PARALYSIS OF SCIATIC NERVE OR EXTERNAL POPLITEAL NERVE

Summary

The veteran, who served in the United States Marine Corps from September 2014 to January 2020, appeals the Regional Office's (RO) reduction of his disability ratings for left lower extremity radiculopathy and lumbosacral degenerative arthritis. The RO had reduced the radiculopathy rating from 10 percent to noncompensable and the arthritis rating from 40 percent to 10 percent, effective October 18, 2024. The veteran contended these reductions were improper. The Board reviewed the evidence available at the time of the RO's decision, noting that for ratings in effect less than five years, a reduction requires proof of actual improvement in the veteran's ability to function. The Board found the reductions improper because the evidence did not establish material improvement. Specifically, for radiculopathy, the Board noted the veteran's continued complaints of pain and functional limitations, supported by VA treatment records and a post-reduction examination. For the spinal condition, despite an increase in range of motion in one VA exam, the veteran still reported functional loss, supported by a friend's statement and VA treatment records, with a later examination showing significant limitations during flare-ups. The Board resolved doubt in the veteran's favor and granted restoration of the 10 percent rating for radiculopathy and the 40 percent rating for spinal residuals, effective October 18, 2024. The Board also denied service connection for migraine headaches as secondary to the lumbosacral spine disability, finding the evidence did not support the claim and persuasively weighed against it, with the VA examiner opining it was less likely than not related to service. The case is remanded for an adequate VA examination for the right shoulder bicipital tendonitis, as the prior examination was deficient.

Rationale

Reduction improper due to lack of established improvement; Veteran reported continued pain and functional loss; Supported by VA treatment records and post-reduction exam

Full Decision Text

Citation Nr: A26008297
Decision Date: 01/28/26	Archive Date: 01/28/26

DOCKET NO. 250508-541570
DATE: January 28, 2026

ORDER

Restoration of the 10 percent evaluation for left lower extremity radiculopathy is granted effective October 18, 2024.

Restoration of the 40 percent evaluation for lumbosacral degenerative arthritis of the spine with lumbosacral spondylosis and scoliosis status post hemilaminectomy/discectomy is granted effective October 18, 2024.

Entitlement to service connection for migraine headaches as secondary to service-connected lumbosacral spine disability is denied.

REMANDED

Entitlement to an evaluation in excess of 20 percent for right shoulder bicipital tendonitis (dominant) is remanded.

FINDINGS OF FACT

1. In a November 2024 rating decision, the Regional Office (RO) reduced the evaluation for the Veteran's service-connected left lower extremity radiculopathy from 10 percent to noncompensable, effective from October 18, 2024.

2. In a November 2024 rating decision, the RO reduced the evaluation for the Veteran's service-connected lumbosacral degenerative arthritis of the spine with lumbosacral spondylosis and scoliosis status post hemilaminectomy/discectomy from 40 percent to 10 percent, effective from October 18, 2024.

3. At the time of the November 2024 rating decision, the 10 percent evaluation for left lower extremity radiculopathy and the 40 percent evaluation for lumbosacral degenerative arthritis of the spine had been in effect for less than five years.

4. The evidence at the time of the November 2024 rating decision did not establish that a material improvement in the Veteran's left lower extremity radiculopathy had actually occurred which resulted in an improvement in his ability to function under the ordinary conditions of life.

5. The evidence at the time of the November 2024 rating decision did not establish that a material improvement in the Veteran's lumbosacral degenerative arthritis of the spine had actually occurred which resulted in an improvement in his ability to function under the ordinary conditions of life.

6. Evidence of record persuasively weighs against finding that the Veteran had a diagnosed migraine headache disorder during or after active service.

CONCLUSIONS OF LAW

1. The criteria for restoration of the 10 percent evaluation for left lower extremity radiculopathy effective October 18, 2024, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.344, 4.124a, Diagnostic Code 8520 (2025).

2. The criteria for restoration of the 10 percent evaluation for lumbosacral degenerative arthritis of the spine with lumbosacral spondylosis and scoliosis status post hemilaminectomy/discectomy effective October 18, 2024, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5237 (2025).

3. The criteria for entitlement to service connection for migraine headaches as secondary to service-connected lumbosacral spine disability have not been met.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 2014 to January 2020.

The rating decisions on appeal were issued in August and November 2024 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the August and November 2024 RO decisions on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the RO issued the decisions on appeal
2024 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the August and November 2024 RO decisions on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the RO issued the decisions on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 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 reduction and service connection 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. 

However, because the Board is remanding the increased rating claim for right shoulder bicipital tendonitis, any evidence the Board could not consider will be considered by the RO in the adjudication of that claim.  38 C.F.R. § 3.103(c)(2)(ii).

1. Restoration of the 10 percent evaluation for left lower extremity radiculopathy is granted effective October 18, 2024.

