DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran, who served in the United States Marine Corps from September 1990 to September 1994, appeals the denial of an initial disability rating higher than 10 percent for thoracolumbar spine degenerative disc disease. The Veteran sought a higher rating, testifying that his VA examination was inadequate and that he experienced spasms and pain that limited his daily activities, such as lifting his grandson and cleaning his house. The Board reviewed the Veteran's medical history, including VA examinations, physical therapy consultations, and private treatment records. The evidence showed pain with movement and functional loss due to pain, but the range of motion measurements, even from private records, did not meet the criteria for a higher rating. Specifically, forward flexion was at most 70 degrees, and the combined range of motion was 195 degrees, which did not meet the criteria for a 20 percent rating. The Board also found no evidence of muscle spasm severe enough to cause abnormal gait or spinal contour, nor did it find evidence of incapacitating episodes or neurological impairment warranting a higher rating. The Board acknowledged the Veteran's lay reports of symptoms and functional loss but found the evidence persuasively weighed against a higher rating, concluding that the benefit-of-the-doubt rule did not apply as the evidence favored the denial of a higher rating. Therefore, the Board denied entitlement to an initial rating higher than 10 percent for the thoracolumbar spine degenerative disc disease.

Rationale

Evidence persuasively weighs against a rating in excess of 10 percent.; Range of motion measurements did not meet criteria for 20 percent rating.; No evidence of severe muscle spasm or abnormal gait/spinal contour.

Full Decision Text

Citation Nr: A26040329
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210727-174915
DATE: April 29, 2026

ORDER

Entitlement to an initial rating higher than 10 percent for thoracolumbar spine degenerative disc disease is denied.

FINDING OF FACT

The Veteran's thoracolumbar spine degenerative disc disease is manifested by forward flexion most severely limited to 70 degrees with a combined range of motion of 195 degrees, no spasm resulting in abnormal gait or spinal contour, and no intervertebral disc disease.

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for thoracolumbar spine degenerative disc disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the United States Marine Corps from September 1990 to September 1994. 

On May 18, 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of an initial rating higher than 10 percent for thoracolumbar degenerative disc disease most recently addressed in a May 7, 2021 rating decision.  On May 20, 2021, the Regional Office (RO) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. 

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on March 10, 2025. This decision reflects the Board's consideration of the testimony, evidence, and information presented at the hearing, and a transcript of the hearing is in the Veteran's claims file.

As an appeal in which the Veteran requested, on the Notice of Disagreement, a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issue on appeal, evidence submitted by the Veteran or his representative at the hearing, to include testimony provided at the hearing, and evidence submitted by the Veteran or his representative within 90 days following the hearing.  38 C.F.R. § 20.302(a).

Although the Veteran submitted relevant evidence to the record during a timeframe when the Board could not consider it, he resubmitted this evidence during a timeframe when the Board could consider it. See Cook v. McDonough, 36 Vet. App. 175 (2023).

Nonetheless, if the Veteran would like VA to consider any additional 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As a final preliminary matter, the Board notes that 38 C.F.R. § 3.103 provides that a Veteran, upon request, is entitled to a hearing prior to VA's adjudication of an initial or supplemental claim.  The Board observes that for the initial or supplemental claims in this case, notice regarding the opportunity for a hearing at the RO was not provided in this case.  In Bowen, the U.S. Court of Appeals for Veterans Claims found that there was no due process violation in the denial of the Veteran's requested hearing before the RO because the Veteran had subsequently been offered the opportunity to have a hearing before the Board. Bowen v. Shinseki, 25?Vet. App.?250, 253 (2012). Here, the Veteran was offered a choice of three dockets in the AMA framework to include the Board hearing docket. Although the issue in Bowen was not one of notice, the Board cannot discern a basis to find that the underlying holding and logic of Bowen would not lead to the same finding of a lack of prejudicial error under the procedure and facts of this case.

Initial rating higher than 10 percent for thoracolumbar spine degenerative disc disease

The RO granted service connection for the Veteran's thoracolumbar spine disability in a May 2021 rating decision and assigned a 10 percent rating, effective October 15, 2020.
ki, 25?Vet. App.?250, 253 (2012). Here, the Veteran was offered a choice of three dockets in the AMA framework to include the Board hearing docket. Although the issue in Bowen was not one of notice, the Board cannot discern a basis to find that the underlying holding and logic of Bowen would not lead to the same finding of a lack of prejudicial error under the procedure and facts of this case.

Initial rating higher than 10 percent for thoracolumbar spine degenerative disc disease

The RO granted service connection for the Veteran's thoracolumbar spine disability in a May 2021 rating decision and assigned a 10 percent rating, effective October 15, 2020. 

