SHOULDER IMPAIRMENT OF

PAUL R. CASEY · 2026 · Case ID: A26040252

MIXED

Summary

The veteran, who served from May 2002 to April 2003, September 2004 to September 2011, December 2011 to December 2012, and April 2013 to December 2024, appeals the denial of increased ratings for his bilateral knee, left shoulder, and headache conditions, as well as the denial of an increased rating for his lumbar spine condition. The Board granted service connection for a right shoulder disability, finding it etiologically related to service, and awarded a 40 percent evaluation for a right elbow disability based on limitation of flexion during flare-ups. The Board also granted a 40 percent evaluation for left lower extremity sciatic radiculopathy and a 20 percent evaluation for right lower extremity sciatic radiculopathy, finding the evidence supported moderately severe and moderate incomplete paralysis, respectively. The Board denied increased ratings for the bilateral knees, left shoulder, and headaches, finding the existing ratings appropriate and the evidence not persuasive for higher evaluations. The Board noted that the veteran's lumbar spine condition warranted an increase to 40 percent based on lost range of motion and pain during flare-ups, granting this increase for the entire appeal period.

Rationale

Veteran has current diagnosis of chronic right shoulder strain.; VA examiner characterized right shoulder condition as worse than left.; Board found evidence sufficient to grant service connection for right shoulder.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5201

Docket No.

250429-543855

Full Decision Text

Citation Nr: A26040252
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 250429-543855
DATE: April 29, 2026

ORDER

Entitlement to service connection for a right shoulder disability is granted.

Entitlement to a disability evaluation of 40 percent for disability of the lumbar spine is granted.

Entitlement to a disability evaluation in excess of 10 percent for a left knee disability is denied.

Entitlement to a disability evaluation in excess of 10 percent for a right knee disability is denied.

Entitlement to a disability evaluation in excess of 50 percent for a headache disability is denied.

Entitlement to a disability evaluation in excess of 20 percent for a left shoulder disability is denied.

Entitlement to a disability evaluation in excess of 30 percent for a right elbow disability based on limitation of pronation is denied.

Entitlement to a disability evaluation of 40 percent for a right elbow disability based on limitation of flexion is granted.

Entitlement to a disability evaluation of 40 percent for sciatic radiculopathy of the left lower extremity is granted.

Entitlement to a disability evaluation of 20 percent for sciatic radiculopathy of the right lower extremity is granted.

FINDINGS OF FACT

1. The Veteran's right shoulder disability is etiologically related to active duty service.

2. The Veteran's low back disability manifests in limitation of spinal flexion to approximately 25 degrees during flareups.

3. The Veteran's left knee disability results in painful motion, but does not cause compensable loss of range of motion under any conditions.

4. The Veteran's right knee disability results in painful motion, but does not cause compensable loss of range of motion under any conditions.

5. The Veteran is in receipt of the maximum schedular rating for a headache condition.

6. The Veteran's left shoulder strain does not result in limitation of shoulder abduction beyond 160 degrees, even during flareups or with repetitive use of the joint over time.

7. The Veteran is in receipt of the maximum schedular evaluation for limitation of forearm pronation.

8. The Veteran's right elbow disability manifests in limitation of flexion of approximately 55 degrees during flareups.

9. The Veteran's left sciatic radiculopathy functionally equates to moderately severe incomplete paralysis of the affected nerve.

10. The Veteran's right sciatic radiculopathy functionally equates to moderate incomplete paralysis of the affected nerve.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection a right shoulder disability have been met. 38?U.S.C. §§?1101, 1112, 1113, 1131, 1137;?38?C.F.R. §§?3.307, 3.309.

2. The criteria for entitlement to a disability evaluation of 40 percent for disability of the lumbar spine are met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 5237.

3. The criteria for entitlement to a disability evaluation in excess of 10 percent for a left knee disability are not met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 5261.

4. The criteria for entitlement to a disability evaluation in excess of 10 percent for a right knee disability are not met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 5261.

5. The criteria for entitlement to a disability evaluation in excess of 50 percent for a headache disability are not met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 8100.

6. The criteria for entitlement to a disability evaluation in excess of 20 percent for a left shoulder disability are not met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 5201.

7. The criteria for
of 50 percent for a headache disability are not met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 8100.

7. The criteria for entitlement to a disability evaluation in excess of 30 percent for a right elbow disability based on limitation of pronation are not met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 5213.

8. The criteria for entitlement to a disability evaluation of 40 percent for a right elbow disability based on limitation of flexion are met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 5206.

9. The criteria for entitlement to a disability evaluation of 40 percent for sciatic radiculopathy of the left lower extremity are met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 8520.

