REPLACEMENT OF KNEE WITH PROSTHESIS

S.C. KREMBS · 2026 · Case ID: A26032212

MIXED

Summary

The veteran, who served from October 1969 to March 1973, appeals the denial of increased disability ratings for his bilateral knees, bilateral shoulders, back, neck, and bilateral upper and lower extremities, as well as the denial of an earlier effective date for some of these conditions. The Board reviewed the evidence, including VA examinations and private medical records, to determine the appropriate disability ratings. For the left and right knee total arthroplasties, the Board found the criteria for ratings exceeding 30 percent were not met. Similarly, the claim for an increased rating for the back disability, despite flexion limitations, did not meet the criteria for a rating exceeding 20 percent. The Board did, however, restore the previously assigned 30 percent rating for the cervical spine degenerative arthritis, finding that the Veteran's condition did not improve sufficiently to warrant a lower rating, but denied an increased rating for the neck disability. The claims for bilateral upper extremity radiculopathy were denied increased ratings, but the Board granted earlier effective dates for the left and right upper extremity radiculopathy claims. The left lower extremity radiculopathy claim was denied an earlier effective date. The claims for bilateral shoulder disabilities and Special Monthly Compensation (SMC) were remanded due to inadequate VA examination and the need to consider new evidence of worsening symptoms, making them inextricably intertwined with the SMC claim.

Rationale

Residuals of left knee total arthroplasty did not meet criteria for rating exceeding 30 percent.; Forward flexion limited to 35 degrees, not 30 degrees or less.; No ankylosis of the knee.

Special Benefit

EARLIER EFFECTIVE DATE; SMC

Docket No.

251209-622577

Full Decision Text

Citation Nr: A26032212
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 251209-622577
DATE: April 8, 2026

ORDER

Entitlement to a disability rating in excess of 30 percent for left knee total arthroplasty is denied.

Entitlement to a disability rating in excess of 30 percent for right knee total arthroplasty is denied.

Entitlement to a disability rating in excess of 20 percent for lumbosacral spine degenerative disc and joint disease with spinal stenosis status post right SI joint fusion (back disability) is denied.

Reduction of the 30 percent disability rating for the cervical spine degenerative arthritis with degenerative disc disease and spinal stenosis (neck disability) was improper, the 30 percent rating is restored.

Entitlement to a disability rating in excess of 30 percent for the neck disability is denied.

Entitlement to an initial disability rating in excess of 30 percent for left upper extremity radiculopathy is denied.

Entitlement to an initial disability rating in excess of 40 percent for right upper extremity radiculopathy is denied.

Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied.

Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy is denied.

Entitlement to an earlier effective date of August 2, 2024 for service connection for left upper extremity radiculopathy is granted.

Entitlement to an earlier effective date of August 2, 2024 for service connection for right upper extremity radiculopathy is granted.

Entitlement to an effective date earlier than April 7, 2025 for the assignment of the 20 percent disability rating for left lower extremity radiculopathy is denied.

Entitlement to an earlier effective date of August 2, 2024 for right lower extremity radiculopathy is granted.

REMANDED

Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the left shoulder is remanded.

Entitlement to a disability rating in excess of 30 percent for right total shoulder arthroplasty is remanded.

Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s)(1) is remanded.

FINDINGS OF FACT

1. The residuals of the left knee total arthroplasty best approximate intermediate degrees of residual weakness, pain or limitation of motion.

2. The residuals of the right knee total arthroplasty best approximate intermediate degrees of residual weakness, pain or limitation of motion.

3. The back disability manifested as forward flexion limited to, at worst, 35 degrees. At no time during the period on appeal was forward flexion of the thoracolumbar spine limited to 30 degrees or less, even considering pain on use and during flareups. The Veteran did not have ankylosis of the thoracolumbar spine.

4. The evidence does not establish sustained improvement in the neck disability that resulted in an improvement in his ability to function under the ordinary conditions of life and work.

5. The neck disability was manifested as forward flexion to, at worst, 20 degrees. Forward flexion of the cervical spine was not limited to 15 degrees or less, even considering flareups and pain on use. The Veteran did not have ankylosis of the cervical spine.

