INTERVERTEBRAL DISC SYNDROME

SHEREEN M. MARCUS · 2026 · Case ID: A26040389

MIXED

Summary

The veteran, who served in the U.S. Navy from November 1972 to August 1983 and again from May 1987 to January 1997, appealed a November 2023 rating decision that reduced his disability evaluation for residuals status post lumbar fusion from 40 percent to 20 percent, effective October 25, 2023. The veteran also appealed the denial of an earlier effective date for service connection for a lumbar spine painful scar and the denial of TDIU. The Board reviewed the evidence of record before the Agency of Original Jurisdiction at the time of the November 2023 decision. The Board found the reduction from 40 percent to 20 percent for the lumbar spine residuals improper, as the evidence did not demonstrate sustained improvement in disability, noting the need for prescription medication and assistive devices. Consequently, the Board reinstated the 40 percent rating effective October 25, 2023. However, the Board denied a rating higher than 40 percent, as the evidence did not support ankylosis or its functional equivalent. Regarding the lumbar spine scar, the Board denied an earlier effective date, as the earliest indication of symptomology was the October 2023 examination. For TDIU, the Board found the veteran met the schedular criteria from June 21, 2021, based on his combined service-connected disabilities, including residuals from lumbar fusion, radiculopathy, and hearing loss, which rendered him unable to secure and follow substantially gainful employment. Therefore, TDIU was granted effective June 21, 2021.

Rationale

Reduction from 40% to 20% was improper.; Evidence did not demonstrate sustained improvement.; Worsening symptomology supported by need for prescription medication and assistive devices.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

251204-612173

Full Decision Text

Citation Nr: A26040389
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 251204-612173
DATE: April 29, 2026

ORDER

The reduction of the rating for residuals status post lumbar fusion from 40 percent to 20 percent was improper; therefore, reinstatement of the 40 percent rating effective October 25, 2023, is granted.

A rating greater than 40 percent for residuals status post lumbar fusion from June 21, 2022, is denied.

Entitlement to an effective date earlier than October 25, 2023, for the award of service connection for lumbar spine painful scar status post lumbar fusion is denied.

An effective date of June 21, 2021, but no earlier, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. There was no evidence of actual improvement in the Veteran's residuals status post lumbar fusion or improvement in the ability to function under the ordinary conditions of life or work prior to the reduction from 40 percent to 20 percent, effective October 25, 2023.

2. At no point has the Veteran's residuals status post lumbar fusion resulted in unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof nor has it resulted in IVDS with incapacitating episodes of a total duration of at least 6 weeks in a 12-month period requiring physician-prescribed bed rest.

3. Prior to October 25, 2023, the Veteran's lumbar spine surgical scar was not painful or unstable.

4. The persuasive evidence of record demonstrates that from June 21, 2021, the Veteran's service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment consistent with his education, history, skills, and training.

CONCLUSIONS OF LAW

1. The criteria for reinstatement of a 40 percent rating for residuals status post lumbar fusion, effective October 25, 2023, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.105(e), 4.71a, Diagnostic Code (DC) 5243.

2. The criteria for a rating greater than 40 percent for residuals status post lumbar fusion from June 21, 2022, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.59, 4.71a, DC 5243.

3. The criteria for an effective date earlier than October 25, 2023, for the award of service connection for lumbar spine painful scar status post lumbar fusion have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

4. The criteria for an effective date of June 21, 2021, but no earlier, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.400, 3.341, 4.16, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from November 1972 to August 1983 and from May 1987 to January 1997.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2023 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which was later reviewed and continued in a December 2024 Higher-Level Review (HLR) decision.

In a December 2025 VA Form 10182, Notice of Disagreement (NOD), the Veteran elected the direct review docket. Therefore, the Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its November 2023 decision subject to HLR. See 38 C.F.R. §§ 20.300(a), 301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD. 38 C.F.R. § 20.301.
a December 2024 Higher-Level Review (HLR) decision.

