Case A26040254

MICHAEL A. HERMAN · 2026 · Case ID: A26040254

MIXED

Summary

The veteran, who served from April 1968 to April 1970 and again from August 1979 to February 1994, appeals the denial of an increased rating for his service-connected lumbosacral strain with degenerative arthritis, degenerative disc disease, central canal stenosis, and scoliosis, as well as his right and left lower extremity radiculopathy. The veteran also appealed the denial of an earlier effective date for his 40 percent rating for the lumbar spine condition. The Board dismissed the earlier effective date claim, finding the appeal to be a ministerial implementation of a prior Board decision and thus not independently appealable. The Board denied the increased rating claims for the lumbar spine and bilateral radiculopathy, finding the evidence did not support ratings higher than those currently assigned. The Board found the evidence to be in equipoise regarding service connection for GERD, resolving doubt in the veteran's favor and granting service connection. The Board remanded the claim for service connection for a cervical spine disorder as secondary to the lumbar spine condition, noting a duty to assist error in failing to obtain a VA examination for the claimed cervical spine issue. The veteran's testimony and lay statements from his spouse and daughter described significant pain, functional limitations, and reduced quality of life due to his lumbar spine disability and radiculopathy, including the need for a walker and cane, and experiencing immobility during flare-ups.

Rationale

Evidence does not support unfavorable ankylosis or functional equivalent; Veteran's reported immobility during flare-ups not linked to specific symptoms required for higher ratings; Pain and limitations described do not meet criteria for ratings above 40 percent

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250717-565499

Full Decision Text

Citation Nr: A26040254
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 250717-565499
DATE: April 29, 2026

ORDER

Entitlement to an effective date earlier than June 1, 2024 for the restoration of a 40 percent rating for lumbosacral strain with degenerative arthritis, degenerative disc other than intervertebral disc syndrome (IVDS), central canal stenosis, and scoliosis is dismissed.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted.

Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis is denied.

Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve is denied.

Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve is denied.

REMANDED

Entitlement to service connection for a cervical spine disorder as secondary to service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis is remanded.

FINDINGS OF FACT

1. In an April 1, 2025 decision, the Board of Veterans' Appeals (the Board) restored the 40 percent rating assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis effective June 1, 2024, and this restoration was implemented in an April 7, 2025 rating decision, which was a purely ministerial implementation of the Board's decision.

2. The Veteran's GERD had its initial onset during his active service.

3. The evidence persuasively weighs against finding that the Veteran's lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis has manifested in unfavorable ankylosis of the entire thoracolumbar spine at any point during the period on appeal.

4. The evidence persuasively weighs against finding that the Veteran's right lower extremity radiculopathy of the sciatic nerve is manifested by moderately severe incomplete paralysis of the sciatic nerve.

5. The evidence persuasively weighs against finding that the Veteran's left lower extremity radiculopathy of the sciatic nerve is manifested by moderate incomplete paralysis of the sciatic nerve.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal for entitlement to an earlier effective date for the restoration of a 40 percent rating for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis are met. 38 U.S.C. §§ 7104, 7105; Encarnacion v. McDonough, 36 Vet. App. at 194 (2023).

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

3. The criteria for a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237.

4. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve are not 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 had active military service from April 1968 to April
are not 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 had active military service from April 1968 to April 1970 and from August 1979 to February 1994.

This appeal comes to the Board from a May 2025 rating decision that found that new and relevant evidence had been received with respect to the claim for entitlement to service connection for GERD. The finding that new and relevant evidence has been received is binding on the Board. 38 C.F.R. § 3.104(c). The Agency of Original Jurisdiction (AOJ) continued to deny the claim for entitlement to service connection for GERD on the merits. The AOJ also continued the 40 percent rating assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis, the 20 percent rating assigned for right lower extremity radiculopathy of the sciatic nerve, and the 10 percent rating assigned for left lower extremity radiculopathy of the sciatic nerve.

In the July 17, 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held with the undersigned Veterans Law Judge on December 8, 2025. A transcript of this hearing is of record.

Therefore, the Board may only consider the evidence of record at the time of the May 2025 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing (i.e., March 8, 2026). 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing (i.e., after March 8, 2026), the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

Evidence of record specifically identified by the Veteran or his attorney in his December 8, 2025 hearing or within 90 days of the hearing is likewise considered "submitted" during the evidence submission window. See Cash v. Collins, 166 F.4th 1046 (Fed. Cir. 2026).

If the Veteran would like the Department of Veterans Affairs (VA) to consider any evidence that was submitted that the Board could not consider, he 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. 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of entitlement to service connection for a cervical spine disorder as secondary to service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

Earlier Effective Dates

1. Entitlement to an Effective Date Earlier Than June 1, 2024 for the Restoration of a 40 Percent Rating for Lumbosacral Strain with Degenerative Arthritis, Degenerative Disc Other Than IVDS, Central Canal Stenosis, and Scoliosis

Earlier Effective Dates

On his July 17, 2025 VA Form 10182, the Veteran listed the issue of "[e]ntitlement to an earlier effective date prior to June 1, 2024 for lumbosacral strain with degenerative arthritis, degenerative disc other than intervertebral disc syndrome (IVDS), central canal stenosis, and scoliosis." No other additional information or argument about this earlier effective date claim has been provided. The Board concludes that this appeal is seeking entitlement to an effective date earlier than June 1, 2024 for the restoration of a 40 percent rating for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis, as that is the only award that went into effect on June 1, 2024.

In a March 25, 2024 rating decision, the AOJ reduced the rating assigned for the Veteran's lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis from 40 percent to 20 percent effective June 1, 2024. The Veteran appealed this reduction in an April 26, 2024 VA Form 10182. In an April 1, 2025 decision, the Board restored the 40 percent rating for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis effective June 1, 2024, the date of the reduction. The Board's decision was implemented in an April 7, 2025 AOJ rating decision.