The Veteran is seeking a higher disability rating for his thoracolumbar spine disability. He testified at the March 2025 Board hearing that his VA examination was inadequate because he pushed himself farther than his pain level during his range of motion studies. See March 2025 Board hearing transcript, p. 4. He stated that he experienced spasms in the back and used an electrostimulation vest that was prescribed by VA. Id. at 5-6. He also stated that he could not lift his grandson up and had to hire outside helping with cleaning the house. Id. at 9. He further mentioned that his spine had become progressively worse over the years. Id. at 10.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509
 Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

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). 

Additionally, when a diagnostic code does not include the ameliorative effects of medication in its rating criteria, VA is precluded from including those effects in its calculation of the appropriate disability rating because they may obscure or distort the veteran's symptoms or impairments, and thus interfere with the process of assigning a disability rating that reflects the true nature and severity of the veteran's disability. Ingram v. Collins, 38 Vet. App. 130, 132 (2025); Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The Veteran's thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis.  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. 

Normal range of motion in the thoracolumbar spine is 0 to 90 degrees of flexion; 0 to 30 degrees of extension; 0 to 30 degrees of left and right lateral flexion; and 0 to 30 degrees of left and right lateral rotation. See 38 C.F.R. § 4.71a, Plate V. 

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
 motion in the thoracolumbar spine is 0 to 90 degrees of flexion; 0 to 30 degrees of extension; 0 to 30 degrees of left and right lateral flexion; and 0 to 30 degrees of left and right lateral rotation. See 38 C.F.R. § 4.71a, Plate V. 

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

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. 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.

Turning to the evidence of record, a November 2020 VA primary care note shows the Veteran had complaints of back pain. He noted that he was seeing a chiropractor and getting massages, but it did not help his back pain. He described random numbness in his hands/ legs and his feet going numb with sitting, which occurred at night. He had constant pain on the right side of the thoracic spine and intermittent lumbar spine worse after chiropractic treatments. A later November 2020 VA magnetic resonance imaging of the thoracic and lumbar spines was negative for disc herniation.

A December 2020 VA physical therapy consultation shows the Veteran had increased pain with minimal movement in the lumbar spine. Range of motion studies showed pain in all ranges of motion. Flexion was limited to minus 10 degrees (i.e., to 80 degrees) and extension was limited to minus 15 degrees (i.e., 15 degrees. See 38 C.F.R. § 4.71a, Plate V (Normal range of motion in the thoracolumbar spine is 0 to 90 degrees of flexion; 0 to 30 degrees of extension; 0 to 30 degrees of left and right lateral flexion; and 0 to 30 degrees of left and right lateral rotation.).

A December 2020 VA pain consult shows the Veteran had long-standing constant pain in the spine, which had become worse over the last 10 years. He had been taking nonsteroidal antiinflammatory medications for years and currently he took gabapentin and duloxetine daily. His mid back pain had been constant and most severe, which is located over the paraspinal muscle in the right mid/ lower scapula region. The right mid back pain was associated with left occipital headache and radiating pain along his right rib cage. He denied paresthesia. He noted that staying
; 0 to 30 degrees of left and right lateral flexion; and 0 to 30 degrees of left and right lateral rotation.).

A December 2020 VA pain consult shows the Veteran had long-standing constant pain in the spine, which had become worse over the last 10 years. He had been taking nonsteroidal antiinflammatory medications for years and currently he took gabapentin and duloxetine daily. His mid back pain had been constant and most severe, which is located over the paraspinal muscle in the right mid/ lower scapula region. The right mid back pain was associated with left occipital headache and radiating pain along his right rib cage. He denied paresthesia. He noted that staying still aggravated the pain and that he had significant nocturnal pain. For the low back, the Veteran reported constant mild to moderate pain in the lumbosacral region. He denied any radiating pain/ paresthesia or weakness in the lower extremities. Range of motion studies showed full range of motion without tenderness in the lumbosacral spine.

In April 2021, a VA examination report shows a diagnosis of degenerative disc disease of the thoracolumbar spine. The Veteran described pain in the back as "feeling that there is a bar in the middle of my back." The Veteran also described that on the right side of the upper back it felt "like there is someone putting their elbow in the side of my back." The Veteran noted that the pain would wake him up at night. He noted that the use of the right arm, especially overhead increased the right upper back pain and that the right upper back pain would radiate into the head and increase risk of headaches. The examiner further reported the findings in the December 2020 pain clinic consultation, noted above. 