In a December 2025 VA Form 10182, Notice of Disagreement (NOD), the Veteran elected the direct review docket. Therefore, the Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its November 2023 decision subject to HLR. See 38 C.F.R. §§ 20.300(a), 301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD. 38 C.F.R. § 20.301. The Veteran has not filed such a request. If additional evidence was submitted after the AOJ decision, the Board will not consider it. The Veteran is welcome to file a supplemental claim to have this evidence considered. Cook v. McDonough, 36 Vet. App. 175 (2023).

The Board has limited the discussion below to the relevant evidence required to support its finding of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Increased Rating / Rating Reduction

Service connection for the Veteran's back disability was granted at 10 percent disabling, effective February 1, 1997, in an August 1997 rating decision. He sought an increased rating several times and in a January 2020 rating decision, the evaluation was increased to 20 percent, effective December 5, 2019. The 20 percent rating was continued in a May 2021 rating decision.

On June 21, 2022, the Veteran sought entitlement to TDIU. In a September 2022 rating decision, TDIU was denied. Within a year of the decision, the Veteran submitted an intent to file (ITF) a claim on October 17, 2022. He submitted a supplemental claim thereafter seeking TDIU. In an April 2023 rating decision, entitlement to TDIU was denied and a 40 percent rating for the back disability was granted, effective October 17, 2022.

The Veteran sought HLR in May 2023 seeking an earlier effective date for the 40 percent rating. He also submitted another supplemental claim seeking TDIU in June 2023. In an August 2023 HLR rating decision, an earlier effective date for the 40 percent award was denied. In the November 2023 rating decision on appeal, the Veteran's rating for his back disability was decreased from 40 percent to 20 percent, effective October 25, 2023.

The Veteran sought HLR in November 2024, seeking a "rating of no less than" 40 percent for the back disability. In a December 2024 HLR rating decision, the 40 percent rating prior to October 25, 2023, and the 20 percent rating thereafter were continued.

As this appeal was outstanding, a March 2025 Board decision and March 2025 implementing rating decision awarded an effective date of June 21, 2022, for the 40 percent rating.

The Veteran again appealed a "rating of no less than" 40 percent in his December 2025 NOD.

Accordingly, as the Veteran has continuously pursued his claim since the June 21, 2022, date of claim for TDIU, the Board will consider the propriety of the assigned ratings from the June 21, 2022, date of claim, including whether there was a factually ascertainable increase in disability during the one-year look-back period preceding the claim, and the propriety of the reduction effective October 25, 2023. See 38 C.F.R. § 3.400(o).

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §
See 38 C.F.R. § 3.400(o).

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his or her symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

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

The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 and Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued, effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e).

VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91; VAOPGCPREC 29-97. It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.

Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which set forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995).

However, in Stern v. McDonough, the Court determined that two factual findings must be made for a valid reduction of a non-protected disability rating: (1) actual improvement in the disability; and (2) that improvement reflects, "improvement in the...ability to function under the ordinary conditions of life and work." 34 Vet. App. 51 (2021).

Finally, in determining whether a reduction was proper, the Board must focus upon evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction.

The General Rating Formula provides for assignment of a 10 percent rating when forward flexion of the thoracolumbar spine is 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 requires forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a
degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).

Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Note (1).

Under the Formula for Rating IVDS Based on Incapacitating Episodes, the formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

Turning to the relevant evidence of record, VA treatment records reflected that the Veteran underwent back surgery through a private provider in June 2020. He thereafter had improvement in his back pain and no longer required prescription medication to treat his pain. He had 20-pound lifting restrictions status post surgery.

