DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

EMILY TAMLYN · 2026 · Case ID: A26039953

MIXED

Summary

The veteran, who served in the U.S. Army from December 1967 to September 1969, appeals the denial of an increased rating for his low back disability and an earlier effective date for TDIU. The Board reviewed the veteran's low back condition, noting the diagnostic code for degenerative joint disease of the lumbar spine (DC 5237) and intervertebral disc syndrome (DC 5243). For the period prior to September 28, 2018, the Board found the evidence did not meet the criteria for a rating higher than 40 percent, despite some favorable range of motion findings and pain complaints, as ankylosis or its functional equivalent was not sufficiently established. However, effective September 28, 2018, the Board granted a 50 percent rating, finding the September 2018 private DBQ results demonstrated the functional equivalent of ankylosis, supported by the veteran's testimony and VA examination findings of locking and pain during movement. The Board also considered the veteran's TDIU claim, noting he met the schedular criteria for TDIU from February 27, 2014, based on his combined 80 percent rating. However, the Board denied an earlier effective date for TDIU, finding the evidence conflicting regarding when his disability prevented full-time employment, and accepting his November 2020 application date of August 11, 2020, as the appropriate onset date.

Rationale

Prior to September 28, 2018, flexion limited to 10 degrees with consideration of repetitive use and flare-ups.; No ankylosis or functional equivalent established for the period prior to September 28, 2018.; 40 percent rating warranted for the period prior to September 28, 2018.

Service Branch

ARMY

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

200909-108629

Full Decision Text

Citation Nr: A26039953
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 200909-108629
DATE: April 29, 2026

ORDER

Prior to September 28, 2018, entitlement to a rating more than 40 percent for a low back disability (degenerative joint disease of the lumbar spine) is denied

From September 28, 2018, entitlement to a 50 percent rating for a low back disability (degenerative joint disease of the lumbar spine) is granted.

Entitlement to an earlier effective date, prior to August 11, 2020, for a total disability rating due to individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. Prior to September 28, 2018, the Veteran's forward flexion of the thoracolumbar spine was limited, at worst, to 10 degrees with no evidence of favorable ankylosis of the entire thoracolumbar spine; or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.

2. From September 28, 2018, resolving doubt in the Veteran's favor, the Veteran's low back disorder had been characterized by the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine. There was no evidence of unfavorable ankylosis of the entire spine.

3. In his November 2020 VA Form 21-8940, the Veteran reported that he was unable to work due to his service-connected disabilities from August 11, 2020. The evidence is persuasively against finding that the Veteran was unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities prior to that date.

CONCLUSIONS OF LAW

1. Prior to September 28, 2018, the criteria for entitlement to a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§?3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

2. From September 28, 2018, the criteria for entitlement to a 50 percent rating for a low back disability have been met. 38 U.S.C. §§?1155, 5107; 38 C.F.R. §§?3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

3. The criteria for entitlement to an earlier effective date, prior to August 11, 2020, for a TDIU have not been met. 38 U.S.C. §?1155; 38 C.F.R. §§?3.340, 3.341, 3.400, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from December 1967 to September 1969.

These matters are on appeal from September 2014 and June 2020 rating decisions. In September 2020, the Veteran timely appealed these decisions to the Board by requesting the AMA Hearing docket (which allows the Veteran to testify before a Veterans Law Judge and submit evidence within 90 days of the hearing before the Board decides his appeal).

In October 2021, the Veteran testified at a Board hearing. A transcript of which is associated with the record.

In July 2022, the Board issued a decision denying the Veteran's claim for an increased rating in excess of 20 percent for his low back disability. The Veteran appealed this decision. In June 2023, the United States Court of Veterans Claims (Court) granted the parties' Joint Motion for Partial Remand (JMPR) and vacated the portion of the July 2022 Board decision that denied the Veteran's claim for an increased rating for a low back disability.

In October 2023, the Board granted entitlement to 40 percent rating, but no higher, for the Veteran's low back disability. It also denied entitlement to an effective date prior to August 11, 2020 for a TDIU. The veteran appealed this decision as well. A September 2024 Court order vacated the Board's decision, and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran's claim.

