CERVICAL SPINE LIMITATION OF MOTION

G. WILLIAM RIGGS · 2025 · Case ID: A25022783

MIXED

Summary

The veteran, who served honorably in the U.S. Navy from February 1996 to February 2000, appeals the denial of service connection for a cervical spine condition and seeks an increased rating for her service-connected lumbosacral strain, bilateral knee conditions, and right lower extremity radiculopathy. The Board denied service connection for the cervical spine condition, finding that the evidence did not establish a link to service, nor was it proximately due to or aggravated by her service-connected knee disabilities. The veteran failed to attend a scheduled VA examination for her cervical spine, and no medical nexus opinion was available in the record. Regarding the lumbosacral strain, the Board found that the reduction in the veteran's disability rating from 20 percent to 10 percent was improper, restoring the 20 percent rating based on the evidence showing no material improvement in her condition. However, the Board denied an increased rating beyond 20 percent for the lumbosacral strain, finding the evidence did not support a higher evaluation. For the bilateral knee conditions (right knee osteoarthritis with patellofemoral pain syndrome and left knee patellofemoral pain syndrome), the Board denied increased ratings beyond 10 percent, concluding that the evidence did not support a limitation of motion or functional loss more severe than that already rated. Similarly, for right lower extremity radiculopathy of the sciatic nerve, the Board denied an increased rating beyond 10 percent, finding the evidence most persuasively indicated mild intermittent pain and mild paresthesias, consistent with mild incomplete paralysis, and did not support a more severe rating.

Rationale

No medical nexus opinion linking cervical spine to service or knee disabilities; Veteran missed scheduled VA examination; Evidence persuasively weighs against service connection

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

231107-390830

Full Decision Text

Citation Nr: A25022783
Decision Date: 03/12/25 Archive Date: 03/12/25

DOCKET NO. 231107-390830
DATE: March 12, 2025

ORDER

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

The 20 percent disability rating for lumbosacral strain is restored, effective October 31, 2023.

For the period on appeal, entitlement to a disability rating in excess of 20 percent for lumbosacral strain is denied.

For the period on appeal, entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis with patellofemoral pain syndrome is denied.

For the period on appeal, entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied.

For the period on appeal, entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve is denied.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that cervical spine condition began during active service or is otherwise related to an in-service injury or disease.

2. The evidence of record at the time of the November 2023 rating decision failed to demonstrate a sustained and material improvement in the Veteran's service-connected lumbosacral strain that was reasonably certain to be maintained under ordinary conditions of life and work.

3. The Veteran's lumbosacral strain is manifest by forward flexion endpoint at 70 degrees.

4. The Veteran's right knee osteoarthritis with patellofemoral pain syndrome is manifest by painful motion.

5. The Veteran's left knee patellofemoral pain syndrome is manifest by painful motion.

6. The Veteran's right lower extremity radiculopathy of the sciatic nerve is manifest by mild incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for service connection for a cervical spine condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The reduction of the rating for lumbosacral strain from 20 percent to 10 percent was improper, and restoration of the 20 percent rating, effective October 31, 2023, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 5243.

3. The criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243.

4. The criteria for a rating in excess of 10 percent for right knee osteoarthritis with patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

5. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

6. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Navy from February 1996 to February 2000.

This appeal is before the Board of Veterans' Appeals (Board) on appeal of February 2023 and November 2023 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). Given the date of the rating decisions on appeal, the Veteran's appeal is governed by the modernized review system (known by the Board as AMA). 38 C.F.R. §
5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Navy from February 1996 to February 2000.

In the November VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the February 2023 and November 2023 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

SERVICE CONNECTION

1. Entitlement to service connection for a cervical spine condition

The Veteran is seeking service connection for a cervical spine condition. More specifically, the Veteran contends that her cervical spine condition is proximately due to falling and injuring her knees in service; she stated that her bilateral knee condition caused stress on her spine.

Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In the February 2023 rating decision, the Agency of Original Jurisdiction (AOJ) made favorable findings of service-connected bilateral knee disabilities. Despite these findings, the AOJ denied the Veteran's claim because there was no medical nexus linking her cervical spine condition to her military service, to include her service-connected bilateral knee disabilities. Nevertheless, the Board is bound by the AOJ's favorable findings under the AMA.

The Board acknowledges that the Veteran did not undergo a VA examination for her cervical spine. The VA scheduled an appointment for a VA examination for the Veteran's cervical spine; however, the Veteran did not show for the appointment, did not provide good cause for not appearing for the appointment, and did not attempt to reschedule the VA examination. Thus, the Board will not remand for another VA examination and will proceed with adjudication of the claim with the available evidence of record.

VA treatment records from October 2022 document diagnoses of mild to moderate cervical spondylosis with multilevel degenerative disc disease and cervical radiculopathy.

The Veteran's claims file does not contain a medical nexus opinion regarding whether the Veteran's cervical spine disability is at least as likely as not related to her in-service injury, to include proximately due to, or aggravated beyond its normal progression by, her service-connected bilateral knee disabilities.

