MULTIPLE SCLEROSIS

GAYLE STROMMEN · 2026 · Case ID: A26028485

MIXED

Summary

The veteran, who served in the Air Force from April 1985 to January 2007, appeals decisions regarding his service-connected multiple sclerosis with depressive disorder and insomnia, right and left lower extremity muscle weakness, and lumbar spine disorder. The veteran sought increased ratings for these conditions and an earlier effective date for TDIU. The Board denied the claim for an increased rating for multiple sclerosis with depressive disorder and insomnia, finding the current 50 percent evaluation appropriate based on the evidence, which indicated moderate symptoms and occupational/social impairment but not the severe impairment required for a higher rating. The Board granted an increased rating for right and left lower extremity muscle weakness to 20 percent for the period prior to December 11, 2020, finding the symptoms approximated moderate incomplete paralysis. However, claims for increased ratings for these conditions since December 11, 2020, and for the lumbar spine disorder were denied or remanded. The lumbar spine disorder claim was remanded due to an inadequate VA examination, which failed to provide sufficient information regarding the severity and manifestations of the condition throughout the entire rating period, including flare-ups and functional impairment. The claim for an earlier effective date for TDIU was also deferred and remanded, as it is integral to the lumbar spine rating determination. The Board found the veteran's symptoms for multiple sclerosis with depressive disorder and insomnia did not meet the criteria for a 70 percent rating, noting the absence of severe symptoms like hallucinations or impaired thought processes, and that the existing 50 percent rating adequately contemplated his impairment.

Rationale

Symptoms consistent with 50% rating (depression, anxiety, sleep impairment); Lack of severe symptoms required for 70% rating (hallucinations, impaired thought processes); Inconsistent findings in December 2023 VA exam deemed of limited probative value

Service Branch

AIR FORCE

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

250709-563232

Full Decision Text

Citation Nr: A26028485
Decision Date: 03/30/26 Archive Date: 03/30/26

DOCKET NO. 250709-563232
DATE: March 30, 2026

ORDER

Entitlement to an increased disability evaluation for multiple sclerosis with depressive disorder and insomnia, currently rated as 50 percent disabling, is denied.

Entitlement to an increased, 20 percent disability evaluation for right lower extremity muscle weakness, for the rating period prior to December 11, 2020, is granted.

Entitlement to an increased disability evaluation for right lower extremity muscle weakness, rated as 20 percent disabling for the rating period since December 11, 2020, is denied.

Entitlement to an increased, 20 percent disability evaluation for left lower extremity muscle weakness, for the rating period prior to December 11, 2020, is granted.

Entitlement to an increased disability evaluation for left lower extremity muscle weakness, rated as 20 percent disabling for the rating period since December 11, 2020, is denied.

REMANDED

Entitlement to an increased disability evaluation for lumbar spine disorder with degenerative changes and small disc herniation at L4-L5, rated as 10 percent disabling for the rating period prior to December 5, 2023, is remanded.

Entitlement to an increased disability evaluation for lumbar spine disorder with degenerative changes and small disc herniation at L4-L5, rated as 20 percent disabling for the rating period since December 5, 2023, is remanded.

Entitlement to an effective date prior to December 11, 2020 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's multiple sclerosis with depressive disorder and insomnia is manifested by symptoms equating in severity, frequency, and duration to occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, depression, sleep impairment, and memory loss; but not occupational and social impairment with deficiencies in most areas or total occupational and social impairment.

2. For the entire rating period on appeal, the Veteran's right lower extremity muscle weakness is productive of manifestations equivalent to moderate incomplete paralysis of the sciatic nerve.

3. For the entire rating period on appeal, the Veteran's left lower extremity muscle weakness is productive of manifestations equivalent to moderate incomplete paralysis of the sciatic nerve.

CONCLUSIONS OF LAW

1. The criteria for a disability evaluation in excess of 50 percent for multiple sclerosis with depressive disorder and insomnia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.124a, 4.126, 4.130, Diagnostic Code 8018 - 9434.

