted in the last 5 degrees. Lateral flexion to the left was to 40 degrees, without pain. Rotation was 35 degrees, bilaterally, without pain. No additional limitation with repetitive motion was noted.

The January 2014 VA examination report shows that the Veteran described his low back pain as 2-4 out of 10, daily. Flare-ups were not reported. Upon examination, the Veteran's forward flexion was to 60 degrees, with pain at 30 degrees. His extension was to 30 degrees or greater, with pain at 15 degrees. Lateral flexion to the left was to 30 degrees, with pain. Lateral flexion to the right was to 30 degrees, with pain at 20 degrees. Lateral rotation to the left was to 30 degrees or greater, with pain. Lateral rotation to the right was to 30 degrees or greater with pain. On repetitive motion, the Veteran's flexion was to 50 degrees. There was no change to the measurements of all other movements. Less movement than normal, incoordination, and pain on movement were noted. Tenderness to the joints was also noted. Results for muscle strength testing, reflexes and sensory were normal. Radiculopathy was not noted, and no ankylosis was found. No IVDS was noted. The Veteran wore a brace, occasionally.

The September 2016 VA examination report shows that the Veteran reported constant pain, described as 4 out of 10. During the morning, pain was described as 6 out of 10 and during flare-ups, as 8-9 out of 10. Flare-ups occurred when twisting and turning, when reaching for something in front of him, bending, and when standing or sitting. Upon examination, the Veteran's forward flexion was to 60 degrees. His extension was to 30 degrees. Lateral flexion to the left was to 30 degrees. Lateral flexion to the right was to 30 degrees. Lateral rotation to the left was to 30 degrees. Lateral rotation to the right was to 30 degrees. All movements were with pain. There was no evidence of pain with weight bearing. Muscle spasms, localized tenderness and guarding, noted as not resulting in abnormal gait were noted. Radiculopathy was not noted, and no ankylosis was found. No IVDS was noted.

The December 2019 VA examination report shows that the Veteran reported experiencing back pain and stiffness. He noted experiencing flare-ups every 1 to 2 months, which would last 1 to 4 days. The flare-ups were precipitated by running, prolong walking, lifting, and sitting.

Upon examination, the Veteran's forward flexion was to 40 degrees. His extension was to 20 degrees. Lateral flexion to the left was to 20 degrees. Lateral flexion to the right was to 20 degrees. Lateral rotation to the left was to 20 degrees. Lateral rotation to the right was to 20 degrees. All movements were with pain. Evidence of pain with weight bearing was noted. After repetitive movement, the Veteran's flexion was to 35 degrees. His extension was to 15 degrees. Lateral flexion to the left was to 15 degrees. Lateral flexion to the right was to 15 degrees. Lateral rotation to the left was to 15 degrees. Lateral rotation to the right was to 15 degrees. After repeated use, the Veteran's flexion was to 30 degrees. His extension was to 10 degrees. Lateral flexion to the left was to 10 degrees. Lateral flexion to the right was to 10 degrees. Lateral rotation to the left was to 10 degrees. Lateral rotation to the right was to 10 degrees. Pain and lack of endurance were noted for all types of movement and during flare-ups. The Veteran was not observed during flare-ups; however, the VA examiner indicated that the Veteran's flexion would be to 25 degrees during an episode. His extension would be to 10 degrees. Lateral flexion to the left was to 10 degrees. Lateral flexion to the right was to 10 degrees. Lateral rotation to the left was to 10 degrees. Lateral rotation to the right was to 10 degrees. Radiculopathy was not noted and no ankylosis was found. No IVDS was noted. It was noted that the Veteran used a brace regularly. There was objective evidence of pain on passive range of motion and on non-weight bearing testing.

Pursuant to the May 2022 JMR, the Board remanded the increased rating claim to obtain a retrospective opinion regarding the amount of degrees of range of motion (ROM) lost due to pain in both weightbearing and non-weight bearing, the amount of degrees lost due to flare-ups and whether radiculopathy of the right lower extremity was present.