The Veteran underwent a VA examination in March 2023. He described current symptoms of pain, stiffness, numbness, and tingling. Treatment included over-the-counter (OTC) analgesics and stretching. He denied flare-ups. He stated that he had a 20-pound lifting limit and that he could not move around very quickly. Active forward flexion was to 40 degrees, extension was to 20 degrees, and right and left lateral flexion and rotation were each to 30 degrees. Pain was exhibited on all planes of motion. The reduced range of motion made daily activities of living moderately more difficult. Passive range of motion testing was not performed as it was not medically advisable. Pain was present on active motion and weight-bearing but not present on nonweight-bearing or rest/non-movement. There was no evidence of crepitus. Mild localized tenderness was observed in the lumbar paraspinal muscles. The Veteran was able to perform repetitive-use testing without additional lost function or motion. With repeated use over time, pain would
Active forward flexion was to 40 degrees, extension was to 20 degrees, and right and left lateral flexion and rotation were each to 30 degrees. Pain was exhibited on all planes of motion. The reduced range of motion made daily activities of living moderately more difficult. Passive range of motion testing was not performed as it was not medically advisable. Pain was present on active motion and weight-bearing but not present on nonweight-bearing or rest/non-movement. There was no evidence of crepitus. Mild localized tenderness was observed in the lumbar paraspinal muscles. The Veteran was able to perform repetitive-use testing without additional lost function or motion. With repeated use over time, pain would result and would further limit forward flexion to 30 degrees, extension to 15 degrees, and right and left lateral flexion and rotation each to 25 degrees.

The Veteran had no guarding or muscle spasm in the spine but did have localized tenderness not resulting in abnormal gait or spinal contour due to his lumbar fusion. Additional factors contributing to disability included interference with sitting and standing. The examiner noted that he had difficulty with prolonged sitting and standing as it forced his back to remain in the same position. Muscle strength testing had normal results and the Veteran had no muscle atrophy. Deep tendon reflexes (DTRs) were normal in the bilateral knees and the left ankle but were hypoactive in the right ankle. A sensory examination yielded normal results bilaterally. The straight leg raising test was normal. The Veteran had right lumbar radiculopathy involving the sciatic nerve which resulted in mild paresthesias/dysesthesias and numbness in the right lower extremity. There were no other neurologic abnormalities. The Veteran did not have ankylosis of the spine or IVDS with incapacitating episodes. His back disability did not require the use of any assistive devices. Regarding functional impact, the examiner stated that the Veteran had difficulty with keeping his back in the same position for extended periods (i.e., sitting, standing, walking), repetitive bending motions, and carrying moderate to heavy objects. The examiner also stated that the Veteran would benefit from sedentary work and even then would require an ergonomic setup along with breaks to stretch and change position to alleviate muscle tension or discomfort.

Another VA examination was conducted in October 2023. The Veteran stated that his back pain had gotten worse over time. He reported having muscle spasms and throbbing pain in his back that radiated down both legs. He took pain medication, but it only provided minimal relief. He noted that it was hard for him to sleep at night. Treatment included Tylenol and Motrin as needed. He denied flare-ups. Regarding functional impact, he stated that he was unable to lift heavy equipment and stand or sit for long periods of time. Active and passive range of motion included forward flexion to 65 degrees, extension to 25 degrees, and right and left lateral flexion and rotation to 20 degrees each. Pain was exhibited on all planes of motion. Pain was present on both active and passive motion but not present on weight-bearing, nonweight-bearing, or rest/non-movement. There was no objective evidence of crepitus or localized tenderness. The Veteran was able to perform repetitive-use testing without additional lost function or motion. With repeated use over time, pain would result and would further limit forward flexion to 55 degrees, extension to 20 degrees, and right and left lateral flexion and rotation to 15 degrees each.