In January 2025, the Board issued a decision denying the claims. The Veteran again appealed to the Court and in November 2026, the Court issued an Order granting the parties' Joint Motion for Remand (JMR). The claims have been returned to the Board for adjudication consistent with the JMR.

1. Prior to September 28, 2018, entitlement to a rating more than 40 percent for a low back disability (degenerative joint disease of the lumbar spine)

2. From September 28, 2018, entitlement to a rating of 50 percent for a low back disability (degenerative joint disease of the lumbar spine)

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§?1155; 38 C.F.R. §§?4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1?Vet. App.?589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§?4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. §?4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor.38 C.F.R. §?4.3.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. §?4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12?Vet. App.?119, 126 (1999).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.38C.F.R. §4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6?Vet. App.?259, 261-62 (1994).

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 (musculoskeletal system) or §?4.73 (muscle injury); 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 [or 4.73] criteria.").

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §?4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25?Vet. App.?1 (2011). In this regard, 38 C.F.R. §?4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28?Vet. App.?158 (2016). Further, 38 C.F.R. §?4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28?Vet. App.?346 (2016).

When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§?4.40, 4.45, 4.59; Sharp v. Shulkin, 29?Vet. App.?26 (2017).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. §?4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities."

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. §?5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. §?5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. §?5110.

Spine disabilities can be evaluated under either the General Rating Formula for Diseases and In
changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. §?5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. §?5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. §?5110.

Spine disabilities can be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. §?4.71a, Diagnostic Code 5243. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined.38 C.F.R. §?4.71a.

Effective February 7, 2021, a portion of the rating schedule for evaluating musculoskeletal disabilities of the spine was revised. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (codified at 38 C.F.R. §?4.71a, Diagnostic Codes 5242, 5243, 5244). Specifically, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS). Diagnostic Code 5243 for IVDS was revised to include an instruction to use this Diagnostic Code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed.

Under the General Rating Formula for Diseases or Injuries of the Spine, a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. §?4.71a, Diagnostic Codes 5235 to 5243.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is 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
neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. §?4.71a, Diagnostic Codes 5235-5243.

The ankylosis requirement under the general rating formula for diseases and injuries of the spine "can be met with evidence of the functional equivalent of ankylosis during a flare." Chavis v. McDonough, 34 Vet. App. 1 (2021).

IVDS will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. §?4.25. 38 C.F.R. §?4.71a, Diagnostic Code 5243. According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

At the May 2014 VA examination, the Veteran presented with complaints of increasing pain since his in-service back injury. He recently received a transforaminal steroid injection series with minimal improvement. The Veteran experienced flare-ups with walking, attempting to squat, bend, and lift. Range of motion measurements indicated 40 degrees forward flexion, 10 degrees extension, and 10 degrees right and left lateral flexion and rotation with pain throughout. The combined range of motion was 90 degrees. He was unable to perform repetitive use testing due to extreme pain in his lower back and legs. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. There was functional loss and/or functional impairment of the back due to contributing factors of less movement than normal, weakened movement, and pain on movement. There was no evidence of localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, muscle spasm, or guarding. The examiner indicated that the Veteran had IVDS and incapacitating episodes which had a total duration of at least six weeks during the past 12 months. He regularly used a cane as an assistive device.

A May 2014 MRI of the lumbar spine indicated two small previously demonstrated nonspecific foci of signal alteration with the L3 vertebral body, which appeared stable and were considered benign. Multilevel lumbar disk and facet disease, bilateral foraminal stenosis at L4-5 was also noted. The examiner diagnosed degenerative arthritis of the spine. Regarding functional impact on employment, the Veteran stated that his back pain was severe and prohibited him from engaging in any strenuous activities. In the Remarks section of the examination the examiner stated that the Veteran had degenerative disc disease, stenosis, progressive, and a severe deficit in range of motion throughout. The examiner opined that it was certain that the Veteran would have increased pain, instability and decreased range of motion. Given his current level of disability, his low back disorder was expected to worsen with increased exertional activity.

