POSTTRAUMATIC STRESS DISORDER (PTSD)

TIMOTHY COTHREL · 2025 · Case ID: A25058684

MIXED

Summary

The Veteran served from May 2016 to May 2020. The Veteran appeals the denial of service connection for major depressive disorder, cervical strain, migraines, bilateral shin splints, and lumbar spine strain, as well as seeking increased ratings for right hip strain with ischiofemoral impingement and right lower extremity radiculopathy. Service connection for PTSD due to Military Sexual Trauma (MST) was granted, with the Board finding the current psychiatric disorder etiologically related to the in-service MST. The Board found the Veteran's PTSD did not manifest in occupational and social impairment with deficiencies in most areas. Service connection for major depressive disorder, cervical strain, migraines, bilateral shin splints, and lumbar spine strain were denied as the criteria for higher ratings were not met. The Veteran was granted a 10% rating for right hip limitation of thigh abduction prior to May 11, 2022, and a 10% rating for right hip limitation of thigh extension prior to May 11, 2022. The Veteran was also granted a 20% rating for right lower extremity radiculopathy prior to May 11, 2022. Increased ratings for the right hip and radiculopathy from May 11, 2022, were denied, as were increased ratings for cervical strain, migraines, bilateral shin splints, and lumbar spine strain. The Board found the evidence preponderated against the Veteran's claims for increased ratings for these conditions.

Rationale

Service connection for PTSD due to MST granted; Current psychiatric disorder etiologically related to in-service MST; Did not manifest in occupational and social impairment with deficiencies in most areas

Special Benefit

NO SPECIAL BENEFIT

Docket No.

211104-195693

Full Decision Text

Citation Nr: A25058684
Decision Date: 07/09/25 Archive Date: 07/09/25

DOCKET NO. 211104-195693
DATE: July 9, 2025

ORDER

Service connection for posttraumatic stress disorder (PTSD) is granted.

A rating in excess of 50 percent for major depressive disorder, recurrent, moderate with generalized anxiety disorder is denied.

A rating in excess of 30 percent for cervical strain (claimed as neck pain) is denied.

A rating of 10 percent is granted for limitation of thigh, right hip strain with ischiofemoral impingement, prior to May 11, 2022.

A rating in excess of 20 percent for limitation of thigh, right hip strain with ischiofemoral impingement from May 11, 2022 onward is denied.

A rating in excess of 10 percent prior to May 11, 2022 for limitation of flexion, right hip strain with ischiofemoral impingement is denied.

A rating in excess of 40 percent from May 11, 2022 for limitation of flexion, right hip strain with ischiofemoral impingement is denied.

A 10 percent rating, but no higher, for limitation of extension, right hip strain with ischiofemoral impingement is granted prior to May 11, 2022.

A rating in excess of 10 percent for limitation of extension, right hip strain with ischiofemoral impingement from May 11, 2022 onward is denied.

A rating of 20 percent, but no greater, prior to May 11, 2022 is granted for radiculopathy of the right lower extremity.

A rating in excess of 20 percent for radiculopathy of the right lower extremity from May 11, 2022 is denied.

A rating in excess of 10 percent for bilateral shin splints is denied.

A rating in excess of 50 percent for migraines is denied.

A rating in excess of 20 percent for a lumbar spine strain prior to May 11, 2022 is denied.

A rating in excess of 40 percent for lumbar strain from May 11, 2022 onward is denied.

FINDINGS OF FACT

1. The Veteran is currently diagnosed with PTSD; the stressor event of MST which occurred during her active service and therefore the current psychiatric disorder is etiologically related to the in-service MST.

2. The Veteran's acquired psychiatric disorder does not manifest in occupational and social impairment with deficiencies in most areas.

3. The Veteran's service-connected cervical spine disability is not manifested by ankylosis.

4. Prior May 11, 2022, the Veteran's limitation of thigh abduction is manifested by painful motion and range of motion (ROM) within normal limits.

5. From May 11, 2022 onward, the Veteran's limitation of thigh abduction is manifested by limitation of abduction beyond 10 degrees.

6. Prior to May 11, 2022, the Veteran's right hip disability manifested by limitation of flexion has not been limited to 30 degrees or less.

7. From May 11, 2022 onward, right hip flexion does not approximate ankylosis; the severity of the Veteran's right hip disability is adequately addressed by the schedular criteria.

8. The Veteran's limitation of thigh extension manifested as painful motion during the entire period on appeal.

9. For the entire appeal period, the Veteran's right lower extremity radiculopathy was manifested by moderate incomplete paralysis. It was not manifested by moderately severe incomplete paralysis.

