PES PLANUS

Summary

The veteran, who served in the U.S. Air Force from October 2003 to March 2009 and in the Air National Guard from January 2011 to November 2011, appeals the February 2021 RO rating decision. The appeal concerns increased ratings for bilateral pes planus with degenerative arthritis, obstructive sleep apnea (OSA), left thumb pain, left index finger pain, left long finger pain, left ring finger pain, left little finger pain, and lumbar spine degenerative arthritis, as well as effective dates for left and right foot disabilities. The Board granted a 50 percent rating for bilateral pes planus with degenerative arthritis, finding the veteran's severe pain and pronation met the criteria. A 50 percent rating for OSA was also granted, as the veteran requires a CPAP machine. Claims for higher ratings for left thumb, index, long, ring, and little finger pain, and for lumbar spine degenerative arthritis, were denied as the veteran did not meet the criteria for higher ratings or the evidence did not support the claimed severity. Effective date claims for left and right foot disabilities were also denied as the claims were not filed within the statutory periods.

Rationale

Veteran competent and credible reporter of symptoms; Severe pain and pronation noted; No relief from orthopedic inserts

Full Decision Text

Citation Nr: A26031308
Decision Date: 04/06/26	Archive Date: 04/06/26

DOCKET NO. 210402-151746
DATE: April 6, 2026

ORDER

A 50 percent rating for bilateral pes planus with degenerative arthritis is granted.

A 50 percent rating for obstructive sleep apnea (OSA) is granted.

A rating higher than 10 percent for left thumb pain is denied.

A rating higher than 10 percent for left index finger pain is denied.

A rating higher than 10 percent for left long finger pain is denied.

A compensable rating for left ring finger pain is denied.

A compensable rating for left little finger pain is denied.

A rating above 10 percent for degenerative arthritis of the lumbar spine is denied.

An effective date prior to July 19, 2013, for the award of service connection for a left foot disability is denied.

An effective date prior to September 14, 2015, for the award of service connection for a right foot disability is denied.

FINDINGS OF FACT

1. The Veteran's bilateral pes planus with degenerative arthritis is not improved by orthopedic shoes or appliances.

2. The Veteran's OSA is treated with a constant positive airway pressure machine (CPAP).

3. The Veteran's left thumb disability manifests as painful motion.

4. The Veteran's left index finger disability manifests with painful motion.

5. The Veteran's left long finger disability manifests with painful motion.

6. The Veteran's left ring finger disability does not cause ankylosis.

7. The Veteran's left little finger pain does not cause ankylosis.

8. The Veteran's lumbar spine disability manifests as flexion reduced to, at most, 65 degrees of motion; the disability causes painful motion.

9. The Veteran's claim for a left foot disability was filed on July 19, 2013; no claim or intent to file was received prior to that date.

10. The Veteran filed an intent to file on September 14, 2015, and a completed claim was submitted on November 18, 2016; the AOJ waived the procedural defect for delayed filing.

CONCLUSIONS OF LAW

1. The criteria for a 50 percent rating for bilateral pes planus with degenerative arthritis have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276.

2. The criteria for a 50 percent rating for OSA have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.97, DC 6847. 

3. The criteria for a rating higher than 10 percent for left thumb pain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5228.

4. The criteria for a rating higher than 10 percent for left index finger pain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5229.

5. The criteria for a rating higher than 10 percent for long finger pain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5229.

6. The criteria for a compensable rating for left ring finger pain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5230.

7. The criteria for a compensable rating for left little finger pain have not been met.    38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5229.

8. The criteria for a rating above 10 percent for degenerative arthritis of the lumbar spine have not been met.  38 U.S.C. §§ 115
 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5230.

7. The criteria for a compensable rating for left little finger pain have not been met.    38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5229.

8. The criteria for a rating above 10 percent for degenerative arthritis of the lumbar spine have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242.

9. The criteria for an effective date before July 19, 2013, for the award of service connection for a left foot disability have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

10. The criteria for an effective date prior to September 14, 2015, for the award of service connection for a right foot disability have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran honorably served in the U.S. Air Force from October 2003 to March 2009, and in the U.S. Air Force Air National Guard from January 2011 to November 2011.  

