DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

MARIAH N. SIM · 2026 · Case ID: A26029620

MIXED

Summary

The veteran, who served in the United States Marine Corps from March 1978 to March 1981, appeals the denial of an increased rating for degenerative arthritis of the lumbar spine and the denial of an increased rating for bilateral peripheral neuropathies of the sciatic nerves. The veteran was granted service connection for lumbar spine degenerative arthritis at 20% and bilateral peripheral neuropathies at 20% in a prior decision. The Board reviewed the period from April 6, 2021, to June 15, 2021. For the lumbar spine condition, the Board found that the veteran's range of motion measurements and reported symptoms did not meet the criteria for a rating higher than 20%. Specifically, the flexion of 80 degrees did not approximate the 30 degrees or less required for a 40% rating, and ankylosis was not present. The Board also considered the veteran's lay reports of pain and functional loss but found them less probative than the medical evidence, which did not show limitations severe enough for a higher rating. For the bilateral peripheral neuropathies, the Board reviewed the May 2021 VA examination findings, which noted severe constant pain, severe paresthesias/dysesthesias, and severe numbness, along with decreased muscle strength and hypoactive reflexes. The examiner described the sciatic nerve involvement as moderately severe incomplete paralysis. Applying the benefit of the doubt and considering the M21-1 guidance for 'moderately severe' impairment, the Board granted a 40% rating for each sciatic nerve, but found that the evidence did not support a higher rating due to the absence of marked muscular atrophy or other criteria for higher evaluations. The Board also addressed the prohibition against pyramiding ratings for the same symptoms.

Rationale

Range of motion (flexion to 80 degrees) did not meet criteria for 40% rating (30 degrees or less).; Ankylosis was not present.; Lay reports of pain and functional loss were less probative than medical evidence.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210730-176010

Full Decision Text

Citation Nr: A26029620
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 210730-176010
DATE: April 1, 2026

ORDER

Entitlement to an initial rating higher than 20 percent for degenerative arthritis, lumbar spine, is denied.

Entitlement to an initial 40 percent rating, but not higher, for peripheral neuropathy, left lower extremity of the sciatic nerve, is granted.

Entitlement to an initial 40 percent rating, but not higher, for peripheral neuropathy, right lower extremity of the sciatic nerve, is granted.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's lumbar spine degenerative arthritis was manifested by forward flexion to 80 degrees and guarding resulting in abnormal gait or abnormal spine contour; it was not manifested by forward flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

2. Throughout the period on appeal, the Veteran's bilateral lower extremity peripheral neuropathies of the sciatic nerve, were manifested by incomplete paralysis of moderately severe severity each; they were not manifested by severe incomplete paralysis with marked muscular atrophy.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating higher than 20 percent for degenerative arthritis, lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5242.

2. The criteria for entitlement to an initial 40 percent rating, but not higher, for peripheral neuropathy, left lower extremity, of the sciatic nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8520.

3. The criteria for entitlement to an initial 40 percent rating, but not higher, for peripheral neuropathy, right lower extremity, of the sciatic nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from March 1978 to March 1981.

In April 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for lumbosacral strain most recently addressed in a February 2016 rating decision. In June 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which granted service connection for degenerative arthritis of lumbar spine, and peripheral neuropathy of bilateral lower extremities as secondary to the degenerative arthritis of lumbar spine.

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On January 31, 2024, the Veteran withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 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 evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The basis of disability evaluation 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.

The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378,
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.

The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim.

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Degenerative Arthritis, Lumbar Spine

The Veteran was granted service connection for degenerative arthritis of lumbar spine with 20 percent rating in the June 2021 rating decision. The Veteran seeks entitlement to an initial rating higher than 20 percent for his degenerative arthritis of lumbar spine. See July 2021 VA Form 10182. The Veteran has not provided any specific argument or contentions with respect to this claim.

During the pendency of the appeal, the AOJ decreased the rating for the lumbar spine disability from 20 percent to 10 percent effective June 12, 2024, in a September 2024 rating decision, and the AOJ increased it to 40 percent effective March 28, 2025, in a March 2026 rating decision. The Board is reviewing the period from April 6, 2021, to June 15, 2021, from the date the claim for entitlement to service connection was received by VA to the date of the rating decision on appeal.

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

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

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

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

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

During a May 2021 VA examination for back conditions, the Veteran was diagnosed with degenerative arthritis of the spine. He reported pain radiating down from low back to back of legs, and pain with extensive flexion of low back. He reported he takes Naproxen and Ibuprofen twice daily. He did not report any flare-ups. He reported functional loss of limited flexibility in his lumbar spine due to pain. The initial range of motion (ROM) test showed flexion to 80 degrees; extension to 5 degrees; and bilateral lateral flexion and rotation to 15 degrees. All ROMs exhibited pain. Passive ROM was the same as active ROM. There was pain with active and passive motion; the pain caused functional loss of limited ROM. There was no crepitus. There was no objective evidence of localized tenderness or pain. He was able to perform repetitive use testing with at least three times without additional loss of function or ROM. He was not being examined immediately after repeated use over time; procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. He did not have muscle spasm. He had guarding resulting in abnormal gait or abnormal spine contour. The additional factor contributing to the disability was less movement than normal, described as "limited due to pain."