10. The Veteran's bilateral shin splints require treatment for no less than 12 consecutive months and are unresponsive to either orthotics or other conservative treatment.

11. The Veteran's migraine most closely approximate migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

12. Prior to May 11, 2022 the Veteran's lumbar spine strain symptomatology does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

13. From May 11, 2022 onward, the Veteran's lumbar strain is not shown to be manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc disease; or additional (to radiculopathy of both lower extremities) separately ratable neurological manifestations.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for PTSD as due to MST have been met. 38 U.S.C. §§ 1155, 5107; 38
symptomatology does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for PTSD as due to MST have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.304 (f)(5), 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434.

2. The criteria for a rating greater than 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411.

3. The criteria for a rating in excess of 30 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

4. The criteria for a rating of 10 percent for limitation of thigh abduction/rotation from prior to May 11, 2022 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253.

5. The criteria for a rating in excess of 20 percent for limitation of thigh abduction/rotation from May 11, 2022 onward have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253.

6. Prior to May 11, 2022, the criteria for a rating in excess of 10 percent for a service-connected right hip disability manifested by limitation of flexion have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5252.

7. The criteria for a higher rating from May 11, 2022, rated at 40 percent for limitation of flexion, for the right hip disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a Diagnostic Codes 5252.

8. Prior to May 11, 2022, the criteria for a separate 10 percent rating for limitation of thigh extension have been met for the entire review period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5299-5251.

9. From May 11, 2022 onward, the Veteran is in receipt of the maximum rating for limitation of thigh extension for the right hip. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5299-5251.

10. The criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy prior to May 11, 2022 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 115
onward, the Veteran is in receipt of the maximum rating for limitation of thigh extension for the right hip. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5299-5251.

10. The criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy prior to May 11, 2022 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8620.

11. The criteria for a disability rating higher than 10 percent for bilateral shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5262.

12. The criteria for a disability rating more than 50 percent, the maximum schedular allowed for migraines, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

13. Prior to May 11, 2022, the criteria for entitlement to an increased rating higher than 20 percent for lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, DC 5237.

14. From May 11, 2022, the criteria for entitlement to an increased rating higher than 40 percent for lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, DC 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 2016 to May 2020.

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence submission lane.

Therefore, the Board may only consider the evidence of record at the time of the June 23, 2021 agency of original jurisdiction (AOJ) decision on appeal and 90 days from the date of the 10182, which would be until January 26, 2022. 38 C.F.R. § 20.301. Any evidence submitted after January 26, 2022 cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Therefore, any evidence submitted outside those periods was not considered in rendering this decision, even if it was associated with later rating decisions.

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.

1. Service connection for posttraumatic stress disorder (PTSD) is granted.

The Veteran contends that she has PTSD was caused by or is proximately due to her experience and her harassment during the military service she started disliking her work and became rebellious to be discharged. The Veteran reported recognizing mental health issues while in the military and reported experiences of sexual harassment around men.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §
in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Service connection for posttraumatic stress disorder (PTSD) is granted.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in- service stressor occurred. Certain exceptions to the requirement for credible supporting evidence that a claimed stressor occurred apply in the following circumstances: If PTSD was diagnosed during service and the claimed stressor is related to that service; if a veteran engaged in combat with the enemy and the claimed stressor is related to that combat; if a claimed stressor a veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor; if a veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience, or; if the claimed stressor is an in-service personal attack. 38 C.F.R. § 3.304 (f).

To the extent that the Veteran claims PTSD, she was diagnosed with such in a December 2020 DBQ. To the extent that the December 2020 examiner diagnosed the Veteran with PTSD, the first element of service connection has been met.

At her December 2020 psychiatric evaluation, the Veteran recounted stressors in service involving MST and feelings of harassment by various superiors while in service. In March 2021 at her VA psychiatric evaluation the Veteran recounted the same. As to an in-service incurrence, the Veteran reported in-service stressors involving MST. She asserts that claimed stressors occurred as harassment by superiors, leading to her feeling unsafe and wanting to discharge from service. In her March 2021 statement in support of claim for PTSD, the Veteran noted that when her Sergeant came to perform a room inspection, her roommate had not arrived yet. She noted the Sergeant hugged her from behind and kissed her on the cheek. On another occasion, the Veteran reported that while she was showering the Sergeant insisted that he bring her ID to her. When she told him she was showering and to come back later, he still came and was knocking loudly on her door and wouldn't leave.