This appeal comes to the Board of Veterans' Appeals (Board) from a February 2021 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. 

This appeal was previously before the Board in September 2020 where the appeals were remanded for additional development.  This development was completed and, in February 2021, the RO denied the claims.  In April 2021, the Veteran filed a VA Form 10182 appealing that decision to the Board. 

In the April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on August 19, 2024.  A transcript is of record. 

Therefore, the Board may only consider the evidence of record at the time of the April 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

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

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (2021).  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.  Francisco v. Brown, 7 Vet. App. 55, 58 (
 if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (2021).  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.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

For joints, 38 C.F.R. § 4.59 requires an examination include testing for pain during active and passive motion, while weight-bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The examiner must also consider whether pain or flare ups cause additional functional loss.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).  If a joint experiences pain during motion, and does not otherwise meet the criteria for a compensable rating, the minimum compensable rating is assigned.  38 C.F.R. § 4.59.  

Further, VA joint examinations which fail to consider the factors listed in §§ 4.40 and 4.45, including those experienced during flare ups or on repeated use over time, is inadequate for evaluation purposes.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), Mitchell v Shinseki, 25 Vet. App. 32 (2011).  The examiner's determination in that regard should, if feasible, be described in terms of the degree of additional range-of-motion loss.  DeLuca, 8 Vet. App. at 206. 

Bilateral pes planus

The Veteran's bilateral pes planus is rated under DC 5276.  Under that DC, a noncompensable rating is assigned then the disability is mild, or symptoms are relieved by built-up shoe or arch support.  A 10 percent rating is assigned when it is moderate, or when the weight-bearing line is over or medial to the great toe, with inward bowing of the tendo achillis, or with pain on manipulation and use of the feet.  A 20 percent rating is assigned when the disability is severe unilaterally or 30 percent when bilateral, when there is objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or with characteristic callosities.  Finally, a 30 percent rating is assigned when the disability is pronounced unilaterally, or 50 percent bilaterally, when there is marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a.  

In May 2017, the Veteran attended a VA care appointment for his disabilities.  During the appointment, he complained of continued bilateral foot pain, primarily when walking.  The clinician documented this as chronic pain.  

The Veteran reported the same symptoms in June 2019, stating that the pain worsened with use and walking.  

In January 2020, the Veteran participated in a hearing before a Veterans Law Judge.  During the hearing, the Veteran testified he developed flat feet while in service.  As a result, he began walking differently over time.  He did not experience this disability or related symptoms until he began service.  At the time of the hearing, he has problems when walking or moving.

In February 2021, the Veteran attended a VA examination for his flat feet.  In the examination is a December 2017 report that diagnosed the Veteran with pes planus.  It states, in pertinent part, that "[t]here are osteoarthritic changes seen at the first tarsometatarsal joint.  Subarticular sclerotic changes and minor marginal osteophytes are seen at this joint.  Subarticular degenerative cystic changes also seen at the base of the first metatarsal bone.  There is evidence of remote injury,
.  He did not experience this disability or related symptoms until he began service.  At the time of the hearing, he has problems when walking or moving.

In February 2021, the Veteran attended a VA examination for his flat feet.  In the examination is a December 2017 report that diagnosed the Veteran with pes planus.  It states, in pertinent part, that "[t]here are osteoarthritic changes seen at the first tarsometatarsal joint.  Subarticular sclerotic changes and minor marginal osteophytes are seen at this joint.  Subarticular degenerative cystic changes also seen at the base of the first metatarsal bone.  There is evidence of remote injury, probable healed fracture at the base of the fifth metatarsal bone.  Small marginal osteophytes are seen dorsally at the intertarsal joints.  No other bony or localized soft tissue abnormality."

During the examination, the examiner found the Veteran has bilateral accentuated pain bilaterally with use of the feet.  No pain on manipulation, swelling with use, or characteristic calluses were noted.  The Veteran attempted to use arch supports, but they did not provide any relief.  No other treatments are noted.  