2. Restoration of the 40 percent evaluation for lumbosacral degenerative arthritis of the spine with lumbosacral spondylosis and scoliosis status post hemilaminectomy/discectomy is granted effective October 18, 2024.

In the November 2024 decision, the RO reduced the Veteran's left lower extremity radiculopathy rating from 10 percent to noncompensable, effective October 18, 2024.  It also reduced his lumbosacral degenerative arthritis residuals from 40 percent to 10 percent, effective October 18, 2024.  The Veteran contends that the reductions of the 10 percent rating for his service-connected left lower extremity radiculopathy and the 40 percent rating for his service-connected lumbosacral degenerative arthritis were improper.

As the rating action that implemented the rating reductions did not change the Veteran's overall disability rating, a reduction of compensation payments did not occur, and the procedural safeguards of 38 C.F.R. § 3.105(e), such as prior notification proposing a reduction, do not apply.  See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007).  The Board will now consider the propriety of the rating reductions.

In this case, the 10 percent disability rating for the Veteran's service-connected left lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520 and 40 percent rating for the Veteran's service-connected lumbosacral degenerative arthritis residuals under 38 C.F.R. § 4.71a, Diagnostic Code 5237 were in effect from January 31, 2020, to October 18, 2024.  For ratings in effect for less than five years, a reduction is warranted only where an adequate examination shows actual improvement in a veteran's ability to function under the ordinary conditions of life and work.  Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. § 3.344(c) (reexaminations disclosing improvement, physical or mental, will warrant reduction in rating).

The question of whether a disability has improved involves consideration of the applicable rating criteria.  Disability evaluations are determined by the application of a schedule of ratings that is based as far as practical on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Generally, the degrees of disability specified
's ability to function under the ordinary conditions of life and work.  Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. § 3.344(c) (reexaminations disclosing improvement, physical or mental, will warrant reduction in rating).

The question of whether a disability has improved involves consideration of the applicable rating criteria.  Disability evaluations are determined by the application of a schedule of ratings that is based as far as practical on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is a veteran's responsibility to show that the disability has worsened.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement.  Cf. Dofflemyer, 2 Vet. App. at 281-282.

The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception).  Lehman v. Derwinski, 1 Vet. App. 339 (1991); Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio, and the Court will set aside the decision).

After a careful review of the evidence of record, the Board finds that the reductions were improper and that restoration of the 10 percent rating for left lower extremity radiculopathy and the 40 percent rating for lumbosacral degenerative arthritis residuals is warranted.

Under Diagnostic Code 8520, a 10 percent disability rating is warranted for mild, incomplete paralysis of the nerve and a 20 percent disability rating is warranted for moderate, incomplete paralysis of the nerve.  A 40 percent disability rating is warranted for moderately severe, incomplete paralysis of the nerve and a 60 percent disability rating is warranted for severe, incomplete paralysis of the nerve with marked muscular atrophy.  An 80 percent disability rating is assigned for complete paralysis of the sciatic nerve with foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520 (2025).

The words "mild," "moderate," "moderately severe," 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.

When a regulation includes ambiguous or subjective terms, the Board must define those terms so that all who read the decision have a common point of reference.  See Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018).  According to MERRIAM WEBSTER, "mild" means "gentle in nature of behavior ".  See www.merriam-webster.com/dictionary/mild.  "Moderate" means "tending toward the mean or average amount or dimension".  See www.merriam-webster.com/dictionary/moderate.  "Moderately" means "to a moderate degree or extent".  See www.merriam-webster.com/dictionary/moderately.  "Severe" means "of a great degree".  See www.merri
 the decision have a common point of reference.  See Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018).  According to MERRIAM WEBSTER, "mild" means "gentle in nature of behavior ".  See www.merriam-webster.com/dictionary/mild.  "Moderate" means "tending toward the mean or average amount or dimension".  See www.merriam-webster.com/dictionary/moderate.  "Moderately" means "to a moderate degree or extent".  See www.merriam-webster.com/dictionary/moderately.  "Severe" means "of a great degree".  See www.merriam-webster.com/dictionary/severe.  "Marked" means "having a distinctive or emphasized character".  See www.merriam-webster.com/dictionary/marked.

In initially assigning the 10 percent evaluation for left lower extremity radiculopathy in a February 2020 rating decision, the RO referenced a May 2019 VA examination report that showed complaints of left leg radiating pain without sensory complaints and left lower extremity findings (including severe intermittent pain and mild radiculopathy), granting a 10 percent evaluation for mild incomplete paralysis.

In connection with the Veteran's submission of the claim for an increased rating for his left lower extremity radiculopathy, the RO provided the Veteran with an October 2024 VA examination.  The Board recognizes that the October 2024 VA examination reflected asymptomatic incomplete paralysis without findings of radicular pain or any other signs or symptoms due to radiculopathy.