The Veteran has laid out her version of the facts related to her MST and prolonged sexual harassment during MP training in great detail in her March 2021 MST Statement and her testimony concerning these incidents has been remarkably consistent since that time.

The Board finds the Veteran to be both competent and credible in their description of the events surrounding the Veteran's experience during active service, as well as the impact these events had on her. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a).

After review of the lay and other evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran was the victim of MST due to sexual harassment and bullying during her training while in service. In fact, the Board finds the evidence to be consistent and overwhelming in favor of the Veteran's claims.

Based upon the VA outpatient treatment records, the Board finds that these MST stressors which are related to her PTSD, were caused by and incurred while she was in service.

The claim for entitlement for service connection for PTSD due to MST is granted.

Increased Rating

As an initial matter, the Board notes the appeal period before the Board begins on September 23, 2021, the date the VA received the Veteran's Fully Developed Claim (VA Form 21-526EZ). The Board will consider whether separate ratings may be assigned for separate
that the Veteran was the victim of MST due to sexual harassment and bullying during her training while in service. In fact, the Board finds the evidence to be consistent and overwhelming in favor of the Veteran's claims.

Based upon the VA outpatient treatment records, the Board finds that these MST stressors which are related to her PTSD, were caused by and incurred while she was in service.

The claim for entitlement for service connection for PTSD due to MST is granted.

Increased Rating

As an initial matter, the Board notes the appeal period before the Board begins on September 23, 2021, the date the VA received the Veteran's Fully Developed Claim (VA Form 21-526EZ). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).

Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with symptoms of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).

2. An increased rating in excess of 50 percent for an acquired psychiatric disorder is denied.

The Veteran contends that her service connected acquired psychiatric disability is worse than that which is contemplated by the initial 50 percent rating under 38 C.F.R. § 4.130, DC 9434. The Board finds the criteria for a 50 percent rating have been more nearly approximated throughout the appeal period.

The Veteran's acquired psychiatric disability is rated under Diagnostic Code 9434, 38 C.F.R. § 4.130, utilizing the General Rating Formula for Mental Disorders. Under this general formula, ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular
.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17 (quotations omitted). In sum, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead, 29 Vet. App. at 22 (internal citations omitted).

The Veteran contends that her service-connected acquired psychiatric disorder is more severe than is represented by the currently assigned 50 percent rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434.

A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships.

Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.

The Board notes that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When the symptoms and/or degree of impairment due to a Veteran's "service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998).

The Board has reviewed all relevant medical and lay evidence for this period on appeal, to include a DBQ from December 2020 and a VA examination dated in March 2021.

The Board concludes that the Veteran's PTSD did not result in occupational and social impairment with deficiencies in most areas, or even more severe total occupation and social impairment. Thus, a higher initial rating, in excess of 50 percent, is not warranted.

A December 2020 DBQ report reflects that the Veteran experienced lack of positive emotional experiences, pronounced anhedonia and marked lack of interest. She was very likely to lack energy and to display vegetative symptoms of depression. She got upset easily, became impatient with others, became easily angered and sometimes even was overcome by anger. She reported feeling anxious and was likely to experience significant anxiety and anxiety related problems, intrusive ideation and nightmares. The examiner noted that her responses indicated significant and pervasive though dysfunction and the belief that others seek to harm her. He was likely to experience though disorganization and to engage in
total occupation and social impairment. Thus, a higher initial rating, in excess of 50 percent, is not warranted.

A December 2020 DBQ report reflects that the Veteran experienced lack of positive emotional experiences, pronounced anhedonia and marked lack of interest. She was very likely to lack energy and to display vegetative symptoms of depression. She got upset easily, became impatient with others, became easily angered and sometimes even was overcome by anger. She reported feeling anxious and was likely to experience significant anxiety and anxiety related problems, intrusive ideation and nightmares. The examiner noted that her responses indicated significant and pervasive though dysfunction and the belief that others seek to harm her. He was likely to experience though disorganization and to engage in unrealistic thinking. She reported conflictual family relationships and lack of support from family members. She was likely to have family conflicts.

In March 2021 the Veteran was afforded a VA examination for her psychiatric disability. At such VA examination the examiner noted that the Veteran experienced occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Post military, the Veteran reported that she lived in Florida having moved from Texas a year prior. She indicated that she loved Florida and was happy there. She currently lived with her boyfriend and their six month old daughter. She described having a good and close relationships with her boyfriend, although he struggled with commitment. She described her relationship with her daughter as wonderful. She noted that although she would talk and interact with people, she didn't really like doing so as they made her nervous. She stated that she enjoyed going out to eat and shop. The Veteran noted that she was in the National Guard Reserves and was attending a dental assistant program. She indicated she was about to start her externship and had three months left remaining in the program and that she thoroughly enjoyed the work.