The Veteran reported that current treatment included a massage vest, physical therapy, acupuncture, massage therapy, chiropractic treatment, home stretches, duloxetine, and trazodone. The Veteran denied any flareups of the thoracolumbar spine. However, the Veteran reported functional loss or functional impairment of the thoracolumbar spine with repeated use over time including difficulty bending and lifting. He indicated that he could not play golf or basketball or go rock climbing anymore. He further noted that he had decreased use of his right arm because that would increase the right-sided upper back pain. He stated that he could not walk more than 30 minutes and that while he could tolerate long drives he had to stop and take breaks due to right upper back pain. He noted that he was unable to do pull-ups or military presses, or play racket ball or tennis, or hike. He also reported difficulty with prolonged standing due to the right upper back/ thoracic spine pain.

Range of motion studies showed forward flexion to 75 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees on active motion. Passive motion was the same except forward flexion was to 80 degrees and extension was to 25 degrees. Pain was noted on all ranges of motion, on weight-bearing and non-weight-bearing, and at rest resulting in functional loss in the form of pain. The examiner noted that the Veteran had pain at rest that was uncomfortable that would increase with extended sitting or standing. The use of his upper right extremity and back would increase the pain whether weight-bearing or not. Movement was painful. There was objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue in the right upper back. Repetitive use testing did not result in any additional loss of function or range of motion. The Veteran had guarding and muscle spasm of the thoracolumbar spine, but it did not result in abnormal gait or abnormal spinal contour.

The Veteran submitted private physical therapy and chiropractic records dated from July 2020 to August 2021, which showed ongoing treatment for his symptoms. A July 2021 range of motion study on visual observation showed flexion to 70 degrees, extension to 25 degrees, left lateral flexion to 35 degrees, and right lateral flexion to 20 degrees.

On review of the evidence of record, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the thoracolumbar spine degenerative disc disease. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during repetitive use over time as well as from laying still, resulting in inability to lift his grandson up and having to hire outside help with cleaning the house. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that prolonged standing, walking, or laying still causing pain would not result in limitation of motion more nearly approximating forward flex
 and right lateral flexion to 20 degrees.

On review of the evidence of record, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the thoracolumbar spine degenerative disc disease. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during repetitive use over time as well as from laying still, resulting in inability to lift his grandson up and having to hire outside help with cleaning the house. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that prolonged standing, walking, or laying still causing pain would not result in limitation of motion more nearly approximating 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.  Additionally, the Veteran did not have muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

Range motion studies showed that at most the Veteran had forward flexion to 70 degrees. Of note, this was found by visual observation on a private treatment record, and applicable regulations emphasize that use of a goniometer is indispensable in the measurement of limitation of motion in VA claims. See 38 C.F.R. § 4.46. The April 2021 VA examination report showed forward flexion to 75 degrees. The examiner also found passive range of motion to 80 degrees, though the Veteran testified that the examiner pushed him beyond his minimal pain level on the examination. Nonetheless, even assuming his flexion was limited to 70 degrees as noted on the unofficial private treatment record in July 2021, this does not meet the next higher criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, which would require forward flexion to no more than 60 degrees. 

Additionally, the combined range of motion was at most limited to 195 degrees. The criteria for the next higher 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine are not met unless forward flexion of the thoracolumbar spine is not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. None of these criteria are met based on the April 2021 VA examination report.

The Veteran noted that he was taking gabapentin, duloxetine, and trazodone for his thoracolumbar spine (although he testified at the March 2025 Board hearing that he told his doctors he did not want to take narcotics anymore). However, the evidence does not support that the Veteran would meet the next higher 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine if he was not taking these medications. The April 2021 examination report noted that the Veteran did not experience flareups but that he experienced pain with prolonged use and prolonged inactivity such as at night. Nonetheless, there is no probative evidence showing that without using gabapentin, duloxetine, and trazodone that his forward flexion would go from at most 70 degrees to limited to not greater than 60 degrees; that the combined range of motion would go from 195 degrees to not greater than 120 degrees; or that the Veteran would have muscle spasm enough to result in abnormal gait or spinal contour. Therefore, even considering that the medications the Veteran is taking to alleviate the pain in his back might mask some of his symptoms, the level of impairment still would not warrant the next higher 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. See Ingram v. Collins, 38 Vet. App. 130, 132 (2025).