In an August 2014
benign. Multilevel lumbar disk and facet disease, bilateral foraminal stenosis at L4-5 was also noted. The examiner diagnosed degenerative arthritis of the spine. Regarding functional impact on employment, the Veteran stated that his back pain was severe and prohibited him from engaging in any strenuous activities. In the Remarks section of the examination the examiner stated that the Veteran had degenerative disc disease, stenosis, progressive, and a severe deficit in range of motion throughout. The examiner opined that it was certain that the Veteran would have increased pain, instability and decreased range of motion. Given his current level of disability, his low back disorder was expected to worsen with increased exertional activity.

In an August 2014 VA addendum, the examiner stated that the Veteran had flare-ups on the day of his examination and was unable to do repetitive movements due to extreme pain. The examiner opined that more intense pain would certainly result in further decrease in range of motion which he opined was impossible to express in degrees without resorting to conjecture. Regarding IVDS, the examiner stated that the conclusion that the Veteran had IVDS was based on his examination and MRI results. Insofar as his period of incapacitation was concerned, this was based on the Veteran's statement that he missed that much work. He did not state that it was doctor-prescribed time off from work nor was there any such statement in the record.

A December 2014 VA treatment record indicates forward motion of 10 degrees. In February 2015, the Veteran reported a 20 percent reduction in pain. A February 2015 MRI of the lumbar spine showed multilevel degenerative disc change with subsequent central canal and foraminal narrowing which appeared worse at L4-5.

The Veteran fell off of a ladder in April 2016 and sustained a T-12 vertebral compression fracture. In September 2016 he received emergency room care of severe back pain described as a "butcher knife" type of pain. He had limited movement with 10 degrees flexion, no lateral movement, and very tight paraspinal spasms. The assessment was spinal stenosis. In July 2017, he had limited flexion and extension and tenderness over the lumbar spine with decreased sensation to mid-calf. A May 2018 report indicates injections did not provide relief of back pain.

In a September 2018 private DBQ examination report, the physician diagnosed lumbar disc degeneration and stenosis with radiculopathy/peripheral neuropathy. Regarding flare-ups, the Veteran had frequent back spasms which caused him to fall off of a ladder. He was also unable to lift objects. Range of motion showed 30 degrees forward flexion, 10 degrees extension, 15 degrees right lateral flexion, 10 degrees left lateral flexion, 15 degrees right lateral rotation, and 20 degrees left lateral rotation. Abnormal range of motion contributed to functional loss. The Veteran was able to perform repetitive-use testing without additional limitation in range. Range of motion movements were painful on active, passive and/or repetitive use testing and contributed to functional loss or additional limitation of range of motion. There was pain with weight-bearing or non-weight bearing which contributed to functional loss or additional limitation of range of motion. There was localized tenderness or pain on palpation of the upper lumbar spinal and right greater than the left paraspinal tenderness which correlated to the levels of degenerative disc disease. He also had guarding or muscle spasm of the thoracolumbar spine which affected gait. Spinal contour was abnormal and caused decreased lumbar lordosis. Regarding functional loss, the contributing factors were less movement than normal, pain on movement, and interference with standing. Pain, weakness, fatigability or incoordination significantly limited functional ability during flare-ups during with an estimated range of motion of 0 degrees forward flexion, extension, right and left lateral flexion and 5 degrees right and left lateral rotation. The examiner stated that abnormal ROM leads to functional loss and that during flareups the physician noted that ROM was limited to zero degrees of forward flexion and the Veteran was unable to walk, stand, stoop, stretch, bend or lift consistently. Regarding IVDS, the examiner indicated that the total duration of all incapacitating episodes was less than 1 week per episode and at least 1 week, but less than 2 weeks in total.

A June 2019 MRI indicated lumbar spondylosis with stenosis at L3-4 and L4-5, worse at L4-5 and the lateral recesses. In August 2019, he had guarded range of motion of the thoracolumbar spine. There was tenderness to palpation over the paraspinal musculature of the thoracolumbar spine.