Based on the results of that examination, the RO reduced the evaluation to noncompensable effective October 18, 2024, the date of the VA examination.  In so doing, the RO applied the information contained in that examination report to analyze the reduction issue in the same manner as it would analyze an increased rating claim, rather than addressing whether an improvement in the left lower extremity radiculopathy had actually occurred resulting in an improvement in the Veteran's ability to function under the ordinary conditions of life.  Here, the Veteran reported functional loss with limitations in bending, stooping, pushing, pulling, carrying, and lifting moderate objects due to pain and complained of sharp pain when radiating down right leg that interfered with activities such as prolonged standing, sitting, carrying, lifting, and household chores.  VA treatment records dated in November 2023 also reflected findings of chronic lumbar radiculopathy, lower back radiation mainly down his right leg into his hamstring and right buttocks, and worsening pain getting up out of a seated position.  Post-reduction medical evidence, specifically an August 2025 examination report, showed clear findings of left lower extremity radiculopathy signs and symptoms like decreased sensation, paresthesias, numbness, and pain. 

Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the evidence at the time of the November 2024 decision did not establish that an improvement in the left lower extremity radiculopathy had actually occurred which resulted in an improvement in the Veteran's ability to function under the ordinary conditions of life to warrant the reduction from 10 percent to noncompensable.  Accordingly, the reduction is void ab initio under the provisions of 38 C.F.R. § 3.344(c) and restoration of the 10 percent rating for left lower extremity radiculopathy is granted effective October 18, 2024.

Under the General Rating Formula for Diseases and Injuries of the Spine, lumbosacral strain of the thoracolumbar spine is evaluated, with or without symptoms such as pain, to include whether it radiates, stiffness, or aching in the area of the spine affected by residuals of injury or disease.  A 10 percent rating will be assigned 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 height.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is assigned for forward flexion of
 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 height.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula.

In assigning the 40 percent evaluation for lumbosacral degenerative arthritis residuals in the February 2020 rating decision, the RO referenced the May 2019 VA examination report that showed complaints of low back pain and findings of forward flexion limited to 10 degrees, granting a 40 percent evaluation based on findings of forward flexion of the thoracolumbar spine 30 degrees or less.

In connection with the Veteran's submission of the increased rating claim for his lumbosacral degenerative arthritis residuals, the RO provided the Veteran with an October 2024 VA examination.  The Board recognizes that the October 2024 VA examination report reflected that the Veteran had forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.

Based on the results of that examination, the RO reduced the evaluation to 10 percent effective October 18, 2024, the date of the VA examination.  In so doing, the RO applied the information contained in that examination report to analyze the reduction issue in the same manner as it would analyze an increased rating claim, rather than addressing whether an improvement in the lumbosacral degenerative arthritis residuals had actually occurred resulting in an improvement in the Veteran's ability to function under the ordinary conditions of life.  While thoracolumbar spine range of motion was increased in the October 2024 VA examination report, the Veteran still reported functional loss with limitations in bending, stooping, pushing, pulling, carrying, and lifting moderate objects due to pain and complained of dull aching pain in his back.  In addition, in a June 2024 statement, the Veteran's friend described the severe impact his back injury has had on his daily life, reporting that he experiences significant difficulty standing for extended periods and flare ups of back pain necessitating immediate relief measures and limiting his physical activities.  VA treatment records dated in 2023 also reflected findings of multilevel degenerative disc disease, stenosis, lumbar radiculopathy, and worsening of his lumbar back pain.  Post-reduction medical evidence, specifically an August 2025 examination report, showed findings of forward flexion of the thoracolumbar spine limited to an estimated 30 degrees during flare ups.

Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the evidence at the time of the November 2024 decision did not establish that an improvement in the lumbosacral degenerative arthritis residuals had actually occurred which resulted in an improvement in the Veteran's ability to function under the ordinary conditions of life to warrant the reduction from 40 percent to 10 percent.  Accordingly, the reduction is void ab initio under the provisions of 38 C.F.R. § 3.344(c) and restoration of the 40 percent rating for lumbosacral degenerative arthritis residuals is granted effective October 18, 2024.

3. Entitlement to service connection for migraine headaches as secondary to service-connected lumbosacral spine disability is denied.

In written statements of record, the Veteran asserted that he has headaches that were secondary to his service-connected lumbosacral spine disability.  He indicated that recent lower back pain has been affecting his daily life and, combined with his already difficult time having adequate sleep due to sleep apnea, the stress had been mounting over.  In a June 2024 statement, the Veteran's friend indicated that the chronic pain has caused him to suffer from migraines and anxiety due to the constant worry of when his back would flare up again.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S
 headaches as secondary to service-connected lumbosacral spine disability is denied.