In Encarnacion v. McDonough, 36 Vet. App. 194 (2023), the United States Court of Appeals for Veterans Claims (the Court) addressed how the Board must handle appeals of rating decisions that were issued to implement decisions of the Board. Encarnacion, 36 Vet. App. 194, overruled on other grounds, Kernz v. McDonough, 36 Vet. App. 372 (2023). Under 38 U.S.C. § 7104, the Board's jurisdiction is wholly derivative of the Secretary's, and "[a]ll questions in a matter under 38 U.S.C. § 511(a) shall be subject to one review on appeal to the Secretary" and "[f]inal decisions on such appeals shall be made by the Board." Encarnacion, 36 Vet. App. at 200. The Court then noted that, pursuant to 38 U.S.C. § 511(a), a Board decision is deemed the "final and conclusive" determination of the Secretary as to any discrete issue decided in that decision. Encarnacion, 36 Vet. App. at 200. The Court determined that a "pure" implementation of a Board decision cannot be regarded as a decision affecting the provision of benefits under 38 U.S.C. § 511(a), and such decisions are not appealable to the Board. Encarnacion, 36 Vet. App. at 200. The Court referred to such implementations as purely ministerial in nature, as opposed to decisions capable of being appealed through the filing of a Notice of Disagreement. Encarnacion, 36 Vet. App. at 201.

The April 7, 2025 rating decision was a purely ministerial implementation of the Board's April 1, 2025 decision that restored the 40 percent rating for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis, effective June 1, 2024. See Encarnacion, 36 Vet. App. at 200-01. As such, the April 7, 2025 rating decision is not appealable, and the claim as to an earlier effective date for the 40 percent rating for this disability must be dismissed.

Service Connection

1. Entitlement to Service Connection for a Gastrointestinal Disorder, To Include GERD

The Veteran seeks service connection for a gastrointestinal disorder characterized by symptoms of stomach cramping, regurgitation, burning in the throat, heartburn, epigastric distress, substernal pain, and bloating. He asserts that this condition had its initial onset during service and has persisted since then. The Board previously expanded and recharacterized the Veteran's claim as seeking service connection for a gastrointestinal disorder, to include GER
-01. As such, the April 7, 2025 rating decision is not appealable, and the claim as to an earlier effective date for the 40 percent rating for this disability must be dismissed.

Service Connection

1. Entitlement to Service Connection for a Gastrointestinal Disorder, To Include GERD

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The first issue is whether the Veteran has a current diagnosis of a gastrointestinal disorder. VA treatment records document a diagnosis of GERD. VA examinations performed in May 2018 and May 2024 also document diagnoses of GERD. The Board acknowledges that the April 2023, January 2024, and April 2025 VA examiners determined that the Veteran does not have a diagnosis of GERD or any other gastrointestinal disorder. However, as there is also probative evidence in favor of a diagnosis of GERD, the Board will resolve reasonable doubt in the Veteran's favor and conclude that he indeed has a diagnosis of GERD. 38 U.S.C. § 5107. The first element of service connection-a current diagnosis-is met. 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67.

As for the second element of service connection-an in-service injury, event, or disease-the May 2025 rating decision on appeal favorably found that a qualifying event, injury, or disease had its onset during his active service. The rating decision explained that the Veteran's service treatment records (STRs) show that he was seen for stomach cramping in May 1993. This is a favorable finding that is binding on the Board. 38 C.F.R. § 3.104(c). The Veteran's STRs also document complaints of reflux, stomach soreness, and abdominal pain, and his separation examination shows a history of gastritis with frequent indigestion and stomach, liver, or intestinal trouble. The second element of service connection is therefore met as well. 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67.

The remaining question is whether the Veteran's GERD is at least as likely as not incurred in or caused by his active service. On this question, there is evidence both in favor of and against the claim.

The Veteran has had numerous VA examinations pertaining to his claimed gastrointestinal disorder.

During the May 2018 VA examination, the Veteran was diagnosed with GERD. At that time, he reported symptoms of regurgitation and burning in the
shows a history of gastritis with frequent indigestion and stomach, liver, or intestinal trouble. The second element of service connection is therefore met as well. 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67.

The Veteran has had numerous VA examinations pertaining to his claimed gastrointestinal disorder.

During the May 2018 VA examination, the Veteran was diagnosed with GERD. At that time, he reported symptoms of regurgitation and burning in the throat. His symptoms were worse with spicy foods, and he took antacids to alleviate his symptoms. However, the examiner opined that it is less likely than not that the Veteran's GERD was incurred in or caused by his active service. He found an absence of supporting evidence of a definitive GERD or reflux condition in the Veteran's STRs. This opinion is inadequate, as the examiner states that there is no evidence of GERD in the Veteran's STRs without explaining why. Moreover, it appears to be based upon an inaccurate factual premise, as the Veteran's STRs document stomach cramping, reflux, stomach soreness, and abdominal pain, and his separation examination shows a history of gastritis with frequent indigestion and stomach, liver, or intestinal trouble. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

Another VA examination was conducted in April 2023. During this examination, the Veteran reported symptoms of regurgitation of food and heartburn with satiation symptoms. Despite these symptoms, the April 2023 VA examiner did not diagnose the Veteran with an esophageal condition, finding that there is no pathology to warrant a diagnosis. However, this examination focused largely on whether the Veteran had a diagnosis of hiatal hernia. The examiner did not discuss whether a diagnosis of any other esophageal condition was warranted based on the Veteran's symptoms, nor did she offer an opinion as to whether the Veteran had GERD that was incurred in or caused by his active service.

