DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

J.P. NORMAN · 2026 · Case ID: A26023831

DENIED

Summary

The veteran, who served from October 1999 to January 2001, appeals the denial of increased ratings for his service-connected lumbar spine condition and right lower extremity radiculopathy, as well as earlier effective dates for these conditions. The Board denied the appeal for increased ratings, finding that the veteran's lumbar spine condition did not meet the criteria for ankylosis or incapacitating episodes requiring bed rest for at least six weeks, and that the evidence did not support a rating higher than the current 40 percent. While a VA examiner noted favorable ankylosis, the Board found the measured range of motion and lack of prescribed bed rest more probative, ultimately concluding the evidence weighed against a higher rating. For the radiculopathy claim, the Board found the evidence best approximated moderate incomplete paralysis, not the moderately severe or severe incomplete paralysis required for a higher rating, despite a VA examiner's initial rating of severe. The Board also denied earlier effective dates for both conditions, noting that the claim to reopen was filed in February 2010, which was approximately two years after the January 2008 Board decision became final. The Board found no intervening unadjudicated claim and that the law dictates the effective date for a reopened claim is the date of receipt of the new claim or when entitlement arose, whichever is later. The Board found the evidence persuasively weighed against entitlement to earlier effective dates, thus the benefit of the doubt doctrine was not applied.

Rationale

Veteran's lumbar spine condition not characterized by ankylosis or incapacitating episodes of at least 6 weeks.; Evidence persuasively weighs against entitlement to a higher rating.; VA examination noted favorable ankylosis but retained range of motion and no prescribed bed rest.

Special Benefit

EARLIER EFFECTIVE DATE

Diagnostic Code

5243

Docket No.

201119-123018

Full Decision Text

Citation Nr: A26023831
Decision Date: 03/17/26 Archive Date: 03/17/26

DOCKET NO. 201119-123018
DATE: March 17, 2026

ORDER

Entitlement to a rating in excess of 40 percent for degenerative joint disease and intervertebral disc disease of the lumbar spine is denied.

Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy, sciatic nerve is denied.

Entitlement to an earlier effective date for degenerative joint disease and intervertebral disc disease of the lumbar spine is denied.

Entitlement to an earlier effective date for right lower extremity radiculopathy, sciatic nerve is denied.

FINDINGS OF FACT

1. The Veteran's degenerative joint disease and intervertebral disc disease of the lumbar spine was not characterized by ankylosis.

2. The Veteran's degenerative joint disease and intervertebral disc disease of the lumbar spine was not characterized by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

3. The Veteran's right lower extremity radiculopathy, sciatic nerve was not characterized by moderately severe or severe incomplete paralysis, or complete paralysis.

4. A January 15, 2008, Board of Veterans' Appeals decision denied service connection for a lower back disorder.

5. On February 23, 2010, VA received the Veteran's claim to reopen the prior final disallowance of service connection for a back disorder.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent for degenerative joint disease and intervertebral disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243.

2. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy, sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 8520.

3. The criteria for an earlier effective date for service connection for degenerative joint disease and intervertebral disc disease of the lumbar spine have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400(q), (r).

4. The criteria for an earlier effective date for service connection for right lower extremity radiculopathy, sciatic nerve have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400(q), (r).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1999 to January 2001.

In the November 19, 2020, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on October 30, 2025.

Therefore, the Board may only consider the evidence of record at the time of the October 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

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

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual
(a), 20.801.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

1. Entitlement to an initial rating in excess of 40 percent for degenerative joint disease and intervertebral disc disease of the lumbar spine is denied.

The Veteran asserts entitlement to a rating in excess of 40 percent for a lumbar spine condition. The Board finds that the Veteran's lumbar spine condition is not characterized by ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, and therefore a higher rating is not warranted.

The Veteran's service-connected lumbar spine condition is currently rated as 40 disabling, under the General Rating Formula for Diseases and Injuries of the Spine, DC 5243.

The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part:

A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a maximum schedular 100 percent disability rating is warranted for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine.

Alternatively, DC 5243 may be rated according to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes which states in pertinent part:

A 40 percent rating will be assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.

A maximum 60 percent rating will be assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Note 1 states that for purposes of evaluations under diagnostic code 5243, 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.

In order to be entitled to a rating higher than the 40 percent currently assigned it must be found that the Veteran's lumbar condition is characterized by unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

The Veteran submitted private treatment records as well as received VA treatment for his lumbar spine condition prior to the rating period on appeal. A review of the records submitted and documented treatment does not show that any providers endorsed that the Veteran has a diagnosis of ankylosis or was prescribed bed rest for the condition.

The Veteran has submitted multiple statements in support and buddy statements in support of his claim. None of these statements offer an assertion that the Veteran experienced ankylosis of the spine or was prescribed bed rest.