The muscle strength test showed the following results in the right lower extremity: 3/5 in hip flexion; 4/5 in knee extension and ankle plantar flexion; 5/5 in ankle dorsiflexion; and 4/5 in great toe extension. The muscle strength test showed the following results in the left lower extremity: 3/5 in hip flexion; and 4/5 in knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was no muscle atrophy. The reflex exam showed that the knees and ankles were hypoactive. The sensory exams were normal. He had radicular symptoms in bilateral sciatic nerve. Both lower extremities exhibited mild constant pain; no intermittent pain; severe paresthesias/d
3/5 in hip flexion; 4/5 in knee extension and ankle plantar flexion; 5/5 in ankle dorsiflexion; and 4/5 in great toe extension. The muscle strength test showed the following results in the left lower extremity: 3/5 in hip flexion; and 4/5 in knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was no muscle atrophy. The reflex exam showed that the knees and ankles were hypoactive. The sensory exams were normal. He had radicular symptoms in bilateral sciatic nerve. Both lower extremities exhibited mild constant pain; no intermittent pain; severe paresthesias/dysesthesias; and severe numbness. He did not have ankylosis. He did not have other neurologic abnormalities. He did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. He constantly used a cane for his bilateral knee condition. A May 2021 x-ray of the lumbar spine showed mild multi-level vertebral body end plate degenerative changes. The examiner noted that the Veteran's back condition impacts his ability to work in that he is unable to perform duties which require extensive standing, walking, bending, climbing, twisting, or weight bearing due to low back pain.

The Veteran's VA treatment records are generally silent for any complaints of back pain during the appeal period under review until May 2021, at which time he reported low back pain and numbness in legs due to a motor vehicle accident on May 6, 2021. Notably, a May 2021 VA record noted that the Veteran has had neuropathy of his lower extremities and increased back pain due to a car accident. The VA treatment records do not reveal any ROM tests or any treatment or diagnosis of muscular atrophy. There are no relevant private treatment records on file that pertains to the appeal period under review.

Further review of the record shows that the Veteran receives VA treatment providers for various disabilities, to include his back disorder. However, there is no indication from the treatment notes of record that the Veteran has reported back symptoms or range of motion measurements that are worse than those noted above.

The Board finds that the evidence of record persuasively weighs against an initial rating higher than 20 percent for the degenerative arthritis of the lumbar spine.

Neither the May 2021 VA examination report or treatment records show a range of motion that meets or more nearly approximates the criteria required for a 40 percent rating (i.e., forward flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine). According to the May 2021 VA examination report, the Veteran's spine was assessed to exhibit forward flexion to 80 degrees with repeated use over time. The examiner indicated that ankylosis was not present. The evidence of record does not include any further range of motion tests for the lumbar spine. Thus, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the May 2021 VA examiner noted that the Veteran did not have IVDS. Even if he had one, the evidence of record does not reveal any incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months to warrant a 40 percent rating. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

Pertaining to limitation of motion of the back, the range of motion findings detailed above, throughout the appeal, do not show limitation so severe as to meet the criteria for the next higher rating under Diagnostic Code 5237. In this regard, as noted above, the Veteran's back was assessed to exhibit forward flexion to 80 degrees with repeated use over time. As such, the evidence does not reflect limitation of motion to a higher level for the back under Diagnostic Code 5237, even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, a higher rating for limitation of back is not warranted
, as noted above, the Veteran's back was assessed to exhibit forward flexion to 80 degrees with repeated use over time. As such, the evidence does not reflect limitation of motion to a higher level for the back under Diagnostic Code 5237, even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, a higher rating for limitation of back is not warranted.

The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia, supra. The Board has also considered the Court's holding in Sharp, addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered the VA examination reports of record and whether these complied with Correia and Sharp. Here the Board finds that the May 2021 VA examination findings substantially complied with the Correia and Sharp requirements.

Although the Veteran has reported pain associated with his range of motion, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell, 25 Vet. App. 32. Indeed, the Court found that nothing in its case law supports an appellant's contentions that he should be given the maximum disability ratings under the Diagnostic Code simply because he experienced pain throughout the range of motion. Id.

The Board has considered whether further staged ratings under Hart v. Mansfield, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Additionally, the Board has considered whether an inferred claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's current employment status is unknown. The Veteran has also not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due solely to his service connected back. As such, a Rice claim is not raised.