There was no guarding or localized tenderness but muscle spasm was present and resulted in abnormal gait or spinal contour. Additional factors contributing to disability included disturbance of locomotion. Muscle strength testing yielded normal results and there was no atrophy. DTRs were normal bilaterally. A sensory examination demonstrated decreased sensation in the bilateral upper anterior thigh and thigh/knee. Sensation was normal in the bilateral lower leg/ankle and foot/toes. The straight leg raising test was positive in both the right and left lower extremity. The Veteran had radiculopathy in both lower extremities with involvement of the sciatic and femoral nerves which resulted in moderate intermittent pain, paresthesias/dysesthesias, and numbness. There were no other neurologic abnormalities. The Veteran did not have ankylosis in the spine or IVDS with incapacitating episodes. He occasionally used a back brace and constantly used a cane. Regarding functional impact, the examiner stated that the Veteran's ability to lift heavy equipment and to stand or sit for long periods of time was affected due to his status post lumbar fusion. The examiner
/toes. The straight leg raising test was positive in both the right and left lower extremity. The Veteran had radiculopathy in both lower extremities with involvement of the sciatic and femoral nerves which resulted in moderate intermittent pain, paresthesias/dysesthesias, and numbness. There were no other neurologic abnormalities. The Veteran did not have ankylosis in the spine or IVDS with incapacitating episodes. He occasionally used a back brace and constantly used a cane. Regarding functional impact, the examiner stated that the Veteran's ability to lift heavy equipment and to stand or sit for long periods of time was affected due to his status post lumbar fusion. The examiner concluded that he was able to perform sedentary work, defined as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull. Sedentary work involved sitting most of the time but might involve walking or standing for brief periods of time. Jobs were sedentary if walking and standing were required only occasionally and all other sedentary criteria were met.

1. The reduction of the rating for residuals status post lumbar fusion from 40 percent to 20 percent was improper; therefore, reinstatement of the 40 percent rating effective October 25, 2023, is granted.

2. A rating greater than 40 percent for residuals status post lumbar fusion from June 21, 2022, is denied.

Based on the foregoing, the Board finds that the reduction from 40 percent to 20 percent was improper. Therefore, restoration of the 40 percent evaluation is warranted. Further, a rating in excess of 40 percent is not warranted at any point.

The Board notes that because the AOJ's decision to reduce the back disability rating from 40 percent to 20 percent, effective October 25, 2023, did not reduce his overall combined disability rating, the procedural protections of 38 C.F.R. § 3.105(e) did not apply. See VAOPGCPREC 71-91; VAOPGCPREC 29-97. Therefore, an analysis of the reduction itself is not necessary.

At the outset, the Board finds that the requirements of DeLuca, Correia, and Sharp have been adequately satisfied in the VA examinations of record. Limitations with active motion, with weight-bearing and nonweight-bearing, with repeated use over time, and during flare-ups along with functional loss were captured by the examiners. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158.

The March 2023 VA examiner determined that the Veteran's forward flexion would be limited to 30 degrees with repeated use over time. Based on that finding, the 40 percent evaluation was awarded. The October 2023 VA examiner found that his forward flexion would only be limited to 55 degrees with repeated use over time. On that basis, the AOJ decreased the evaluation from 40 to 20 percent, effective the date of the examination.

However, the Board finds that even though forward flexion did not meet the 40 percent rating criteria at the October 2023 examination, the overall disability picture captured by the examination did not demonstrate an actual improvement in disability. Indeed, prior to the October 2023 examination, the Veteran stated that he only took OTC medication for his back pain. At the October 2023 examination, he indicated that he took prescription medication (Motrin 800 mg) for his symptoms. At the March 2023 examination, his disability did not require assistive devices. At the October 2023 examination, he reported occasional use of a back brace and constant use of a cane due to his back disability. The functional impact described by both the March 2023 examiner and the October 2023 examiner were similar. The Board finds that this overall disability picture does not demonstrate a sustained improvement in the Veteran's residuals status post lumbar fusion, and indeed supports a worsening in some symptomology, as prescription medication and assistive devices are now needed.

Accordingly, the Board finds that the reduction from 40 percent to 20 percent was not proper. Therefore, the 40 percent rating is restored, effective October 25, 2023.

A rating in excess of 40 percent is not warranted at any point. The Veteran's back disability has not resulted in ankylosis or the functional equivalent thereof, either upon clinical examination or as described in lay statements.