10. The criteria for entitlement to a disability evaluation of 20 percent for sciatic radiculopathy of the right lower extremity are met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1, 4.7, 4.130, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 2002 to April 2003, September 2004 to September 2011, December 2011 to December 2012, and April 2013 to December 2024.

In the April 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 March 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Service Connection for Right Shoulder Disability

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.?38?U.S.C. §§?1110, 1131;?38?C.F.R. §?3.303?(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki,?557 F.3d 1362, 1366?(Fed. Cir. 2009) (quoting Shedden v. Principi,?381 F. 3d 1163, 1167?(Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson,?19?Vet. App.?247, 431?(2006). Service connection may be granted for any disease
; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki,?557 F.3d 1362, 1366?(Fed. Cir. 2009) (quoting Shedden v. Principi,?381 F. 3d 1163, 1167?(Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson,?19?Vet. App.?247, 431?(2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.?38?C.F.R. §?3.303?(d).

In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.?38?U.S.C. §§?1101, 1112, 1113, 1131, 1137;?38?C.F.R. §§?3.307, 3.309.

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.?38?C.F.R. §§?3.303?(b), 3.309; Walker v. Shinseki,?708 F.3d 1331?(Fed. Cir. 2013).

The Veteran has a current diagnosis of chronic right shoulder strain. Thus, the first element of service connection is satisfied. He claims the same etiology for his right shoulder condition as for his service-connected left shoulder disability; specifically, that in-service training caused shoulder pain that has persisted from separation. It is not apparent from the record why the Veteran's account has been accepted for the left shoulder condition but not for the right. In fact, the VA examiner with whom the Veteran met in February 2025 characterized the condition of the right shoulder as worse than the left.

Rather than remanding for clarity as to the basis of the determination that only the left shoulder condition was service-related, the Board finds the evidence of record sufficient to warrant entitlement to service connection for a right shoulder disability as well, and the appeal therefor will be granted.

2. Increase for Low Back

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.?38?U.S.C. §?1155;?38?C.F.R. §?4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.?38?C.F.R. §?4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski,?1?Vet. App.?589?(1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield,?21?Vet. App.?505?(2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West,?12?Vet. App.?119, 126?(1999).?

Regulations require that where there is a question as to which of two evaluations is to 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.?38?C.F.R. §?4.7.

When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as after repeated usage over time or during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59.
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.?38?C.F.R. §?4.7.

When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as after repeated usage over time or during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59. When feasible, evaluation should consider range of motion while weight-bearing and non-weight-bearing, and in passive and active motion. See Sharp v. Shulkin, 29?Vet. App.?26, 34 (2017), Correia v. McDonald, 28?Vet. App.?158 (2016), Mitchell v. Shinseki, 25?Vet. App.?32 (2011), DeLuca v. Brown, 8?Vet. App.?202, 204-7 (1995).

The Veteran is in receipt of a 20 percent evaluation for his lumbar spine condition, and appeals now for increase.

The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237-5243. 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. [Include any other relevant Note(s).]

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).
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. Shinseki, 25 Vet. App. 1 (2011).

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.

DC 5243 contemplates intervertebral disc syndrome (IVDS) and assigns evaluations up to 60 percent based on incapacitating episodes due to IVDS. The record in this case has never established that the Veteran experiences incapacitating episodes, and the VA examiners with whom the Veteran has met have been in agreement that he does not experience them. As such, the Board will not consider further entitlement to increase under DC 5243.

The VA examiner with whom the Veteran met in February 2025 recorded forward flexion of the lumbar spine limited to 40 degrees, with pain on motion, and a loss of 5 degrees of forward flexion with repeated testing. Assuming repetitive use over time, the Veteran would be expected to lose at least another 5 degrees of range of motion, with forward flexion further reduced to 25 degrees during flareups.

On that basis, the Board finds warranted entitlement to a 40 percent evaluation for the Veteran's lumbar spine condition based on lost range of motion. There is no basis for a higher evaluation, as increase beyond 40 percent requires a showing of ankylosis. The Veteran's spine is not ankylosed at any level, and no treating or examining provider has ever suggested any spine condition or symptoms that equate functionally to ankylosis.

As such, there is no path to an evaluation in excess of 40 percent for a low back disability. In sum, the evidence supports entitlement to a 40 percent evaluation for the Veteran's lumbar spine condition for the entire appeal period, and to that extent the appeal will be granted.

3. Increase for Bilateral Knees

The Veteran seeks ratings in excess of the already-assigned 10 percent each for disability of the bilateral knees.

The assigned DC 5261 addresses limitation of knee extension. 38 C.F.R. § 4.71a. A review of the evidence reflects that the condition has manifested as osteoarthritis and been rated based on painful noncompensable limitation of motion, and that the Veteran has not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period.