Under these circumstances, the evidence does not permit the Board to decide the claim in the Veteran's favor. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.").

While the Board
The Veteran's claims file does not contain a medical nexus opinion regarding whether the Veteran's cervical spine disability is at least as likely as not related to her in-service injury, to include proximately due to, or aggravated beyond its normal progression by, her service-connected bilateral knee disabilities.

While the Board acknowledges the Veteran's lay statements, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as it is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).

Consequently, the Board finds that the persuasive evidence of record weighs against the Veteran's claim for service connection for a cervical spine disability as the evidence of record does not establish that her cervical spine disability is at least as likely as not related to service, to include proximately due to, or aggravated beyond its normal progression by, her service-connected disabilities. Thus, entitlement to service connection for a cervical spine condition is not warranted.

In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the persuasive evidence of record is against the Veteran's claims for service connection for a cervical spine condition. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

REDUCTION

1. The 20 percent disability rating for lumbosacral strain is restored effective October 31, 2023.

The Veteran is seeking an increased disability rating for her service-connected lumbosacral disability. The Veteran's 20 percent disability rating was reduced to 10 percent effective October 31, 2023, in the November 2023 rating decision on appeal. As such, the Board will address whether reduction of the Veteran's disability evaluation was warranted; and whether an increase in the disability evaluation for the Veteran's lumbosacral strain is warranted.

Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the Agency of Original Jurisdiction (AOJ) must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e).

The provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. A reduction in evaluation with no corresponding in compensation does not meet the criteria of 38 C.F.R. § 3.105(e). VAOPGCPREC 71-91 (Nov. 1991).

The Veteran did not receive notice of the decrease in the disability evaluation for lumbosacral strain. Here, she filed a claim for increase for her back disability and then appeared for her scheduled VA examination in October 2023. The rating decision on appeal used the October 2023 VA examination as the basis for decreasing her disability evaluation from 20 percent to 10 percent. Review of the claims file reveals that the decrease did not result in a decrease in compensation. Thus, notice of the reduction in the disability evaluation was not required.

The analysis thus proceeds to whether the reduction was factually warranted. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993).
lumbosacral strain. Here, she filed a claim for increase for her back disability and then appeared for her scheduled VA examination in October 2023. The rating decision on appeal used the October 2023 VA examination as the basis for decreasing her disability evaluation from 20 percent to 10 percent. Review of the claims file reveals that the decrease did not result in a decrease in compensation. Thus, notice of the reduction in the disability evaluation was not required.

The analysis thus proceeds to whether the reduction was factually warranted. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran's ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Veteran underwent VA examinations in December 2018 and October 2023. Comparison of the two VA examinations reveals that the Veteran's lumbosacral disability did not improve. Although extension endpoint was to 20 degrees (as opposed to 10 degrees in the December 2018 VA examination), the examiner noted additional diagnoses of intervertebral disc syndrome (IVDS) and functional loss in the form of being unable to sit, stand, or walk, for extended periods of time; these findings were not present during the December 2018 VA examination. Further, the Veteran continued to report flareups.

As such, the Board finds that the medical evidence of record does not show that the Veteran's lumbosacral disability has improved in such a manner that the Veteran's ability to function under the ordinary conditions of life and work has been enhanced. Thus, the reduction wan improper and the 20 percent rating is restored.

INCREASED RATING

1. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain

The Board will now determine whether a disability rating in excess of 20 percent for the Veteran's lumbosacral disability is warranted.

The Veteran's lumbosacral strain with IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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, 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.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

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.

When evaluating musculoskeletal disabilities based on limitation of motion
38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

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.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The appeal period before the Board begins on October 07, 2023, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

In October 2023, the Veteran underwent a VA examination. The examiner noted diagnoses of lumbosacral strain, IVDS, and right lower extremity radiculopathy. The Veteran reported lumbar spasms and shooting pain down her right leg. She further reported moderate to severe flareups that occur every few months. Functional loss was reported as an inability to sit, stand, or walk for extended periods of time without breaks. Initial range of movement measurements were abnormal with forward flexion endpoint at 70 degrees, extension endpoint at 20 degrees, right and left lateral flexion endpoint at 30 degrees, and right and lateral rotation endpoint at 30 degrees. Pain was exhibited on forward flexion and extension. Passive range of motion was the same as initial range of motion testing with pain exhibited on all range of motion movements. There was also evidence of pain with weight-bearing and active motion; and this pain caused functional loss. The Veteran was able to perform repetitive use testing with at least 3 repetitions and no additional loss of range of motion after 3 repetitions. The examiner documented that procured evidence suggests that pain significantly limits functional ability with repeated use over time and with flareups. The estimated range of motion for repeated use over time and flareups was noted as forward flexion at 65 degrees, extension endpoint at 15 degrees, right and left lateral flexion at 25 degrees, and right and left lateral rotation endpoint at 25 degrees. The examiner noted that the Veteran had muscle guarding due to intermittent spasms that did not result in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's disability were disturbance of locomotion, interference with sitting, and interference with standing. The Veteran had full muscle strength of the bilateral lower extremities and no muscle atrophy or ankylosis. The examiner noted that the Veteran had IVDS with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use any assistive devices as a normal or occasional mode of locomotion.