Ankylosis is defined as the
2023 examiner were similar. The Board finds that this overall disability picture does not demonstrate a sustained improvement in the Veteran's residuals status post lumbar fusion, and indeed supports a worsening in some symptomology, as prescription medication and assistive devices are now needed.

Accordingly, the Board finds that the reduction from 40 percent to 20 percent was not proper. Therefore, the 40 percent rating is restored, effective October 25, 2023.

Ankylosis is defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007). Further, under the relevant diagnostic code, ankylosis is specifically defined. Under Note(5) of the General Rating Formula for Diseases and Injuries of the Spine, favorable ankylosis is defined as "fixation of a spinal segment in neutral position (zero degrees)...." See 38 C.F.R. § 4.71a, DCs 5235-5243, Note(5). Unfavorable ankylosis, on the other hand, is defined as the entire thoracolumbar spine is "fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id.

In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that "application of [38 C.F.R.] §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, if it is the functional equivalent of ankylosis."

Here, all of the VA examiners indicated that the Veteran did not have ankylosis in his lumbar spine. Further, even during repeated use over time, he had range of movement (though limited) on all planes of motion. VA treatment records did not reflect any diagnosis of unfavorable ankylosis, nor any indication of immobility. Finally, the Veteran has not provided lay descriptions of such limitation that was functionally equivalent to immobility. There is no evidence that the Veteran's limited motion causes fixture (or the equivalent of fixture) of the entire spine with resulting 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.

As such, the Board finds a rating greater than 40 percent is not warranted at any time as neither favorable nor unfavorable ankylosis are supported by the persuasive weight of the evidence, to include consideration of the functional equivalent of such findings. Id.

The Board explicitly considered whether the medical and lay evidence demonstrated any functional loss not contemplated by the rating criteria. See 38 C.F.R. §§ 4.40, 4.45. The Board has discussed in detail the limitations outlined by treating or examining clinicians or described by the Veteran (pain; increased pain with activity; inability to stand, walk, or sit for prolonged periods; difficulty bending and lifting, etc.). The Board finds that this symptomology is clearly contemplated by the rating criteria which explicitly notes pain, guarding, limited motion, and affected gait. The Board has considered the totality of the Veteran's experience and finds that a higher rating based on functional loss not contemplated by the rating criteria is not warranted at any point. Id.

Because the General Rating Formula does not include criteria for medication, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); see also Ingram v. Collins, 38 Vet. App. 130 (2025). However, even discounting the ameliorative and beneficial effects of the Veteran's pain medications, a higher rating is not warranted. Considering his back disability in the worst
, and affected gait. The Board has considered the totality of the Veteran's experience and finds that a higher rating based on functional loss not contemplated by the rating criteria is not warranted at any point. Id.

Because the General Rating Formula does not include criteria for medication, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); see also Ingram v. Collins, 38 Vet. App. 130 (2025). However, even discounting the ameliorative and beneficial effects of the Veteran's pain medications, a higher rating is not warranted. Considering his back disability in the worst-case scenario, there is no persuasive evidence that indicates the disability would result in unfavorable ankylosis of the thoracolumbar spine or the functional equivalent thereof without such treatment. The Veteran's medications are primarily used to treat pain itself; there are no indications that such treatments stop immobility of joints. Therefore, a higher rating is not merited based on medication used to treat the Veteran's back disability.

The Board recognizes that the Veteran has been diagnosed with bilateral lower extremity radiculopathy during the appeal period. However, over the course of the entire appeal period, the Veteran also separately appealed the assigned ratings for his left lower extremity femoral and sciatic radiculopathy and right lower extremity femoral and sciatic radiculopathy. A March 2025 Board decision adjudicated his appeals regarding his bilateral lower extremity radiculopathy (see docket 230919-377725). As such, and because the Veteran did not appeal the ratings assigned to his radiculopathy disabilities in the November 2023 rating decision on appeal in his December 2025 NOD, his radiculopathy ratings are not currently before the Board. The Veteran has not demonstrated any other neurologic abnormalities or additional symptomology separately compensable such as bowel or bladder dysfunction resulting from the service-connected back disability.