At her March 2021 VA examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships.

After a review of the record for this period on appeal, to include the lay and medical evidence, the evidence does not show obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances (including work or a worklike setting). There are no reports of homicidal or suicidal ideation, with any intent or a plan and reported or observed manifestations noted. Therefore, based on the cumulative evidence the Board finds that Veteran's PTSD more closely approximates the criteria for a 50 percent disability rating. Further, there were no reported symptoms not included in the rating schedule that would indicate a rating in excess of 50 percent is warranted.

When considering the totality of all the evidence, as instructed by Mauerhan and Vazquez-Claudio, the Veteran's overall symptoms do not support the assignment of a disability rating in excess of 50 percent.

While the Board is sympathetic to the difficulties presented by the Veteran's acquired psychiatric disorder for this period on appeal, the evidence of record does not support a rating in excess of 50 percent. Neither the objective findings shown on examination nor the subjective reports from the Veteran are more consistent with a 70 percent or 100 percent evaluation than with a 50 percent evaluation. The claim thus must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

3. A rating in excess of 30 percent for cervical strain (claimed as neck pain) denied.

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 (IVDS) 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 Veteran's cervical spine disability is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.

The General Rating Formula provides a 30 percent disability rating for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable anky
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 Veteran's cervical spine disability is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.

The General Rating Formula provides a 30 percent disability rating for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. "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.

Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) 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 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.

As noted, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. No changes were made to the criteria for evaluation of the Veteran's cervical spine in these amendments. Furthermore, the Board does note that the Veteran does not have traumatic paralysis of the spine. (Diagnostic Code 5244).

The Board has reviewed all relevant evidence, to include lay statements and VA medical records, with particular attention to the March 2021 VA examination.

The March 2021VA examination report shows that the Veteran reported experiencing pain and stiffness in the neck with increased pain upon increased movement, and of moderate severity. The Veteran noted that her neck pain impaired her ability to look side to side and up and down and also impaired her ability to drive. The Veteran's active range of motion showed forward flexion to 20 degrees, extension to 10 degrees and right and left lateral flexion to 20 degrees each. Right and left lateral rotation endpoint was to 30 degrees each. Pain was exhibited upon all range of motion testing. Evidence of pain occurred upon weight bearing, non-weight bearing and active motion testing. The Veteran's estimated range of motion testing after estimating repeated use was 15 degrees of flexion, 5 degrees of extension, 15 degrees each of left and right lateral rotation and 25 degrees each of left and right lateral rotation. The Veteran did not have noted tenderness, guarding or muscle spasm of the cervical spine. Muscle strength, reflex testing and sensory examinations were all normal. No ankylosis was noted and no other neurologic abnormalities were noted. The Veteran was not noted as using any assistive devices.

During the period on appeal, the Veteran has not been shown to have ankylosis, nor has this been reported. There exists no other basis for an increase, as the assigned 30 percent evaluation is the maximum that may be assigned in cases of limitation of flexion. Under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a 40 percent disability rating, the evidence must establish that the Veteran has unfavorable ankylosis of the entire cervical spine. Accordingly, an evaluation in excess of 30 percent is not warranted.

Further, the Board finds that a higher disability rating is not warranted under the IVDS Formula. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The examination report does not indicate that the Veteran experiences IV
to have ankylosis, nor has this been reported. There exists no other basis for an increase, as the assigned 30 percent evaluation is the maximum that may be assigned in cases of limitation of flexion. Under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a 40 percent disability rating, the evidence must establish that the Veteran has unfavorable ankylosis of the entire cervical spine. Accordingly, an evaluation in excess of 30 percent is not warranted.

Further, the Board finds that a higher disability rating is not warranted under the IVDS Formula. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The examination report does not indicate that the Veteran experiences IVDS. Furthermore, the Veteran's VA treatment records do not reflect any physician-prescribed bed rest for incapacitating episodes due to IVDS, and the Veteran herself has not reported being prescribed bed rest for any such episodes. For these reasons, the Board finds that, for the entire period on appeal, higher ratings based on incapacitating episodes are not warranted. 38 C.F.R. §§ 4.3, 4.7.

In conclusion, the Board finds that an initial rating in excess of 30 percent for the service connected cervical spine disability is not warranted.

