DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the U.S. Army from October 1996 to March 2003, appeals the denial of an increased rating for his lumbar spine disability and the dismissal of his claim for service connection for thoracic myofascial strain. The veteran sought a rating higher than the 40 percent currently assigned for degenerative arthritis, degenerative joint disease, and lumbar spine disc bulge, arguing his symptoms warranted a higher evaluation. The Board reviewed VA examinations from December 2023 and August 2024, noting the veteran's complaints of pain, flare-ups, and limitations in range of motion. However, the Board found that the evidence did not meet the criteria for ankylosis or the higher thresholds for incapacitating episodes under the Intervertebral Disc Syndrome (IVDS) formula. The Board also considered the veteran's lay statements regarding pain and functional limitations but concluded they did not demonstrate a functional loss beyond what was already contemplated in the assigned ratings. The Board found the evidence decidedly against a higher rating and therefore denied the claim, stating the benefit-of-the-doubt rule was not applicable. Regarding the thoracic myofascial strain claim, the Board noted that service connection had already been granted by the agency of original jurisdiction (AOJ) prior to the Board's review. Consequently, the Board dismissed this issue as moot, as there was no controversy for the Board to adjudicate.

Rationale

Evidence did not meet criteria for ankylosis or higher IVDS ratings.; Veteran's reported pain did not constitute functional loss beyond assigned ratings.; Board found evidence decidedly against higher ratings.

Full Decision Text

Citation Nr: A26040800
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250605-551222
DATE: April 30, 2026

ORDER

1. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis lumbar spine, degenerative joint disease, lumbar spine and L3-L4 disc bulge with thoracic spine strain, is denied.

2. Entitlement to service connection for thoracic myofascial strain is dismissed as moot.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's lumbar spine disability has not been manifested by favorable ankylosis of the entire thoracolumbar spine.

2. An April 2025 rating decision granted service connection for thoracic myofascial strain. 

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237.

2. As the claim for service connection for thoracic myofascial strain has been granted in full by the AOJ, the Board has no way to adjudicate the merits of the claim at this time and the claim is dismissed. 38 U.S.C. § 7105(d).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1996 to March 2003.

The rating decision on appeal was issued in December 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  

Initially, service connection for degenerative joint disease of the lumbar spine was granted at an evaluative rating of 10 percent effective April 1, 2003, in an April 2003 rating decision. 

A February 2024 rating decision awarded an increased rating for degenerative arthritis of the lumbar spine, degenerative joint disease, and lumbar spine disc bulge at L3-L4 from 10 percent to 40 percent effective July 3, 2023. 

In July 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested adjudication of a thoracic spine condition. In December 2024, the agency of original jurisdiction (AOJ) 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 January 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2024 decision.  In April 2025, AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2024 decision.  

In the June 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement or NOD), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the December 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Veteran raised a generic request for examiner credentials with the NOD. However, the information regarding examiner credentials was already provided in the file in November 2023 and August 2024 appointment notifications. No further action by VA is required. 

1. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis lumbar spine, degenerative joint disease, lumbar spine and L3-L4 disc bulge with thoracic spine strain, is denied.

The Veteran seeks entitlement to an evaluative rating in excess of 40 percent for
, 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. 

The Veteran raised a generic request for examiner credentials with the NOD. However, the information regarding examiner credentials was already provided in the file in November 2023 and August 2024 appointment notifications. No further action by VA is required. 

1. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis lumbar spine, degenerative joint disease, lumbar spine and L3-L4 disc bulge with thoracic spine strain, is denied.

The Veteran seeks entitlement to an evaluative rating in excess of 40 percent for a lumbar spine disability. See June 2025 VA Form 10182 NOD. 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings).

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.

Forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). The criteria for a rating based on ankylosis also may be met by evidence demonstrating the "functional equivalent" of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021).

Also, potentially applicable to the Veteran's claim is Diagnostic Code 5243, pertaining to intervertebral disc syndrome. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned 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 evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Regulation changes occurred in 2021. In this case, the Board notes that the new regulation changed Diagnostic Code 5242 to include deg
acitating Episodes, a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned 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 evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Regulation changes occurred in 2021. In this case, the Board notes that the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome.  The new regulation also added Diagnostic Code 5243 for IVDS, noting that 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root.  The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia.  Otherwise, the rating criteria under the General Rating Formula for Diseases and Injuries of the Spine remained the same as prior to February 7, 2021.

The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14.

When evaluating musculoskeletal disabilities, VA, in addition to applying the schedular criteria, may assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating).