The Veteran does not have marked deformity or pronation, and the weight-bearing line does not fall over or medial to the great toe.  

In August 2024, the Veteran attended a second hearing before a different Veterans Law Judge.  During the hearing, the Veteran testified that he was issued inserts by the VA but they did not provide symptom relief.  His feet and ankles both hurt when walking, and he now experienced severe inward turning of his feet (pronation), and his gait causes damage to shoes.  

In closing, the Veteran summarized the symptoms as "severe[ly] painful ... it's probably one of the worst pains I have on my body. ... so the flat feet [just cause] a lot of pain and it makes it more where I have to like almost limp [sic]." 

Here, the persuasive weight of the evidence is in favor of finding the Veteran meets the 50 percent criteria for bilateral pes planus.  

First, the Veteran is found competent and credible to report his bilateral foot symptoms. 

During the hearings, in medical records, and during VA examinations, the evidence shows the Veteran did not obtain relief from his VA-issued orthopedic inserts.  Further, he has severe pain and pronation.  Based on those symptoms, the Veteran meets the criteria for a 50 percent rating, the maximum rating available for this disability.  The claim is, therefore, granted. 

OSA

The Veteran's OSA is rated under 38 C.F.R. § 4.97, DC 6847.  Under DC 6847, a noncompensable rating is assigned when the disability is asymptomatic but with documented sleep disorder breathing.  A 30 percent rating is assigned for persistent day-time hypersomnolence.  A 50 percent rating is assigned when the disability requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine.  A 100 percent rating is assigned when the disability causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy.  38 C.F.R. § 4.97.  

In November 2017, the Veteran began obtaining care for his sleep difficulties.  After a sleep study was performed, he was diagnosed with OSA and prescribed a CPAP machine.  

Later medical records repeatedly document the Veteran was not routinely compliant with his care for OSA, particularly with CPAP use.  He stated this is because his rhinitis interferes with its function. 

In November 2017 and August 2022 VA examinations, the Veteran was noted to require CPAP use.  He did not have chronic respiratory failure with carbon dioxide retention or cor pulmonale, and he does not require a tracheostomy.  

During his August 2024 hearing, the Veteran testified that his disability requires use of a CPAP machine.  He did not state he has any additional symptoms, and instead agreed he is seeking a rating consistent with his CPAP use.  

Here, the evidence is in favor of finding the Veteran meets the 50 percent rating criteria.  His disability requires the use of a CPAP machine, but no records show chronic respiratory failure with carbon dioxide retention or cor pulmonale, or his requiring a tracheostomy.  

Therefore, based on the rating criteria, available medical evidence, and the Veteran's credible lay statements, a 50 percent rating is warranted. The claim is granted to that extent. However, there is no evidence that the Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale
 use of a CPAP machine.  He did not state he has any additional symptoms, and instead agreed he is seeking a rating consistent with his CPAP use.  

Here, the evidence is in favor of finding the Veteran meets the 50 percent rating criteria.  His disability requires the use of a CPAP machine, but no records show chronic respiratory failure with carbon dioxide retention or cor pulmonale, or his requiring a tracheostomy.  

Therefore, based on the rating criteria, available medical evidence, and the Veteran's credible lay statements, a 50 percent rating is warranted. The claim is granted to that extent. However, there is no evidence that the Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale or required tracheostomy. Therefore, a 100 percent rating is not warranted.  

Left thumb pain

The Veteran's left thumb disability is rated under DC 5228.  DC 5228 distinguishes between the major (dominant) and minor (non-dominant) side.  Here, because the Veteran is right-handed, the minor ratings will apply.  

Under DC 5228, a noncompensable rating is assigned when thumb range of motion is limited with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  38 C.F.R. § 4.71a.  A 10 percent rating is assigned with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Id.  Finally, a 20 percent rating is assigned with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Id. 