In written statements of record, the Veteran asserted that he has headaches that were secondary to his service-connected lumbosacral spine disability.  He indicated that recent lower back pain has been affecting his daily life and, combined with his already difficult time having adequate sleep due to sleep apnea, the stress had been mounting over.  In a June 2024 statement, the Veteran's friend indicated that the chronic pain has caused him to suffer from migraines and anxiety due to the constant worry of when his back would flare up again.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2025).  Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2025). 

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  For certain chronic disorders, such as organic diseases of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

Also pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110); see also Wait v. Wilkie, 33 Vet. App. 8, 17 (2020) (a veteran must show that his manifestations are of sufficient severity, duration, and frequency that they effect his ability to function under the ordinary conditions of daily life).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and 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
 a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110); see also Wait v. Wilkie, 33 Vet. App. 8, 17 (2020) (a veteran must show that his manifestations are of sufficient severity, duration, and frequency that they effect his ability to function under the ordinary conditions of daily life).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and 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; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule is not for application when evidence persuasively favors one side or the other).

Service treatment records revealed the Veteran's isolated complaints of a headache in October 2018.  The Veteran denied headaches during multiple other entries. 

In a post-service October 2020 VA treatment record, the Veteran reported posterior headaches for 4 months, three times a week, with no other symptom (nausea/vomiting/visual changes/photophobia) noted to be consistent with tension headaches.

In an August 2024 VA examination report, the examiner noted that the Veteran did not mention headaches during treatment for back pain and had no treatment or diagnosis of headaches.  Thereafter, the examiner found there was no diagnosis of a headache disorder, as there were no findings, signs and/or symptoms to support a diagnosis.  The examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition, as there was no pathology to warrant a diagnosis.

Evidence of record persuasively weighs against finding that the Veteran had migraine headaches during or after active service.  A detailed review of the record revealed there was no diagnosis of that disorder at any time during or approximate to the pendency of the claim.  Finally, while the Veteran and his friend asserted that migraine headaches were secondary to his service-connected lumbosacral spine disorder, the August 2024 VA examiner clearly opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition, as there was no pathology to warrant a diagnosis.

Accordingly, the criteria to award entitlement to service connection for migraine headaches has not been established, either through medical or probative lay evidence.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the weight of the persuasive evidence is against this claim of entitlement to service connection, that doctrine is not applicable.  38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

Entitlement to an evaluation in excess of 20 percent for right shoulder bicipital tendonitis (dominant) is remanded.

Following review of the record, the Board finds that the Veteran's claim must be remanded to correct a pre-decisional duty to assist error, as the RO failed to obtain an adequate VA medical examination to address the current severity and manifestations of the service-connected right shoulder disability.

The Veteran was provided with a VA shoulder examination in October 2024.  It was noted that current treatment included Ibuprofen.  In a recent decision, Ingram v. Collins, 38 Vet. App. 130 (2025), the Court concluded that the Board is required to discount the beneficial effects of medication when the relevant rating criteria do not specifically contemplate medication use.  In so doing, the Court stated that its decision was consistent with its earlier precedential holdings in Jones v. Shinseki, 26 Vet. App. 56 (2012) and McCarroll v. McDonald, 28 Vet. App. 267 (2016).  

In addition, the October 2024 VA examination report does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The October 2024 VA shoulder examiner stated that there was objective evidence of pain on weight bearing, active motion, and passive motion in the right shoulder but did not record whether the pain limited the Veteran's range of motion and the results as required in 38 C.F.R. § 4.59.  

As the October 2024 VA examination report does not satisfy the requirements under Ingram and Correia based on the specific facts of this
Carroll v. McDonald, 28 Vet. App. 267 (2016).  

In addition, the October 2024 VA examination report does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The October 2024 VA shoulder examiner stated that there was objective evidence of pain on weight bearing, active motion, and passive motion in the right shoulder but did not record whether the pain limited the Veteran's range of motion and the results as required in 38 C.F.R. § 4.59.  

As the October 2024 VA examination report does not satisfy the requirements under Ingram and Correia based on the specific facts of this case, an additional VA examination is needed to ascertain the current severity and manifestations of the service-connected right shoulder disability.

The matter is REMANDED for the following action:

Schedule the Veteran for an examination of the current severity of his service-connected right shoulder bicipital tendonitis (dominant).  The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing for the right shoulder disability.  The examiner is requested to test the range of motion (providing range of motion measurements in degrees) for the right shoulder disability on active motion, passive motion, weight-bearing, and non-weight bearing.

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  In providing the above measurements, the examiner should make an attempt to discount the beneficial effects of any medication the Veteran uses for his right shoulder disability.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right shoulder disability alone and discuss the effect of the Veteran's right shoulder disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. D. Deane, 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.