Under DC 5261, a noncompensable rating is warranted
the entire appeal period, and to that extent the appeal will be granted.

3. Increase for Bilateral Knees

The Veteran seeks ratings in excess of the already-assigned 10 percent each for disability of the bilateral knees.

Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for either knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and other factors. However, those symptoms are contemplated by the already-assigned 10 percent evaluation, which has been furnished based on painful motion.

Critically, the record has never reflected compensable loss of range of motion. The VA examiner with whom the Veteran met in February 2025 recorded flexion to 140 degrees, and full extension. Considering additional functional loss with repetitive use over time, the Veteran would be expected to lose approximately 10 degrees of range of motion in both flexion and extension. The examination revealed no atrophy, and stability testing was normal. There was no evidence of a tibial-fibular impairment, and no history of a meniscal condition. This evidence is in general accord with the other evidence of record, and nowhere does the record reflect greater limitation than what is shown in the February 2025 examination report.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, given the absence of evidence of instability, meniscal conditions, impairment of the tibia and fibula, or genu recurvatum, there is no basis for evaluation under any other DC.

In conclusion, the Board finds
and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, given the absence of evidence of instability, meniscal conditions, impairment of the tibia and fibula, or genu recurvatum, there is no basis for evaluation under any other DC.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for disability of either knee. 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 (2021).

4. Increase for Migraines

The Veteran migraine headache condition is evaluated under 8100, which provides for a maximum 50 percent evaluation for migraines with "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability."

The Veteran is already in receipt of the maximum available schedular evaluation for the entire appeal period. No argument has been made, and there is no basis, for evaluation under a different DC, and as such, there is no avenue to a higher evaluation for this condition. The appeal for increase must be denied.

5. Increase for Left Shoulder

The Veteran's left shoulder disability is evaluated under DC 5201, which provides for a 30 percent maximum evaluation for the minor extremity where flexion and/or abduction is limited to 25 degrees from the side.

Initially, the Board observes that the left arm is the Veteran's minor arm, and further, that no other DC pertaining to the shoulder is applicable in this case, as the evidence has never reflected scapulohumeral ankylosis, humeral impairment, or clavicular or scapular impairment, such as dislocation, nonunion, or malunion.

The VA examiner with whom the Veteran met in February 2025 recorded left shoulder flexion to 180 degrees, and abduction to 180. With repetitive use over time, the examiner estimated the Veteran would be limited to flexion and abduction to 160 degrees, and internal and external rotation to 70. There were no reported flareups, and no evidence of atrophy, instability or subluxation, or any surgical history.

The Veteran is in receipt of a 20 percent evaluation for his left shoulder disability. Under DC 5201, even a showing of limitation of flexion and/or abduction to 45 degrees from the side would warrant an evaluation of no greater than 20 percent. That degree of lost range of motion is not approached in the record. There is no evidence whatsoever that the Veteran would be expected to lose range of motion in flexion and/or abduction to a degree approaching limitation to 25 degrees from the side under any conditions, and no treating or examining provider has ever suggested such a degree of limitation, or disability equating functionally to that degree of limitation.

As such, there is no basis for increase in this case, and the appeal therefor must be denied.

6. Increase for Right Elbow

The Veteran is service connected for right elbow disability under two DCs. He is in receipt of a 30 percent evaluation under DC 5213, which contemplates limitation of pronation. A higher evaluation requires a showing of bone fusion, of which there is no evidence in this case. 30 percent thus represents the maximum available evaluation for the dominant arm under this DC given the evidence of record, and as such, there is no basis for increase for limitation of pronation of the right elbow.

The Veteran is separately in receipt of a 30 percent evaluation under DC 5206, which contemplates lost range of motion in forearm flexion, and provides for a 40 percent evaluation for elbow flexion limited to 55 degrees, and a maximum 50 percent evaluation for flexion limited to 45 degrees.

The VA examiner with whom the Veteran met in February 2025 reported right elbow flexion to 90 degrees and full extension, with approximately 10 degrees of lost range of motion with multiple bouts of testing. However, the examiner estimated that during flareups, the Veteran would be expected to lose substantially more range of motion, with expected flexion limited to 60 degrees.

The Board observes that this value
elbow.

The Board observes that this value does not strictly satisfy the schedular requirements for an increased rating of 40 percent. However, the record, including the examination report, has demonstrated consistently that the Veteran's right elbow symptoms are significant and limiting, particularly during flareups, and on that basis, and resolving all reasonable doubt and ambiguity in the Veteran's favor, the Board will find warranted entitlement to a 40 percent evaluation based on lost elbow flexion during flareups.