Further considerations required of VA when evaluating musculoskeletal disabilities are to ensure findings on examination include range of motion measurements made during active and passive motion and in weight-bearing and non-weight-bearing maneuvers. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Additionally, findings must account for the effects of pain, weakness, fatigability, or incoordination on range of motion during flare-ups and in repeated use over time. When flare-ups are not occurring during the examination or repeated use over time is not tested that day, findings nonetheless must include estimations of additional loss of motion made in actual degrees, based on a veteran's reports or as demonstrated by the veteran. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).

As the Veteran also has been diagnosed with IVDS in at least one VA examination, the Board for rating purposes must also look to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243. It provides a 60 percent disability rating would be assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS which required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1).

As the Veteran's lumbar spine disorder can be rated either under the IVDS Formula or the General Rating Formula, the rating will be assigned in accordance with whichever method
.F.R. § 4.71a, Diagnostic Code 5243. It provides a 60 percent disability rating would be assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS which required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1).

As the Veteran's lumbar spine disorder can be rated either under the IVDS Formula or the General Rating Formula, the rating will be assigned in accordance with whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.7. It is the Board's duty to acknowledge and consider all regulations which are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).

Note (2) of the General Rating Formula provides that, VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.

Turning to the record, the Veteran was afforded a VA examination in December 2023. The VA examiner reported diagnoses of degenerative arthritis, degenerative disc disease (other than IVDS), disc bulge, and bilateral lower extremity radiculopathy. The Veteran remarked the severity and frequency of his low back pain have increased presenting as throbbing and achy. He has used over-the-counter topical treatment and physical therapy. The Veteran also reported flare-ups that occur daily characterized as throbbing and achy lasting up to eighteen hours that is precipitated by prolonged sitting, standing, bending, lifting, or running. 

The examiner found range of motion (ROM) measurements for flexion ending at 30 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, right lateral rotation at 30 degrees, and left lateral flexion and rotation at 30 degrees. Passive ROM was recorded as the same as active ROM. The VA examiner noted pain during active and passive ROM testing and objective evidence of localized pain on palpation at the paraspinal lumbar with mild severity. Estimated ROM after repeated use yielded measurements of flexion ending at 25 degrees, extension at 15 degrees, right lateral flexion at 15 degrees, right lateral rotation at 30 degrees, and left lateral flexion and rotation at 30 degrees. The Veteran exhibited no guarding or muscle spasms. 

The VA examiner found mild to severe radiculopathy of the lower extremities and no ankylosis. The VA examiner also found the Veteran did not have IVDS nor utilized an assistive device. 

The Veteran was afforded a subsequent VA examination in August 2024. The VA examiner confirmed diagnoses of degenerative arthritis, degenerative disc disease (other than IVDS), lumbosacral strain, bulging discs, and IVDS. The Veteran reported onset of the symptoms of back pain in service as due to physical fitness training. Current symptoms include mild throbbing, burning lower back pain that is worse with standing, walking, sitting, bending, and lifting. The Veteran also reported flare-ups occurring daily lasting thirty to sixty minutes with strong stabbing pains after prolonged sitting or standing. During a flare-up, the Veteran is unable to pick up objects from the floor. 

The examiner found range of motion (ROM) measurements for flexion ending at 60 degrees, extension at 20 degrees, right lateral flexion and rotation at 20 degrees, and left lateral flexion and rotation at 20 degrees. Passive ROM testing was not performed to avoid aggravation and risk of further injury to the Veteran. Estimated ROM after repeated use yielded measurements of flexion ending at 30 degrees, extension at 10 degrees, right lateral flexion and rotation at 10 degrees, and left lateral flexion and rotation at 10 degrees. 

The VA examiner found mild to moderate radiculopathy of the lower extremities and no ankylosis. Although the examiner found IVDS, there were no incapacitating episodes of any duration over the past 12 months. He further found available imaging documented disc herniation and osteoarthritis. The examiner noted no use of an assistive device. He noted the Veteran's report of the functional impact on the ability to work as occupational tasks requiring sitting, standing, or walking for extended periods or bending to lift objects over ten pounds should be avoided to
 flexion ending at 30 degrees, extension at 10 degrees, right lateral flexion and rotation at 10 degrees, and left lateral flexion and rotation at 10 degrees. 

The VA examiner found mild to moderate radiculopathy of the lower extremities and no ankylosis. Although the examiner found IVDS, there were no incapacitating episodes of any duration over the past 12 months. He further found available imaging documented disc herniation and osteoarthritis. The examiner noted no use of an assistive device. He noted the Veteran's report of the functional impact on the ability to work as occupational tasks requiring sitting, standing, or walking for extended periods or bending to lift objects over ten pounds should be avoided to prevent a flareup. 

For the August 2024 examination, passive ROM testing is not specified because it was contraindicated. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no prejudice results from any failure to report passive ROM in weight bearing or non-weight bearing. The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. However, the Veteran has already obtained the highest rating as concerns ROM measurements and the next higher evaluative rating depends solely on the presence of ankylosis. In any case passive ROM was same as active ROM in the earlier examination report. Additionally, the Board notes that there was compliance with Sharp, 29 Vet. App. at 34-36 because the examiner was requested to quantify the flare ups into degrees of ROM. See December 2023 and August 2024 examination reports. 

