DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

LUKE PELICAN · 2026 · Case ID: A26039377

DENIED

Summary

The veteran, who served from March 2019 to September 2019 and again from June 2020 to July 2021, appeals the denial of increased disability ratings for degenerative disc disease, left lower extremity radiculopathy, and right lower extremity radiculopathy. The veteran sought ratings higher than the currently assigned 40 percent for degenerative disc disease and 10 percent for each lower extremity radiculopathy. The Board noted that a subsequent rating decision, outside the appeal period, had already increased the ratings for the radiculopathy claims to 20 percent and the degenerative disc disease to 50 percent. The Board reviewed the relevant rating criteria under 38 C.F.R. § 4.71a for spine conditions and § 4.124a for peripheral nerve conditions. For the degenerative disc disease, the Board found the evidence did not support unfavorable ankylosis or symptoms more nearly approximating it, thus upholding the 40 percent rating as the maximum allowable based on the evidence of record. For the radiculopathy claims, the Board found the evidence primarily indicated sensory disturbance and pain, with no significant motor impairment, atrophy, or paralysis, concluding the impairment was most analogous to mild incomplete paralysis, thus upholding the 10 percent rating. The Board found the evidence persuasively weighed against the claims for higher ratings, and therefore, the benefit-of-the-doubt rule did not apply. The appeal was denied.

Rationale

Evidence persuasively weighs against a rating in excess of 40 percent.; No evidence of unfavorable ankylosis or symptoms more nearly approximating it.; Benefit-of-the-doubt rule does not apply as evidence weighs against the claim.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5242

Docket No.

250128-512869

Full Decision Text

Citation Nr: A26039377
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 250128-512869
DATE: April 28, 2026

ORDER

Entitlement to an initial disability rating in excess of 40 percent prior to August 1, 2025 for degenerative disc disease is denied.

Entitlement to an initial disability rating in excess of 10 percent prior to March 10, 2025 for left lower extremity radiculopathy is denied.

Entitlement to an initial disability rating in excess of 10 percent prior to March 10, 2025 for right lower extremity radiculopathy is denied.

FINDINGS OF FACT

1. The Veteran's degenerative disc disease is manifest by forward flexion limited to 0 degrees or favorable ankylosis of the thoracolumbar spine; unfavorable ankylosis of the entire thoracolumbar spine or the equivalent thereof has not been shown.

2. The Veteran's left lower extremity radiculopathy is manifest by no more than mild incomplete paralysis.

3. The Veteran's right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent prior to August 1, 2025, for degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

2. The criteria for a disability rating in excess of 10 percent prior to March 10, 2025, for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

3. The criteria for a disability rating in excess of 10 percent prior to March 10, 2025, for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty for training from March 2019 to September 2019, and had active service from June 2020 to July 2021, and in May 2024.

The rating decision on appeal was issued in January 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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 Rating

1. Entitlement to an initial disability rating in excess of 40 percent prior to August 1, 2025 for degenerative disc disease

The Veteran seeks a higher rating for his low back disability.

The Board takes judicial notice that a September 2025 rating decision increased the assigned rating for degenerative disc disease to 50 percent effective August 1, 2025, based upon an August 2025 VA examination report. The Board further notes, however, that the August 2025 VA examination is outside the evidentiary window on appeal.

The Veteran seeks a higher rating for his low back disability.

The Veteran's degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

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

Unfavorable ankylosis is defined 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 dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id.

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

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v.
a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

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

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

The Court has held that a veteran may be entitled to a rating under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

Private treatment notes reflect persistent complaints of low back pain. In May 2024 the Veteran presented to the emergency department for low back pain. Physical examination reflected normal gait and reflexes. An August 2024 note reflected pain in the low back and right lower buttock.

The Veteran was afforded a VA examination in October 2024. The Veteran reported constant dull back pain, intermittent numbness, tingling down the right leg, and pain with bending, sitting, walking, and standing for long periods of time. He did not report flare-ups of the spine. Initial ranges of motion were noted as: flexion to 5 degrees; extension to 5 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 20 degrees. Passive range of motion was the same as active range of motion. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. Repeated use over time ranges of motion were noted as: flexion to 0 degrees; extension to 0 degrees; right lateral flexion to 5 degrees; left lateral flexion to 5 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 15 degrees. No muscle spasm, muscle atrophy, reduced motor strength, sensory abnormalities, reduced reflexes, or ankylosis of the spine were noted.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for degenerative disc disease.

The currently assigned 40 percent rating is the maximum allowable rating for limitation of motion of the spine. To receive a higher rating under the General Rating Formula, there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine, and such is not shown here. The Board recognizes the limited and painful motion that the Veteran experiences; nonetheless, he does maintain some motion in the spine and even with consideration of increased pain during repeated use over time, there is no evidence or argument that the Veteran's symptoms have been so severe that they resulted in symptoms more nearly approximating unfavorable ankylosis. See Chavis, supra.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain with bending, sitting, walking, and standing for long periods of time. The Board further acknowledges the Veteran's lay report with his VA Form 10182 that he has lost his youth and can only walk gingerly. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine, nor has the Veteran asserted that to be the case.

Consideration has also been given to assigning
more nearly approximating unfavorable ankylosis. See Chavis, supra.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Regarding neurological impairment, the Veteran has already been granted service connection for lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with the spine disability.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for degenerative disc disease. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

2. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy

3. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy

The Veteran is seeking a higher rating for bilateral lower extremity radiculopathy.

The Board takes judicial notice that a May 2025 rating decision increased the assigned rating for right and left lower extremity radiculopathy to 20 percent, effective March 10, 2025, based upon March 2025 VA examination reports. The Board further notes, however, that the March 2025 VA examination reports are outside the evidentiary window on appeal.

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

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

Descriptive words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. The term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe."

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve,
ild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. The term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe."

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

The Veteran was afforded a VA examination in October 2024. The Veteran reported shooting pain, numbness, and tingling down the right leg. Motor strength, light touch sensation, and reflexes were normal. The examiner noted mild constant pain, intermittent pain, numbness, and paresthesias and/or dysesthesias of the left lower extremity. The examiner noted moderate intermittent pain, numbness, and paresthesias and/or dysesthesias of the right lower extremity. The Veteran was unable to lie flat upon the table, and so was unable to perform straight leg raising testing. No muscle atrophy was noted.

Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis.

Treatment records and the VA examination reflect primarily sensory disturbance, numbness, and pain. The Veteran consistently reported radiating pain, numbness, and sensory tingling.

However, the record does not show any impairment of motor function, trophic changes, loss of reflexes, decreased touch sensation on testing, muscle atrophy, or complete paralysis or foot drop. The Veteran's gait remained intact, and the underlying VA examination showed normal coordination and motor strength findings.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating/rating in excess of 10 percent for left or right sciatic radiculopathy. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Luke Pelican

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Lauritzen

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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