6. The non-dominant left upper extremity radiculopathy manifested as moderate incomplete paralysis.

7. The dominant right upper extremity radiculopathy manifested as moderate incomplete paralysis.

8. From April 7, 2025, the left lower extremity radiculopathy disability manifested as moderate incomplete paralysis.

9. The right lower extremity radiculopathy manifested as moderate incomplete paralysis.

10. The Veteran submitted a supplemental claim seeking increased disability ratings for the back and neck disabilities on August 2, 2024. At that time, there were no pending or unadjudicated claims for increased disability ratings for the back or neck disability. The most recent decision adjudicating the claims was a final August 2023 Board decision.

11. Private medical records reflect that bilateral upper extremity and right lower extremity radiculopathy disabilities had been diagnosed prior to the August 2, 2024 supplemental claim. VA examinations conducted in April 2025 confirmed the diagnoses.

12. The increase in severity of the left lower extremity radiculopathy disability was not ascertainable prior to the April 2025 VA examination.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 30
At that time, there were no pending or unadjudicated claims for increased disability ratings for the back or neck disability. The most recent decision adjudicating the claims was a final August 2023 Board decision.

12. The increase in severity of the left lower extremity radiculopathy disability was not ascertainable prior to the April 2025 VA examination.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 30 percent for left knee total arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5055.

2. The criteria for entitlement to a disability rating in excess of 30 percent for right knee total arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5055.

3. The criteria for entitlement to a disability rating in excess of 20 percent for the back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5055.

4. The criteria for restoration of the 30 percent disability rating for the neck disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 5242.

5. The criteria for entitlement to a disability rating in excess of 30 percent for the neck disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4,71a, Diagnostic Code 5242.

6. The criteria for entitlement to a disability rating in excess of 30 percent for left upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8510.

7. The criteria for entitlement to a disability rating in excess of 40 percent for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8510.

8. The criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520.

9. The criteria for entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520.

10. The criteria for entitlement to an earlier effective date of August 2, 2024 for service connection for left upper extremity radiculopathy are
4.10, 4.21, 4.124a, Diagnostic Code 8520.

10. The criteria for entitlement to an earlier effective date of August 2, 2024 for service connection for left upper extremity radiculopathy are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

11. The criteria for entitlement to an earlier effective date of August 2, 2024 for service connection for right upper extremity radiculopathy are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

12. The criteria for entitlement to an effective date earlier than April 7, 2025 for the assignment of the 20 percent disability rating for left lower extremity radiculopathy are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

13. The criteria for entitlement to an earlier effective date of August 2, 2024 for service connection for right lower extremity radiculopathy are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2024 and April 2025 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

The claims for increased disability ratings for the bilateral knees and shoulders and for SMC were adjudicated in the December 2024 rating decision. The claims for increased disability ratings for the back and neck disabilities were adjudicated in the April 2025 rating decision. Thereafter, the Veteran submitted a VA Form 10182 (Notice of Disagreement) and selected the Evidence Submission docket. Based on the selection of the Evidence Submission option, the Board may consider evidence as of December 3, 2024 with respect to the knees, shoulders and SMC claims and April 18, 2025 with respect to the back, neck and radiculopathy claims-the dates of the respective rating decisions on appeal, and evidence submitted with or within 90 days of VA's receipt of the VA Form 10182 on December 9, 2025. 38 C.F.R. § 20.303. If the Veteran submitted evidence that was added to the record after December 3, 2024 with respect to the knee, shoulder and SMC claims, or after April 18, 2025 with respect to the back, neck and radiculopathy claims, and before VA received the VA Form 10182 on December 9, 2025, or more than 90 days after VA's receipt of the VA Form 10182 on December 9, 2025, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

This matter has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c).

Increased Ratings

Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Bilateral Knees

The Veteran has 30 percent ratings for the bilateral knee replacements, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. VA received the claim for increased disability ratings on July 31, 2024, and the period on appeal runs from that date. The Board will also consider whether it was factually ascertainable that an increased in disability occurred during the one year "look back" period preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II.

Generally, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); 38 C.F.R. § 4.59.

Pursuant to Diagnostic Code 5055, a 30 percent rating is the minimum rating assigned for total replacement only. For resurfacing or replacement of the knee joint with intermittent degrees of residual weakness, pain, or limitation of motion, rate by analogy to diagnostic codes 5256, 5261, or 5262. A 60 percent rating is assigned for resurfacing or replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is assigned for 4 months following implantation of prosthesis or resurfacing.