4. A rating of 10 percent is granted for limitation of thigh, right hip strain with ischiofemoral impingement, prior to May 11, 2022.

5. A rating in excess of 20 percent for limitation of thigh, right hip strain with ischiofemoral impingement from May 11, 2022 onward is denied.

6. A rating in excess of 10 percent prior to May 11, 2022 and in excess of 40 percent thereafter for limitation of flexion, right hip strain with ischiofemoral impingement denied.

7. A 10 percent rating, but no higher, for limitation of extension, right hip strain with ischiofemoral impingement is granted prior to May 11, 2022.

8. A rating in excess of 10 percent for limitation of extension, right hip strain with ischiofemoral impingement from May 11, 2022 onward is denied.

The Veteran contends that she is entitled to a higher rating for her service-connected limitation of flexion and extension of the right hip strain with ischiofemoral impingement. The Board observes that through the course of the review period, the Veteran has received multiple ratings for her hip disability under different DCs. The Board will therefore review all possible DCs in order to maximize the Veteran's potential compensation award.

The Veteran's right hip condition is rated first under 38 C.F.R. § 4.71a, DC 5253, for impairment of the thigh. She is currently rated as noncompensable prior to May 11, 2022 and as 20 percent after that date under DC 5253; she is rated as noncompensable prior to May 11, 2022 and as 10 percent after that date under DC 5251 (limitation of extension); she is rated as 10 percent disabling prior to May 11, 2022 and as 40 percent disabling thereafter under DC 5252 (limitation of flexion).

Limitation of motion of the hip is rated under DCs 5251, 5252, and 5253. 38 C.F.R. § 4.71a.

Under DC 5251, which rates limitation of extension of the thigh, the criterion for a 10 percent rating, which is the maximum rating for limitation of extension, is extension limited to 5 degrees.

For limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, DC 5252.

Under DC 5253, which rates impairment of the thigh, the criteria for a 10 percent rating were the inability to cross the legs or external rotation limited to 15 degrees. The criterion for the next higher rating, 20 percent, is abduction limited to 10 degrees.

Normal extension of the hip is to 0 degrees and normal flexion is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

It is not expected that all cases will show all findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom
evaluation is assigned. 38 C.F.R. § 4.71a, DC 5252.

Normal extension of the hip is to 0 degrees and normal flexion is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

It is not expected that all cases will show all findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Entitlement to a compensable evaluation prior to May 11, 2022 and an evaluation in excess of 20 percent thereafter for right hip limitation of thigh under DC 5253

As noted, the Veteran is in receipt of a noncompensable rating prior to May 11, 2022 and a 20 percent rating thereafter for her right hip under DC 5253.

Based on the evidence, the Board finds that a 10 percent rating is warranted prior to May 11, 2022.

At the Veteran's March 2021 VA examination for her hip/thigh, the Veteran reported that her condition had progressed and worsened. She reported continuing to experience weakness and pain in her right hip and noted she had injections in her hip and completed physical therapy. She noted that flare ups occur about every two weeks and that they are characterized by increased pain. She noted alleviating factors included rest, but the severity of the flare ups was moderate. Functional impairment incurred as a result of the flare ups included an inability to stand, walk, run and climb stairs.

The Veteran's flexion endpoint of her right hip was 90 degrees. Extension endpoint was 25 degrees, abduction endpoint was 45 degrees and 25 degrees, respectively. External and internal rotation endpoints were 60 and 40 degrees. All range of motions exhibited pain.

Given the findings of pain on all range of motion testing of the right hip, and when considering that the Veteran treats her pain with injections and physical therapy, the Board finds that 10 percent rating prior to May 11, 2022 is warranted. Ingram v. Collins, 38?Vet. App.?130 (2025). Here, the beneficial effects of medication are not known and thus the Board has considered it in the adjudication of this matter, resolving all reasonable in the Veteran's favor.

With regard to the period from May 11, 2022 onward, the Board finds that a rating in excess of 20 percent is not warranted, as 20 percent is the maximum rating allowed under DC 5253.

Entitlement to a rating in excess of 10 percent prior to May 11, 2022 and an evaluation in excess of 40 percent thereafter for right hip strain limitation of flexion under DC 5252

The Veteran is seeking a higher rating for her right hip strain limitation of flexion due to the ongoing pain on motion she experiences.

The Veteran's right hip disability limitation of flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh.