The Veteran attended a VA examination in March 2019. The examiner asserted that the Veteran had favorable ankylosis of the spine. However, the examiner recorded that the Veteran retained a reduced range of motion even under such conditions as flare-ups and repeated use over time. Though the evidence is conflicting, the Board finds that the actual range of motion measurements represent the most probative evidence of ankylosis. The Veteran was observed completing all ranges of motion for his spine and no range of motion was recorded or estimated to be zero. The examiner did not endorse that the Veteran had ever been prescribed bed rest for the condition. The Board deems examiner to be credible and that this examination is adequate to describe the actual and functional losses for the Veteran. See Sharp v. Shulkin, 29 Vet. App. 26 (2017), Correia v. McDonald, 28 Vet. App. 158 (2016), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and DeLuca, 8 Vet. App. 202. The Board finds that the measurements of range of motion are highly probative of the issue of ankylosis. The Board does not find that the examination indicates the functional equivalent of ankylosis. Again, the Veteran was observed to retain motion in metrics measured and no estimate of complete loss of a range of motion was recorded even after eliciting testimony regarding flare-ups and other conditions. Also, the opinion that bed rest has not been prescribed is highly probative of that factual contention.

At the Veteran's October 2025 hearing the Veteran stated he had not received a diagnosis for ankylosis. The Veteran described at the hearing that he sometimes lays in bed due to the pain but does not assert that he was prescribed bed rest by a physician.

In weighing the evidence of record, a highly probative VA examination endorsed that that the Veteran has retains range of motion of the spine and was not prescribed bed rest for his lumbar spine condition. Even if it were conceded that the examination accurately reported lumbosacral ankylosis, the ankylosis was reported as favorable and therefore would not warrant a rating in excess of 40 percent. No other medical records or evidence provided supports a contrary conclusion that there is ankylosis, either favorable or unfavorable, or that bed rest has ever been prescribed for the Veteran's lumbar condition. The evidence of record therefore persuasively weighs against a finding that the Veteran experiences unfavorable ankylosis of the spine or was prescribed bed rest. Without a finding that the Veteran experiences unfavorable ankylosis of the spine or was prescribed bed rest for his condition, a rating in excess of the current 40 percent cannot be assigned.

For the above reasons, the Board finds that the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a rating in excess of 40 percent for degenerative joint disease and intervertebral disc disease of the lumbar spine is warranted. Rather, the evidence persuasively weighs against entitlement to a higher rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The appeal is hereby DENIED.

2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy, sciatic nerve is denied.

The Veteran asserts entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy, sciatic nerve. The Board finds that the Veteran's radiculopathy is not characterized by moderately severe or severe incomplete paralysis, or complete paralysis of the sciatic nerve, and therefore a higher rating is not warranted.

The Veteran is currently rated as 20 percent disabled under DC 8520 for moderate paralysis of the sciatic nerve.

DC 8520 provides a rating of 10 percent 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, a 60 percent rating for severe incomplete paralysis of the
extremity radiculopathy, sciatic nerve. The Board finds that the Veteran's radiculopathy is not characterized by moderately severe or severe incomplete paralysis, or complete paralysis of the sciatic nerve, and therefore a higher rating is not warranted.

The Veteran is currently rated as 20 percent disabled under DC 8520 for moderate paralysis of the sciatic nerve.

DC 8520 provides a rating of 10 percent 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, a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy, and a maximum 80 percent rating for 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 "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating 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. C.F.R. § 4.6. According to Merriam Webster, "mild" means "gentle in nature or behavior" or "moderate in action or effect." www.merriam-webster.com/dictionary/mild (last accessed on October 14, 2025). "Moderate" means "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate (last accessed on October 14, 2025). "Severe" means "very painful or harmful." www.merriam-webster.com/dictionary/severe (last accessed on October 14, 2025). 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. "Marked" is defined as "having a distinctive or emphasized character." See Merriam-Webster.com Dictionary, (last accessed on October 14, 2025), https://www.merriam-webster.com/dictionary/marked. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

In order to qualify for a higher rating, it must be found that the Veteran's paralysis is moderately severe, severe, or complete.

The various medical records, VA treatment records, and statement provided by the Veteran were reviewed. While there are general reports of radiculopathy pain and numbness there are no reports with sufficient specificity to determine the overall severity of the Veteran's radiculopathy.

The Veteran attended a March 2019 VA examination for his lumbar condition which evaluated the severity of his radiculopathy. The Veteran was found to retain 3/5 and 4/5 muscle strength testing for right lower extremity. The Veteran was not found to have any muscle atrophy for the right lower extremity. The Veteran's reflexes were found to be hypoactive. Sensory examination was normal for the right lower extremity. The examiner rated the overall severity of the radiculopathy as severe. The examiner is found to be competent and credible to offer such an opinion, and it is assigned high probative value.

The Veteran testified to experiencing weakness and pain due to radiculopathy at his hearing, including detailing some instances of his legs giving out and generalized pain and tingling.

