For the period beginning on February 17, 2020, entitlement to an evaluation of 40 percent for intervertebral disc syndrome (IVDS) with degenerative arthritis is granted.

Citation Nr: 26001429 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 14-16 960 DATE: January 30, 2026 ORDER For the period beginning on February 17, 2020, entitlement to an evaluation of 40 percent for intervertebral disc syndrome (IVDS) with degenerative arthritis is granted. REMANDED For the period prior to February 17, 2020, entitlement to an evaluation of more than 20 percent for IVDS with degenerative arthritis is remanded. For the period beginning on February 17, 2020, entitlement to an evaluation of more than 40 percent for IVDS with degenerative arthritis is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT For the period beginning on February 17, 2020, the Veteran's IVDS with degenerative arthritis is manifested by the functional equivalent of favorable ankylosis. CONCLUSION OF LAW For the period beginning on February 17, 2020, the criteria for entitlement to an evaluation of 40 percent for IVDS with degenerative arthritis have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243 (2024). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1981 to August 1984, and was honorably discharged for immediate re-enlistment. He subsequently served on active duty in the United States Marine Corps from August 1984 to November 1986, and was discharged under honorable conditions (general) due to "misconduct - minor disciplinary infarctions." See 38 C.F.R. § 3.12(d) (a discharge due to "minor" offenses generally will not be considered as due to willful and persistent misconduct if service was otherwise honest, faithful, and meritorious); see also 38 C.F.R. § 3.13(a), (b). These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Regional Office (RO). The Veteran requested a Board hearing, which was scheduled for July 28, 2016. The Veteran failed to appear, and no good cause for the failure to appear is indicated. Therefore, his request for a hearing is considered withdrawn, and these matters are ready for further appellate review. In November 2019 and August 2023, the Board remanded the rating claims for further development. These matters are now returned to the Board for further appellate review. For the period beginning on February 17, 2020, entitlement to an evaluation of 40 percent for IVDS with degenerative arthritis is granted. The Veteran's IVDS with degenerative arthritis is currently assigned a 20 percent rating, effective June 7, 2010. The Veteran seeks a higher initial rating. For the reasons explained below, and in the interest of avoiding unnecessary delay in the delivery of benefits, entitlement to a higher 40 percent rating for the Veteran's IVDS with degenerative arthritis, effective February 17, 2020, is granted herein, and entitlement to even higher initial ratings, for the entire period on appeal, is addressed in the remand section below. The Veteran's IVDS with degenerative arthritis is rated under Diagnostic Code 5242-5243 under the General Rating Formula for Diseases and Injuries of the Spine. A recent April 2024 rating decision granted a higher 20 percent rating dating back to June 7, 2010, using the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine (which includes Diagnostic Code 5242) provides, in pertinent part, for a 20 percent rating 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 provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Effective February 7, 2021, the rating criteria for several musculoskeletal disabilities were amended. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Where a statute or regulation changes during the pendency of a claim, the version most favorable to the claimant will generally be applied, except that the statute or regulation cannot be applied prior to its effective date. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part by Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011). For purposes of granting a higher 40 percent rating herein under the General Rating Formula for Diseases and Injuries of the Spine, however, the February 2021 amendments were of no effect. A February 2020 VA examination report shows the Veteran reported his back pain had worsened and it "locks up" during flare-ups and "I cannot do anything." Forward flexion was not limited to 30 degrees or less. Curiously, the examiner provided the same ranges of motion for initial ranges of motion and for estimated functional loss during flare-ups. Based thereon, the Board remanded the claim so that a new VA examination could be performed to more adequately address functional loss during flare-ups. An October 2023 VA examination report shows the Veteran reported experiencing severe flare-ups of pain several times per month, alleviated by nothing, and requiring him to lie down on the ground. Forward flexion was not limited to 30 degrees or less, including for estimates for flare-ups and repeated use over time. A June 2021 VA treatment record shows he