Accordingly, the Board finds that restoration of the 40 percent rating, effective October 25, 2023, is warranted. The evidence of record persuasively weighs against a rating in excess of 40 percent. The Board determines that the disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case.

Effective Dates

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400.

1. Scar

The Veteran was granted service connection for scars status post lumbar spine fusion at a noncompensable rate, effective June 11, 2020, under 38 C.F.R. § 4.118, DC 7802.

As noted above, the Veteran's appeal for an increased rating for his back disability stems from a June 21, 2022, claim for TDIU. In the November 2023 rating decision on appeal, service connection was granted for another disability rating for the lumbar spine scars. A rating for a painful scar at 10 percent, effective October 25, 2023, under 38 C.F.R. § 4.118, DC 7804, was granted.

The Veteran submitted an HLR request in November 2024, seeking an earlier effective date for the award of service connection for the painful scar under DC 7804. In a December HLR rating decision, the October 25, 2023, effective date was continued. The Veteran appealed the assigned effective date for service connection in his December 2025 NOD. Accordingly, the Board will consider entitlement to an earlier effective date up to the June 21, 2022, claim for TDIU, including whether entitlement to service connection was factually ascertainable during the one-year look-back period preceding the claim.

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable
7804. In a December HLR rating decision, the October 25, 2023, effective date was continued. The Veteran appealed the assigned effective date for service connection in his December 2025 NOD. Accordingly, the Board will consider entitlement to an earlier effective date up to the June 21, 2022, claim for TDIU, including whether entitlement to service connection was factually ascertainable during the one-year look-back period preceding the claim.

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable.

Turning to the relevant evidence of record, the Veteran underwent his lumbar fusion surgery in June 2020. Just prior to the pertinent appeal period, a VA back examination was conducted in May 2021. The examiner indicated that he had scars related to his lumbar spine disability. The Veteran thereafter underwent a VA scars examination. The examiner described a 12 cm by 0.1 cm status post lumbar instrumented fusion post-operative scar located on the central lower back. The scar was not painful or unstable. There was no functional impact from the scar.

Another VA scars examination was conducted in March 2023. The Veteran reported that since his 2020 surgery, his scars themselves did not cause any symptoms or issues. He had a 9 cm by 1 cm scar and a 2.5 cm by 1 cm scar in the posterior trunk. Neither scar was painful or unstable. There was no functional impact from the scars.

The Veteran underwent another VA scars examination in October 2023. The examiner observed one scar measuring 13 cm by 0.1 cm in the lower back. The scar was tender to palpation and had underlying soft tissue damage. The total area of scar with underlying tissue damage was 1.3 sq. cm. The examiner determined that the scar was painful but stable. There was no functional impact from the disability.

A. Entitlement to an effective date earlier than October 25, 2023, for the award of service connection for lumbar spine painful scar status post lumbar fusion is denied.

Based on the foregoing, the Board finds that an earlier effective date for the award of service connection for the painful lumbar spine scar is not warranted.

Prior to the October 25, 2023, VA examination, the Veteran's lumbar spine surgical scar was specifically found to not be painful, unstable, or otherwise symptomatic. The October 25, 2023, examination is the earliest indication in the claims file that the Veteran's scar had any symptomology whatsoever. As such, an earlier effective date for service connection cannot be granted.

Accordingly, an effective date prior to October 25, 2023, for the award of service connection for the painful scar is not merited.

2. TDIU

As outlined above, the Veteran first sought entitlement to TDIU in a June 21, 2022, claim. Within the one-year look-back period preceding the claim, the Veteran met the schedular criteria for TDIU. In the November 2023 rating decision on appeal, entitlement to TDIU was granted, effective July 12, 2021, the date the AOJ determined that he met the schedular requirements for TDIU and was unable to obtain or maintain substantially gainful employment.