During the January 2024 VA examination, the Veteran described heartburn, stomach cramps, and bloating. He indicated that he has sought treatment for this condition and was told to use Metamucil and eat bananas. His cramps were intermittent and occurred after eating cruciferous vegetables, such as broccoli. The examination report further noted persistently recurring epigastric pain, pyrosis, and substernal pain. Despite these symptoms, the examiner did not diagnose the Veteran with an esophageal or gastrointestinal disorder. The examiner offered an opinion explaining that the Veteran had issues with stomach cramping and bloating during active duty, as well as a few episodes of reflux. She explained that stomach cramping and bloating are not consistent with GERD. Instead, medical literature lists dysphagia, odynophagia, belching, epigastric pain, and nausea as symptoms of GERD. The examiner also noted that the Veteran's post-service treatment records also did not document treatment for GERD. However, as discussed in the Board's April 2025 remand, this examination indicated that the Veteran's separation examination did not show stomach or esophagus symptoms. This is again an inaccurate factual statement, as the Veteran's separation examination listed gastritis, frequent episodes of ingestion, and stomach, liver, or intestinal trouble. See Reonal, 5 Vet. App. at 461.

Another VA examination was performed in May 2024. This examiner determined that the Veteran has had a diagnosis of GERD since April 1982. She further explained that the Veteran had symptoms of GERD in service and was treated for these symptoms in service.

Most recently, the April 2025 VA examiner determined that the Veteran did not have a current diagnosis of an intestinal or stomach condition. The Veteran reported stomach cramps that would come and go. These cramps were alleviated by stretching, and the Veteran reported that doing sit ups during his military service brought on the cramps. He did not describe bowel changes, nausea, vomiting, or other symptoms. The examiner stated that she was unable to render a diagnosis based on these symptoms alone and that "[t]his could be muscle related and not necessarily a stomach or intestinal issue. There is nothing to render a diagnosis of intermittent stomach cramps without any other symptoms associated with it."

Based on the foregoing, the Board finds that the evidence is in at least approximate equipoise as to whether the Veteran's GERD had its onset in or was caused by active service. Although the May 2018 VA examination offered a negative etiological opinion, this opinion was based on an inaccurate factual premise and is therefore inadequate. See Reonal, 5 Vet. App. at 461. The April 2023, January 2024, and April 2025 VA examiners based their negative nexus opinions on the absence of a diagnosis of GERD or another gastrointestinal disorder. However, as explained above, the Board has resolved reasonable doubt in the Veteran's favor and concluded that a diagnosis of GERD has been established proximate to the period on appeal. This finding renders the April 2023, January 2024, and April 2025 VA examinations unpersuasive. Thus, the Board is left with the May 2024 examination, which found that the Veteran has a diagnosis of GERD and was diagnosed with and treated for this condition in service. The Board will therefore resolve reasonable doubt in the Veteran's favor and conclude that his GERD had its initial onset during active service. Entitlement to service connection for GERD is therefore warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Increased Ratings

Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Board will consider whether staged ratings should be assigned to compensate for times when the disability may have been more severe than at other times during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

1. Entitlement to a Rating in Excess of 40 Percent for Lumbosacral Strain with Degenerative Arthritis, Degenerative Disc Other Than IVDS, Central Canal Stenosis, and Scoliosis

The Veteran is currently in receipt of a 40 percent rating for his service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis. He contends that a higher rating is warranted for this disability.

At the outset, the Board finds it helpful to define the period on appeal. This appeal follows a November 17, 2023 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In a March 25, 2024 rating decision, the AOJ granted entitlement to a total disability rating based on individual unemployability (TDIU) effective November 17, 2023. The AOJ also decreased the evaluation assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis from 40 percent to 20 percent effective June 1, 2024. Notification of this decision was issued on March 28, 2024, and the Veteran then appealed this decision in an April 26, 2024 VA Form 10182.

In an April 1, 2025 decision, the Board restored the 40 percent rating assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis effective June 1, 2024. The Board also remanded the claim for entitlement to a rating in excess of 40 percent for the Veteran's lumbar spine disability. In a May 19, 2025 rating decision, the AO
20 percent effective June 1, 2024. Notification of this decision was issued on March 28, 2024, and the Veteran then appealed this decision in an April 26, 2024 VA Form 10182.

In an April 1, 2025 decision, the Board restored the 40 percent rating assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis effective June 1, 2024. The Board also remanded the claim for entitlement to a rating in excess of 40 percent for the Veteran's lumbar spine disability. In a May 19, 2025 rating decision, the AOJ continued the 40 percent rating assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis. Notification of this decision was issued on May 21, 2025, and the Veteran continued to seek an increased rating in his July 17, 2025 VA Form 10182.

The Board therefore finds that the claim for entitlement to an increased rating for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis has been on appeal since November 17, 2024. This is the date on which the Veteran filed his TDIU claim, which included a claim for an increased rating for his service-connected lumbar spine disability, followed by continuous pursuit of the increased rating claim.

The Board has considered whether the period on appeal began earlier, as the Veteran initially filed a claim for an increased rating for his service-connected lumbar spine disability on February 6, 2023. Following this claim, the AOJ issued an April 5, 2023 rating decision that increased the rating assigned for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis to 40 percent effective November 1, 2022, the date of receipt of his intent to file a claim. The Veteran was notified of this decision on April 7, 2023. On April 20, 2023, the Veteran filed a VA Form 10182, seeking an increased rating for his service-connected lumbar spine disability. It was while this appeal was pending before the Board that the Veteran filed his claim for entitlement to a TDIU, which included a claim for an increased rating for his lumbar spine disability. Eventually, the Board denied entitlement to a rating in excess of 40 percent for the Veteran's lumbar spine disability on January 16, 2024.