In June 2020
the Veteran was unable to walk, stand, stoop, stretch, bend or lift consistently. Regarding IVDS, the examiner indicated that the total duration of all incapacitating episodes was less than 1 week per episode and at least 1 week, but less than 2 weeks in total.

In June 2020, the Veteran reported that he woke up 3 weeks ago with low back pain so severe he had trouble walking upright. He denied numbness or weakness. On examination he had mild limitations on range of motion examination with uncomfortable lumbar extension. There was mild tenderness to palpation over the thoracolumbar paraspinal musculature/facet joints. He had a slightly pitched forward gait. In July 2020, he received lumbar transforaminal epidural injections.

At a July 2020 VA examination, the Veteran reported a progressively worsening low back disability since service. The examiner diagnosed degenerative arthritis of the spine, lumbar degenerative disc disease. His symptoms included lumbar pain, stiffness, and spasms, partially controlled by steroid injections. Flare-ups were described as locking and transient back spasms and radicular symptoms. He avoided movement until the flare-up subsided and range of motion was normal. Pain caused functional loss, described as an inability to lift items and impaired his tolerance for repetitive bending, twisting, lifting or prolonged sitting. Range of motion measurements indicated 55 degrees forward flexion, 10 degrees extension, 12 degrees right lateral flexion, 10 degrees left lateral flexion, and 15 degrees right and left lateral rotation. Passive range of motion could not be performed or was not medically appropriate. Pain was noted on examination and caused functional loss during extension and bilateral flexion. There was objective evidence of localized tenderness or pain on palpation as well as evidence of pain with weight-bearing and non-weight bearing. The Veteran was able to perform repetitive-use testing with additional loss of function or range of motion manifested by 50 degrees flexion, 5 degrees extension, 10 degrees right lateral flexion and 5 degrees left lateral flexion, 10 degrees right lateral rotation, and 12 degrees left lateral rotation. Pain and lack of endurance significantly limited functional ability with repeated use over a period of time. There was evidence of guarding resulting in abnormal gait or abnormal spine contour due to lumbar arthritis and disc degeneration. Additional factors contributing to disability included interference with standing, prolonged sitting, increased pain, stiffness, and radicular symptoms. There was no evidence of ankylosis. The Veteran did not have IVDS or use an assistive device.

The Veteran appeared at a Board hearing in October 2021. He testified that his back pain has worsened, and he cannot bend down, turn around, or look behind himself when he drives.

Upon review of the record, the Board finds that an increased rating of 50 percent is warranted, effective September 28, 2018. Prior to that date, the Veteran's flexion was limited to 10 degrees, with consideration of repetitive movement, movement over time, and flare ups. Although the August 2014 VA examination and September 2014 addendum are not compliant with Sharp, this does not negate the range of motion findings upon physical examination which present an accurate disability picture. While the Veteran is competent to report pain and limited movement, the record does not show ankylosis or the functional equivalent to ankylosis during this period, even with consideration of repetitive use and flare ups. See Chavis,?34 Vet. App. at 20. Therefore, a 40 percent rating, but no higher, is warranted.

From September 28, 2018, the Board finds that a 50 percent rating is warranted. The Board finds that the September 2018 DBQ results show the functional equivalent of ankylosis. See Chavis,?34 Vet. App. at 20. The private physician opined that the Veteran had zero degrees of flexion and extension during flare ups and was unable to bend on any consistent basis. At the July 2020 VA examination, the Veteran endorsed locking, indicative of an inability to bend. Additionally, the Veteran testified at the October 2021 Board hearing that he was unable to bend. Therefore, a 50 percent rating is granted.

In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain.
50 percent rating is warranted. The Board finds that the September 2018 DBQ results show the functional equivalent of ankylosis. See Chavis,?34 Vet. App. at 20. The private physician opined that the Veteran had zero degrees of flexion and extension during flare ups and was unable to bend on any consistent basis. At the July 2020 VA examination, the Veteran endorsed locking, indicative of an inability to bend. Additionally, the Veteran testified at the October 2021 Board hearing that he was unable to bend. Therefore, a 50 percent rating is granted.

