DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

S. BUSH · 2026 · Case ID: A26037226

MIXED

Summary

The veteran, who served in the Air Force from August 1992 to August 1996, January 2012 to October 2012, and July 2017 to February 2018, including service in Southwest Asia and Kuwait, appeals a March 2020 rating decision. The veteran sought service connection for a back disability, left lower abdomen scar, allergic conjunctivitis (claimed as bilateral vision defects), and allergic rhinitis/left maxillary sinusitis (claimed as allergies). The Board granted service connection for the back disability, finding it warranted a 40 percent rating from February 19, 2018, based on limited range of motion and pain, resolving reasonable doubt in the veteran's favor. The Board also granted service connection for the left lower abdomen scar as secondary to the back disability, as this was favorably decided by the AOJ. Service connection for allergic conjunctivitis was granted, finding the condition had its onset in service and was related to in-service symptoms, despite an inadequate VA opinion. The Board also granted presumptive service connection for allergic rhinitis and left maxillary sinusitis due to exposure to fine particulate matter during Southwest Asia service. However, the claim for direct service connection for these conditions prior to August 10, 2021, erectile dysfunction (ED), and knee/leg disabilities were remanded for further development, including obtaining adequate medical opinions on etiology and nexus.

Rationale

Forward flexion limited to 40 degrees; Pain and functional limitations during flare-ups; Resolved reasonable doubt in veteran's favor

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5242

Docket No.

201027-101320

Full Decision Text

Citation Nr: A26037226
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 201027-101320
DATE: April 21, 2026

ORDER

Entitlement to an initial 40 percent rating, but no higher, for degenerative arthritis of the spine with bulging disc and spinal stenosis with status post lumbar fusion (back disability) is granted from February 19, 2018.

Entitlement to secondary service connection for left lower abdomen scar is granted.

Entitlement to service connection for allergic conjunctivitis, claimed as bilateral vision defects of the eyes, is granted.

Entitlement to presumptive service connection for allergic rhinitis and left maxillary sinusitis, claimed as allergies, is granted.

REMANDED

Entitlement to direct service connection for allergic rhinitis and left maxillary sinusitis prior to August 10, 2021 is remanded.

Entitlement to service connection for erectile dysfunction (ED) is remanded.

Entitlement to service connection for a left knee/leg disability is remanded.

Entitlement to service connection for a right knee/leg disability is remanded.

FINDINGS OF FACT

1. The Veteran's back disability more nearly approximates forward flexion to 30 degrees throughout the appeal period, without unfavorable ankylosis or intervertebral disc syndrome (IVDS) at any point.

2. A March 2022 rating decision favorably found that Veteran's left lower abdomen scar was related to his back disability.

3. The Veteran's allergic conjunctivitis had its onset in service.

4. The Veteran's allergic rhinitis and left maxillary sinusitis are presumed to be related to his exposure to fine particulate matter while in the Southwest Asia theater of operations during the Persian Gulf War.

CONCLUSIONS OF LAW

1. The criteria for an initial 40 percent rating, but no higher, for a back disability are met from February 19, 2018. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for secondary service connection for left lower abdomen scar are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for service connection for allergic conjunctivitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to presumptive service connection for allergic rhinitis and left maxillary sinusitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from August 1992 to August 1996, from January 2012 to October 2012, and from July 2017 to February 2018, including service in Southwest Asia and Reserve service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2020, the Veteran submitted a VA Form 10182 and elected the hearing docket. He testified before the undersigned Veterans Law Judge in July 2024. Therefore, the Board may only consider the evidence of record as of March 24, 2020 - the date of the rating decision on appeal and evidence submitted at or within 90 days of the July 8, 2024 hearing. See 38 C.F.R. § 20.302. If the Veteran submitted evidence that was added to the record after March 24, 2020 and before the July 8, 2024 hearing, or more than 90 days following the hearing, 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.

The Board has bifurcated the claim for allergic rhinitis and left maxillary sinusitis, as reflected on the title page, since a favorable determination on a presumptive basis is warranted at this time while service connection on
See 38 C.F.R. § 20.302. If the Veteran submitted evidence that was added to the record after March 24, 2020 and before the July 8, 2024 hearing, or more than 90 days following the hearing, 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.