2. The criteria for a disability evaluation of 20 percent, but no higher, for right lower extremity muscle weakness, for the rating period prior to December 11, 2020, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

3. The criteria for a disability evaluation in excess of 20 percent for right lower extremity muscle weakness have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

4. The criteria for a disability evaluation of 20 percent, but no higher, for left lower extremity muscle weakness, for the rating period prior to December 11, 2020, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

5. The criteria for a disability evaluation in excess of 20 percent for left lower extremity muscle weakness have not been met. 38 U.S.C. §§ 1155, 510
for a disability evaluation of 20 percent, but no higher, for left lower extremity muscle weakness, for the rating period prior to December 11, 2020, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

5. The criteria for a disability evaluation in excess of 20 percent for left lower extremity muscle weakness have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from April 1985 to January 2007.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies.

In an August 29, 2024 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for a lumbar spine disorder. The Veteran was notified of this decision on September 10, 2024.

In a September 16, 2024 rating decision, in pertinent part, the AOJ awarded the Veteran an increased, 50 percent disability evaluation for his multiple sclerosis with depressive disorder and insomnia, effective July 18, 2023. The AOJ also awarded the Veteran service connection for right lower extremity muscle weakness and left lower extremity muscle weakness; a 10 percent disability evaluation was assigned for each lower extremity, effective July 18, 2023. The Veteran was notified of this decision on September 19, 2024.

The Veteran, on October 22, 2024, filed a VA Form 20-0996, Decision Review Request: Higher Level Review, in pertinent part, requesting review of the August 29, 2024 and September 16, 2024 rating decisions.

In a January 3, 2025 rating decision, the AOJ denied the Veteran's claim of entitlement to TDIU. The Veteran was notified of this decision on January 7, 2025.

The Veteran, on January 8, 2025, filed a VA Form 20-0996, Decision Review Request: Higher Level Review, requesting review of the January 3, 2025 rating decision

A Higher Level Review (HLR) informal conference was held on February 13, 2025.

In a February 20, 2025 HLR rating decision, the AOJ, in pertinent part, awarded the Veteran service connection for a lumbar spine disorder; a 10 percent disability evaluation was assigned effective February 1, 2007 and a 20 percent disability evaluation was assigned effective December 5, 2023. The AOJ also awarded the Veteran an earlier effective date of November 10, 2014 for the awards of service connection for right lower extremity muscle weakness and left lower extremity muscle weakness; a noncompensable disability evaluation was assigned for each leg, effective November 10, 2014, and a 20 percent disability evaluation was assigned for each leg effective December 11, 2020. The AOJ also awarded the Veteran an earlier effective date of December 11, 2020 for the award of an increased, 50 percent disability evaluation for the Veteran's multiple sclerosis with depressive disorder and insomnia, as well as granted the Veteran's claim of entitlement to TDIU, effective December 11, 2020. The Veteran was notified of this decision on February 25, 2025.

The Veteran appealed the February 20, 2025 rating decision to the Board by filing a July 9, 2025 VA Form 10182, Decision Review Request: Board Appeal. The Veteran requested Direct Review. On August 8, 2025, the Board acknowledged receipt of the Veteran's
The AOJ also awarded the Veteran an earlier effective date of December 11, 2020 for the award of an increased, 50 percent disability evaluation for the Veteran's multiple sclerosis with depressive disorder and insomnia, as well as granted the Veteran's claim of entitlement to TDIU, effective December 11, 2020. The Veteran was notified of this decision on February 25, 2025.

The Veteran appealed the February 20, 2025 rating decision to the Board by filing a July 9, 2025 VA Form 10182, Decision Review Request: Board Appeal. The Veteran requested Direct Review. On August 8, 2025, the Board acknowledged receipt of the Veteran's Board Appeal request (VA Form 10182). Accordingly, under its review, the Board will now only consider all evidence of record at the time of the February 25, 2025 notice of the rating decision on appeal. 38 C.F.R. § 20.301.

The Board interprets the Veteran's election of the Direct Review option, which allows for a decision to be rendered within 365 days, as reflecting an intent to have these matters reviewed in an expeditious manner. Indeed, on July 9, 2025, and again on August 8, 2025, the Veteran's representative indicated that the Veteran had waived his right to switch dockets. See Williams v. McDonough, 37?Vet. App.?305 (2024). The Board notes that the Veteran's representative also requested that the Board "issue a decision as soon as possible" on the Veteran's appeal. See Edwards v. McDonough, 36 Vet. App. 56 (2023). The Board will proceed with adjudication of the Veteran's claims.