Diagnostic Code 5256 compensates for ankylosis of the knee, with a 40 percent rating assigned for flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5261 compensates for limitation of extension of the knee, with a 40 percent rating assigned for extension limited to 30 degrees. Id.

Diagnostic Code 5262 compensates for impairment of the tibia and fibula, with a 40 percent rating assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. Id.

The current 30 percent ratings have been in effect since the expiration of the 100 percent ratings for the knee replacements, which occurred prior to the period on appeal. Based on review of the evidence, the Board finds that ratings in excess of 30 percent are not warranted.

The Veteran was afforded a VA examination for the knees in August 2024. The Veteran reported symptoms of dull aching pain, stiffness and popping sounds. The Veteran reported he treated his symptoms with heating pads and experienced pain with walking or standing for more than 15 minutes. The Veteran did not report flareups. The examiner reported that bilateral passive and active range of motion was normal for both knees, with pain on flexion and extension. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner estimated that range of motion in both knees with repeated use over time would be flexion to 135 degrees and extension to 5 degrees. The Veteran did not have muscle atrophy or ankylosis. The examiner also noted that the Veteran experienced persistent instability but did not have a prescription for a brace or assistive devices. The examiner also reported that the Veteran did not have tibial or fibular impairment or meniscal conditions. The Veteran did not report the use of any assistive device.

Based on the foregoing, the Veteran's knees manifested with pain, stiffness and reduced range of motion with repeated use over time. However, even if rated by analogy to Diagnostic Codes 5256, 5261, or 5262, the evidence does not support a rating higher than 30 percent disabling. As detailed, range of motion was at worst flexion to 135 degrees with extension to 5 degrees. The objective measurements do not support a rating in excess of 30 percent under Diagnostic Code 5261. There is also no indication of impairment of the tibia or fibula or ankylosis, rendering Diagnostic Codes 5256 and 5262 inapplicable. The Board finds that the 30 percent disability rating in effect for this period contemplates any total knee replacement residuals such as pain, limitation of motion, or stiffness. A 60 percent rating is not warranted as chronic residuals consisting of severe painful motion or weakness in the affected extremity have not been shown. The Board notes the Veteran's report of pain with walking and standing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence does not establish a level of disability contemplated by a higher evaluation. Simply put, the Veteran's residuals are consistent with no more than intermediate degrees of residual weakness, pain, or limitation of motion, as contemplated by the assigned 30 percent ratings. There is no evidence demonstrative of severe painful motion or weakness in the affected extremities consistent with the next higher rating.

In sum, based on consideration of the medical and lay evidence, the Veteran's bilateral knee arthroplasty residuals do not warrant a rating in excess of
Board notes the Veteran's report of pain with walking and standing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence does not establish a level of disability contemplated by a higher evaluation. Simply put, the Veteran's residuals are consistent with no more than intermediate degrees of residual weakness, pain, or limitation of motion, as contemplated by the assigned 30 percent ratings. There is no evidence demonstrative of severe painful motion or weakness in the affected extremities consistent with the next higher rating.

In sum, based on consideration of the medical and lay evidence, the Veteran's bilateral knee arthroplasty residuals do not warrant a rating in excess of 30 percent and the claims are denied.

The Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, it persuasively weighs against increased disability ratings for the bilateral knee disabilities. The benefit of the doubt doctrine (38 U.S.C. § 5107(b)) is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

Back Disability

The Veteran is assigned a 20 percent rating for the back disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. VA received the claim for an increased disability rating for the back disability on August 2, 2024 and the period on appeal runs from that date. The Board will also consider whether it was factually ascertainable that an increased in disability occurred during the one year "look back" period preceding the submission of the claim. See 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010), supra.

Although the Veteran framed the issue as entitlement to an increased initial rating in the Notice of Disagreement, the propriety of the initial rating was adjudicated by the Board in an August 2023 decision. The August 2024 supplemental claim for an increase was submitted in response to that Board decision. To consider the initial ratings again would effectively be an appeal of the August 2023 Board decision to the Board. Decisions of the Board are final, and the Board's review of its own prior decisions is generally impermissible, unless a veteran moves the Board for reconsideration, asserts clear and unmistakable error (CUE), or appeals to the Court of Veterans Claims (CAVC). See 38 C.F.R. §§ 20.1001, 20.1100, 20.1403. The Veteran has not submitted any such challenge to the August 2023 Board decision and the period on appeal thus is limited to the one-year look back period from the receipt of the August 2024 supplemental claim.