During a May 2017 VA treatment appointment, the Veteran and his clinician discussed several locations of chronic pain on his body.  The listed joints and bodily locations include the left hand.  A review of VA treatment records show these symptoms were also documented in June 2019 and September 2019.  

In January 2020, the Veteran attended a hearing before a Veterans Law Judge.  During his testimony, he stated he has a significant loss of grip strength and stability in his left hand.  He has difficulty making a fist, described by his representative as a "partial fist," and he gets shooting and aching pain throughout his entire hand when he bends his fingers too far.  

In December 2020, the Veteran attended a VA examination for his hands and fingers.  Regarding the current severity, the Veteran reported pain when squeezing, lifting, gripping, and grasping.  The Veteran did not report flare ups.

During the physical examination, the Veteran's active range of motion (ROM) was found to be normal.  No gap was present between the band of the thumb and fingers, and no objective pain of evidence was observed.  The examination was not conducted after repeated use over time, but the examiner was able to estimate such use would not affect the Veteran's range of motion, but would cause pain, leading to a functional loss.  No other additional factors contributed to the disability, muscle strength testing was normal, and ankylosis was not observed.  

The Veteran attended a second hearing before the Board in August 2024.  Regarding his left thumb, the Veteran testified that his grip strength is "not very good."  His entire hand "aches and hurts" since the injury.  

In response to questions from his representative, the Veteran testified that he is able to make a fist but cannot squeeze his hand in any significant way.  He cannot touch is pinky to his thumb but can touch part of his palm.  

Here, the persuasive weight of the evidence is in favor of finding the Veteran's disability is appropriately rated as 10 percent disabling. 

Preliminarily, the Veteran is found to be a credible reporter of his symptoms, including pain and loss of strength.  His statements are consistent with available medical evidence and do not appear to be affected by inflation or exaggeration. 

The Veteran has consistently reported experiencing pain when he moves or uses his left thumb.  These reports are persuasive and implicate 38 C.F.R. § 4.59, warranting the Veteran's left thumb be rated, at minimum, at 10 percent disabling, the minimum rating under DC 5228.  

However, a higher rating is not warranted because the evidence does not show his left thumb has a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Therefore, the criteria for a higher rating cannot be assigned, and the claim for a rating above 10 percent is denied.  

In issuing
 affected by inflation or exaggeration. 

The Veteran has consistently reported experiencing pain when he moves or uses his left thumb.  These reports are persuasive and implicate 38 C.F.R. § 4.59, warranting the Veteran's left thumb be rated, at minimum, at 10 percent disabling, the minimum rating under DC 5228.  

However, a higher rating is not warranted because the evidence does not show his left thumb has a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Therefore, the criteria for a higher rating cannot be assigned, and the claim for a rating above 10 percent is denied.  

In issuing this decision, the Board acknowledges the difficulties the Veteran's disability causes.  Undoubtedly the pain and fatigue affect his daily experiences.  However, because the schedular criteria for a higher rating are not met, the claim for a higher rating cannot be granted.  

The Board has also considered whether a higher rating is available under other DCs.  However, because the finger is not affected by ankylosis, a rating under a separate DC is not warranted. 

Left index finger

Left long finger

Limitation of motion of the index and long finders are rated under DC 5229.  Under that DC, a noncompensable rating is assigned when there is a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees.  A 10 percent rating is assigned when a there is gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.  

Here, the Veteran's left index finger and left long finger are already assigned a 10 percent rating, each, the highest rating available for limitation of motion of those digits.  Therefore, a rating above 10 percent cannot be assigned, and the claim must be denied.  

In issuing this decision, the Board has also considered whether an extraschedular rating is warranted.  

When the highest rating under the Ratings Schedule is already assigned, a greater, or extraschedular, rating may only be assigned when "application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization."  See 38 C.F.R. § 3.321.  

The term "marked" is not defined by the rating criteria.  Merriam-Webster defines marked to mean "having a distinctive or emphasized character."  See e.g. "marked," Mirriam-Webster.com Online Dictionary, o.  