Duties to Notify and Assist

Neither the Veteran, nor his representative, have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Rating

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to an increased disability evaluation for multiple sclerosis with depressive disorder and insomnia, currently rated as 50 percent disabling.

The Veteran's multiple sclerosis with depressive disorder and insomnia is evaluated as 50 percent disabling pursuant to 8 C.F.R. § 4.130, Diagnostic Code 8018 - 9434.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27.

Multiple sclerosis, which is a complex condition, is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8018. Diagnostic Code 8018 provides that the minimum rating for multiple sclerosis is 30 percent. Disability ratings higher
selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27.

Multiple sclerosis, which is a complex condition, is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8018. Diagnostic Code 8018 provides that the minimum rating for multiple sclerosis is 30 percent. Disability ratings higher than 30 percent must be based on its residuals. With some exceptions, disability from neurological conditions and convulsive disorders and their residuals may be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Manifestations include psychotic symptoms, complete partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. Partial loss of one or more extremities from neurological lesions, such as those caused by multiple sclerosis, is rated by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves. 38 C.F.R. § 4.124a.

A note following the Diagnostic Code further explains how the ratings are to be applied. It is required for the minimum ratings for residuals under Diagnostic Codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses.

In other words, the ratings schedule evaluates multiple sclerosis based on its manifestations. In accordance with the plain language of the diagnostic code, in order to receive the 30 percent minimum rating there must be at least one manifestation of multiple sclerosis.

If there is at least one manifestation, then the diagnostic code acts as a ratings floor regardless of the severity of the manifestations, the mere fact that they are present entitles a veteran to at least a 30 percent rating. If the manifestations, as evaluated pursuant to their own respective Diagnostic Codes or as rated by analogy, warrant a rating in excess of 30 percent, then Diagnostic Code 8018 is read in conjunction with 38 C.F.R. §§ 4.14 and 4.25(b), and the Veteran is assigned separate ratings that do not overlap in symptoms.

Under Diagnostic Code 9434, a 50 percent disability rating requires 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-term 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; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Code 9434.

For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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. Id.

A 100 percent rating is provided 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125 - 4.130.

When determining the appropriate disability evaluation under the general rating formula, the Board
and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id.

When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117-18.

Analysis

After a review of all the evidence, the Board finds that the Veteran's service-connected multiple sclerosis with depressive disorder and insomnia more nearly approximates the criteria for the currently assigned 50 percent disability evaluation for the rating period on appeal. The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 50 percent evaluation contemplates the Veteran's social and occupational impairment. Throughout the rating period on appeal, the Veteran's multiple sclerosis with depressive disorder and insomnia has been characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as depression, anxiety, and chronic sleep impairment.

The evidence demonstrates that the Veteran does not have symptoms such as obsessional rituals, impaired impulse control, delusions or hallucinations, spatial disorientation, or illogical speech or thought processes. The Veteran is alert, oriented, and cooperative upon examination, and his other multiple sclerosis with depressive disorder and insomnia does not prevent him from functioning independently. In this regard, the Board observes that the March 2024 and August 2024 VA examination reports reflect that the Veteran has anxiety, depression, chronic sleep impairment, and mild memory loss. The March 2024 VA examiner noted that the Veteran was appropriately dressed, alert, oriented, and cooperative, with normal speech, a pleasant mood, an affect appropriate to his mood, logical and coherent thought processes, and adequate insight and judgment; the Veteran denied suicidal ideation. The August 2024 VA examiner noted that the Veteran was calm, cooperative, spontaneous, and forthcoming in his responses. The August 2024 VA examiner noted that the Veteran had appropriate attire and adequate hygiene; the Veteran had good eye contact and average cognitive functioning. Upon examination, the Veteran was alert and oriented with a moderately dysphoric mood and congruent affect; there was no evidence of disturbances of thought content or thought processes. The VA examiner also noted that the Veteran's psychomotor activity, perception, cognition, speech, and insight and judgment were normal; the VA examination report noted that the Veteran denied experiencing suicidal or homicidal ideation, as well as denied a history of psychiatric hospitalizations or emergency psychiatric treatment.