In a May 2023 medical addendum, a VA examiner stated a review of the record and noting that all motions of the axial spine were considered active and weight-bearing. She stated that that non-weight-bearing (NWB) and passive motion could not be performed. This was established medical knowledge and practice. The effects of gravity could never be eliminated for the axial spine and spinal reflexes, along with an inability to completely relax the lumbar spine, especially when a condition was present, would make such measurements inaccurate and would be of little or no clinical value. The definition of NWB simply meant that a patient could not or did not put any weight on a segment of the joint in question. The structural function and biomechanics of the axial spine (cervical, thoracolumbar) were well documented in common peer-reviewed texts (Oxford, Wheeless). However, all function was accepted to be active and weight-bearing because the axial spine stabilized the entire skeletal structure.

An exhaustive search of available medical literature, including but not limited to UpToDate, PubMed, NIH, CDC, Mayo Clinic, Cleveland Clinic, and Johns Hopkins gave no reference to NWB of the axial spine. Some reference to NWB of the axial spine was found in physical therapy pamphlets from the last century. However, they were based on subjective opinion, and they had not been replicated or peer-reviewed, and thus could not be considered a medical standard. This opinion wrongly suggested NWB of the axial spine was seen in the supine position, this was an anatomically naive opinion because it did not consider the anatomical curve of the axial spine (lordosis, kyphosis) in which segments would always be active and bear weight, thus making any "non-weight-bearing" measurement invalid.

By their very nature, estimates of ROM during extended repetitive use and flares were speculative. They are based primarily on Veteran-reported symptoms. However, casual observations rendered by the individual examiners, documented clinical findings, and contemporary imaging were also considered in the following estimates. At the time of the 2007 examination, flares were reported with increased activity such as yardwork. The Veteran avoided bending his back more than necessary following such flares, which responded to rest and Motrin.

The Veteran's flexion was 95 degrees, extension was 35 degrees, bilateral flexion was 40
, kyphosis) in which segments would always be active and bear weight, thus making any "non-weight-bearing" measurement invalid.

The Veteran's flexion was 95 degrees, extension was 35 degrees, bilateral flexion was 40 degrees and bilateral rotations were 35 degrees, all at supra-normal ranges. Reflexes and muscle strength were normal, and there was no additional loss on observed repetitive use. None would be anticipated with extended repetitive use. This was generally the case, short of inducing a flare, which would be addressed separately.

ROM exercises, stretching, and physical therapy were commonly instituted for individuals with back conditions, generally maintaining or increasing ROM. A small loss of ROM due to self-limitation or guarding during flares would be conceded, at approximately 0 to 5 degrees for all planes of motion. This would render net values of 90 degrees, 30 degrees, 35 degrees, and 30 degrees for the respective planes of motion noted above. These were essentially normal. No objective evidence existed for radiculopathy.

In January 2014, flares were denied, and no additional loss of ROM due to flare would be anticipated. This was a direct question posed to the Veteran. Initial ROM was 60 degrees for flexion, 30 degrees for extension, and 30 degrees for all other planes of motion, all but flexion was normal. A loss to 50 degrees was noted on observed repetitive use. The VA examiner stated that in her opinion there would have been none on extended repetitive use for the previously noted reasons above. Short of inducing a flare, which the Veteran denied, repetitive use of the spine would likely increase flexibility (Wheeless' textbook of orthopedics). The Veteran's muscle strength was normal, as were deep tendon reflexes and sensory findings, with a negative straight leg test. The Veteran was asymptomatic and did not meet any diagnostic criteria for radiculopathy.

At the time of the September 2016 examination, the Veteran reported flares, which were documented in the examination report. There was no implication for loss of ROM inherent in the description. It did imply a general reticence to movement. ROM was again noted at 60 degrees for flexion and normal for all other planes of motion. The Veteran declined to perform repetitive use, but no additional loss on extended repetitive use would be implied or expected. Stretching and ROM exercises more likely than not would have eased the Veteran's discomfort. However, though an implication for loss of ROM was not inherent in the Veteran's description, a loss of 0 to 5 degrees for flexion and all planes of motion would be conceded for flares, netting 55 degrees for flexion and 25 degrees for all other planes of motion.