Here, a review of the Veteran's lay statements made during his hearing and medical appointments, and the findings of the examiner during the VA examination do not show the Veteran's disability is exceptional or unusual.  His pain is not described as caused disproportionate interference with employment or and his hand does not require frequent treatments.  Therefore, referral for an extraschedular rating is not warranted. 

Left ring finger 

Left little finger 

Limitation of motion is rated under DC 5230. Under that DC, limited range of motion of a ring or little finger is assigned a noncompensable rating for any limitation of motion.  

Because a compensable rating is not available under that DC, a compensable rating cannot be assigned, to include the considerations of 38 C.F.R. § 4.59 for painful motion.  

The Board acknowledges the Veteran may feel this inadequate, and that his pain in those fingers should be given a compensable rating.  

"The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  

Because the rating schedule does not assign a compensable rating for the Veteran's disability, any impairment causing limitation of motion, but still permitting motion, does not cause an impairment in earning capacity for VA rating purposes.  Therefore, though it may experience pain and discomfort, the Veteran's disability cannot be assigned a compensable rating as one is not available under the schedule and those digits still possess range of motion.  

The Board has further considered whether referral for extraschedular consideration is warranted per 38 C.F.R. § 3.321.  In this case, referral is
 of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  

Because the rating schedule does not assign a compensable rating for the Veteran's disability, any impairment causing limitation of motion, but still permitting motion, does not cause an impairment in earning capacity for VA rating purposes.  Therefore, though it may experience pain and discomfort, the Veteran's disability cannot be assigned a compensable rating as one is not available under the schedule and those digits still possess range of motion.  

The Board has further considered whether referral for extraschedular consideration is warranted per 38 C.F.R. § 3.321.  In this case, referral is not warranted because the disability is not of an exceptional or unusually severe nature.  

Lumbar spine

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242.  

Under DC 5242, degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome is assigned a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 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 30 percent rating is assigned when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine

A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine.  

In January 2017, the Veteran attended a VA examination for his low back.  He stated he began having back pain during combat training and was given hydrocodone for treatment while stationed in Afghanistan.  Since onset, the disability has progressed and, in 2014, was diagnosed with arthritis.  He experiences pain with greater intensity in the morning, which he treats with ibuprofen as needed.  He denied experiencing flare ups. 

During the physical examination, forward flexion measured 0 to 65 degrees during active ROM, and total ROM measured 155 degrees.  Pain was noted during forward flexion, extension, and bilateral lateral flexion, but did not cause additional functional loss.  Mild localized tenderness was observed at the right lower paralumbar.  

The examination did not take place after repetitive use over time, and the examiner stated the available information, including that from the Veteran, was not sufficient estimate what the Veteran's ROM after such use would be without speculation.  

Muscle strength and reflex testing was normal, straight leg raising tests were negative, and no radiculopathy was found. 

In May 2017, the Veteran attended a VA treatment appointment which noted he experienced chronic lumbar pain.  This was also documented in April 2018, August 2019, September 2019, and September 2020.  

In December 2020, the Veteran attended a VA examination for his lumbar spine disability. After a review of the Veteran's VA e-folder and an in-person examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine with a 2017 onset.  The Veteran stated he began seeking treatment from a chiropractor after leaving service for pain, and the disability has worsened as time as passed.
 straight leg raising tests were negative, and no radiculopathy was found. 

In May 2017, the Veteran attended a VA treatment appointment which noted he experienced chronic lumbar pain.  This was also documented in April 2018, August 2019, September 2019, and September 2020.  

In December 2020, the Veteran attended a VA examination for his lumbar spine disability. After a review of the Veteran's VA e-folder and an in-person examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine with a 2017 onset.  The Veteran stated he began seeking treatment from a chiropractor after leaving service for pain, and the disability has worsened as time as passed.  

Physical testing revealed active ROM was normal with flexion measuring 0 to 90 degrees and total ROM measuring 240 degrees.  Objective evidence of pain on motion or while weight bearing was not noted, and no localized tenderness or pain on palpation was indicated. 