The claim for an increased rating for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis has not been on appeal since the November 1, 2022 intent to file a claim. The Veteran appealed the April 5, 2023 rating decision in an April 20, 2023 VA Form 10182, and he filed the TDIU claim that led to the present appeal after the April 20, 2023 VA Form 10182 and before the January 16, 2024 Board decision was issued. The present appeal results from a separate appeal stream than that stemming from the earlier February 6, 2023 claim.

The April 1, 2025 Board decision, in pertinent part, also denied the assignment of an effective date prior to November 17, 2023, for the award of a TDIU. An April 2026 Joint Motion for Partial Remand (JMPR) vacated and remanded that portion of the April 2025 Board decision. The Board mailed a letter to the Veteran and his attorney on April 24, 2026, that provided him notice of the Court's April 2026 remand decision and provided him 90-days to respond, i.e., July 23, 2026. For that reason, and in the interest of not prejudicing the Veteran, the issue of entitlement to a TDIU prior to November 17, 2023, will be addressed in a future Board decision.

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5242 addresses degenerative arthritis of the spine, while Diagnostic Code 5237 addresses lumbosacral or cervical strain. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned
For that reason, and in the interest of not prejudicing the Veteran, the issue of entitlement to a TDIU prior to November 17, 2023, will be addressed in a future Board decision.

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5242 addresses degenerative arthritis of the spine, while Diagnostic Code 5237 addresses lumbosacral or cervical strain. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Both Diagnostic Code 5242 and Diagnostic Code 5237 are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine.

Under the Formula, 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 of 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).

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." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).

Moreover, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis.

Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6.

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, 5 (2016).

In Correia v. McDonald, 28 Vet.
ankylosis, i.e., functional loss consistent with that contemplated by ankylosis.

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 does not have an opposing 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 the extent of functional impairment of flare-ups from the veterans themselves when a flare-up is not observable at the time of examination.

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 over time and therefore not be reflected on range of motion testing. Additionally, 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 Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Nonetheless, even when the background factors listed in 38 C.F.R. §§ 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 38 C.F.R. §§ 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.").

Relevant to the present appeal, the Board recognizes that where a diagnostic code does not explicitly contemplate the ameliorative effects of medication on a disability, it must evaluate the disability without regard to the ameliorative effects of the medication. See Ingram v. Collins, 38 Vet. App. 130, 132 (2025) (holding that because the applicable diagnostic codes and special musculoskeletal regulations do not reference medication, the Board must discount the beneficial effects of medication when assigning a rating); see also Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) ("[I]f [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication."). The General Rating Formula for Diseases and Injuries of the Spine does not explicitly contemplate the ameliorative effects of medication. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Turning now to the evidence in this appeal, the February 2023 VA examination showed throbbing back pain, which was described as excruciating at times. The Veteran indicated regular use of a walker and occasional use of a cane. He reported difficulty with sitting, standing, walking, or driving for long periods of time. Initial range of motion testing showed forward flexion to 45 degrees and combined range of motion to 195 degrees on both active and passive motion. He exhibited pain on forward flexion, extension, and right and left lateral flexion on both active and passive motion, but this pain did not result in additional range of motion loss. The Veteran did not have pain with weight-bearing or non-weight-bearing. The examiner indicated that the Veteran did not have ankylosis of the spine. The February 2023 VA examiner stated that the Veteran was limited in bending, stooping, pushing, pulling, carrying and lifting moderate objects, hauling, running, standing, sitting, walking, climbing, squatting, and standing, walking, or driving for long distances.

The Veteran reported flare-ups of the thoracolumbar spine at the time of the February 2023 VA examination. They occurred every other month and were severe in nature. His flare-ups lasted two to three days, but they sometimes lasted a week to 10 days. The precipitating factors of these flare-ups were unknown, while they were alleviated by the passage of time. During flare-ups, the Veteran's forward flexion was limited to 30 degrees and his combined range of motion was limited to 180 degrees due to pain. Likewise, his forward flexion was limited to 35 degrees and his combined range of motion was limited to 185 degrees due to pain after repeated use over time.

In a statement submitted in March 2023, the Veteran's spouse stated that she and the Veteran were unable to do activities such as biking, walking, and outdoor water activities at water parks with their grandchildren. This has caused their marriage and quality of life to suffer. She stated that the Veteran uses a walker and loses his mobility at times and that she must assist him with daily activities such as getting out of bed and getting in and out of vehicles.

Likewise, the Veteran's daughter submitted a statement indicating that their family has suffered due to the Veteran's mobility issues. She explained that he used to enjoy participating in activities with his grandchildren, such as going to the beach, soccer games, and swimming pools, but he is unable to enjoy these activities anymore due to the mobility issues caused by his lumbar spine disability.

The Veteran also submitted a statement explaining that his doctor recommended that he use a cane due to his back disability and that she later recommended a walker. The Veteran had an accident while using his walker, causing him to fall and injure his back even more. He stated that, at times, he was unable to walk for days due to his lumbar spine disability and sciatica. He participated in physical therapy, and he still used these exercises, along with over-the-counter medications, to alleviate his back pain. He noted that his quality of life has suffered due to his inability to walk with his wife and play with his grandchildren.

The Veteran testified at a hearing in September 2023. At that time, he described fatigue and flare-ups associated with his lumbar spine disability. These flare-ups occurred four to five times a year and lasted for two to three weeks. He testified that, during flare-ups, he used a back brace and had to rest with his legs elevated. During these flare-ups, he was "almost immobile." Generally, he used a cane and a walker to ambulate. The Veteran also testified that he treated his back pain with ibuprofen. He indicated that no doctor has ever mentioned ankylosis of the spine, instead only diagnosing him with deterioration of the spine and sciatica. A post-hearing memorandum from the Veteran's attorney added that, even on days when his pain did not keep him in bed, he needed to take long, hot showers to alleviate his pain.