In so finding the above, the Board acknowledges the Veteran's contentions that his back is more severe than contemplated by the current rating assigned. The Veteran is competent to report symptoms such as pain because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, he is not considered competent to medically attribute or assess the severity of his back as required in the Diagnostic Code. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements do not constitute competent evidence and, the Board assigns more probative weight to the competent medical evidence of record.

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

2. Bilateral Lower Extremity Peripheral Neuropathies Sciatic Nerves

The Veteran was granted service connection for peripheral neuropathy of bilateral lower extremities as secondary to the degenerative arthritis of lumbar spine with 20 percent rating in the June
's claim for a rating in excess of 20 percent for degenerative arthritis of lumbar spine. As the evidence of record persuasively weighs against an initial rating in excess of 20 percent, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

2. Bilateral Lower Extremity Peripheral Neuropathies Sciatic Nerves

The Veteran was granted service connection for peripheral neuropathy of bilateral lower extremities as secondary to the degenerative arthritis of lumbar spine with 20 percent rating in the June 2021 rating decision. The Veteran seeks entitlement to an initial rating higher than 20 percent. See July 2021 VA Form 10182. The Veteran has not provided any specific argument or contentions with respect to this claim.

During the pendency of the appeal, the AOJ decreased the rating for the peripheral neuropathy of bilateral lower extremities from 20 percent to 10 percent effective June 12, 2024, in a September 2024 rating decision, and the AOJ increased it to 40 percent effective March 28, 2025, in a March 2026 rating decision. The Board is reviewing the period from April 6, 2021, to June 15, 2021, from the date the claim for entitlement to service connection was received by VA to the date of the rating decision on appeal.

Initially, the Board notes that in a March 2026 rating decision, service connection was granted for bilateral lower extremity peripheral neuropathies of the femoral nerve. These issues are not currently before the Board for adjudication and will not be discussed further herein.

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

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

Although 38 C.F.R. § 4.120, 4.123, and 4.124 are helpful in this regard, VA's Adjudication Manual, M21-1 has additional provisions that are useful in guiding this analysis.

The Board acknowledges the VA Adjudicative Procedures Manual M21-1 (hereinafter M21-1) contains provisions regarding rating peripheral nerve disabilities. The United States Court of Appeals for the Federal Circuit has held that the Board is not bound by the provisions of the M21-1 and the manual does not "carry the force of law." DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. The M21-1 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. Nevertheless, the Court in Overton v. Wilkie held that the Board is
to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. The M21-1 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." 30 Vet. App. 257, 264 (2018).

More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document." 35 Vet. App. 75, 80 (2021).

Pursuant to Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issue currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of upper and lower peripheral nerves.

Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however, slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality.

"Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: 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 M21-1 provides "moderately severe" is only applicable for involvement of the sciatic nerve and is described as 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 with moderately severe peripheral neuropathy.

"Severe" in general, is expected to include 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 with severe longstanding neuropathy. 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.

It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.
disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

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

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. 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. 38 C.F.R. § 4.123

Neuralgia, cranial or peripheral, 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. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124.

The Board notes that the May 2021 VA examination for back condition and treatment records pertaining to the back condition discussed above are incorporated herein.

During a May 2021 VA examination for peripheral nerves conditions, the Veteran was diagnosed with peripheral neuropathy in bilateral lower extremities of the sciatic nerve. He reported nerve pain radiating down the backs of both legs. He reported he takes Naproxen and Ibuprofen twice daily. The examiner noted that the Veteran had symptoms attributable to peripheral nerve conditions. Th Veteran's lower extremities exhibited severe constant pain; severe paresthesias/dysesthesias; and severe numbness. In the right lower extremity, the muscle strength was 4/5 for knee extension; 4/5 for ankle plantar flexion, and 5/5 for ankle dorsiflexion. The muscle strength for left lower extremity was 4/5 for all movements. There was no muscle atrophy. The reflex was hypoactive for the lower extremities. The sensory exams were normal. There were no trophic changes. He had abnormal gait and walked with a cane due to right knee condition. The examiner noted that the Veteran's bilateral sciatic nerve was manifested by incomplete paralysis of moderately severe severity. The examiner noted that the Veteran's bilateral external popliteal (common peroneal) nerve and bilateral anterior tibial (deep peroneal) nerve were manifested by incomplete paralysis of mild severity. The rest of the nerves in his bilateral lower extremities were normal. The examiner noted that the Veteran's peripheral nerve condition impacts his ability to work in that he is unable to perform duties which require excessive standing, walking, climbing, or weight bearing due to leg pain.

Further review of the record shows that the Veteran receives VA treatment providers for various disabilities, to include his bilateral lower extremity neuropathy. However, there is no indication from the treatment notes of record that the Veteran has reported bilateral lower extremity neuropathy symptoms that are worse than those noted above.