In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-207. A higher rating is not warranted because there is no indication that the Veteran has ankylosis or functional ankylosis of the entire spine. Indeed, he has not reported cervical spine symptoms. A higher rating is also not warranted based on IVDS because there is no indication that the Veteran was prescribed bedrest by a physician due to acute lumbar spine symptoms totaling at least 6 weeks in any 12-month period.

The Board has considered whether the Veteran is entitled to higher ratings during the entire period on appeal is warranted with consideration of the ameliorative effects of medication on his back disorder. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012)("The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria."). As medication is not referenced in the applicable diagnostic codes, the Board must consider that his back symptoms would be worse without the medications used to treat it.

Here, the Board has considered the fact that the Veteran treated his back with steroid injections occasionally and had a steroid injection 2 weeks prior to the July 2020 VA examination discussed above. The Board has also considered the Veteran's statement that he "almost [goes] down" when his symptoms cause his back to lock up and that he has been prescribed hydrocodone during the appellate period. However, the record does not show that absent such treatment, unfavorable ankylosis of the entire spine would be present. See Chavis, 34 Vet. App. at 20.

Moreover, the Board has not denied the Veteran's claim for increased ratings for his low back disability based on any relief provided by such medication. The manifestations of pain have been acknowledged for his service-connected low back disability and any medication used did not prevent the manifestation of such symptomatology.?There were no ameliorative effects. So, the criteria for a rating higher than 40 percent for the low back disability prior to September 28, 2018 and higher than 50 percent thereafter have still not been met.

The Board has considered the lay evidence consisting of his reports to examiners and treatment providers as they appear throughout the record. The Veteran is competent to state symptoms of his low back disability and contend that his condition is worsening. His perceptions of pain and limited movement are within his knowledge of the current circumstances of his condition. See Layno v. Brown, 6?Vet. App.?465?(1994); see also Jandreau v. Nicholson,?492 F.3d 1372?(Fed. Cir. 2007). The Veteran's statements are consistent with the rating currently assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. However, only trained medical professionals can measure accurately the extent of symptoms as they relate to rating criteria under regulation. Consequently, the Board finds the examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected low back disability. See generally Nieves-Rodriguez v. Peake,?22?Vet. App.?295, 302-04?(2008).

The Board has also considered whether the Veteran is entitled to higher ratings for his low back disability based on incapacitating episodes. The record does not reflect physician-prescribed incapacitating episodes having a total duration of at least six weeks during the past 12 months. See 38 C.F.R. §?4.71a, Note (1). No prescription was shown in the file.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent prior to September 28, 2018 and in excess of 50 percent thereafter for a low back disability. The benefit of the doubt doctrine is not for application
.?295, 302-04?(2008).

3. Entitlement to an earlier effective date, prior to August 11, 2020, for a total disability rating due to individual unemployability (TDIU) is denied.

In the December 2025 JMR, the claim of entitlement to an earlier effective date for TDIU, which was denied by the Board in January 2025, was vacated and remanded for readjudication as inextricably intertwined with the Veteran's claim for an increased rating for his low back disability discussed above. The Board has presently granted an increased rating of 50 percent for the Veteran's low back disorder, effective September 28, 2018. However, this decision does not change the Board's finding that an effective date prior to August 11, 2020 for TDIU is not warranted. Therefore, the Board reiterates its January 2025 decision below.

The Veteran contends that his service-connected disabilities rendered him unemployable and therefore warrant entitlement to a TDIU for the period prior to August 11, 2020. Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §?3.340.

Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

"Substantially gainful occupation" is not defined in the rating schedule. It has both economic and noneconomic components. The Board must consider history, eduction, skill, training, and whether the Veteran has the physical and/or mental ability to work. Ray v. Wilkie, 31?Vet. App.?58 (2019)

In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5?Vet. App.?524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§?3.341, 4.16, 4.19.

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. §?4.3.

For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4?V
.19.

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. §?4.3.