Another VA examination was performed in January 2024. At this time, the Veteran reported pain in the lower back with radiation up to the neck and increased pain and feelings of "pulling" in the back with twisting and bending. He was prescribed a cane and walker for locomotion. He used heating pads, hot showers, rest with elevated feet, home physical therapy exercises, and ibuprofen as needed. Initial range of motion testing showed forward flexion to 45 degrees and combined range of motion of 145 degrees on both active and passive motion. He exhibited pain with forward flexion, extension, right and left lateral flexion, and right and left lateral rotation on active and passive motion, but he did not have pain with weight-bearing
Another VA examination was performed in January 2024. At this time, the Veteran reported pain in the lower back with radiation up to the neck and increased pain and feelings of "pulling" in the back with twisting and bending. He was prescribed a cane and walker for locomotion. He used heating pads, hot showers, rest with elevated feet, home physical therapy exercises, and ibuprofen as needed. Initial range of motion testing showed forward flexion to 45 degrees and combined range of motion of 145 degrees on both active and passive motion. He exhibited pain with forward flexion, extension, right and left lateral flexion, and right and left lateral rotation on active and passive motion, but he did not have pain with weight-bearing or non-weight-bearing. The Veteran did not have additional range of motion loss specifically due to painful motion. The examiner noted limitations in bending, pushing, pulling, carrying objects heavier than 10 pounds, climbing, sitting, or standing for prolonged periods of time. The examination report shows that the Veteran did not have ankylosis of the spine.

The Veteran did not report flare-ups of the thoracolumbar spine at the time of the January 2024 VA examination. The examiner further indicated that, after repeated use over time, the Veteran's forward flexion was limited to 45 degrees and combined range of motion was limited to 145 degrees due to pain, weakness, and lack of endurance.

During the Veteran's September 2024 Board hearing, he testified as to concerns about falling, difficulty ambulating, needing to rest after activity, and difficulty with stairs and uneven surfaces, but he did not attribute these problems to any specific disability, to include his lumbar spine disability. He testified that his back was "pretty much the same" and that he had good days and "not so good days." He was only working two to three days a week at the time of this hearing and indicated that this part-time schedule seemed to help his back pain a little. The Veteran testified as to having to take his time getting out of bed in the morning and that taking a shower seemed to help. He stated that he was able to move around well some days, but he had to lay down because of his back pain on other days. Again, he testified that he took over-the-counter medications, such as ibuprofen, for his back pain. He added that he was unable to bend to touch his toes, and that bending to pick up something, tie his shoes, or put on his socks was a "chore."

The most recent VA examination was performed in April 2025. The Veteran continued to report throbbing low back pain that could be excruciating at times, as well as numbness in the legs. He used a cane and a walker, and he treated his pain using heat and elevation of the legs. Upon initial range of motion testing, the Veteran had forward flexion of the thoracolumbar spine to 70 degrees and combined range of motion to 190 degrees on active motion. He had pain on forward flexion and right and left lateral rotation, but this pain did not result in additional range of motion loss. Passive range of motion testing was not performed due to the risk of injury. There was no evidence of pain with weight-bearing or non-weight-bearing, and the Veteran did not have ankylosis of the spine. Again, the Veteran did not report experiencing flare-ups of the thoracolumbar spine at the time of the April 2025 VA examination. The examiner further estimated that the Veteran did not have additional functional loss due to pain, fatigability, weakness, lack of endurance, or incoordination with repeated use over time.

The April 2025 VA examiner offered an addendum opinion that specifically addressed the alleviating effects of medications. In this regard, she explained that the Veteran denied taking medications at the time of the April 2025 VA examination and that the examination report therefore described the severity of the Veteran's lumbar spine disability without considering the alleviating effects of medications.

The Veteran participated in another Board hearing in December 2025. At this time, the Veteran testified that his back pain affected his ability to work. He stated, "Some days I can't get out of bed. And some days I have to lay down with my feet elevated for hours." He specified that these flare-ups that rendered him unable to get out of bed occurred four to five times a year, and he explained that his doctor prescribed bed rest for these occurrences. He continued to use a walker and a cane for his lumbar spine disability, and he treated his pain using heat and over-the-counter medication.

Based on the foregoing, a rating in excess of 40 percent is not warranted for the Veteran's lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis,
that his back pain affected his ability to work. He stated, "Some days I can't get out of bed. And some days I have to lay down with my feet elevated for hours." He specified that these flare-ups that rendered him unable to get out of bed occurred four to five times a year, and he explained that his doctor prescribed bed rest for these occurrences. He continued to use a walker and a cane for his lumbar spine disability, and he treated his pain using heat and over-the-counter medication.

Based on the foregoing, a rating in excess of 40 percent is not warranted for the Veteran's lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis at any time during the period on appeal. The VA examinations, lay statements, hearing testimony, and treatment records fail to show that the Veteran has experienced unfavorable ankylosis of the entire thoracolumbar spine or its functional equivalent, which is required for a 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine.

Consideration has been given to whether the degree of limitation reflected by the Veteran's descriptions of pain and limited range of motion result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. In this regard, the Board expressly acknowledges the evidence showing that the Veteran is "almost immobile" during flare-ups. However, this evidence does not demonstrate that the Veteran has reported any of the symptoms discussed in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), including 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. Although the Veteran has reported gastrointestinal symptoms, these symptoms have been attributed to his service-connected GERD, not his lumbar spine disability. Thus, the Board finds that a rating in excess of 40 percent is not warranted based on unfavorable ankylosis of the entire thoracolumbar spine, to include under Chavis, 34 Vet. App. at 12.