The Veteran was not examined after repeated use over time, but the Veteran was able to provide evidence permitting the examiner to estimate pain would cause a functional loss after such use, limiting forward flexion to 80 degrees and total ROM limited to 205 degrees.  The Veteran did not report experiencing flare ups.  

Muscle, sensory and reflex testing was normal, and both radiculopathy and ankylosis was not observed or reported.  

During the August 2024 hearing, the Veteran testified that he was diagnosed with degenerative osteoarthritis and that he was recently diagnosed with an autoimmune disease in his joints.  His back stiffens significantly and the joints become immobile.  The disability has also begun to affect his mid and upper back.  

He has been prescribed pain medication, which provides some relief, but not all.  Resting is the most effective way to alleviate his pain and discomfort.  His back does "lock up" on occasion, and he cannot perform actions such as bending down to lift or tie his shoelaces.  He has not been prescribed bed rest or a back brace.  

Here, the persuasive weight of the evidence is in favor of finding the Veteran's disability is appropriately rated at 10 percent disabling.  

Based on the available evidence, the Veteran's lumbar ROM measured, at worst, as limited to 65 degrees flexion and 155 degrees total ROM.  Based on the total ROM, the Veteran's disability meets the requirements for a 10 percent rating.  However, the record does not show flexion limited to greater than 30 degrees but not greater than 60 degrees, a combined ROM not greater than 120 degrees, or medical findings of favorable or unfavorable ankylosis.  The Veteran has reported experiencing ankylosis, but the evidence does not support those findings, and the Veteran has not been shown to have the necessary training or experience to make that diagnosis.  See 38 C.F.R. § 3.159(a)(1) (defining competent medical evidence), (a)(2) (defining competent lay evidence); See also Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996).

The Veteran's August 2024 hearing testimony indicates the claimed disability may have worsened beyond those symptoms found during the most recent VA examination and VA treatment records.  However, because this evidence was presented after the rating decision on appeal, it cannot be the basis for a remand.  38 C.F.R. § 20.802.  

Should the Veteran feel his disability has worsened since the rating decision before the Board, he may file a supplemental claim.  Instructions on how to do so are included with this decision. 

In making the above findings, the Board is cognizant of the fact that the Veteran has used medication to treat his overall lumbar spine pain. The Court of Appeals for Veterans Claims ("Court" or "CAVC") has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). More recently, the Court stated that the "the Board [is] obligated to discount the beneficial effects of the medication taken for each disability and evaluate the baseline severity of those disabilities" and held that "Jones applies in the evaluation of musculoskeletal disabilities where the relevant [diagnostic code] does not reference medication as a factor in evaluation." Ingram v. Shinseki, 2025 U.S. App. Vet. Claims LEXIS 327, *15-19 (March 12, 2025). 

The Board notes, however,
 ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). More recently, the Court stated that the "the Board [is] obligated to discount the beneficial effects of the medication taken for each disability and evaluate the baseline severity of those disabilities" and held that "Jones applies in the evaluation of musculoskeletal disabilities where the relevant [diagnostic code] does not reference medication as a factor in evaluation." Ingram v. Shinseki, 2025 U.S. App. Vet. Claims LEXIS 327, *15-19 (March 12, 2025). 

The Board notes, however, that neither Jones nor Ingram address how the Board is to discount the beneficial effects of medication, particularly when used as treatment for musculoskeletal symptoms and where examiners do not reasonably have the ability to assess range of motion both with and without use of medication. Remanding this appeal to order an addendum medical opinion based on Jones and Ingram, and in the lens of the rating criteria under § 4.71a, would almost certainly require an examiner to engage in medical speculation and would result in a medical opinion that lacks the degree of certainty to ascertain, even under the benefit-of-the-doubt standard, the impact of the ameliorative effects of medication on the severity of a veteran's musculoskeletal disability in terms of range of motion. See, e.g., Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2005) (medical opinions that are speculative have "little probative value"). Significantly, one of the judges in McCarroll, joined by another judge in concurrence, expressed the same concern as to the implications of the holding in Jones: 