Regarding impairment of the thigh under DC 5252 for limitation of flexion, the evidence of record demonstrates that the Veteran does not meet the criteria for a rating in excess of her current 10 percent rating prior to May 11, 2022, which is for painful motion. Her bilateral hip flexion was limited to, at worst, 85 degrees of flexion at her March 2021 VA examination, which does not meet the criteria for an increased 20 percent rating.

From May 11, 2022 onward, the evidence of record does not demonstrate that the Veteran meets the criteria for a rating in excess of 40 percent for painful motion. Her bilateral flexion was limited to 85 degrees at worse during the appeal period, which does not meet the criteria for an increased 20 percent rating.

Entitlement to a 10 percent rating, but no higher, for limitation of extension, right hip strain with ischiofemoral impingement prior to May 11, 2022 and from then onward.

The Veteran is seeking
at worst, 85 degrees of flexion at her March 2021 VA examination, which does not meet the criteria for an increased 20 percent rating.

Entitlement to a 10 percent rating, but no higher, for limitation of extension, right hip strain with ischiofemoral impingement prior to May 11, 2022 and from then onward.

The Veteran is seeking a higher rating for her limitation of extension of her right hip disability based on the ongoing pain she experiences.

As noted above, the Veteran is in receipt of a noncompensable rating prior to May 11, 2022 and a 10 percent rating thereafter for right hip strain with limited extension under DCs 5010-5251.

Given the findings of pain on all range of motion testing of the right hip, and when considering that the Veteran treats her pain with injections and physical therapy, the Board finds that 10 percent rating prior to May 11, 2022 is warranted for the Veteran's limitation of extension. Ingram v. Collins, 38?Vet. App.?130 (2025). Here, the beneficial effects of medication are not known and thus the Board has considered it in the adjudication of this matter, resolving all reasonable in the Veteran's favor.

For the entire period on appeal, the Board finds that a rating in excess of 10 percent is not warranted, as 10 percent is the maximum rating allowed under DC 5251.

9. A rating of 20 percent prior to May 11, 2022 is granted and a rating in excess of 20 percent thereafter for radiculopathy of the right lower extremity is denied.

The Veteran has been granted service connection for radiculopathy of the right lower extremity rated at 10 percent prior to May 11, 2022 and 20 percent from then onward.

The Veteran's RLE and LLE sciatic radiculopathy rating have been assigned pursuant to DC 8520. Such DC provides for a 10 percent rating for mild incomplete paralysis of the sciatic nerve; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Further, an 80 percent rating is warranted where there is complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.

The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124 a. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.

The words "marked," "mild," "moderate" and "severe" are not defined in the Schedule. 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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

To aid its evaluation of the evidence, the Board considered the general definitions of the terms "marked," "mild," "moderate" and "severe." "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com, last accessed July 6, 2025. "Mild" is defined as "not severe" or temperate; with "temperate" being defined as "keeping or held within limits" and "not extreme or excessive." Id. "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id.
4.2, 4.6.

The term "severe" is used throughout the rating schedule to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Thus, by implication, "moderately severe" means a greater than the mean or average level of impairment, but less than severe.

Additionally, the Board notes discussion of relevant provisions from VA's Adjudications Procedures Manual (M21-1) may be part of the reasons and bases for a decision. Overton v. Shinseki, 30 Vet. App. 257, 264 (2018). As pertinent to this case, the M21-1 contains general guidelines for distinguishing between "mild," "moderate," "moderately severe," and "severe" levels of incomplete paralysis of the lower extremities, which the Board will consider.

Specifically, the M21-1 provides mild incomplete paralysis is generally limited to sensory deficits that are lower graded, less persistent, or affecting a small area, with very minimal reflex or motor abnormality. Moderate is the maximum evaluation reserved for the most significant cases of sensory only impairment. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other signs and symptoms combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The moderately severe evaluation level is only applicable for involvement of the sciatic nerve, with motor and/or reflex impairment at a grade reflecting a high level of limitation or disability. For the severe level, motor and/or reflex impairment would be expected at a grade reflecting a very high level of limitation or disability. For the sciatic nerve marked muscular atrophy is required. See M21-1, Part V, Subpart iii, 12.A.2.c.

At the Veteran's March 2021 VA examination for her lumbar spine she reported right lower extremity radiculopathy, as diagnosed in 2016. The Veteran's straight leg testing was negative. She also noted intermittent pain of moderate severity of the bilateral lower extremities and abnormal findings likely due to radiculopathy.