The Veteran's muscle strength was normal, as were deep tendon reflexes, with normal sensory findings and a negative straight leg test documented. The VA examiner noted that the Veteran had no diagnostic evidence of radiculopathy. Furthermore, the Veteran reported no symptoms at the time of the September 2016 examination. There was no reason to doubt the examiner's findings, and the Veteran clearly denied symptoms. The Veteran did not meet the objective criteria for radiculopathy at the time of the September 2016 examination. It was clinically significant that the Veteran denied symptoms of radiculopathy at the time of the disability examination. Furthermore, the Veteran had no evidence of radiculopathy in 2019. The condition does not resolve spontaneously.

In December 2019, the Veteran noted a limited range of motion with moderate to severe flares, lasting one to four days, precipitated by prolonged activity and alleviated by RICE therapy and medication. This was strictly subjective and implied a reticence to movement as much as a specific loss of ROM. As noted above, ROM exercises and stretching would be recommended and would likely increase the Veteran's range of motion, particularly during a flare. Initial ROM was noted at 40 degrees for flexion, and 20 degrees for all other planes of motion, with a loss of 5 degrees for all planes of motion with observed repetitive use.

The examiner opined with respect to loss of ROM due to flare and extended repetitive use. The VA examiner opined that these were excessive,
of motion with moderate to severe flares, lasting one to four days, precipitated by prolonged activity and alleviated by RICE therapy and medication. This was strictly subjective and implied a reticence to movement as much as a specific loss of ROM. As noted above, ROM exercises and stretching would be recommended and would likely increase the Veteran's range of motion, particularly during a flare. Initial ROM was noted at 40 degrees for flexion, and 20 degrees for all other planes of motion, with a loss of 5 degrees for all planes of motion with observed repetitive use.

The examiner opined with respect to loss of ROM due to flare and extended repetitive use. The VA examiner opined that these were excessive, especially for extended repetitive use. However, they would be conceded, as it was presumed that the examiner used their best judgment to form what were speculative opinions, by their very nature.

The Veteran's muscle strength was normal. Deep tendon reflexes were normal. Sensory findings were normal. The Veteran denied symptoms. The straight leg test was negative. This did not meet the objective criteria to diagnose radiculopathy. It further eliminated consideration for radiculopathy in 2016, as it would have not spontaneously resolved. The Veteran had no limitation consistent with functional ankylosis, including during flares or after extended repetitive use.

Here, the Board notes that while estimates of the amount in degrees for the ROM lost due to pain in both weightbearing and non-weight bearing positions were not provided by the May 2023 VA examiner, the VA examiner provided an explanation as to why these measurements could not be offered.

In an April 2025 VA medical opinion, the examiner indicated that EMG studies indicate left sensory sural neuropathy. The examiner stated that medical literature note that conditions that affect the sural nerve can include diabetes-related neuropathy, sural nerve entrapment, sport injuries, and surgical complications. The Veteran's lumbar spine x-rays from April 2019 indicated degenerative disc disease and levoconvex scoliosis. Given the review of the medical literature and the Veteran's history, the Veteran's diagnosis is likely multifactorial. Therefore, the examiner is unable to determine a causal relationship.

In the May 2025 addendum to the April 2025 medical opinion, the examiner further stated that the sural nerve provides skin sensation to back of the left, below the knee, outer side of foot, outer heel, and ankle. Radicular symptoms of the left leg are likely attributed to the findings of left sensory sural neuropathy per EMG studies in April 2024. Given review of medical literature and the Veteran's history, the Veteran's diagnosis is likely multifactorial. Therefore, the examiner is unable to determine causal relationship without mere speculation.

Prior to January 7, 2014

For this period on appeal, the Veteran was assigned a 10 percent disability rating due to limitation of motion. To warrant a rating in excess of 10 percent, forward flexion of the thoracolumbar spine must be greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine must not be 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. The rating schedule does not allow for a higher evaluation based upon limitation of any other motions.

The August 2007 VA examination revealed that the Veteran's forward flexion was to 95 degrees. It was noted that the Veteran experienced pain during motion. The Veteran's combined range of motion reflected in the VA examination exceeded 120 degrees. Muscle spasms or guarding were not reported or found during this period on appeal. Accordingly, an evaluation in excess of 10 percent for the period on appeal prior to January 7, 2014 is not warranted on the basis of limitation of motion.

There is no basis for the rating in excess of 10 percent for the Veteran's lumbar spine condition for this period on appeal, and this portion of the appeal must be denied.