The requirement that the Secretary "may not consider the relief afforded by [a veteran's] medication when" applying the rating schedule, as Jones demands...invites medical speculation in trying to guess what a veteran's symptoms might be without the medication, or medical malpractice in the cessation of medication so that the veteran's symptoms without medication might be recorded. The former invites non-helpful guesswork by medical practitioners,...and the latter raises, at a minimum, serious ethical concerns that no court should encourage. That Jones essentially requires the Board to consider whether a medical examination is required to determine how serious a veteran's symptoms would have been in an alternate reality in which he or she was not taking his or her required medication should alone demonstrate the fallacy of the Jones holding.

McCarroll v. McDonald, 28 Vet. App. 267, 278 (2016) (internal citations omitted). Because it is highly unlikely that remand to obtain a medical opinion as to the ameliorative effects of medication on the severity of the Veteran's [musculoskeletal disability] would result in a probative, non-speculative opinion as to such, the Board does not wish to further delay adjudication of the Veteran's appeal to engage in likely unfruitful further development pursuant to Jones and Ingram. Moreover, the Board certainly cannot - and will not - order the Veteran to stop taking medication to undergo an examination that would reflect the severity of his low back disability without the use of pain medication. This would not only be cruel and potentially damaging to the Veteran, but the undersigned finds it would be legally unethical to ask such.

Finally, the Board notes that VA compensation does not contemplate hypothetical symptoms or impairment. Instead, the purpose of VA benefits is to compensate for decreased earning capacity - to compensate for actual symptoms or impairment that an individual experiences in the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran's manifestations of pain have been considered in rating his low back disability, but it still remains the Board's obligation to rate the condition based on the application of the rating criteria found in the diagnostic codes to the objective medical evidence. 

Effective Dates

Generally, "the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C. § 5110(a)(1).   

The effective date for an award based on an original claim of compensation shall be the "[d]ay following separation from active service or date entitlement arose if [the] claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)(i).  

"A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered
 pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C. § 5110(a)(1).   

The effective date for an award based on an original claim of compensation shall be the "[d]ay following separation from active service or date entitlement arose if [the] claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)(i).  

"A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA."  38 C.F.R. § 3.151.  

Prior to March 24, 2015, the VA accepted informal initial and increased ratings claims on "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs ...." See 38 C.F.R. 3.155(a) prior to the implementation of 79 FR 57660.  On or after that date, a complete claim for compensation must be submitted on a form prescribed by the VA.  See 38 C.F.R. § 3.155(d).  

"A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. ... If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received."  38 C.F.R. § 3.155(b).  

Left foot disability

Here, the Veteran's left foot disability is assigned the appropriate effective date.  

A review of the record shows the VA received a VA Form 21-526EZ on July 19, 2013, which sought service connection for several disabilities, including a "left foot condition."  

Prior to that date, the AOJ did not receive any formal or informal filings indicating an intent or desire to file for compensation benefits.  Therefore, no basis for an earlier effective date exists, and the claim for an effective date prior to July 19, 2013, must be denied. 

Right foot disability

Here, the Veteran's right foot disability is assigned the appropriate effective date. 

On September 14, 2015, the AOJ received a completed intent to file form indicating the Veteran's desire to file a claim for compensation benefits.  

In November 2016, the AOJ received a completed VA Form 21-526 which sought, inter alia, service connection for a right foot disability.  No completed claim was received prior to this filing, but after receipt of the intent to file. 

Generally, for an effective date to be assigned based on a completed intent to file, the claim must be received within one year of the date the intent to file was received.  That did not occur.  However, that restriction is a waivable claims processing rule.  

Here, the AOJ accepted the completed claim and associated it with the September intent to file, waiving the late filing restriction.  Therefore, because the award of service connection for the Veteran's right foot disability is effective September 14, 2015, and no claim prior to that date included the Veteran's right foot, it is assigned the earliest permissible effective date by statute and VA regulations.  Therefore, the claim for an earlier effective date must be denied. 

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Guarnieri

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.