In this regard, the Board finds that the criteria for a disability rating of 70 percent have not been met or more nearly approximated for any part of the rating period on appeal. The Veteran's symptoms do not equate in severity, frequency, or duration to the level of occupational and social impairment required to constitute deficiencies in most areas such as thinking, judgment, work, school, family relations and mood. The evidence does not show that the Veteran experienced symptoms such as obsessive rituals, near continuous panic or depression affecting the ability to function independently, impaired impulse control, illogical speech, neglect of personal appearance or hygiene, spatial disorientation, or an inability to establish and maintain effective relationships, as contemplated by a
or emergency psychiatric treatment.

To the contrary, as previously discussed, the Veteran does not have symptoms such as suicidal or homicidal ideation, delusions or hallucinations, or impaired thought processes. At the March 2024 and August 2024 VA examinations, the Veteran complained of depression, sleep impairment, mild memory loss, and anxiety related to his multiple sclerosis, but the VA examination reports reflect that the Veteran is alert and oriented, with appropriate speech and behavior, and without evidence of suicidal or homicidal ideation. At the Veteran's VA examinations, his speech was logical and goal-directed, and his thought processes, insight, and judgment were unimpaired; his hygiene was good and his attire was appropriate. Moreover, the Veteran's VA multiple sclerosis examination reports and VA treatment records reflect a history of normal mental status examinations.

The Board acknowledges that the December 2023 VA examiner found that the Veteran has total social and occupational impairment; however, the VA examiner noted that the Veteran denied suicidal and homicidal ideation, rage, psychosis, hallucinations, and delusions. Likewise, the December 2023 VA examiner also noted that the Veteran was alert and oriented, with intact memory, normal speech, good eye contact, good mood and congruent affect, intact cognition, linear and goal-directed though processes, and intact insight and judgment; the VA examiner described the Veteran's demeanor as polite, respectful, engaged, and friendly. As such, the Board finds that the December 2023 VA examiner's conclusion that the Veteran has total occupational and social impairment is inconsistent with the findings upon examination, and in the absence of any explanation for the discrepancy between the VA examiner's opinion of the Veteran's condition and the findings at the VA examination, the Board finds that the December 2023 VA examination is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions.").

The Board reiterates that the Veteran's symptoms are nearly the same as those listed in the criteria for a 50 percent rating and the examiner's characterization of these symptoms are indicative of at most reduced reliability and productivity. The March 2024 and August 2024 VA examiners assessed that the Veteran had no more than moderate symptoms of his multiple sclerosis with depressive disorder and insomnia, which interfered with occupational functioning and social relationships for the Veteran, but do not cause such social and occupational impairment as to render him deficient in most areas. His thinking and judgment were not impaired, and his depression and anxiety are contemplated by the assigned 50 percent rating. As for work and family relations, the Board observes that the August 2024 VA examiner found that the Veteran is no more than "moderately compromised" in his ability to perform physical and sedentary activities of employment due to the Veteran's depressive disorder and insomnia; the VA examiner also indicated that the Veteran described his family relationships as positive. See 38 C.F.R. § 4.2 (it is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present).

Although fluctuations in symptomatology and overall impairment are inevitable, the Board finds that, during the rating period on appeal, the Veteran consistently had symptoms of depression, anxiety, sleep impairment, and mild memory loss; however, there is no evidence of symptoms such as ritualistic or obsessive behavior, hallucinations, delusions, homicidal ideation, or impaired speech or thought processes. Moreover, his symptoms do not equate in severity, frequency, or duration to occupational and social impairment with deficiencies in most areas such as work, school, family relations, thinking, judgment, and mood. As noted, although he experiences depression and anxiety, his judgment, speech, and thought processes are not impaired. Additionally, there is no evidence
of disability present).

As such, the Board finds that the evidence does not support a disability evaluation in excess of 50 percent for his service-connected multiple sclerosis with depressive disorder and insomnia. The claim for an increased disability evaluation is denied.

2. Entitlement to an increased disability evaluation for right lower extremity muscle weakness, rated as noncompensable for the rating period prior to December 11, 2020.

3. Entitlement to an increased disability evaluation for right lower extremity muscle weakness, rated as 20 percent disabling for the rating period since December 11, 2020.

4. Entitlement to an increased disability evaluation for left lower extremity muscle weakness, rated as noncompensable for the rating period prior to December 11, 2020.

5. Entitlement to an increased disability evaluation for left lower extremity muscle weakness, rated as 20 percent disabling for the rating period since December 11, 2020.