A remand for an addendum medical opinion regarding the ameliorative effects of medication is not warranted. While the General Rating Formula for Diseases and Injuries of the Spine does not specifically contemplate the ameliorative effects of medications, the evidence does not suggest that the Veteran's lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis has been alleviated by any medications during the period on appeal. Although the Veteran reported using over-the-counter medications, such as ibuprofen, to treat his back pain during the period on appeal, he has not indicated that such medication has alleviated or improved his symptoms. Moreover, he denied the use of medications during the April 2025 VA examination, and the April 2025 examiner expressly stated that that examination report did not consider the ameliorative effects of medications. Thus, the record does not establish that the Veteran experienced ameliorative effects from any medications on his lumbar spine disability, and a remand under Jones and Ingram is not required.

The Board has also considered whether the Veteran would be entitled to a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. The Veteran has testified that his back pain requires him to rest in bed with his legs elevated during flare-ups. However, the VA examinations and treatment records from the period on appeal do not show that he has been diagnosed with IVDS. A higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted.

Additional consideration has been given as to whether separate ratings based on neurological impairment are warranted. The Veteran is already in receipt of separate ratings for right and left lower extremity radiculopathy of the sciatic nerve. The issue of increased ratings for these disabilities is addressed below. There are no other neurologic abnormalities, to include bowel or bladder dysfunction, present based on the available medical and lay evidence of record. The Veteran has not presented any evidence to the contrary.

The Board also acknowledges that the Veteran's attorney requested the credentials of the examiner who performed the January 2024 VA examination. In October 2024, she was advised to submit her request for the examiner's curriculum vitae (CV) via different means. Later that month, the attorney continued to request the examiner's CV under Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 201
opathy of the sciatic nerve. The issue of increased ratings for these disabilities is addressed below. There are no other neurologic abnormalities, to include bowel or bladder dysfunction, present based on the available medical and lay evidence of record. The Veteran has not presented any evidence to the contrary.

The Board also acknowledges that the Veteran's attorney requested the credentials of the examiner who performed the January 2024 VA examination. In October 2024, she was advised to submit her request for the examiner's curriculum vitae (CV) via different means. Later that month, the attorney continued to request the examiner's CV under Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). In November 2024, VA again advised the Veteran's attorney to resubmit her request via different means. It is unclear whether she ever submitted a new request using the method recommended by VA.

The question of "whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries." See Francway, 930 F.3d at 1381 (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion. The Board is entitled to assume the competence of a VA examiner unless such competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). This presumption is rebutted when the veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the veteran challenges the competency of a medical examiner, "[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Francway, 930 F.3d at 1381.

Here, although the Veteran's attorney requested the January 2024 VA examiner's credentials, she did not raise any specific objections or issues of competency with respect to this examination or the examiner who performed it. The Board therefore concludes that a challenge to the examiner's qualifications has not been raised at this time, and further discussion of the examiner's qualifications is not necessary.

Thus, for the reasons and bases discussed, the evidence for the claim for a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The claim for entitlement to a rating in excess of 40 percent is denied.

2. Entitlement to a Rating in Excess of 20 Percent for Right Lower Extremity Radiculopathy of the Sciatic Nerve and in Excess of 10 Percent for Left Lower Extremity Radiculopathy of the Sciatic Nerve

The Veteran is currently in receipt of a 20 percent rating for right lower extremity radiculopathy of the sciatic nerve, as well as a 10 percent rating for left lower extremity radiculopathy of the sciatic nerve. He contends that higher ratings are warranted for these disabilities.

Radiculopathy of the sciatic nerve is rated under 38 U.S.C. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, with foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C
§ 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, with foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

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.

According to Merriam-Webster's Dictionary, "mild" means not being or involving what is extreme; not severe. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/mild (last visited April 27, 2026). "Moderate" means limited in scope or effect. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/moderate (last visited April 27, 2026). "Severe" means very painful or harmful or of a great degree. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/severe (last visited April 27, 2026). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

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, 380 (2017).

The Board acknowledges that 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 Affairs, 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." DAV, 859 F.3d at 1077. The M21-1 provisions do not go through the regular rulemaking procedures and are little more than evidence as to how the Veterans Benefits Administration (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 Office of General Counsel (OGC) opinion. See 38 U.S.C. § 7104(c); see also DAV, 859 F.3d at 1077. 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 [M
rulemaking procedures and are little more than evidence as to how the Veterans Benefits Administration (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 Office of General Counsel (OGC) opinion. See 38 U.S.C. § 7104(c); see also DAV, 859 F.3d at 1077. 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 [M21-1] 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 [M21-1] provision as a factor to support its decision." 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 issues 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 the 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 are 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 affect 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 degree, 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 that "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.

During the February 2023 VA examination, the Veteran exhibited normal muscle strength (5/5) at right and left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He did not have muscle atrophy of either lower extremity. His reflexes were normal (2+) at the right and left knee and ankle, and he had normal sensation at the right and left upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). The straight leg raising test was positive bilaterally. The Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity, while he had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. He did not have constant pain of either lower extremity, and he did not exhibit any other signs or symptoms of radiculopathy. The Veteran also endorsed occasional use of a cane and regular use of a walker for his lower extremity radiculopathy. Further, the
lower leg/ankle (L4/L5/S1), and foot/toes (L5). The straight leg raising test was positive bilaterally. The Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity, while he had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. He did not have constant pain of either lower extremity, and he did not exhibit any other signs or symptoms of radiculopathy. The Veteran also endorsed occasional use of a cane and regular use of a walker for his lower extremity radiculopathy. Further, the examiner stated that the Veteran is limited in bending, stooping, pushing, pulling, carrying and lifting moderate objects, hauling, running, standing, sitting, walking, climbing, squatting, and standing, walking, or driving for long periods due to both his lumbar spine disability and his bilateral lower extremity radiculopathy.