reported his back goes into extreme spasms constantly, requiring him to lay down for several minutes. See CAPRI, September 2023 at p.140. An October 2021 VA physical therapy record shows the Veteran reported that his back pain was 10/10 and made him want to cry. See CAPRI, August 2022 at p.172. Another October 2021 VA treatment record shows he reported his back locks up in spasms four times per month and he has to lower himself to the floor. See CAPRI, August 2022 at p.564. In an August 2023 informal hearing presentation, the Veteran's former representative asserted that the criteria for a higher rating of at least 40 percent were met based on the February 2020 VA examination report because the functional equivalent of favorable ankylosis was shown. The Board agrees, particularly in light of the other evidence of record discussed above. The Board is mindful that a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. Chavis v. McDonough, 34?Vet. App.?1, (2021). 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). Unfortunately, neither of the VA examiners addressed whether functional ankylosis was shown. The Board finds that because the February 2020 VA examination report, and subsequent VA treatment records, show the Veteran reported his back locks up due to back pain and spasms, rendering him immobile and having to lie down, including on the floor, the functional equivalent of favorable ankylosis is shown, and therefore, entitlement to a 40 percent rating, effective February 17, 2020, the date of the VA examination, have been met. Accordingly, the Board concludes that for the period beginning on February 17, 2020, entitlement to a 40 percent rating for IVDS with degenerative arthritis is warranted, and to that extent, the claim is granted. REASONS FOR REMAND 1. For the period prior to February 17, 2020, entitlement to an evaluation of more than 20 percent for IVDS with degenerative arthritis is remanded. 2. For the period beginning on February 17, 2020, entitlement to an evaluation of more than 40 percent for IVDS with degenerative arthritis is remanded. The Veteran's IVDS with degenerative arthritis is currently assigned a 20 percent rating prior to February 17, 2020, and 40 percent thereafter. He seeks higher initial ratings. As discussed above, the Board has found that at least the functional equivalent of favorable ankylosis has been shown since the time of the February 2020 VA examination, and the General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating for favorable ankylosis of the thoracolumbar spine, such that a 40 percent rating is granted, effective February 17, 2020. See 38 C.F.R. § 4.71a. The Board finds, however, that a remand is required to obtain a VA medical opinion to address whether the functional equivalent of unfavorable ankylosis is shown at any time since February 2020, as the General Rating Formula provides for a higher 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine. Furthermore, recently, the Court of Appeals for Veterans Claims (Court) held in Ingram v. Collins that the ameliorative effects of medication should be discounted in rating musculoskeletal disabilities when medication use is not explicitly contemplated by the relevant rating criteria. See Ingram v. Collins, 38 Vet. App. 130 (2025); see also Jones v. Shinseki, 26 Vet. App. 56 (2012). In this case, the rating criteria for spinal disabilities do not contemplate medication use. The February 2020 VA examiner noted "medication management" for treatment generally, but unfortunately, did not specify what medications were being taken, if any, or address the ameliorative effects of medication. An April 2021 VA treatment record shows the Veteran reported taking ibuprofen, Baclofen, and Duloxetine for his back pain, and his prescription list at that time also included acetaminophen, although a subsequent October 2022 VA pain clinic record shows he reported he was allergic to ibuprofen, the baclofen and duloxetine did not help, and he was only using acetaminophen. See CAPRI, August 2022 at p.691, and September 2023 at p.214. Subsequent VA treatment records show the Veteran also received nerve block injections beginning in June 2022, and continued receiving the injections in 2023. See CAPRI, August 2022 at p.2, and September 2023 at p.17, 44, 55. The October 2023 VA examiner noted that the Veteran was receiving injections as treatment, but did not address the ameliorative effects of medication. Considering the above, the Board also finds that, on remand, when obtaining a VA medical opinion to address whether the functional equivalent of unfavorable ankylosis was shown, the examiner must consider the ameliorative effects of medication. In addition, because prior Board remands found inadequacies in the February 2011 and February 2020 VA examinations, the recent October 2023 VA examiner should be asked to clarify whether the ameliorative effects of medication were considered in providing the ranges of motion in that report, and if not, then ranges of motion when considering the