In weighing the evidence of record, no evidence endorsed complete paralysis of the sciatic nerve or that the Veteran experienced muscle atrophy such that severe incomplete paralysis would be indicated. Therefore, a higher rating would only be indicated if the paralysis is determined to be moderately severe incomplete paralysis rather than moderate incomplete paralysis. Highly probative evidence was found in the March 2019 VA examination. Though that examiner offered a rating of severe for the overall severity of the condition, the Veteran was also found to largely retain muscle strength and had a normal sensory examination. Additionally, the Veteran was not found to experience any muscle atrophy. The Board finds that taken together this evidence best approximates moderate rather than moderately severe incomplete paralysis. The Veteran's testimony was taken into account, and though it is found to be credible
sciatic nerve or that the Veteran experienced muscle atrophy such that severe incomplete paralysis would be indicated. Therefore, a higher rating would only be indicated if the paralysis is determined to be moderately severe incomplete paralysis rather than moderate incomplete paralysis. Highly probative evidence was found in the March 2019 VA examination. Though that examiner offered a rating of severe for the overall severity of the condition, the Veteran was also found to largely retain muscle strength and had a normal sensory examination. Additionally, the Veteran was not found to experience any muscle atrophy. The Board finds that taken together this evidence best approximates moderate rather than moderately severe incomplete paralysis. The Veteran's testimony was taken into account, and though it is found to be credible, it was nevertheless unpersuasive to overcoming the highly probative evidence which indicates moderate severity. Without a finding that the Veteran's incomplete sciatic nerve paralysis rises to the level of moderately severe, a higher rating is not warranted.

For the above reasons, the Board finds that the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy, sciatic nerve is warranted. Rather, the evidence persuasively weighs against entitlement to a higher rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The appeal is hereby DENIED.

3. Entitlement to an earlier effective date for degenerative joint disease and intervertebral disc disease of the lumbar spine is denied.

4. Entitlement to an earlier effective date for right lower extremity radiculopathy, sciatic nerve is denied.

The Veteran asserts entitlement to an earlier effective date for both degenerative joint disease and intervertebral disc disease of the lumbar spine and right lower extremity radiculopathy, sciatic nerve. The Board finds that because the Veteran did not submit new and material evidence within a year of previous final disallowance, the date of claim-February 23, 2010-is controlling for an effective date and therefore the earliest possible effective date has already been assigned.

As a preliminary matter, the Veteran's lower extremity radiculopathy was granted service connection as secondary to the Veteran's lumbar condition. Both conditions were granted service connection from the same date, but the secondary condition necessarily cannot have an earlier effective date than the primary condition which created a claim for service connection. As such, an earlier effective date for both conditions is analyzed here together.

VA regulations state that, except as otherwise provided, the effective date of an award of compensation based on a claim to reopen after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400; see also 38 C.F.R. § 3.400(q)(2) (providing the same for awards of compensation based on new and material evidence received after final disallowance); VA regulations state that, except as otherwise provided, the effective date of an award of compensation based on a claim to reopen after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400; see also 38 C.F.R. § 3.400(q)(2) (providing the same for awards of compensation based on new and material evidence received after final disallowance); 38 C.F.R. § 3.400(r) (providing the same for awards of compensation based on reopened claims).

In this case, the Veteran initially filed a claim for service connection for a lumbar condition, in August 2005. The Veteran was denied service connection for the condition, and the Veteran perfected an appeal of the issue to the Board. A January 15, 2008, Board decision confirmed denial of service connection. The Veteran did not appeal this decision or request reconsideration. Therefore, the January 2008 Board decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100.

Approximately two (2) years later, on February 23, 2010, VA received the Veteran's claim to reopen the prior final decision that denied service connection for a lumbar disability. Following an initial denial by the AOJ, the matter was appealed to the Board which found new and material evidence had been submitted and remanded the claim for service connection
of the issue to the Board. A January 15, 2008, Board decision confirmed denial of service connection. The Veteran did not appeal this decision or request reconsideration. Therefore, the January 2008 Board decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100.

Approximately two (2) years later, on February 23, 2010, VA received the Veteran's claim to reopen the prior final decision that denied service connection for a lumbar disability. Following an initial denial by the AOJ, the matter was appealed to the Board which found new and material evidence had been submitted and remanded the claim for service connection. The Veteran was subsequently granted service connection for the condition in an October 2019 AOJ rating decision with an effective date of February 23, 2010. This effective date coincides with the date VA received the Veteran's claim to reopen a prior final disallowance for a lumbar disorder.

Based on these facts, the originating agency correctly found that the effective date for the award service connection is February 23, 2010. As the effective date for a reopened claim after a final disallowance shall be the date of receipt of the new claim or date entitlement arose, whichever is later, 38 C.F.R. § 3.400(q)(1)(ii), the claim for an effective date earlier than February 23, 2010, for the grant of service connection for a lumbar condition is not warranted.

The record does not contain a prior unadjudicated claim intervening the January 2008 Board decision and the reopened claim in February 2010.

Although the Board accepts that the Veteran had disability prior to the date of receipt of the application to reopen the previously denied claim for VA compensation in February 2010, the law is dispositive, which provides that an award based on a claim to reopen after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (q)(2), (r).

For the above reasons, the Board finds that the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to an earlier effective date for a lumbar condition or entitlement to an earlier effective date for secondary service connection for radiculopathy is warranted. Rather, the evidence persuasively weighs against entitlement to earlier effective dates. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The appeals are hereby DENIED.

J.P. Norman

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Arner, Jonathan T.

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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