From January 7, 2014 to December 16, 2019

For the period on appeal from January 7, 2014 to December 16, 2019, the only possible basis for an increased rating in excess of 20 percent for the Veteran's lumbar spine disability is for flexion limited to 30 degrees. The rating schedule does not allow for a higher evaluation based upon limitation of any other motions.

During the period on appeal, the Board finds a 40 percent disability rating is warranted. During the January 2014 VA examination, the examiner noted that the Veteran
percent for the Veteran's lumbar spine condition for this period on appeal, and this portion of the appeal must be denied.

From January 7, 2014 to December 16, 2019

During the period on appeal, the Board finds a 40 percent disability rating is warranted. During the January 2014 VA examination, the examiner noted that the Veteran's initial range of motion was to 60 degrees on flexion. The examiner stated that there was objective evidence of painful motion at 30 degrees. It was noted that repetitive use testing resulted in range of motion to 50 degrees on flexion. It was noted that the Veteran had additional limitations in range of motion with repetitive use testing and functional loss and/or functional impairment of the spine. The contributing factors or disability included less movement than normal, incoordination and impaired ability to execute skilled movements smoothly, and pain on movement.

Additionally, during a September 2016 VA examination for back conditions, the Veteran's range of motion was to 60 degrees on flexion. Pain was noted on examination and causes functional loss. The Veteran exhibited pain with flexion. The examiner was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time as to repetitive use testing and flare-ups. The Board finds the examination inadequate, as the examiner failed to provide sufficient reasoning or estimated range of motion.

Thereafter, the Veteran underwent a VA examination for back conditions in December 2019. Here, the examiner noted that the Veteran's functional loss due to pain and lack of endurance resulted in limited forward flexion to 30 degrees.

Based on the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds a 40 percent disability rating is warranted for the Veteran's back condition during the period on appeal. The Board finds the January 2014 VA examination notes pain at 30 degrees on forward flexion. The September 2016 VA examination is inadequate, as the examiner failed to consider functional loss on the Veteran's range of motion to include pain. The January 2019 VA examination noted range of motion was limited to 30 degrees on forward flexion due to pain.

Based on the above, the Board grants a 40 percent disability rating for lumbar spine condition effective January 7, 2014.

Since January 7, 2014 -

For the period on appeal from January 7, 2014, the Veteran is now assigned a 40 percent disability rating. The Board notes a higher rating is warranted if unfavorable ankylosis of the entire thoracolumbar spine is found. A 40 percent rating is the maximum that is assigned solely on the basis of limitation of any lumbar spine motion. The evidence reflects no evidence of ankylosis.

The Board has additionally considered this case in light of the Court's recent 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.

The Board acknowledges the Veteran's reports of symptoms of pain and stiffness of the spine. The Board concludes that such asserted functional loss is not consistent with that contemplated by ankylosis. The evidence does not suggest any limited motion of the thoracolumbar spine comparable to any type of immobility. The Veteran is able to perform forward flexion limited to 5 degrees, at worst, as well as extension limited to 5 degrees at worst. As outlined 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.

There is no basis for a rating in excess of 40 percent for the Veteran's lumbar spine disorder for the period on appeal from January
. The evidence does not suggest any limited motion of the thoracolumbar spine comparable to any type of immobility. The Veteran is able to perform forward flexion limited to 5 degrees, at worst, as well as extension limited to 5 degrees at worst. As outlined 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.

There is no basis for a rating in excess of 40 percent for the Veteran's lumbar spine disorder for the period on appeal from January 7, 2014 onward. As such, the claim must be denied.

Additionally, the medical and lay evidence of record does not show that a higher rating is warranted under the IVDS Formula during any period on appeal, as the evidence does not establish incapacitating episodes requiring bed rest by a physician and treatment by a physician for any length of duration. As such, the IVDS Formula cannot serve as a basis for increased ratings on the basis of incapacitating episodes.

As for separate ratings for right lower extremity radiculopathy and other objective neurological abnormalities, the Board finds it is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1).