The Veteran is currently evaluated for his right lower extremity muscle weakness and left lower extremity muscle weakness pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. See 38 C.F.R. § 4.20. The Veteran is currently assigned a noncompensable disability evaluation, per lower extremity, for the rating period prior to December 11, 2020, and a 20 percent disability evaluation, per lower extremity, for the rating period since December 11, 2020.

Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve and a 30 percent disability rating requires moderately severe incomplete paralysis. A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The Court in Chavis v. McDonough held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis v. McDonough, 34 Vet. App. 1 (2021) ("Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011))).

The Board notes, for reference and illustrative purposes, that the definition for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight," and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions of "severe" include extremely intense. Id. at 1012. It is noted that the term "moderately severe" indicates impairment greater than moderate, but not to the extent as to be considered severe.

The Board also finds that "mild" corresponds to symptoms, however slight, sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, this level of severity is limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.

"Moderate" symptoms will likely be described by the claimants and medically graded as
. at 704. Finally, definitions of "severe" include extremely intense. Id. at 1012. It is noted that the term "moderately severe" indicates impairment greater than moderate, but not to the extent as to be considered severe.

"Moderate" symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom 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. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy, see the criteria for a "severe" evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Finally, the "severe" evaluation level is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, Diagnostic Code 8520), marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123).

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).

In July 2024, the U.S. Court of Appeals for Veterans Affairs held that the assignment of ratings based on paralysis does not preclude separate ratings for neuritis or neuralgia of the same nerve. Banschbach v. McDonough, 37 Vet. App. 422 (2024). The Court explained that each nerve has a diagnostic code and rating scale for paralysis, as well as additional diagnostic codes (but no ratings) for "neuritis" and "neuralgia." The Court acknowledged that adjudicators must avoid pyramiding, i.e., evaluation of the same disability under various diagnoses. However, the Court noted that the rating schedule provides that separate conditions or manifestations of the same condition are to be rated separately, unless otherwise provided by the rating schedule. See 38 C.F.R. § 4.25(b). Moreover, the Court concluded that the Board must exhaust all schedular alternative for rating a disability. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). The Court further noted that paralysis, neuritis, and neuralgia are uniquely defined, indicating that each may present separately ratable manifestations.

Under 38 C.F.R. § 4.123, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be
Wilkie, 31 Vet. App. 162, 168 (2019). The Court further noted that paralysis, neuritis, and neuralgia are uniquely defined, indicating that each may present separately ratable manifestations.

Under 38 C.F.R. § 4.123, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.

Neuralgia, cranial or peripheral, described in 38 C.F.R. § 4.124, is characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve.

Analysis

After a review of all the evidence, the Board finds that the Veteran's right lower extremity muscle weakness and left lower extremity muscle weakness most closely approximates the criteria for a 20 percent disability evaluation, but no higher, for each lower extremity, for the entire rating period on appeal (since November 10, 2014).

In this regard, the Board notes that, at the June 2015 and February 2022 VA multiple sclerosis examinations, the Veteran's right and left lower extremity muscle weakness was described as mild. At the June 2015 VA examination, the Veteran had decreased muscle strength, increased reflexes, and normal sensory examination. At the February 2022 VA examination, the Veteran had decreased sensation at the lower leg/ankle and feet/toes, with decreased muscle strength and normal reflexes. At the June 2022 VA multiple sclerosis examination, the Veteran's right and left lower extremity muscle weakness was characterized as mild; the Veteran had decreased strength, increased reflexes, and a normal sensory examination. At the May 2024 VA multiple sclerosis examination, the Veteran's right lower extremity muscle weakness and left lower extremity muscle weakness were characterized as moderate for each lower extremity. The Veteran had decreased strength and reflexes, with decreased sensation at the lower leg/ankle and feet/toes. The Veteran's gait was described as abnormal at the October 2020, February 2022, and May 2024 VA examinations, but considered normal at the June 2015 and June 2022 VA examinations; the October 2020, February 2022, and May 2024 VA examiners noted that the Veteran reported a history of right foot drop and poor balance.

The Board points out that the Veteran's symptomatology was relatively consistent during the rating period and the Veteran's VA treatment records for the rating period do not demonstrate a worsening of manifestations equivalent to moderately severe incomplete paralysis of the right lower extremity and/or left lower extremity.