In a March 2023 statement, the Veteran's spouse explained that she and the Veteran were unable to do activities such as biking, walking, and outdoor water activities at water parks with their grandchildren. This has caused their marriage and quality of life to suffer. She stated that the Veteran uses a walker and experiences sciatica. He sometimes loses his mobility, and she must assist him with daily activities such as getting out of bed and getting in and out of vehicles. The Veteran's spouse did not differentiate between the symptoms and limitations caused by the Veteran's lumbar spine disability and those caused by his bilateral lower extremity radiculopathy of the sciatic nerve.

The Veteran also submitted a statement explaining that his doctor recommended that he use a cane due to his back disability and that she later recommended a walker. The Veteran had an accident while using his walker, causing him to fall and injure his back even more. He stated that, at times, he is unable to walk for days due to his lumbar spine disability and sciatica. He participated in physical therapy, and he still uses these exercises, along with over-the-counter medications. He noted that his quality of life has suffered due to his inability to walk with his wife and play with his grandchildren. These statements from the Veteran and his daughter seem to attribute his physical limitations primarily to his lumbar spine disability rather than his bilateral lower extremity radiculopathy.

The Veteran testified at a hearing in September 2023. During this hearing, he described numbness and tingling while laying down and pain when he would get up and try to move. He explained, "It's not a continuous problem throughout the day but I have to keep moving. It seems like if I sit down, it stiffens. If I sit down for a while, it stiffens and tightens up." A post-hearing memorandum from the Veteran's attorney added that he took long hot showers and used ibuprofen to treat his pain.

Another VA examination was performed in January 2024. This examination showed muscle strength rated as 4/5 (active movement against some resistance) at right and left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He did not have muscle atrophy. His reflexes were normal (2+) at the right and left knee and ankle. He also had normal sensation at the right and left upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). The straight leg raising test was negative bilaterally. The examiner indicated that the Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity and mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. It was also noted that the Veteran had tingling in the middle toes of the right foot consistent with peripheral neuropathy. The Veteran indicated constant use of a cane and occasional use of a walker for his lumbar spine disability; it was not specified whether these assistive devices were also used for his right and left lower extremity radiculopathy of the sciatic nerve. The examiner also noted limitations in bending, pushing, pulling, carrying objects heavier than 10 pounds, climbing, sitting, or standing for
ias and/or dysesthesias, and moderate numbness of the right lower extremity and mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. It was also noted that the Veteran had tingling in the middle toes of the right foot consistent with peripheral neuropathy. The Veteran indicated constant use of a cane and occasional use of a walker for his lumbar spine disability; it was not specified whether these assistive devices were also used for his right and left lower extremity radiculopathy of the sciatic nerve. The examiner also noted limitations in bending, pushing, pulling, carrying objects heavier than 10 pounds, climbing, sitting, or standing for prolonged periods of time.

During the most recent VA examination in April 2025, the Veteran described numbness in his legs. He treated his symptoms using a cane, heat, and elevation of the legs. The Veteran had normal muscle strength (5/5) at right and left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He did not have muscle atrophy. His reflexes were normal (2+) at the bilateral knee and ankle level, and his sensation was also normal at the bilateral upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). The straight leg raising test was negative, and the examiner did not indicate that the Veteran experienced constant pain, intermittent pain, paresthesias and/or dysesthesias, numbness, or other signs or symptoms of radiculopathy. The Veteran reported regular use of a cane and walker for his lumbar spine disability, but the examination report did not suggest that he used these assistive devices for his lower extremity radiculopathy as well.

The Veteran participated in another Board hearing in December 2025. During this hearing, he testified as to having flare-ups of his lower extremity radiculopathy. He described pain running through his thighs and knees, as well as weakness, which has resulted in a few falls over the past couple of years. He explained that he has attempted to manage his symptoms by resting, trying to keep moving and not sitting for long periods of time, losing weight, eating healthy foods, and trying to strengthen his legs. He also indicated that his right leg is worse than his left leg, which he attributed to his in-service right foot surgery, for which he is already service connected. The Veteran continued to describe numbness, tingling, shooting pain, and an unsteady gait, and he indicated that he takes ibuprofen to try to relieve his symptoms.

The Board turns first to the Veteran's right lower extremity radiculopathy of the sciatic nerve. In this regard, the evidence persuasively weighs against finding that the Veteran's right lower extremity radiculopathy of the sciatic nerve has manifested as moderately severe incomplete paralysis of the sciatic nerve, which is required for a 40 percent rating under Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The medical and lay evidence of record shows that the Veteran's right lower extremity radiculopathy is manifested by moderate intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and decreased muscle strength. At no time did the Veteran's right lower extremity radiculopathy manifest in impaired reflexes, decreased sensation, trophic changes, muscle atrophy, or signs of complete paralysis. Moreover, his muscle strength was decreased only slightly, as it was rated 4/5 (active movement against some resistance). The Board acknowledges the Veteran's testimony that he has fallen due to his leg weakness and unsteady gait, but no examiner has linked the Veteran's falls and unsteady gait to his lower extremity radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

Thus, the Board finds that the Veteran's right lower extremity radiculopathy of the sciatic nerve is most analogous to moderate incomplete paralysis of the sciatic nerve. His symptoms are limited in scope and effect to sensory symptoms and slightly
only slightly, as it was rated 4/5 (active movement against some resistance). The Board acknowledges the Veteran's testimony that he has fallen due to his leg weakness and unsteady gait, but no examiner has linked the Veteran's falls and unsteady gait to his lower extremity radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

Thus, the Board finds that the Veteran's right lower extremity radiculopathy of the sciatic nerve is most analogous to moderate incomplete paralysis of the sciatic nerve. His symptoms are limited in scope and effect to sensory symptoms and slightly decreased muscle strength. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/moderate (last visited April 27, 2026). The Veteran's sign/symptom combination of weakness with sensory impairment graded as medically moderate is also consistent with the description of "moderate" radiculopathy in the M21-1. See M21-1, Part V, Subpart iii, Chapter 12, Section A(c). His symptoms do not rise to the definition of "moderately severe" radiculopathy in the M21-1. Although the Veteran has weakness, there is no indication that he has had reflex impairment or muscle atrophy of the right lower extremity during the period on appeal.