The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Spinal Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The record reflects that the Veteran was not diagnosed with IVDS, rendering the IVDS Formula inapplicable.

Ratings under the General Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant here, a 20 percent rating requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a 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; a 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Spinal Formula. For an increase to 50 percent, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id
degrees, or a 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; a 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Spinal Formula. For an increase to 50 percent, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees. See id., at Note (2).

Note 5 to the General Spinal Formula defines unfavorable ankylosis as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dislocation; or neurologic symptoms due to nerve root stretching."

The Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v. Brown, 8 Vet. App. 202, 204-7 (1995). This rule does not apply where a higher rating requires ankylosis or incapacitating episodes. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

As relevant here, the Veteran was afforded a VA examination for the back disability in April 2025. The Veteran reported low back pain with daily flareups of severe pain, stiffness and limited range of motion. Active range of motion was reported as forward flexion limited to 45 degrees. Passive range of motion was not reported due to pain. The examiner reported that forward flexion was limited to 35 degrees with repetitive use testing and estimated that forward flexion would likewise be limited to 35 degrees with repeated use over time and flareups. The examiner reported localized tenderness not resulting in abnormal gait or spinal contour and no spasm or guarding. The examiner also reported that the back disability resulted in interference with sitting and standing, disturbance of locomotion, less movement than normal, weakened movement and increased stiffness and limited range of motion. The Veteran did not have ankylosis or IVDS and did not report the use of assistive devices. The examiner reported that the Veteran had difficulty walking, getting up from a seated position and experienced pain with range of motion and severe stiffness.

Based on the foregoing, the Board concludes that the evidence does not support a rating in excess of 20 percent for the back disability at any time during the period on appeal. The competent evidence of record does not reflect that the Veteran's forward flexion was limited to 30 degrees or less, even considering pain on use and with flareups. Nor does the evidence reflect that the Veteran had ankylosis. Rather, the evidence reflects that forward flexion was limited to, at worst, 35 degrees during the claim period.

In reaching its decision, the Board has also considered the Veteran's lay statements regarding the functional impact of the back disability. The Veteran is competent to report his own observations with regard to the severity of the back disability, including reports of pain and stiffness. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), supra. The Board also recognizes that the United States Court of Appeals for Veterans Claims (Court) found that a rating based on ankylosis is permitted if the Veteran's functional loss is consistent with that contemplated by ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021).

To the extent the Veteran contends that his symptoms are more severe, the statements must be weighed against the other evidence of record. There is no indication that the Veteran is qualified to provide a medical diagnosis of ankylosis. See Jandreau, 492 F.3d at 1377 n.4. Here, the VA examination findings of
Fed. Cir. 2007), supra. The Board also recognizes that the United States Court of Appeals for Veterans Claims (Court) found that a rating based on ankylosis is permitted if the Veteran's functional loss is consistent with that contemplated by ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021).

To the extent the Veteran contends that his symptoms are more severe, the statements must be weighed against the other evidence of record. There is no indication that the Veteran is qualified to provide a medical diagnosis of ankylosis. See Jandreau, 492 F.3d at 1377 n.4. Here, the VA examination findings of a trained health professional, which documented no evidence of ankylosis, are of greater probative weight than the Veteran's more general lay assertions. Ankylosis is the lack of movement of a joint, and the Veteran has forward flexion during flareups, reduced to 35 degrees at worst. As the competent evidence does not reflect that the Veteran meets the criteria for a rating in excess of 20 percent for the back disability, the claim is denied.

In sum, the preponderance of the evidence does not support a disability rating in excess of 20 percent for the back disability. The Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, it persuasively weighs against increased ratings. The benefit of the doubt doctrine (38 U.S.C. § 5107(b)) is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), supra.

Neck

VA received the claim for an increased disability rating for the neck disability on August 2, 2024, and the period on appeal runs from that date. The Board will also consider whether it was factually ascertainable that an increased in disability occurred during the one year "look back" period preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010), supra. Although the Veteran framed the issue as entitlement to an increased initial rating in the Notice of Disagreement, that issue was adjudicated by the Board in an August 2023 decision. The August 2024 supplemental claim for an increase was submitted in response to that Board decision. As noted, in order to challenge the August 2023 Board decision, the Veteran would be required to submit an appeal to CAVC, claim CUE of submit a motion for reconsideration. As the Veteran has not pursued these options, the appeal period is limited to the one-year look-back period from receipt of the claim for an increase.