The Board finds that, in considering the evidence as a whole, the characterization of the Veteran's symptomatology as moderate by the May 2024 VA examiner is highly probative. The May 2024 VA examiner performed a physical examination and relevant testing prior to determining the extent of his muscle weakness of the right and left lower extremities. Additionally, the dictionary definition of moderate is in accordance with the Veteran's overall disability picture, his symptoms were not violent, severe, or intense, and were limited in scope and effect.

In conclusion, the Veteran's symptomatology most closely approximates the criteria for a 20 percent disability evaluation, per lower extremity, equivalent to moderate incomplete paralysis of the sciatic nerve as a result of his service-connected right lower extremity muscle weakness and left lower extremity muscle weakness, for the entire rating period on appeal (since November 10, 2014). The Board notes that while the Veteran asserted that his symptoms have worsened, the evidence of record, to include his statements regarding his symptoms, does not show that he experiences symptoms equivalent to moderately severe incomplete paralysis of the right sciatic nerve and/or left sciatic nerve during the rating period on appeal (since November 10, 2014). The Veteran's symptoms have consistently been described as no more than moderate. The Board finds that his symptoms do not indicate moderately severe impairment. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124.

period on appeal (since November 10, 2014). The Board notes that while the Veteran asserted that his symptoms have worsened, the evidence of record, to include his statements regarding his symptoms, does not show that he experiences symptoms equivalent to moderately severe incomplete paralysis of the right sciatic nerve and/or left sciatic nerve during the rating period on appeal (since November 10, 2014). The Veteran's symptoms have consistently been described as no more than moderate. The Board finds that his symptoms do not indicate moderately severe impairment. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124.

Additionally, the evidence does not suggest that the Veteran's symptoms support a finding that the Veteran suffers from neuritis. The Board acknowledges that the Veteran has decreased muscle strength; however, there is no evidence of muscle atrophy or absent reflexes. Likewise, the Veteran's current disability rating, awarded for manifestations equivalent to moderate incomplete paralysis, contemplates decreased strength and sensory disturbance. Thus, in this case, the Veteran's rating already encompasses the manifestations listed for neuralgia and neuritis and separate ratings here would constitute impermissible pyramiding, as separate ratings may be precluded where "symptomatology is duplicative or overlapping." Banschbach v. McDonough, 37 Vet. App. 422 (2024). See also 38 C.F.R. § 4.14.

Accordingly, the Board finds that the Veteran is entitled to a 20 percent disability rating, but no higher, per lower extremity, for his service-connected right lower extremity muscle weakness and left lower extremity muscle weakness, for the entire rating period on appeal (since November 10, 2014). 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to an increased disability evaluation for lumbar spine disorder with degenerative changes and small disc herniation at L4-L5, rated as 10 percent disabling for the rating period prior to December 5, 2023.

2. Entitlement to an increased disability evaluation for lumbar spine disorder with degenerative changes and small disc herniation at L4-L5, rated as 20 percent disabling for the rating period since December 5, 2023.

Under the AMA, the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a).

In the present case, the Board acknowledges that the AOJ obtained a VA back examination in May 2024. However, this VA examination was provided in an effort to determine if service connection was warranted, and the VA examiner did not provide sufficient findings as to the severity and manifestations of the Veteran's lumbar spine disorder during the entire rating period on appeal (since February 1, 2007). See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). This constitutes a pre-decisional duty to assist error, and remand for a new VA examination is required. A medical opinion arising from a medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

The Board notes that the effective date for an increased disability rating, whether an initial rating or staged rating, is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Board notes that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period, but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008). To the extent that the May 2024 VA examination report did not provide any information as to the Veteran's symptoms and manifestations for the entire rating period on appeal (since February 1, 2007) it is insufficient for rating purposes.

In this regard, the Board observes that the May 2024 VA examination report did not provide information as to the functional effects of repeated use of the lumbar spine over time or the functional effects of flare-ups on the Veteran's back. The Board acknowledges that the May 2024 VA examiner indicated that the Veteran did not report experiencing flare-ups; however, the Board observes that the Veteran reported that his back "goes out", and that such episodes cause him to experience functional impairment. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Sharp v. Shulkin, 29 Vet. App. 26 (2017) that VA examiners are obligated when conducting evaluations for musculoskeletal disabilities to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, 29 Vet. App. at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

Moreover, the Board points out that, in Correia v. McDonald, 28 Vet. App. 158 (2016), CAVC held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (holding that the examiner should provide "at what point during the range of motion the appellant experienced any limitation of motion that [is] specifically attributable to pain."). Likewise, the Board observes that the May 2024 VA examination report did not address whether the Veteran's pain on motion was the equivalent of ankylosis for any portion of the rating period on appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare.").