With respect to the Veteran's complaints of experiencing pain in all ranges of motion, the Board has considered the holding in Chavis v. McDonough, 34 Vet. App. 1 (2021). The Chavis decision suggests that the Veteran might be eligible for a higher rating if, due to weakness, fatigability, lack of coordination, restricted or excess movement, or pain on movement during flare-ups, his symptoms cause him to experience the functional equivalent of ankylosis. Id. at 10. However, in this case, the Board finds that ankylosis has not been shown at any time. There was no evidence of fixation or stiffness. While the Veteran has reported some functional impairment, including difficulty with prolonged sitting, standing, walking, repetitive bending,
 experiencing pain in all ranges of motion, the Board has considered the holding in Chavis v. McDonough, 34 Vet. App. 1 (2021). The Chavis decision suggests that the Veteran might be eligible for a higher rating if, due to weakness, fatigability, lack of coordination, restricted or excess movement, or pain on movement during flare-ups, his symptoms cause him to experience the functional equivalent of ankylosis. Id. at 10. However, in this case, the Board finds that ankylosis has not been shown at any time. There was no evidence of fixation or stiffness. While the Veteran has reported some functional impairment, including difficulty with prolonged sitting, standing, walking, repetitive bending, and heavy lifting, he had, at worst, forward flexion at 70 degrees and a combined range of motion at 195 degrees at that time. Accordingly, functional ankylosis has not been shown during this period on appeal.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  However, the April 2021 VA examination report notes that the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

Regarding neurological impairment, the Veteran described shooting pain up his spine and said that he would experience random numbness in his legs and feet. Objective testing on the April 2021 VA examination report shows that muscle testing, and sensory testing in the lower extremities was normal. There also was no evidence of radiculopathy in the lower extremities or other neurological abnormalities. The examiner found that while the Veteran had decreased ankle reflexes, this alone did not clinically support a diagnosis of radiculopathy. Even though the Veteran is competent to report observable symptoms, the record does not indicate that the Veteran has the medical experience or training to relate radiculopathy to the thoracolumbar spine degenerative disc disease, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise.  Id.  Accordingly, in weighing the Veteran's lay statements with the medical evidence, the Board finds that the evidence persuasively shows no neurological impairment in the lower extremities associated with the thoracolumbar degenerative disc disease. 

The Veteran asserted that the April 2021 VA examination report is inadequate because the examiner pushed him beyond his comfort level in conducting the range of motion studies. The Board acknowledges the Veteran's assertions and has instead used his active (i.e., unassisted) range of motion studies in rating this claim, which, as noted on the April 2021 VA examination report showed forward flexion to 75 degrees. The Board also has considered the unofficial range of motion studies on private treatment showing forward flexion on observation to 70 degrees, which still does not support a higher rating. On review, the Board finds the April 2021 VA examination report adequate as the examiner noted that the Veteran did not report flareups in his lumbar spine. The examiner acknowledged that the Veteran reported pain with prolonged use and with prolonged inactivity and showed range of motion on passive and active motion. The examiner also estimated that there would no additional functional impairment in the lumbar spine with repeated use over time. The examiner estimated range of motion studies in the spine, which would include weight-bearing activities. Finally, the examiner noted that repetitive use testing did not result in any additional loss of function or range of motion. Therefore, the Board finds that the April 2021 VA examination report fully considered the Veteran's thoracolumbar spine degenerative disc disease and complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The Veteran made several complaints about having headaches associated with this right upper spine pain. He also described pain in his arm with reaching overhead. The Board notes that the Veteran is service connected for migraines associated with his cervical spine invertebral disc disease; so, he is already compensated for impairment associated with headaches. He also is service connected for right upper extremity neurological impairment associated with his cervical spine disability, which includes pain. There is no additional functional impairment associated with his thoracolumbar spine disability for which the Veteran has not already been compensated.

While the Veteran believes he
 v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The Veteran made several complaints about having headaches associated with this right upper spine pain. He also described pain in his arm with reaching overhead. The Board notes that the Veteran is service connected for migraines associated with his cervical spine invertebral disc disease; so, he is already compensated for impairment associated with headaches. He also is service connected for right upper extremity neurological impairment associated with his cervical spine disability, which includes pain. There is no additional functional impairment associated with his thoracolumbar spine disability for which the Veteran has not already been compensated.

While the Veteran believes he is entitled to a higher rating for his lumbar spine disability, the medical evidence does not support this belief. The medical evidence shows that at worst, his lumbar spine has forward flexion to 70 degrees and that he has a combined range of motion of 195 degrees, with no evidence of muscle spasm that results in abnormal gait or spinal contour, and no IVDS or incapacitating episodes in the past 12 months. 

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for the thoracolumbar spine degenerative disc disease. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule.  "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b).  "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other."  Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  In this case, the evidence persuasively favors a finding that the Veteran's thoracolumbar spine disability did not have impairment severe enough to warrant the next higher rating at any time during the appeal period. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

 

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sarah Richmond, 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.