The Board has bifurcated the claim for allergic rhinitis and left maxillary sinusitis, as reflected on the title page, since a favorable determination on a presumptive basis is warranted at this time while service connection on a direct basis requires development. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (it is generally within the Board's discretion to bifurcate an issue); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately).

1. Entitlement to an initial 40 percent rating, but no higher, for a back disability is granted from February 19, 2018.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38?C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38?U.S.C. §?1155. The disability must be viewed in relation to its history. 38?C.F.R. §?4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38?C.F.R. §?4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38?C.F.R. §?4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38?C.F.R. §?4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8?Vet. App.?202 (1995); see also Mitchell v. Shinseki, 25?Vet. App.?32, 44 (2011).

The Veteran's back disability is rated at?20 percent?from February 19, 2018 and at 40 percent from November 24, 2021 under 38 C.F.R. § 4.71a, DC 5242. The appeal period is from February 19, 2018, the effective date of service connection.

DC 5242 evaluates degenerative arthritis and is rated according to the General Rating Formula for Diseases and Injuries of the Spine. Pursuant to that formula, as relevant here, a 20 percent?rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. ?A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine.

VA treatment records dated 2019 show that the Veteran sought treatment for constant sharp back pain rated 5/10 in February. He endorsed aching back pain that was exacerbated by movement and alleviated by rest, repositioning, and medication. The treating provider ordered him a transcutaneous electrical nerve stimulation (TENS) unit, heating pad, warm/cool compresses, motrin 800mg, and diclofenac gel. On April 16, the Veteran reported back pain rated 8/10. He stated he always had pain but noted that the pain increased with lifting and bending and decreased with a heating pad, TENS unit, and diclofenac cream. He exhibited forward flexion to 70 degrees and was referred to physical therapy for low back pain and weakness. He attended six physical therapy sessions between April 23 and June 4 and consistently rated his pain as 7/10, apart from the one time he rated it as 6/10. During the sessions, he endorsed increased back pain with increase in activity and only temporary help with muscle relaxation. He denied any change in pain at the conclusion of physical therapy treatment.

On VA examination in May 2019, the Veteran reported daily non-radiating sharp back pain, tightness, and stiffness. He stated that he was currently on the fifth week of physical therapy but that it was not helping, as his back condition was the same with daily pain. He reported that his current treatment included physical therapy once a week, an ice pack every other day, and a TENS unit three times a week. He noted that he had a cream and denied taking motrin for pain despite being prescribed the medication. He endorsed moderate to excruciating flare-ups occurring daily, stating the pain was always there, rated 7/10, and that it would go up 9/10 if he aggravated his back. He reported the 9/10 pain lasted all day and that the use of a TENS unit and ice therapy would bring it down to 5/10. Forward flexion was to 40 degrees on active motion with evidence of pain and pain with weightbearing causing functional loss, specifically difficulty bending and turning. There was no additional loss of function or range of motion upon repetition. Passive motion was not performed, as the examiner noted it was not feasible to do in a safe and reasonable manner. The examiner indicated that pain, fatigue, weakness, and lack of endurance would significantly limit functional ability with repeated use over time and with flare-ups but was unable to describe the loss in terms of range of motion. The examiner found muscle spasm and guarding resulting in an abnormal gait or abnormal spinal contour and additional contributing factors of less movement than normal, weakened movement, disturbance of locomotion, and interference with standing. Tenderness to touch upon soft tissue of the left lumbar spine was noted without evidence of ankylosis or use of an assistive device.

A November 2019 VA treatment record shows the Veteran reported chronic back pain rated as 4/10.

At the July 2024 Board hearing, the Veteran endorsed continuous back pain, limited range of motion, and painful flare-ups since he first filed his claim in 2018.

The Board notes that the May 2019 VA examination report is not compliant with the requirements set forth by Sharp v. Shulkin, 29 Vet. App. 26 (2017), as the examiner did not estimate functional loss after repeated use over time or during flare-ups in degrees of range of motion and did not provide a valid explanation as to why it could not be estimated. However, a remand to correct this inadequacy is not necessary. In this regard, the evidence shows forward flexion to 40 degrees and when considering the Veteran's competent and credible reports of limited lumbar spine motion, pain, and functional limitations during flare-ups throughout the appeal period, which the May 2019 examiner also acknowledged, and resolving reasonable doubt in his favor, the Board finds that the Veteran's back disability has more nearly approximated forward flexion to 30 degrees to warrant a 40 percent rating from February 19, 2018. A rating in excess of 40 percent is not warranted at any point during the appeal period, as the evidence does not indicate unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine, and the Veteran does not assert otherwise.