To the extent that the May 2024 VA examination report did not discuss the severity of the Veteran's lumbar spine disorder during the entire rating period on appeal (since February 1, 2007), particularly as pertains to functional limitations, the examination report is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This constitutes a pre-decisional duty to assist error. Thus, an adequate examination must be provided.

3. Entitlement to an effective date prior to December 11, 2020 for the award of TDIU is remanded.

A claim for TDIU is part and parcel of an increased rating claim, and vice versa. Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that the claim for an increased disability evaluation for the Veteran's service-connected lumbar spine disorder
. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This constitutes a pre-decisional duty to assist error. Thus, an adequate examination must be provided.

3. Entitlement to an effective date prior to December 11, 2020 for the award of TDIU is remanded.

A claim for TDIU is part and parcel of an increased rating claim, and vice versa. Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that the claim for an increased disability evaluation for the Veteran's service-connected lumbar spine disorder with degenerative changes and small disc herniation at L4-L5, for the rating period since February 1, 2007, is being remanded for additional development and readjudication, the Board finds that a decision on the issue of entitlement to an earlier effective date for the award of TDIU benefits must be deferred. The assigned disability rating(s) is integral to a determination of entitlement to TDIU, and until the AOJ makes this determination, the Board cannot fairly adjudicate the Veteran's claim of entitlement to an earlier effective date for the award of TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA back examination with an appropriate physician to ascertain the severity and manifestations of the Veteran's service-connected lumbar spine disorder with degenerative changes and small disc herniation at L4-L5 for the entire rating period on appeal (since February 1, 2007).

The claims file should be made available to the examiner for review in connection with the examination.

The examination report should include a statement as to the effect of the Veteran's service-connected lumbar spine disorder with degenerative changes and small disc herniation at L4-L5 on his occupational functioning and daily activities. Specifically, the examiner is advised to consider, along with the rating criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness.

In particular, the VA examination must include range of motion testing for the thoracolumbar spine in the following areas:

" Active motion;

" Passive motion;

" Weight-bearing; and

" Nonweight-bearing

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss upon repetitive use over time and during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to repetitive use over time and flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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).

The VA examiner is advised that the Veteran's report of worsening symptoms following prolonged activity may be construed as a flare-up.

The VA examiner is also requested to include a retrospective medical opinion, addressing the severity and functional impairment caused by the Veteran's service-connected lumbar spine disorder with degenerative changes and small disc herniation at L4-L5 from February 1, 2007 to the present. The examiner is specifically requested to address the Veteran's assertions as to functional loss due to flare-ups and estimated range of motion for each year since February 1, 2007. The examiner is also requested to provide an opinion as to whether the Veteran's pain on motion due to his service-connected lumbar spine disorder with degenerative changes and small disc herniation at L4-L5 is so severe as to be considered equivalent to ankylosis. The opinions should be based on a review of the Veteran's history and medical evidence of record. In rendering the opinion, the VA examiner should consider, and discuss with specificity, the Veteran's VA and private treatment records, as well as any imaging reports and VA examination reports.

The VA examiner should provide a complete rationale for any opinions provided.

2. Following the AOJ's readjudication
for each year since February 1, 2007. The examiner is also requested to provide an opinion as to whether the Veteran's pain on motion due to his service-connected lumbar spine disorder with degenerative changes and small disc herniation at L4-L5 is so severe as to be considered equivalent to ankylosis. The opinions should be based on a review of the Veteran's history and medical evidence of record. In rendering the opinion, the VA examiner should consider, and discuss with specificity, the Veteran's VA and private treatment records, as well as any imaging reports and VA examination reports.

The VA examiner should provide a complete rationale for any opinions provided.

2. Following the AOJ's readjudication of the claim of entitlement to increased disability evaluations for lumbar spine disorder with degenerative changes and small disc herniation at L4-L5, for the entire rating period on appeal (since February 1, 2007), the AOJ should readjudicate the claim of entitlement to an earlier effective date for the award of TDIU.

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Brokowsky, H.

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.

Analyze in VA Law Explorer