Left Lower Extremity Secondary to Lumbar Spine Disability

As the for the Veteran's left lower extremity, the Board finds the Veteran's is entitled to service connection for left lower extremity radiculopathy. Neurological impairment of the lower extremities due to a spine disability is rated under 38 C.F.R. § 4.124a. Incomplete paralysis of the sciatic nerve that is mild warrants a 10 percent rating. A 20 percent rating is warranted for moderate incomplete paralysis of the nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the nerve.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

After considering the totality of the record, the Board finds that the Veteran is reasonably shown, and the medical evidence supports a finding, that the Veteran suffers from left lower extremity radiculopathy due to his service-connected lumbar spine disability.

Specifically, the Board notes the VA examination reports of record and medical treatment records note the Veteran's reports of pain in his low back which radiates down his left leg as early as the August 2007 VA examination. While following examinations report no indication of objective evidence of radiculopathy, the Veteran continuously reported radiating left lower extremity pain.

While the April 2025 VA medical opinion and May 2024 VA Addendum to the April 2025 VA medical opinion stated the examiner was unable to determine a causal relationship without speculation, the Board finds, resolving all reasonable doubt in the Veteran's favor, that the Veteran is warranted a rating for left lower extremity radiculopathy due to his service-connected lumbar spine disability.

Here, the Board finds the Veteran is entitled to a separate 10 percent rating for left lower extremity radiculopathy effective September 1, 2007, the date service-connected for the lumbar spine disability was granted.

The disability ratings for radiculopathy note mild incomplete paralysis is rated 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated 40 percent disabling, and severe incomplete paralysis (with marked muscular atrophy) is rated 60 percent disabling. An 80 percent rating is warranted where there is complete paralysis and the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520.

The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the regulations, and rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and
) lost. 38 C.F.R. § 4.124a, DC 8520.

Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe."

Additionally, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

Here, the evidence is inconsistent with a diagnosis of radiculopathy throughout the period on appeal. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds a 10 percent rating is warranted.

1. TDIU

When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of this appeal for increased rating, the Veteran submitted an application for TDIU. In light of Rice and the Veteran's testimony, the Board will infer a claim for TDIU.

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id.

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology, or a single accident, will be considered as one disability. See 38 C.F.R. § 4.16(a).

In adjudicating the issue of entitlement to TDIU, the Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and
kie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran has the following disabilities that are service connected: lumbar spine disability rated 10 percent effective September 1, 2007 and 40 percent effective January 7, 2014; left lower extremity radiculopathy rated 10 percent disabling; right wrist carpal tunnel syndrome rated 10 percent effective September 1, 2007 and 30 percent effective April 10, 2009; left knee rated 10 percent effective September 1, 2007 and 20 percent effective May 24, 2023; right knee rated 10 percent effective September 1, 2007; left shoulder strain rated 10 percent effective September 1, 2007; right shoulder strain rated 10 percent effective September 1, 2007; tinnitus rated 10 percent effective September 1, 2007; left wrist carpal tunnel syndrome rated 10 percent effective September 1, 2007; status post kidney stones rated noncompensable effective September 1, 2007 and 10 percent effective September 22, 2016; bilateral hearing loss rated noncompensable; cholelithiasis rated noncompensable; residual scar of the left shoulder rated noncompensable; and residual scar of the right shoulder rated noncompensable.

Based on the foregoing, the Veteran has met schedular rating effective January 7, 2014 pursuant to § 4.16(a).

On October 21, 2025, the United States Court of Appeals for Veterans Claims (Court) issued the precedential en banc decision in Witkowski v. Collins, overruling Bowling v. Principi, 15 Vet. App. 1 (2001), which held that the Board cannot grant a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis in the first instance. See Witkowski v. Collins, 38 Vet. App. 459 (2025). As a result, the Board now may consider entitlement to an extraschedular TDIU in the first instance without referral to the Director of Compensation Service, although such has already occurred in this case. Accordingly, in the instant case, the Board will consider the claim for TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to January 7, 2014. For the reasons set forth below, the Board finds that TDIU is warranted on a schedular rating effective January 7, 2014 and on an extraschedular basis prior to January 7, 2014. As such, entitlement to TDIU is warranted for the entire appellate period.