Upon review of the record, and resolving doubt in the Veteran's favor, an initial 40 percent rating, but not higher, for peripheral neuropathy of bilateral lower extremities of the sciatic nerve is warranted.

The M21-1 provides 'moderately severe' (which warrants a 40 percent rating) is only applicable for involvement of the sciatic nerve and is described as 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. The May 2021 VA examination for peripheral neuropathy conditions noted that the Veteran had severe constant pain, severe paresthesias/dysesthesias, and severe numbness. The examiner noted that the Veteran's bilateral sciatic nerve was manifested by incomplete paralysis of moderately severe severity. While his lower extremities did not exhibit hyperactive reflexes, they did exhibit hypoactive reflexes. The examiner also noted that the Veteran's peripheral nerve condition impacts his ability to work in that he is unable to perform duties which require excessive standing, walking, climbing, or weight bearing due to leg pain. This limitation appears to suggest impairment of motor function. Moreover, the Veteran's lower extremities exhibited decreased muscle strength. The impairment of motor function and decreased muscle strength indicate that his peripheral neuropathy is not wholly sensory. As such, resolving any doubt in the Veteran's favor, the Board finds that an initial 40 percent rating from April 6, 2021 is warranted for each lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

An initial rating higher than 40 percent is not warranted at any time during the period on appeal for the Veteran's bilateral lower extremity peripheral neuropathies of the of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. At no time during the appeal period has the Veteran asserted or been found to have marked muscular atrophy in his sciatic nerve.

The Board acknowledges that the June 2021 rating decision noted: "Although the external popliteal, anterior tibial and sciatic nerves were shown to be affected, only one evaluation is allowable in this case. This rating is based on the highest rated nerve. (38 CFR 4.14))."

The Veterans Benefits Administration (VBA) has determined that there are five separate nerve branches in the lower extremities that may be separately rated. See M21-1, III.iv.4.N.4.e.; Overton, 30 Vet. App. at 257. The sciatic nerve, the external popliteal nerve, the musculocutaneous nerve, the anterior tibial nerve, the internal popliteal nerve, and the posterior tibial nerve are all part of the sciatic nerve branch and affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes.

Although the external popliteal, anterior tibial and sciatic nerves were shown to be affected, the rule against pyramiding prohibits awarding of separate disability ratings. Thus, the Board notes that the AOJ's reference to 38 C.F.R. § 4.14 is applied correctly.

Moreover, Diagnostic Code 8521 for paralysis of external popliteal nerve (common peroneal) provides a maximum 40 percent disability rating for complete paralysis of the external popliteal nerve, manifested by symptoms of foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened abduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. Such was not shown in this case.

Further, Diagnostic Code 8523 for anterior tibial nerve (deep peroneal) provides a maximum 30 percent rating for complete paralysis with dorsal flexion of the foot lost. Complete paralysis with dorsal flexion of the foot lost was not shown here.

Thus, a higher rating was not warranted under Diagnostic Code 8521 or 8523.

The Board recognizes that 38 C.F.R. §§ 4.123, 4.124, and 4.124a contain no prohibition on separate ratings or other special rules related to neuritis, neuralgia, and paralysis. See Banschbach v. McDonough, 37 Vet. App. 422 (2024). While the Veteran had hypoactive reflexes, the senses in his lower extremities were evaluated as normal. Moreover, there was no constant pain that was at times excruciating, or pain that was dull and intermittent. The Veteran's pain, paresthesia/dysesthesia, and numbness are compensated by the rating assigned under Diagnostic Code 8520. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted including under Diagnostic Codes 8620 and 8720. To assign separate ratings under Diagnostic Codes 8620 and 8720 for the same symptoms would be pyramiding, which is impermissible. See 38 C.F.R. § 4.14.

The Board has considered whether further staged ratings under Hart v. Mansfield, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout each period on appeal. Therefore, assigning staged ratings is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

In so finding the above, the Board acknowledges the Veteran's contentions that his bilateral lower extremity peripheral neuropathies of the sciatic nerve are more severe than contemplated by the current rating assigned. The Veteran is competent to report symptoms such as pain because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, he is not considered competent to medically attribute or assess the severity of his bilateral lower extremity peripheral neuropathies of the sciatic nerve as required in the Diagnostic Code. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements do not constitute competent evidence and, the Board assigns more probative weight to the competent medical evidence of record.

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In conclusion, resolving any doubt in the Veteran's favor, an initial 40 percent rating is warranted for the Veteran's bilateral lower extremity peripheral neuropathies of the sciatic nerve. The evidence is not approximately balanced with respect to whether an even higher initial rating is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch, 999 F.3d at 1391.

Mariah N. Sim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Jake Choi, Attorney Advisor

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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