As part of the April 2025 rating decision on appeal, the RO reduced the 30 percent rating for the neck disability to a 20 percent rating, effective April 7, 2025. The combined total rating was not affected by the reduction, and the procedural due process requirements of 38 C.F.R. § 3.105 are not applicable. The issues of the propriety of the rating reduction and entitlement to an increased disability rating for the neck disability are before the Board as part of this appeal. As explained herein, the Board finds that the reduction of the disability rating for the neck disability from 30 percent to 20 percent was improper, and the 30 percent rating is restored. The Board also finds that a rating in excess of 30 percent is not warranted at any time during the period on appeal.

In determining whether a reduction is warranted, the burden is on VA to justify the reduction by a preponderance of the evidence, with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). Generally, to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Stern v. McDonough, 34 Vet. App. 51 (2021); Faust v. West, 13 Vet. App. 342, 350 (2000); Brown, 5 Vet. App. at 420-21 (1993) (citing 38 C.F.R. §§
under 38 U.S.C. § 5107(b) required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). Generally, to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Stern v. McDonough, 34 Vet. App. 51 (2021); Faust v. West, 13 Vet. App. 342, 350 (2000); Brown, 5 Vet. App. at 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). A rating reduction must be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). CAVC has held that although a rating reduction may have been supported by the evidence on file at the time of the reduction, the Board must consider pertinent post-reduction evidence favorable to restoring the rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. See Schafrath, 1 Vet. App. at 594.

The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. As the record does not reflect that the Veteran has IVDS, the IVDS Formula is inapplicable here.

The General Formula for rating a disability of the spine provides in pertinent part that a 20 percent disability rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine 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 disability rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a.

The Veteran underwent a VA examination for the neck disability in April 2025. He reported symptoms of a painful, stiff neck with limited range of motion. The Veteran did not report flareups. Active and passive range of motion was measured as forward flexion to 30 degrees, with pain on all movements. Forward flexion was reduced to 25 degrees with repetitive use testing. The examiner estimated that range of motion would be reduced to forward flexion to 20 degrees with repeated use over time. The Veteran had localized tenderness that did not result in abnormal gait or contour and did not have muscle spasm or guarding. The examiner noted less movement than normal and weakened movement. The examiner also reported that the Veteran did not have ankylosis or IVDS. The functional impact of the neck disability was documented as painful to turn the neck, drive and look back. An imaging study of the neck documented multilevel degenerative disc disease.

Based on the foregoing, the Board finds that the evidence does not support a finding that there was improvement in the Veteran's ability to function under the ordinary conditions of life at the time of the reduction. To the extent the April 2025 VA examination documented improved range of motion measurements, the record reflects that the Veteran continued to experience pain, stiffness and limited range of motion that impacted his ability to turn his neck, drive and look back. Resolving reasonable doubt in the Veteran's favor, the Board finds that the reduction of the 30 percent rating for the neck disability was improper, and
documented as painful to turn the neck, drive and look back. An imaging study of the neck documented multilevel degenerative disc disease.

Based on the foregoing, the Board finds that the evidence does not support a finding that there was improvement in the Veteran's ability to function under the ordinary conditions of life at the time of the reduction. To the extent the April 2025 VA examination documented improved range of motion measurements, the record reflects that the Veteran continued to experience pain, stiffness and limited range of motion that impacted his ability to turn his neck, drive and look back. Resolving reasonable doubt in the Veteran's favor, the Board finds that the reduction of the 30 percent rating for the neck disability was improper, and the 30 percent rating is restored, effective April 7, 2025. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421.

The Board also finds that a disability rating in excess of 30 percent is not warranted at any time during the appeal period. Range of motion was not limited to 15 degrees or less, even considering pain on use, and the cervical spine is not ankylosed. Accordingly, the Veteran does not meet the criteria for a rating in excess of 30 percent and the claim for an increased rating is denied. 38 C.F.R. § 4.71a, Diagnostic Code 5242. There is no objective evidence in the file that the Veteran was diagnosed with ankylosis or that his cervical spine was fixed in an unfavorable position. Significantly, the Veteran has not raised an assertion that his cervical spine is manifested by ankylosis.