ameliorative effects of medication should be estimated (as for the period prior to February 17, 2020, the back disability is rated as 20 percent disabling, and the next higher 40 percent rating criteria under the General Rating Formula for Diseases and Injuries of the Spine contemplate forward flexion limited to 30 degrees, or favorable ankylosis). As a final matter, as noted above, although there are records of attempting to contact the Veteran in 2019 in the CAPRI records, there are no VA records of treatment encounters after September 2015 until March 2021, a period of almost six years during the period on appeal. Therefore, on remand, a search for any records of VA treatment between September 2015 and March 2021 should be made and any missing records associated with the file - including in Chicago, Illinois, Crownpoint, Indiana, New Orleans, Louisiana, and Loma Linda, California. 3. Entitlement to a TDIU is remanded. The Veteran's former representative asserted in a December 2011 notice of disagreement that the Veteran had been unable to work since October 2008 due to his service-connected IVDS with degenerative arthritis. The Veteran reported in his May 2014 substantive appeal that he had been unable to work since October 2011. The Board finds that the Veteran's claim of entitlement to a TDIU is part and parcel to this appeal involving the claim for higher ratings for his IVDS disability, and therefore, it is properly on appeal before the Board herein. The Board notes that this matter is part and parcel to his increased rating claims, and is therefore on appeal before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). February 2016 emails in the file show an intention of the RO to send a request to the Veteran for a formal application for a TDIU (Form 21-8940), but no such request was sent to him. The next day, a request for a formal application for benefits was mailed to him, but unfortunately, this letter only mentioned using a Form 21-526EZ for an application for compensation, and the RO never requested the necessary Form 21-8940 or adjudicated a claim of entitlement to a TDIU. Therefore, the Board finds the claim for a TDIU must be remanded so that the RO may send a letter to the Veteran requesting that he submit a completed Form 21-8940 with his most recent employment information, and so that the RO may adjudicate entitlement to a TDIU in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 392 (1993). The matters are REMANDED for the following action: 1. Ask the Veteran to submit a completed Form 21-8940, including information from his last employment. Then, adjudicate the claim of entitlement to a TDIU. See Correspondence, December 15, 2011; Form 9, May 2014. 2. Associate with the claims file any missing CAPRI records dated between September 2015 and March 2021 from the VA medical systems in Chicago, Illinois, Crownpoint, Indiana, New Orleans, Louisiana, and Loma Linda, California. Note: No records of treatment encounters are in the file after September 2015 until March 2021. Although some 2019 records are in the file, these are only records of contacting the Veteran. 3. Ask the same examiner who provided the October 2023 VA examination report for IVDS with degenerative arthritis to provide a medical opinion based on a review of the entire claims file, including this remand, to clarify whether the functional equivalent of unfavorable ankylosis has been shown since February 2020. In providing the opinion, the VA examiner must address the ameliorative effects of medication. Also, please ask the October 2023 VA examiner to clarify whether the ranges of motion in the October 2023 VA examination report factor in the ameliorative effects of medication, and if not, the examiner should estimate the ranges of motion when considering the ameliorative effects of medication. Please direct the VA examiner's attention to VA treatment records showing the Veteran has had an active prescription for acetaminophen for several years, he received spinal nerve block injections in 2022 and 2023, the February 2020 VA examination report showing the Veteran reported his back "locks up," a June 2021 VA treatment record showing he reported his back goes into extreme spasms requiring him to lay down, an October 2021 VA physical therapy record showing his back pain was 10/10 and made him want to cry, an October 2021 VA treatment record showing he reported his back locks up in spasms four times per month and he has to lower himself to the floor, and to consider their October 2023 VA examination report shows the Veteran reported experiencing severe flare-ups of pain several times per month, alleviated by nothing, and requiring him to lie down on the ground. If the same VA examiner who provided the October 2023 VA examination for the IVDS with degenerative arthritis disability is unavailable, the requested opinion should be obtained from a similarly qualified examiner. An examination is necessary if required by the examiner to form an opinion. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.