Turning now to the Veteran's left lower extremity radiculopathy of the sciatic nerve, the evidence persuasively weighs against finding that a rating in excess of 10 percent is warranted for this disability, as the Veteran's left lower extremity symptoms are best characterized as mild. The Veteran has described mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity, as well as decreased muscle strength. At no point has he described impaired reflexes, decreased sensation, trophic changes, muscle atrophy, or symptoms of complete paralysis of the bilateral lower extremity sciatic nerves. Further, his muscle strength was decreased only slightly, as it was rated 4/5 (active movement against some resistance). Because these symptoms are few in number and are graded as medically mild in severity, the Veteran's left lower extremity radiculopathy of the sciatic nerve is best described as not extreme or severe. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/mild (last visited April 27, 2026).

The Veteran's symptoms also accord with the M21-1 definition of "mild." The symptoms, which are few in number and graded as medically mild, are lower graded, less persistent, and affect a small area. They do not meet the M21-1 definition of "moderate." He did not experience significant sensory changes, as his sensory symptoms were graded as medically mild in severity. He also did not exhibit reflex impairment. Though he experienced muscle weakness, his strength was decreased only slightly, and it was therefore not graded as medically moderate.

A remand for an addendum medical opinion regarding the ameliorative effects of medications is not warranted. Diagnostic Code 8520 does not specifically contemplate the ameliorative effects of medications. However, the evidence does not suggest that the Veteran's right and left lower extremity radiculopathy of the sciatic nerve have been alleviated by medications. Although the Veteran reported using over-the-counter medications, such as ibuprofen, to treat his pain, he has not indicated that such medication has alleviated or improved his radiculopathy symptoms. Moreover, he expressly denied the use of medications during the April 2025 VA examination, and the April 2025 examiner expressly stated that that examination report did not consider the ameliorative effects of medications. Thus, the record does not establish that the Veteran experienced ameliorative effects from any medications on his right and left lower extremity radiculopathy of the sciatic nerve, and a remand under Jones and Ingram is not required.

For the reasons and bases discussed, the evidence for the claim for a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve and a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against these claims. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. The claims for entitlement to a rating in excess of
and a remand under Jones and Ingram is not required.

For the reasons and bases discussed, the evidence for the claim for a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve and a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against these claims. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. The claims for entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve and a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve are denied.

REASONS FOR REMAND

1. Entitlement to Service Connection for a Cervical Spine Disorder as Secondary to Service-Connected Lumbosacral Strain with Degenerative Arthritis, Degenerative Disc Other Than IVDS, Central Canal Stenosis, and Scoliosis

In Bailey v. Wilkie, 33 Vet. App. 188 (2021), the Court held that "VA is required to develop and adjudicate claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." 33 Vet. App. at 203.

One of the effects of the Appeals Modernization Act (AMA) is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. However, the Board has the duty to remand issues when necessary to correct a pre-decisional duty to assist error where the issues cannot be granted in full. 38 U.S.C. § 5103A(f); 38 C.F.R. § 20.802(a).

Prior to the May 2025 rating decision on appeal, the record reasonably raised the issue of entitlement to service connection for a cervical spine disorder as secondary to the Veteran's service-connected lumbar spine disability. During the January 2024 VA examination pertaining to his lumbar spine disability, the Veteran reported back pain radiating to the cervical spine. Likewise, during the September 2024 hearing, the Veteran testified that he experiences radiating pain to his neck and that his doctors have linked this to his lumbar spine disability. However, the Veteran has not received a VA examination pertaining to his claimed cervical spine disorder. As such, this matter must be remanded, as it was a pre-decisional duty to assist error in not obtaining a VA examination regarding the nature and etiology of his claimed cervical spine disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

The matter are REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed cervical spine disorder. The Veteran's claims file must be made available to the examiner. After reviewing the claims file and examining the Veteran, with any necessary testing, the examiner should opine on the following:

(a.) Identify/diagnose any cervical spine disorder that presently exists or that has existed during the appeal period.

If a diagnosis cannot be made but the Veteran's symptoms result in functional impairment, then the examiner should consider them a "disability" for the purposes of providing the requested opinions below.

If it is determined that the Veteran does not have a cervical spine disorder or functional impairment of the cervical spine, the examiner must reconcile this conclusion with the January 2024 VA examination and the September 2024 hearing testimony showing pain radiating to the cervical spine.

(b.) Is it at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's cervical spine disorder or functional impairment of the cervical spine was caused by or underwent any incremental increase, regardless of its permanence, due to his service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis?

The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent.

The examiner is advised that proximate cause is not required for secondary service connection. Rather, the question is whether the Veteran's service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis is a
any incremental increase, regardless of its permanence, due to his service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis?

The examiner is advised that proximate cause is not required for secondary service connection. Rather, the question is whether the Veteran's service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis is a but for cause of his cervical spine disorder, to include whether his cervical spine disorder would have been less severe but for his service-connected lumbosacral strain with degenerative arthritis, degenerative disc other than IVDS, central canal stenosis, and scoliosis.

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R.M. Sachs, 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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