There is no basis for entitlement to the maximum 50 percent rating, as no treating or examining provider has ever indicated lost elbow flexion approaching 45 degrees, even with repetitive use of the joint over time or during flareups.

Accordingly, in sum, the Board will grant entitlement to a 40 percent evaluation under DC 5206 for the entire appeal period, and to that extent the appeal is granted.

7. Increase for Lower Extremity Radiculopathies

The Veteran is in receipt of 10 percent evaluations each for right and left lower extremity radiculopathy, secondary to service-connected lumbar disability, under DC 8520, which contemplates sciatic radiculopathy.

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.

The Board acknowledges the VA Adjudicative Procedures Manual M21-1 (hereinafter M21-1) contains provisions regarding rating peripheral nerve disabilities. The United States Court of Appeals for the Federal Circuit has held that the Board is not bound by the provisions of the M21-1 and the manual does not "carry the force of law." DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. The M21-1 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practice; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet
, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document." 35 Vet. App. 75, 80 (2021).

Pursuant to Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issue currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of upper and lower peripheral nerves. Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however, slight as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality. "Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: combinations of significant sensory changes and reflex or motor changes of a lower degrees, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

The M21-1 provides "moderately severe" is only applicable for involvement of the sciatic nerve and is described as motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present with moderately severe peripheral neuropathy. "Severe" in general, is expected to include 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 with severe longstanding neuropathy. 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.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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).

There is a degree of variance in the record regarding the characterizations of the Veteran's sciatic radiculopathy. For instance, one VA examiner with whom the Veteran met in February 2025 indicated only mild intermittent pain, and mild paresthesias/dysesthesias and mild numbness, indicating only mild incomplete paralysis bilaterally. This assessment was matched by a second VA examiner with whom the Veteran met the same month, who noted mild radicular symptoms, as well as normal muscle strength and normal reflexes bilaterally. There was evidence of decreased lower leg, ankle, and foot sensation, but the Veteran evinced no trophic changes and his gait
. App. 376 (2017).

However, a VA examiner with whom the Veteran met the same month in connection with his lumbar spine disability indicated far more severe radicular symptoms. That examiner noted severe paresthesias/dysesthesias on the left, moderate on the right, with moderate intermittent pain bilaterally, and severe numbness on the left, moderate on the right. While the examiner did not furnish an assessment as to the overall severity of the Veteran's radicular symptoms, the Board finds this evidence reflective of moderately severe incomplete paralysis of the left lower extremity, and moderate incomplete paralysis of the right. Further, because the record offers no cause to elevate the results of one VA examination over the other, the Board will resolve the ambiguity in the Veteran's favor.

In other words, the Board will find warranted entitlement to a 40 percent evaluation for moderately severe incomplete paralysis of the left lower extremity due to sciatic radiculopathy, and moderate incomplete paralysis of the right. There is no basis for a higher evaluation of 60 percent, as the record is plain in showing no muscular atrophy, nor is there any basis for a maximum 80 percent evaluation, as there is no evidence of complete paralysis, including foot drop or lost or weakened knee flexion due to radicular symptoms.

The Board has also considered whether a separate rating or ratings could be assigned for neuralgia or neuritis in the right and or left lower extremity. In Banschbach v. McDonough, the Court contemplated the question of "whether separate evaluations for paralysis, neuritis, and neuralgia are permissible under the relevant diagnostic codes or whether they are prohibited under the rule against pyramiding." 37?Vet. App.?422 (2024). The Court held that the "assignment of a paralysis rating under [38 C.F.R.] § 4.124a does not preclude as a matter of law separate evaluations for neuritis and neuralgia of the same nerve," id. at 429, but the Court also acknowledged that "if it can be shown that separate ratings for neuritis and neuralgia would end up compensating 'the same manifestation under different diagnoses,' 38 C.F.R. § 4.14, then the anti-pyramiding provision may prove relevant." Id.

Although the Court's holding in Banschbach permits separate ratings for neuropathy, neuritis, and neuralgia, the holding does not mandate separate ratings for neuropathy, neuritis, and neuralgia. Id.

Here, as the above analysis demonstrates, the Veteran's pain and paresthesias and dysesthesias are encompassed in the above rating, separate ratings for neuritis or neuralgia would be duplicative and compensate for the same symptomology twice. Banschbach,?37?Vet. App.?422; see also?38 C.F.R. § 4.14.

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Accordingly, in sum, the Board finds warranted entitlement to a 40 percent evaluation for left lower extremity sciatic radiculopathy, and a 20 percent evaluation for right lower extremity sciatic radiculopathy, and to that extent, the appeals for increase are granted.

Paul R. Casey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Z. Sahraie, 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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