Turning to the evidence, the January 2014 VA examiner noted that the Veteran's lumbar spine disability impacted his occupational ability of lifting, standing, and physical activities. As for his knee disabilities, it was noted that his conditions impacted his ability to work. Specifically, the December 2019 VA examiner noted that the Veteran's left knee condition impacted his ability with bending and prolonged standing. The May
2014. For the reasons set forth below, the Board finds that TDIU is warranted on a schedular rating effective January 7, 2014 and on an extraschedular basis prior to January 7, 2014. As such, entitlement to TDIU is warranted for the entire appellate period.

Turning to the evidence, the January 2014 VA examiner noted that the Veteran's lumbar spine disability impacted his occupational ability of lifting, standing, and physical activities. As for his knee disabilities, it was noted that his conditions impacted his ability to work. Specifically, the December 2019 VA examiner noted that the Veteran's left knee condition impacted his ability with bending and prolonged standing. The May 2023 VA examiner noted that the Veteran's left knee disability impacted his ability to move, squat, and bend.

In October 2025, the Veteran submitted a private vocational assessment report. Here, the private examiner noted that the Veteran had difficulty with sitting, standing, walking, lifting, bending/twisting, reaching overhead, use of upper extremities, squatting/lunging, and climbing stairs due to his service-connected disabilities. It was noted that the Veteran has difficulty with concentration and remaining focused due to the combined effects of his chronic pain from service-connected disabilities. Additionally, the Veteran experiences significant limitations in his ability to perform routine daily tasks due to service-connected disabilities.

As for the Veteran's education, the Veteran earned a Bachelor of Science in 1979 and a master's degree in industrial production and operational management in 1988. In 2010, the Veteran received another master's degree in history. The private examiner opined that, even though the Veteran received a master's degree in 2010, his ability to complete this voluntary educational pursuit is not indicative of his ability to secure and follow substantially gainful employment. The Veteran's degree was a self-paced program and was simply adjusted to his schedule in accordance with his chronic pain.

The Veteran last worked part-time seasonally from 2012 to 2018 as an educator. The Veteran's Social Security records note earnings were below the poverty level for majority of the years the Veteran's was employed. It was noted that in 2014 and 2017 the Veteran was barely over the poverty level.

The examiner concluded that the Veteran was unable to sustain the basic requirements of gainful work, even at the unskilled or skilled sedentary exertional level on a consistent and reliable basis due to limitations from his service-connected disabilities from August 2007 to present. As shown by the medical evidence, the Veteran suffers from constant chronic back pain, difficulty reaching in front of him, inability to sit in one position for any prolonged period without pain and the need to change positions, inability to stand in one place for prolonged periods, severe limitations with twisting and turning, bilateral wrist weakness with decreased grip strength and difficulty performing repetitive work with his hands due to bilateral shoulder pain, difficulty using his arms overhead, chronic bilateral knee pain, difficulty with sit to stand, and difficulty hearing. See October 2025 Private Vocational Assessment Report.

In a December 2025 VA Form 21-4192, the Veteran worked as an instructor from April 2012 to September 2019. The Veteran worked 12 hours weekly.

Given the foregoing, the Board concludes that the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. While the Veteran has been employed for parts of the period on appeal, the Board notes this was not full-time. The VA examinations, medical treatment records, lay statements, and private vocational assessment report show that the Veteran's service-connected disabilities impact his employability, as he experiences pain, limited range of motion, and difficulty with heavy lifting, prolonged walking, bending, stooping, handling, reaching, and prolonged sitting.

Considering the functional impact of the Veteran's service-connected disabilities, in light of his employment and educational background, when affording him the benefit of the doubt, the evidence supports a finding that the Veteran's disabilities preclude substantially gainful employment. Effective January 7, 2014, the Veteran is entitled to TDIU on a schedular basis. Prior to January 7, 2014, the Veteran is entitled to TDIU on an extraschedular basis. Accordingly, entitlement to TDIU is warranted for the entire appeal period.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Glaeser, Jennifer

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.
that the Veteran's disabilities preclude substantially gainful employment. Effective January 7, 2014, the Veteran is entitled to TDIU on a schedular basis. Prior to January 7, 2014, the Veteran is entitled to TDIU on an extraschedular basis. Accordingly, entitlement to TDIU is warranted for the entire appeal period.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Glaeser, Jennifer

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