The Board has considered whether evaluating the Veteran's
40 degrees and when considering the Veteran's competent and credible reports of limited lumbar spine motion, pain, and functional limitations during flare-ups throughout the appeal period, which the May 2019 examiner also acknowledged, and resolving reasonable doubt in his favor, the Board finds that the Veteran's back disability has more nearly approximated forward flexion to 30 degrees to warrant a 40 percent rating from February 19, 2018. A rating in excess of 40 percent is not warranted at any point during the appeal period, as the evidence does not indicate unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine, and the Veteran does not assert otherwise.

The Board has considered whether evaluating the Veteran's back disability under the Formula for Rating IVDS (IVDS Formula) would be more beneficial to him. However, there is no evidence of IVDS, or any incapacitating episodes as contemplated within the applicable rating criteria to allow for assignment of a higher rating. See 38?C.F.R. §?4.71a, IVDS Formula, Note (1). Thus, an increased rating is not available under the IVDS Formula.

Regarding separate neurological complications, the Veteran has been separately service connected for radiculopathy of the bilateral lower extremities and did not appeal the ratings assigned. See De?Hart?v. McDonough,?37?Vet. App.?371?(2024); March 2022 rating decision. The evidence does not show any other neurological abnormalities associated with the Veteran's back disability.

Accordingly, for reasons and bases outlined above, a 40 percent rating, but no higher, is warranted for?the Veteran's back disability over the appeal period.

2. Entitlement to secondary service connection for left lower abdomen scar is granted.

Any finding favorable to the claimant made by either a VA adjudicator or by the Board is binding on all subsequent AOJ and Board adjudicators, unless rebutted by evidence that establishes a clear and unmistakable error in the favorable finding. A?finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review. See 38?C.F.R. §?3.104(c).

In a March 2022 rating decision, the AOJ determined that the Veteran had a scar on the left lower abdomen that was secondary to his service-connected back disability and awarded service connection for left lower abdomen scar, effective November 24, 2021. As?the Board is bound by this favorable finding, the criteria for entitlement to service connection for left lower abdomen scar are met. 38 C.F.R. § 3.104(c)While the decision was generated after the March 2020 rating decision on appeal, a decision by a VA adjudicator is not "evidence" and is binding on the Board. Accordingly, secondary service connection for left lower abdomen scar is granted.

The AOJ will issue a decision implementing this award. At the July 2024 Board hearing, the Veteran's representative "deemed" the claim of service connection for a lower abdomen scar as an earlier effective date claim. However, the Board emphasizes that issue on appeal concerning the scar is for service connection. If the Veteran disagrees with the initial rating or effective date of service connection assigned by the AOJ, he may seek review of that decision by filing an appropriate VA form.

3. Entitlement to service connection for allergic conjunctivitis, claimed as bilateral vision defects of the eyes, is granted.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38?U.S.C. §?1110;?38?C.F.R. §?3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the claimed in-service disease or injury. Shedden v. Principi,?381 F.3d 1163?(Fed. Cir. 2004).

The Veteran is currently diagnosed with allergic conjunctivitis. See May 2019 VA examination report. Additionally, a January 2018 service treatment record (STR), post-deployment health assessment, reflects that he first complained of experiencing watery red eyes that bothered him a lot while in Kuwait. Thus, the first two elements of service connection are met.

Regarding the final element, the Veteran is competent to establish a nexus between his current conjunctivitis and his assertion of an initial onset of conjunctivitis during service is credible and supported by the evidence of record. He is also competent to report continuous symptoms since service, and the Board has no reason to doubt his credibility. See July 2024 Board hearing transcript at 15. In this regard, the Board finds that that the unfavorable March 2020 VA nexus opinion is inadequate and of no probative value, as it fails to consider the Veteran's pertinent medical history or lay statements and does not explain why his in-service symptoms did not trigger the onset of a chronic or recurrent condition. In sum, the competent and credible evidence shows that the Veteran's allergic conjunctivitis had its onset in service. 38 C.F.R. § 3.303(a). Accordingly, all the elements for service connection are met and the benefit sought on appeal is granted.