Upon reviewing the pertinent evidence of record, the Board finds that the
25 degrees. The examiner noted that the Veteran had muscle guarding due to intermittent spasms that did not result in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's disability were disturbance of locomotion, interference with sitting, and interference with standing. The Veteran had full muscle strength of the bilateral lower extremities and no muscle atrophy or ankylosis. The examiner noted that the Veteran had IVDS with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use any assistive devices as a normal or occasional mode of locomotion.

Upon reviewing the pertinent evidence of record, the Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for lumbosacral strain. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by her statements of record would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The October 2023 VA examination documented, at worst, that the Veteran's forward flexion endpoint was limited to 65 degrees during flareups and with repeated use over time; and the examiner found that the Veteran did not have ankylosis.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The October 2023 VA examiner reported that the Veteran had IVDS but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months, and the Veteran did not assert that she was prescribed bed rest due to IVDS and treatment by a physician in the 12 months prior to the examination.

Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for lumbosacral strain. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

2. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis with patellofemoral pain syndrome

3. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome

The Veteran is seeking a disability rating in excess of 10 percent for service-connected bilateral knee disabilities.

The Veteran's right knee osteoarthritis with patellofemoral pain syndrome is rated under Diagnostic Codes 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran's left knee patellofemoral pain syndrome is rated under DC 5260.

Diagnostic Code 5003 stated that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under the regulations in effect from
under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under the regulations in effect from February 7, 2021, Diagnostic Code 5003 now only applies to degenerative arthritis, other than posttraumatic. Otherwise, Diagnostic Code 5003 remains the same under the revised regulations.

Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

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 flareups 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.").

VA treatment records from October 2023 documented that the Veteran had patellar reflexes of 2 out of 4 bilaterally and normal knee extension.

The Veteran appeared for a VA examination in October 2023. The Veteran reported symptoms of pain and limitation of motion with intermittent swelling. She denied flareups but reported functional loss due to being unable to walk for extended periods of time without taking breaks. Initial range of motion measurements bilaterally were abnormal with flexion to 100 degrees and extension to 0 degrees; pain was exhibited on flexion and the limited range of motion itself did not cause functional loss. There was evidence of pain with weightbearing, active motion, and passive motion; the pain caused functional loss. There was no tenderness or pain to palpation for the joint line or soft tissue bilaterally. The Veteran was able to perform repetitive-use testing with at least 3 repetitions and no additional loss of range of motion after 3 repetitions. The examiner noted that pain significantly limited functional ability with repeated use over time; estimated range of motion after repeated use over time was noted as flexion to 90 degrees and extension to 0 degrees bilaterally. There was no muscle atrophy or ankylosis; there was also no recurrent subluxation, persistent instability, or recurrent patellar instability. It was documented that the Veteran did not have (now or ever) shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment; or a meniscus condition. The Veteran also did not use any assistive devices as a normal mode of locomotion.

Upon reviewing the pertinent evidence of record, the Board finds that the evidence of record
noted that pain significantly limited functional ability with repeated use over time; estimated range of motion after repeated use over time was noted as flexion to 90 degrees and extension to 0 degrees bilaterally. There was no muscle atrophy or ankylosis; there was also no recurrent subluxation, persistent instability, or recurrent patellar instability. It was documented that the Veteran did not have (now or ever) shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment; or a meniscus condition. The Veteran also did not use any assistive devices as a normal mode of locomotion.

Upon reviewing the pertinent evidence of record, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's bilateral knee disabilities. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by her statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The October 2023 VA examination documented that, at worst, the Veteran's flexion is limited to 90 degrees bilaterally.

Painful motion corresponds with a 10 percent rating under 38 C.F.R. § 4.59. Accordingly, a disability rating in excess of 10 percent is not warranted.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

Other diagnostic codes pertaining to the knee include DC 5256 (ankylosis), DC 5257 (recurrent subluxation and lateral instability), DC 5258 (dislocation of the semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5261 (limitation of extension), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal such that application of these DCs is not warranted.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for her bilateral knee disabilities. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

4. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve

The Veteran is seeking a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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 muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost
of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

During the October 2023 VA examination for back conditions, the examiner documented that the Veteran had right lower extremity radiculopathy with mild intermittent pain and mild paresthesias and/or dysesthesias. Sensation to light touch testing was normal and the right lower extremity had full muscle strength with no muscle atrophy. Reflexes were normal.

Based on the above, the Board finds that the disability is primarily manifest by mild intermittent pain and mild paresthesias and/or dysesthesias. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis as such was not indicated upon examination. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis.

In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that her right lower extremity radiculopathy is more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe her symptomatology, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disabilities considering the rating criteria to be more persuasive.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

Thus, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

G. William Riggs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. K. Hall, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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