Based on review of the evidence detailed, the Board finds that a rating of 20 percent for right lower extremity radiculopathy is warranted prior to May 11, 2022 as the evidence shows that the Veteran experienced intermittent pain of moderate severity related to her radiculopathy. However, a rating in excess of 20 percent is not warranted at any time during this appeal. The Board notes the evidence has not indicated moderately severe symptoms as due to the Veteran's radiculopathy.

10. A rating in excess of 10 percent for bilateral shin splints is denied.

The Veteran contends that she should be assigned a rating higher than 10 percent for shin splints of each lower extremity, but she has not submitted specific argument in support of this contention.

The Veteran's shin splints have been rated under DC 5262. Under DC 5262, shin splints requiring treatment for no less than 12 consecutive months, and are unresponsive to either shoe orthotics or other conservative treatment of one or both lower extremities are assigned a 10 percent disability rating. Shin splints of one lower extremity requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment are assigned a 20 percent rating. Shin splints of both lower extremities requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment are assigned a 30 percent rating. 38 C.F.R. § 4.71a, DC 5262. Although 30 percent is the highest possible rating for shin plaints, a 40 percent rating is available for nonunion
responsive to either shoe orthotics or other conservative treatment of one or both lower extremities are assigned a 10 percent disability rating. Shin splints of one lower extremity requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment are assigned a 20 percent rating. Shin splints of both lower extremities requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment are assigned a 30 percent rating. 38 C.F.R. § 4.71a, DC 5262. Although 30 percent is the highest possible rating for shin plaints, a 40 percent rating is available for nonunion of the tibia and fibula with loose motion, requiring a brace, and malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, 5261 for the knee or 5270 or 5271, whichever results in the highest evaluation. Id. There is no evidence of malunion or nonunion of the tibia and fibula in this case.

The March 2021 knee VA examination found that the Veteran's bilateral shin splints have stayed the same and are treated by icing her shins and trying shoe inserts. Shin splints were noted to be unresponsive to show orthotics or other conservative treatment, and requiring treatment for 12 consecutive months or more. The Veteran reported functional impairment occurring during flare up of symptoms, with flare ups occurring when she walks and runs. The examiner found that there has been no surgery on either knee. The Veteran's treatment records are consistent with these findings.

Because there is no evidence of surgery to treat the Veteran's shin splints, much less evidence that the Veteran's shin splints have been unresponsive to surgery, there is no basis to assign a rating higher than 10 percent for each lower extremity. The Veteran's claims must be denied.

11. A rating in excess of 50 percent for migraines is denied.

A June 2021 rating decision granted entitlement to service connection for migraine headaches and assigned a 50 percent disability rating under Diagnostic Code 8100 effective May 17, 2020.

Under 38 C.F.R. § 4.124a , Diagnostic Code 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks; a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

Though the Diagnostic Code does not provide a definition for "prostrating," prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007).

Additionally, the term "productive of severe economic inadaptability" is also not defined in veterans' law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating").

The Board finds that the severity of the Veteran's migraine headaches throughout the period on appeal meets the criteria for the current maximum 50 percent disability rating. DC 8100. 38 C.F.R. § 4.124a.

The Board also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

Having said that, however, the Court has held that where extraschedular consideration is not specifically sought by the claimant nor reasonably raised by the facts found by the Board, discussion of referral for extraschedular consideration is not required. See Yancy v. McDonald, 27 Vet. App. 484, 4919 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006); aff'd 226 Fed. Appx. 1004 (Fed. Cir. 2007).

Similarly, the Court stated,
application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

Similarly, the Court stated, "that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." Yancy, 27 Vet. App. at 495; see Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

In the present case, the Veteran has pointed to no exceptional or unusual factors which would render the schedule impractical. As such, referral for extraschedular consideration has not been specifically sought by the claimant nor reasonably raised by the facts of record and is not warranted in this case.

In consideration of the above, entitlement to a disability rating in excess of 50 percent for service-connected migraines is denied.

12. A rating in excess of 20 percent for a lumbar spine strain prior to May 11, 2022 is denied.

13. A rating in excess of 40 percent for lumbar strain from May 11, 2022 onward is denied.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).

When the evaluation criteria change during the pendency of a claim for an increased rating, to the extent the law or regulation in question permits, the Board applies whichever version of the criteria is more favorable to the veteran. To determine which version is more favorable, the Board generally applies both versions, and compares the results. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). If the newer version of the evaluation criteria is more favorable, however, it cannot be applied to portions of the claim earlier than the effective date of the relevant law or regulation. 38 U.S.C. § 5110(g). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

For rating criteria pertaining to diseases of the spine, only two Diagnostic Codes - 5242 and 5243 - were amended in the regulations that went into effect on February 7, 2021. Prior amendments to provisions for rating spine disorders went into effect September 26, 2003.