4. Entitlement to presumptive service connection for allergic rhinitis and left maxillary sinusitis, claimed as allergies, is granted.

Effective August 5, 2021, VA promulgated 38 C.F.R. § 3.320, which established a presumption of exposure to fine particulate matter for veterans with a qualifying period of service and service connection for chronic diseases presumptively associated with such exposure, to include rhinitis and sinusitis, if manifested to any degree (including non-compensable) within 10 years from the date of separation from service, absent affirmative evidence to the contrary.

The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, while deployed to Afghanistan from February to August 2012 and to Kuwait from September to December 2017, and he is therefore presumed to have been exposed to fine particulate matter under 38 C.F.R. § 3.320. Moreover, he is currently diagnosed with allergic rhinitis and left maxillary sinusitis. See October 2013 private treatment record, November 2013 VA treatment record, and May 2019 VA examination report. While the March 2020 VA examiner opined that the Veteran's rhinitis and sinusitis were not related to any exposure in the Persian Gulf, the opinion does not establish that the Veteran was not exposed to fine particulate matter during service, nor is there any affirmative evidence that such disabilities were not incurred during or aggravated by a qualifying period of service, caused by a supervening condition or event, or due to willful misconduct. Accordingly, service connection for allergic rhinitis and left maxillary sinusitis is warranted on a presumptive basis.

REASONS FOR REMAND

5. Entitlement to direct service connection for allergic rhinitis and left maxillary sinusitis prior to August 10, 2021 is remanded.

6. Entitlement to service connection for ED is remanded.

The issue of direct service connection for ED, as well as rhinitis and sinusitis for the period prior to effective date of presumptive service connection (August 5, 2021), has been raised by the record, given the Veteran's in-service toxic exposure risk activities (TERAs). See Green v. McDonough, 37 Vet. App. 127 (2024). The negative March 2020 VA opinions are inadequate for lack of sufficient rationale. Additionally, an opinion addressing ED as secondary to posttraumatic stress disorder (PTSD) has not yet been obtained, though it was raised prior to the rating decision on appeal. See January 2019 VA Form 21-526EZ. These are pre-decisional duty to assist errors requiring opinions on remand.

Notably, the Veteran raised ED as secondary to his back disability and migraine headaches for the first time at his July 2024 Board hearing. Although this theory of entitlement to service connection falls within the scope of the claim, there was no indication prior to the issuance of the rating decision on appeal that ED was potentially related to his back or headache conditions. Thus, VA's duty to assist is not triggered by the pre-decisional record in this regard.

7. Entitlement to service connection for a left knee/leg disability is remanded.

8. Entitlement to service connection for a right knee/leg disability is remanded.

These are pre-decisional duty to assist errors requiring opinions on remand.

7. Entitlement to service connection for a left knee/leg disability is remanded.

8. Entitlement to service connection for a right knee/leg disability is remanded.

The failure to verify the Veteran's duty status, active duty for training (ADT) or inactive duty for training (IDT), on March 10, 2001, the date he reported leg cramps during Reserve service, is a pre-decisional duty to assist error that must corrected on remand.

Moreover, the Board notes that the undersigned indicated that the AOJ's finding regarding a pre-existing disability was "legally wrong," and the AOJ should consider the Veteran sound at service entrance in readjudicating the claim.

The matters are REMANDED for the following action:

1. Verify the Veteran's duty status (ADT or IDT) on March 10, 2001, the date he reported leg cramps.

2. Then obtain an opinion addressing the etiology of the Veteran's rhinitis, sinusitis, and ED. The claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. After a review of the claims file, the examiner is asked to address the following:

(a) Is it at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the Veteran's (1) allergic rhinitis, (2) left maxillary sinusitis, and (3) ED had their onset in or are otherwise related to service, to include as the result of his TERAs during service in Southwest Asia?

In addressing this question, the examiner must consider (1) the total potential exposure through all applicable deployments; and (2) the synergistic, combined effect of all TERAs of the Veteran.

(b) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's ED:

(1) was caused by his service-connected PTSD; or

(2) got worse from his service-connected PTSD?

A complete rationale should be provided for all opinions, citing to specific evidence of record and medical principles, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional with the knowledge and training needed to render such an opinion.

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. S. Mahoney

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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