Based on the foregoing, the claim for an increased initial disability rating for the Veteran's neck disability in excess of 30 percent is denied. The Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, it persuasively weighs against increased ratings. The benefit of the doubt doctrine (38 U.S.C. § 5107(b)) is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), supra.

Radiculopathy

The Veteran has an initial 30 percent disability rating for the left upper extremity radiculopathy and a 40 percent disability rating for the right upper extremity radiculopathy, both assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8510. The right arm is considered the major extremity.

The Veteran has 20 percent ratings for the bilateral lower extremity radiculopathy disabilities. The rating for the right lower extremity is an initial rating. The rating for the left lower extremity is effective April 7, 2025. The ratings are assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Diagnostic Code 8510 provides a 40 percent rating for moderate incomplete paralysis of the major extremity and a 30 percent rating for the minor extremity. Severe incomplete paralysis warrants a 50 percent rating in the major extremity and a 40 percent rating in the minor extremity. A 70 percent rating for the major extremity and a 60 percent rating for the minor extremity is assigned for complete paralysis, all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510.

Under Diagnostic Code 8520, a 20 percent evaluation is assigned for moderate incomplete paralysis, a 40 percent evaluation is assigned for moderately severe incomplete paralysis, and a 60 percent evaluation is assigned for severe incomplete paralysis, with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The terms "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6.

Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed
"moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6.

Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). However, VA's Adjudication Manual, M21-1, III.iv.4.N.4.c specifically defines the terminology in 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8730.

As relevant here, the Manual defines "moderate" as:

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.

According to the Manual, "moderately severe" incomplete paralysis is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. The term would be appropriate for "Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. 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." M21-1, III. iv. 4. N. 4.c.

Finally, the Manual indicates with regard to "severe:"

In general, expect 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. 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.

Upper Extremities

The Veteran was afforded a VA examination addressing the upper extremity radiculopathy disabilities in April 2025. The examiner noted full muscle strength in the upper extremities with no muscle atrophy. The Veteran had hypoactive reflexes in the upper extremities and some reduced sensation. The examiner noted that the Veteran experienced mild intermittent pain in the upper extremities. Private treatment records document cervical radiculitis.

Based on the foregoing, the Board finds that the bilateral upper extremity radiculopathy best approximated moderate incomplete paralysis throughout the period on appeal. The competent medical and lay evidence reflects that the Veteran experienced some hypoactive reflexes, loss of sensation and pain but no reduced muscle strength or muscle atrophy and no hyperactive reflexes. Based on the foregoing, the Board finds that the evidence does not support a finding that the Veteran experienced moderately severe incomplete paralysis of the upper extremities at any time during the period on appeal. The Board also finds that the radiculopathy symptoms did not approximate severe incomplete paralysis as there no objective findings of marked muscle atrophy, loss of reflexes, completely absent sensation or severe constant pain. Therefore, ratings higher than 30 percent for the left upper extremity and 40 percent for the right upper extremity are not warranted, and the claims are denied.

Lower Extremities

The Veteran was afforded a VA examination addressing the lower extremity radiculopathy disabilities in April 2025. He reported experiencing bilateral buttock pain, worse on the right than the left. The examiner noted reduced muscle strength in the extremities, no muscle atrophy, hypoactive reflexes in the ankles, some reduced sensation and positive straight leg testing. The examiner indicated that the Veteran experienced moderate constant pain bilaterally. The Veteran did not report the use of any assistive devices for ambulation. Private medical records document lower back pain
than 30 percent for the left upper extremity and 40 percent for the right upper extremity are not warranted, and the claims are denied.

Lower Extremities

Based on the foregoing, the Board finds that the bilateral lower extremity radiculopathy best approximated moderate incomplete paralysis of the sciatic nerve throughout the period on appeal. The competent medical and lay evidence reflects that the Veteran experienced moderate symptoms, some reduced muscle strength, hypoactive reflexes, loss of sensation and pain but no muscle atrophy and no need for an assistive device for walking. Based on the foregoing, the Board finds that the evidence does not support a finding that the Veteran experienced moderately severe incomplete paralysis of the lower extremities at any time during the period on appeal. The Board also finds that the radiculopathy symptoms did not approximate severe incomplete paralysis as there no objective findings of marked muscle atrophy, loss of reflexes, completely absent sensation or severe constant pain. Therefore, ratings higher than 20 percent are not warranted and the claims are denied.