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 (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. Id.

Under the prior regulations, Diagnostic Code 5242 provides compensation for degenerative arthritis (also 5003). 38 C.F.R. § 4.71a.

Effective February 7, 2021, Diagnostic Code 5242 provides compensation for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010). 38 C.F.R. § 4.71a.

Under the prior regulations, Diagnostic Code 5243 provides compensation for intervertebral disc syndrome. 38
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. Id.

Under the prior regulations, Diagnostic Code 5242 provides compensation for degenerative arthritis (also 5003). 38 C.F.R. § 4.71a.

Under the prior regulations, Diagnostic Code 5243 provides compensation for intervertebral disc syndrome. 38 C.F.R. § 4.71a.

Effective February 7, 2021, Diagnostic Code 5243 still provides compensation for intervertebral disc syndrome. 38 C.F.R. § 4.71a. Under the new regulations, this code is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Diagnostic Code 5242 is to be assigned for all other disc diagnoses. Id.

The General Rating Formula for Diseases and Injuries of the Spine was not changed under the new regulations. A 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, 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. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Fixation of a spinal segment in neutral position (zero degrees), on the other hand, always represents favorable ankylosis. Id.

The Court has characterized ankylosis as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See, e.g., Cullen v. Shinseki, 24 Vet. App. 74, 87 n.3 (2010) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (31st ed. 2007)). The requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

Evaluations for intervertebral disc syndrome are to be performed 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, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Neither provision was changed under the new regulations.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability
of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id.

For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Federal Circuit has upheld the validity of this regulation. Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003). As such, the Board will proceed to adjudicate the Veteran's claim.

Back - Evidence

The Veteran was granted service connection for her lumbar spine disability in a June 2021 rating decision and assigned an initial 20 percent rating effective May 17, 2020. Thereafter, in a May 2023 rating decision her rating was increased to 40 percent effective May 11, 2022.

The Veteran was afforded a March 2021 VA examination for her back. At such examination the Veteran reported that her back pain began around 2016 and that it had developed over time due to her physical training. She reported experiencing back pain and stiffness and pain down her right leg, and noted that she had completed physical therapy. She reported flare ups of the lumbar spine, with a frequency of about 4-5 times a month lasting about a day in duration with precipitating factors of increased activity. She noted that the pain was alleviated with rest, and was moderate in severity. The Veteran noted that the low back flare ups impaired her ability to bend forward, lift and sit/stand for prolonged periods of time. The Veteran's range of motion measurements were as follows: her forward flexion was to 60 degrees, her extension endpoint was to 20 degrees, her right lateral flexion endpoint and left lateral flexion endpoint were to 20 degrees, as were her right and left lateral rotation end points. Passive range of testing was not performed, as it was noted that the Veteran was medically contraindicated and not medically advisable to conduct passive range of motion testing.

The Veteran was also examined after repeated use over time, and noted pain causing functional loss. After repeated use testing the Veteran's flexion endpoint was at 55 degrees and her extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation endpoints were all at 15 degrees. No ankylosis of the spine was noted and no assistive devices were noted as being used.

The Board accords probative weight to the 2021 VA examination. The VA examiner performed all necessary testing and fully considered the Veteran's statements. This examination was consistent with VA treatment records showing reports of back pain, but no ankylosis or range of motion abnormalities.

The Board finds the evidence persuasively weighs against a rating in excess of 20 percent evaluation prior
pain causing functional loss. After repeated use testing the Veteran's flexion endpoint was at 55 degrees and her extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation endpoints were all at 15 degrees. No ankylosis of the spine was noted and no assistive devices were noted as being used.

The Board finds the evidence persuasively weighs against a rating in excess of 20 percent evaluation prior to May 11, 2022 and a rating in excess of 40 percent from then onward for a lumbar spine disability. The probative 2021 VA testing results showed 55 degrees of forward flexion, consistent with a 20 percent evaluation.

While the Veteran generally asserted in the October 2021 VA Form 10182 that the VA examination showed his condition worsened, there was no probative medical or lay evidence showing forward flexion limited to 30 degrees or less, or ankylosis or the functional equivalent.

Accordingly, the Board denies an evaluation in excess of 20 percent prior to May 11, 2022 and in excess of 40 percent thereafter for a lumbar spine disability.

Timothy Cothrel

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Nadia Kamal, 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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