VA is not required to adopt the Social Security Administration's (SSA) definition of "sedentary work" or "sedentary employment." Rouse v. McDonough, 34?Vet. App.?43 (2021). In this instance, the Board finds sedentary work to be office-type or administrative-type work. See Withers v. Wilkie, 30?Vet. App.?139 (2018).

More recently, the Court held that Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), applies to AMA appeals, and entitlement to a TDIU is not a separate claim, but rather remains a theory of entitlement to a higher rating. When addressing entitlement to a TDIU, the Board should only consider whether a TDIU is warranted during the period on review for the underlying increased rating claim(s) in the appeal stream being adjudicated, not periods associated with other pending increased rating claims. Phillips v. McDonough, 37 Vet. App. 394 (2024). Further, a VA Form 21-8940 may be construed as a claim for an increased rating for any disabilities listed on the form for which an increased rating claim is not already pending. In those cases, the date of receipt of the VA Form 21-8940 that initiated the claim for an increased rating may determine the relevant period for entitlement to a TDIU that is part and parcel of the underlying increased rating claim. Id.

For the period prior to August 11, 2020, service connection was in effect for low back disability, rated at 50 percent; posttraumatic stress disorder (PTSD), rated at 30 percent; residuals of shell fragment wound, right heel, rated at 20 percent; right lower extremity radiculopathy, rated at 20 percent; left lower extremity radiculopathy, rated at 20 percent; tinnitus, rated at 10 percent; painful right heel scar, rated at 10 percent; right shoulder scar, rated as noncompensable; and bilateral hearing loss, rated as noncompensable. His combined disability rating was 80 percent from February 27, 2014. Therefore, he met the schedular criteria for a TDIU from that date. What remains to be determined is whether the Veteran's service-connected disabilities render him unemployable for the applicable period.

In a February 2015 report of general information, the Veteran stated that he was unable to walk or work. The report indicates that the Veteran was asked if he wanted to file a claim for individual unemployability, but the Veteran declined. In April 2016, the Veteran sent a letter to his congressional representative, in which he stated that he is unable to work due to his back pain and associated neuropathies. In a May 2018 statement, the Veteran again reported that he was unable to work and "barely able to walk" due to his back disorder.

At an August 2018 VA examination, the Veteran stated that he fell off a ladder" a couple years ago" and no longer works due to medical problems. The fall was reportedly due to a back spasm.

In an October 2018 mental health treatment note, the Veteran reported working in construction until 2016. He stated that he fell off a ladder in April 2016, and that due to increased pain, he was unable to work since that accident. In the November 2018 VA PTSD examination, the Veteran again stated that he had not worked since his April 2016 accident.

In a June 2019 rating decision, the AOJ denied the Veteran's claim for TDIU, noting that the Veteran had not submitted a VA Form 21-8940 and that his PTSD VA examination reports did not show that his PTSD precluded employment.

In November 2020,
reportedly due to a back spasm.

In November 2020, the Veteran filed a VA 21-8940, Application for Increased Compensation based on Unemployability. The Veteran stated that he last worked full-time on July 14, 2015, but that August 11, 2020 was the date that his disability affected full-time employment and the date he became too disabled to work.

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In a December 2020 rating decision, the AOJ granted the Veteran's claim for TDIU and assigned an effective date of August 11, 2020.

Upon review of the record, the Board finds that an earlier effective date for TDIU is not warranted. The record shows that the Veteran complained of being unable to work prior to April 2016 and the record also shows that the Veteran worked through April 2016; the evidence of record is conflicting. No Social Security Administration income records were voluntarily submitted in order to clarify the matter. This is not a duty to assist error for which the Board can remand under 38 C.F.R. §?20.802. In his November 2020 TDIU application, he asserted that he stopped working in July 2015, but that August 11, 2020 was the date his disability affected full-time employment and the date he became too disabled to work. The Board accepts the Veteran's application as competent and credible. Further, this is consistent with the holding in Phillips, 37 Vet. App. 394. Therefore, August 11, 2020 is the appropriate onset date for his TDIU and an earlier effective date is denied.

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Shana Z. Siesser, Counsel

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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