The Veteran was not found to have ankylosis of the spine, favorable or unfavorable, as would be required for a 50 or 100 percent rating. Moreover, looking to a higher rating under the IVDS Formula, the examiner found IVDS. However, the Veteran did not report and the record did not show that there had been incapacitating episodes having a total duration of least six weeks during the past 12 months for a 60 percent rating.

Lastly, the Board has considered whether the Veteran's lumbar spine disability resulted in a level of functional loss greater than that already contemplated by the assigned ratings for these periods. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Functional loss due to pain is rated at the same level at which functional loss is impeded. Stated another way, range of motion may be possible beyond the point when pain sets in but, for rating purposes, only to the extent pain limits motion will be considered. Mitchell, 25 Vet. App. at 43. While the Veteran complains of pain throughout the range of motion of his back, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion except to the degree recorded on examination testing, as discussed above. There is no indication of greater pain on movement which is not compensated in the evaluations already assigned.

The Board has considered the Veteran's lay statements, including statements from his wife and mother. The Veteran is competent to report pain and limited movement. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran reported an inability to sit longer than twenty minutes at a time, bending over to tie his shoes, and difficulty in clipping his toenails due to pain in his back. See January 2024 VA Form 21-10210 Veteran Lay Statement. The Veteran also reported his back pain impacts his sleep. The Veteran's wife is a physical therapist assistant and athletic trainer that helps in relieving the pain by realigning his pelvis and sacrum into a neutral position. See January 2024 VA Form 21-10210 Spouse Lay Statement. She also confirms his difficulties with sitting for long periods of time and bending over. However, the Board finds that these symptoms do not typify a higher disability evaluation. 

Further, the Veteran has not alleged that he was unable to move his spine resulting in the functional equivalent of ankylosis. See Chavis, 34 Vet. App. at 6. Therefore, even though he said that he did take medication, there is nothing to discount because he explained in the examination reports that even at the disability's worst it never resulted in the functional equivalent of ankylosis which would result in a higher rating. See Ingram v. Collins, 38 Vet. App. 130 (2025).

For the reasons stated and based on the evidence of record, the Board finds there is no approximate balance of the evidence to support higher ratings.

The Board has considered the applicability of the benefit-of-the-doubt rule; however, as the evidence is decidedly against assignment
 his spine resulting in the functional equivalent of ankylosis. See Chavis, 34 Vet. App. at 6. Therefore, even though he said that he did take medication, there is nothing to discount because he explained in the examination reports that even at the disability's worst it never resulted in the functional equivalent of ankylosis which would result in a higher rating. See Ingram v. Collins, 38 Vet. App. 130 (2025).

For the reasons stated and based on the evidence of record, the Board finds there is no approximate balance of the evidence to support higher ratings.

The Board has considered the applicability of the benefit-of-the-doubt rule; however, as the evidence is decidedly against assignment of higher ratings, the rule is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The claim therefore is denied.

2. Entitlement to service connection for thoracic myofascial strain is dismissed.

The Veteran seeks service connection for thoracic myofascial strain by noting the December 2024 rating decision on his 10182. As noted above, the Veteran is service connected for degenerative arthritis lumbar spine, degenerative joint disease, lumbar spine and L3-L4 disc bulge with thoracic spine strain and thoracic myofascial strain. See April 2025 Rating Decision. The Veteran was awarded a 40 percent evaluative rating under Diagnostic Code 5242 effective August 2024. See April 2025 Code sheet. Since the thoracic and lumbar spines are rated together the evaluation is combined. 

Ratings cannot be "pyramided" one upon the other when symptomatology is the same or similar and/or anatomical location is the same. See 38 C.F.R. § 4.14. Pyramiding, the evaluation of the same disability (or the same manifestation of a disability) under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. Id. It is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). While the Veteran can be separately service-connected for different acquired disorders, the overlapping symptoms for each separate disorder cannot be rated more than once.

Under 38 U.S.C. § 7105(d), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, as the AOJ already granted service connection for thoracic myofascial strain, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction over the appeal as there remains no controversy for appellate consideration.

A case is moot, for example, if "an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party." Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks and citation omitted).  Here, the AOJ already granted service connection before the appeal even began. Consequently, there is no further relief the Board can grant to the Veteran; the issue of service connection for thoracic myofascial strain, is moot.  Id. at 12; Grantham v. Brown, 114 F.3d 1156, 1158; see generally 38 U.S.C. § 7105.

Accordingly, the appeal is dismissed as moot.

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Faul, Frank J.

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.