Earlier Effective Dates

The Veteran seeks earlier effective dates for service connection for the right lower extremity radiculopathy and the bilateral upper extremity disabilities and for the increased rating assigned for the left lower extremity radiculopathy disability. See Notice of Disagreement.

The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

Here, the RO assigned April 7, 2025 as the effective date for the service connection for the bilateral upper extremity radiculopathy and right lower extremity disabilities. That date corresponds to the date of the VA examinations conducted for the back and neck disabilities. The most recent pending claim was the August 2, 2024 supplemental claim for increased disability ratings for the back and neck disabilities. The most recent prior decision was a final August 2023 Board decision. The record reflects that the radiculopathy disabilities existed prior to the date of claim. Specifically, private treatment records submitted prior to the rating decision on appeal reflect that the Veteran experienced cervical and lumbar radiculitis prior to August 2024. Accordingly, the later date for consideration of the appropriate effective date is the date the claim was received, and an earlier effective date of August 2, 2024 for service connection for the bilateral upper extremities and lower right extremity radiculopathy disabilities are warranted.

April 7, 2025 was also the date assigned for the increased 20 percent disability rating assigned for left lower extremity radiculopathy. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability occurred, if the application is received within one year from such date. 38 U.S.C. § § 5110(b)(3); 38 C.F.R. § § 3.400(o)(2). Although the existence of radiculopathy was noted in the private treatment records, there is no indication in those records that the lower left extremity radiculopathy disability increased in severity. Rather, the private treatment records merely document lumbar radiculitis as a diagnosis. Accordingly, the Board finds that the increase in severity of the left lower extremity was not ascertainable until the April 2025 VA examination for the back disability and the claim for an earlier effective date is denied.

REASONS FOR REMAND

Entitlement to increased disability ratings for the bilateral shoulder disabilities is remanded.

REASONS FOR REMAND

Entitlement to increased disability ratings for the bilateral shoulder disabilities is remanded.

The Veteran seeks increased disability rating for his bilateral shoulder disabilities. See July 2024 VA Form 20-0995 Supplemental Claim Application. The right shoulder was replaced in 2015 and the Veteran has been diagnosed with degenerative arthritis in the left shoulder. The Veteran was afforded a VA examination in August 2024, but the examiner only addressed the right shoulder. Moreover, private treatment records submitted after the examination but prior to the rating decision on appeal include evidence of worsening in both shoulders. In a December 2023 office visit, the Veteran reported that he recently began to experience pain in his right shoulder with lifting. In February 2024 the Veteran reported that the right shoulder pain continued and that the left shoulder was becoming more bothersome because he was using it more to compensate for the right shoulder pain. In March 2024 the Veteran reported that the pain in the right shoulder was not getting better and that the left shoulder pain had become as bad as the right shoulder. Imaging of the left shoulder documented severe degenerative joint disease. The private treatment provider recommended revision surgery for the right shoulder and replacement surgery for the left shoulder.

VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Here, although a VA examination for the right shoulder was conducted in August 2024, that examination did not take into account the evidence of worsening added to the record in October 2024 and did not address the condition of the left shoulder. In order to correct this pre-decisional duty to assist error, remand is required to provide the Veteran with a new VA examination addressing the nature and severity of the bilateral shoulder disabilities.

Entitlement to SMC is remanded.

The Veteran claims entitlement to SMC benefits pursuant to 38 U.S.C. § 1114(s)(1). See July 2024 VA Form 20-0995 Supplemental Claim Application. As the claims for increased ratings for the bilateral shoulder disabilities are being remanded, the claim for SMC benefits must also be remanded as an inextricably intertwined issue. See Tyrues v. Shinseki,23 Vet. App. 166, 177(2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's SMC(s)claim must be deferred pending the outcome of such claim. Harris v. Derwinski,1 Vet. App. 180, 183(1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).

The matters are REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral shoulder disabilities. The Veteran's claims file, including this remand, should be made available to and be reviewed by the examiner. All indicated tests and studies should be performed and the results reported in detail. The examiner should provide full descriptions of the disabilities and report all signs and symptoms necessary for evaluating them under the rating criteria. A rationale should be provided for all opinions.

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Snyder, M.

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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