Accordingly, the Board will consider entitlement to an earlier effective date for the award of TDIU, up to and including the entirety of the one-year look-back period preceding the claim beginning June 21, 2021.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70
ful employment.

For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018).

If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantial gainful occupation by reason of service-connected disabilities be rated totally disabled. 38 C.F.R. § 4.16(b). The Board may assign an extraschedular total disability rating for compensation purposes in the first instance based on individual unemployability. Witkowski v. Collins, 38 Vet. App. 459 (2025).

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.341, 4.16.

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a).

Marginal employment may also be held to exist, on a fact-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a).

Employment in a "protected environment" means employment in a lower-income position that, due to the Veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market.
is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a).

The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity).

Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

From June 21, 2021, the Veteran's service-connected disabilities include residuals status post lumbar fusion at 20 percent; postoperative cervical spine herniated nucleus pulposus C5-C6 at 20 percent; postoperative right shoulder deltoid bursitis and tendonitis at 20 percent; right lower extremity (RLE) radiculopathy involving the sciatic nerve at 20 percent; RLE radiculopathy involving the femoral nerve at 20 percent; left lower extremity (LLE) radiculopathy involving the sciatic nerve at 20 percent; LLE radiculopathy involving the femoral nerve at 20 percent; bilateral hearing loss at 10 percent; tinnitus at 10 percent; sesamoidectomy for right foot pain at 10 percent; allergic rhinitis at 10 percent; residual scars associated with postoperative cervical spine herniated nucleus pulposus C5-C6 at 0 percent; right upper extremity (RUE) radiculopathy with right carpal tunnel syndrome (CTS) at 0 percent; right elbow degenerative changes at 0 percent; postoperative enterolysis for small bowel obstruction at 0 percent; and scars status post lumbar spine fusion at 0 percent, for a combined evaluation of 90 percent.

From July 12, 2021, the Veteran's service-connected disabilities include bilateral hearing loss at 40 percent; residuals status post lumbar fusion at 20 percent; postoperative cervical spine herniated nucleus pulposus C5-C6 at 20 percent; postoperative right shoulder deltoid bursitis and tendonitis at 20 percent; RLE radiculopathy involving the sciatic nerve at 20 percent; RLE radiculopathy involving the femoral nerve at 20 percent; LLE radiculopathy involving the sciatic nerve at 20 percent; LLE radiculopathy involving the femoral nerve at 20 percent; tinnitus at 10 percent; sesamoidectomy for right foot pain at 10 percent; allergic rhinitis at 10 percent; residual scars associated with postoperative cervical spine herniated nucleus pulposus C5-C6 at 0 percent; right upper extremity (RUE) radiculopathy with right carpal tunnel syndrome (CTS) at 0 percent; right elbow degenerative changes at 0 percent; postoperative enterolysis for small bowel obstruction at 0 percent; and scars status post lumbar spine fusion at 0 percent, for a combined evaluation of 90 percent.

Accordingly, the Veteran has met the schedular criteria for TDIU throughout the relevant appeal period. The Board notes that although no disability was rated 40 percent prior to July 12, 2021, the Veteran's residuals status post lumbar fusion and LLE and RLE rad
cervical spine herniated nucleus pulposus C5-C6 at 0 percent; right upper extremity (RUE) radiculopathy with right carpal tunnel syndrome (CTS) at 0 percent; right elbow degenerative changes at 0 percent; postoperative enterolysis for small bowel obstruction at 0 percent; and scars status post lumbar spine fusion at 0 percent, for a combined evaluation of 90 percent.

Regarding the economic component, the Veteran has a high school education and one year of college classes. His military occupational specialties (MOS) were assault boat coxswain, boatswain's mate, rigging and weight testing shop journeyman, and instructor. Post-service, he worked as an automotive parts driver from 1997. He was injured on the job in 2019 and stopped working in October 2020.

Regarding the noneconomic component, VA examiners determined that the Veteran's right foot disability caused a limp and required him to walk with a cane. See October 2020 examination. His lumbar spine disability resulted in standing and ambulating lasting 10 to 30 minutes or 2 to 3 city blocks and lifting/weight-bearing 20 pounds during exacerbated periods. See May 2021 examination. The Veteran's bilateral hearing loss and tinnitus caused difficulty hearing clearly in background noise, needing speakers to repeat, and needing increased volume on devices. See July 2021 examination.

No other examinations were conducted of the Veteran's other service-connected disabilities prior to the July 12, 2021, TDIU award. Beyond the pertinent appeal period, VA examiners determined that the Veteran was able to engage in sedentary work, defined as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, and pull. Sedentary work involved sitting most of the time with walking or standing for brief periods of time. See October 2023 examinations.

A private vocational assessment was submitted in June 2023. The consultant determined that the Veteran was more likely than not disabled and unable to secure and follow substantially gainful employment including unskilled sedentary employment as a result of his service-connected disabilities since at least 2019. In support, she stated that his lumbar pain and bilateral lower extremity radiculopathy would require him to need to lie down throughout his workday and would cause issues with sleep which could cause fatigue during the workday. He would need to be off task for more than 10 percent of a workday due switching between sitting and standing. He could only stand/ambulate for 10 to 30 minutes at a time. He could not sit for a prolonged period and would need to change position frequently. He also would not work at the same pace as his peers. Due to his limitations, the consultant found that the Veteran had a less than sedentary work capacity. Sedentary was the least demanding level of work and there was no gainful employment that was less than sedentary. The consultant defined sedentary work similarly as the VA examiners - as involving exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs were sedentary if walking and standing were required only occasionally and all other sedentary criteria were met.

A. An effective date of June 21, 2021, but no earlier, for the award of a TDIU is granted.

Based on the totality of the evidence, the Board finds that it is unlikely that the Veteran could obtain and maintain substantially gainful employment consistent with his education, skills, work history, and training since June 21, 2021, due to his service-connected disabilities alone.

From an economic perspective, the Veteran has the education, skills, work history, and training to perform work as a boatswain's mate or as a driver.

From a noneconomic perspective, the Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray v. Wilkie, 31 Vet. App. at 58. The Veteran's back disability and associated radiculopathy, right foot disability, and cervical spine disability would limit his ability to lift, bend, sit, stand, walk, climb, and reach. His BHL and tinnitus would limit auditory abilities.

The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change and handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Veteran does not have any service-connected mental disorders but has described fatigue due to physical pain causing difficulty sleeping.

Several VA examiners have found that the Veteran could engage in sedentary employment whereas the private vocational consultant found that he could not. The Court noted that VA has not explicitly defined the meaning of "sedentary employment." See Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. As the VA examiners and the private consultant employed the same definition of sedentary work, the Board will employ that definition herein. The persuasive evidence suggests that the Veteran would be unable to consistently engage in "sedentary employment" as such defined.

It is unlikely that the rigors of a boatswain's mate position could be accomplished with the Veteran's lumbar spine, cervical spine, and bilateral lower extremity radiculopathy. Further, he could not work as a driver as he cannot sit for prolonged periods and needs to switch position frequently. Finally, the Veteran does not have training or experience in other unskilled sedentary work which may allow him to engage in frequent position changing.

Accordingly, the Board finds that it is unlikely that the Veteran could obtain and maintain substantially gainful employment consistent with his education, skills, work history, and training since June 21, 2021. This appeal period stems from the June 21, 2022, date of claim for TDIU and includes the one-year look-back period preceding the claim.

Therefore, a TDIU from June 21, 2021, but no earlier, is granted.

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rachel E. Jensen, 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.

Analyze in VA Law Explorer