judge_norm: J NICHOLS

condition: back

condition: radiculopathy

text:
Citation Nr: 25009000
Decision Date: 07/09/25	Archive Date: 07/09/25

DOCKET NO. 19-05 303
DATE: July 9, 2025

ORDER

Entitlement to a disability rating in excess of 40 percent for a service-connected lumbosacral strain is denied.

Entitlement to a disability rating in excess of 40 percent for left lower extremity sciatic radiculopathy is denied.

Entitlement to a disability rating in excess of 40 percent for right lower extremity sciatic radiculopathy is denied.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's lumbosacral strain was manifested by flexion to 40 degrees, at worst; unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine was not shown at any time.

2. For the entire period on appeal, the Veteran's left lower extremity sciatic radiculopathy was manifested by moderately severe incomplete paralysis without marked muscular atrophy.

3. For the entire period on appeal, the Veteran's right lower extremity sciatic radiculopathy was manifested by moderately severe incomplete paralysis without marked muscular atrophy.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 40 percent disabling for service-connected lumbosacral strain are not met. 38 U.S.C. �� 1155, 5100, 5107; 38 C.F.R. �� 4.1, 4.3, 4.124a, Diagnostic Code 5242.

2. The criteria for entitlement to a rating greater than 40 percent disabling, for service-connected left lower extremity sciatic radiculopathy are not met. 8 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.124a, DC 8520.

3. The criteria for entitlement to a rating greater than 40 percent disabling, for service-connected right lower extremity sciatic radiculopathy are not met. 8 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1977 to August 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2017 and November 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously before the Board on appeal from an October 2017 and November 2018 agency of original jurisdiction (AOJ) rating decisions, which reduced the Veteran's disability rating. In an April 2023 Board decision, the Board found the reduction to be improper and reinstated the Veteran's ratings; however, the Board denied ratings in excess of 40 percent for the low back disability as well as higher ratings for each lower extremity disability.

The Veteran appealed the April 2023 Board decision to the Court. In an April 2024 Order, the Court granted a Joint Motion for Partial Remand (JMPR) which partially vacated the Board's April 2023 decision, related specifically to the claims of entitlement for an increased rating for lumbar spine, bilateral lower extremity sciatic radiculopathy, bilateral lower extremity femoral radiculopathy, and TDIU, and remanded the matters for readjudication consistent with instructions outlined by the parties in the JMPR.

In January 2025, the Board granted the Veteran's claim for TDIU from December 29, 2009, and denied the claims for higher ratings for right and left lower extremity femoral nerve radiculopathy. Also in January 2025, the Board remanded the issues regarding higher ratings for the low back and sciatic nerve disabilities for further development. These claims are now ready for adjudication.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. � 1155; 38 C.F.R. � 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. 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. 38 C.F.R. � 4.7. Otherwise, the lower rating will be assigned. Id.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Board has assessed the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.

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

Under 38 C.F.R. � 4.59, painful motion is a factor to be considered with any form of arthritis. However, 38 C.F.R. � 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. � 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

1. Entitlement to a rating greater than 40 percent for lumbosacral strain.

The Veteran is in receipt of a 40 percent disability rating from December 29, 2009. The Veteran asserts that he is entitled to a higher disability rating.

The Veteran's lumbosacral strain is rated under 38 C.F.R. � 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. � 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The requirement of establishing ankylosis for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). This is because "ankylosis is, in essence, a complete limitation of motion." Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Accordingly, the assignment of the maximum rating based on limitation in range of motion does not preclude consideration of functional loss under sections 4.40 and 4.45 of the regulations where a diagnostic code provides for a higher rating based on ankylosis. Id. at 11.

Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See38 C.F.R. � 4.25 (combined ratings table).

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under38 C.F.R. � 4.25, whichever method resulted in the higher evaluation.

The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to clarify that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242.

In a March 2010 written statement, the Veteran reported that he could not lift things due to his back disability. The AOJ treated the statement as a claim for service connection for the low back disability. In a December 2011 Rating Decision, the AOJ granted service connection for the lumbar spine with an evaluation of 40 percent from December 29, 2009. The Veteran did not disagree with the initial rating.

In February 2012, the Veteran raised a claim for TDIU, due in part to his service-connected low back disability. The Board has considered whether the TDIU claim rendered the December 2011 Rating Decision not final but finds that it did not. In this regard, as the Veteran had already reported that his low back disability prevented him from lifting things, (i.e., function pertinent to his work experience), the TDIU claim did not provide new and material evidence to reopen the rating claim for the low back disability. Thus, the Board finds that the claim for TDIU did not render the December 2011 rating decision not final.

Next, the Veteran filed supplemental claim for increased rating for the low back in October 2015.

The Veteran underwent a VA thoracolumbar examination in January 2016. At that time, the Veteran reported experiencing flare-ups that he described as chronic constant pain. He also reported experiencing loss of range of motion of the back.  Physical examination revealed flexion to 40 degrees; extension to 15 degrees; left and right lateral flexion to 20 degrees; and right and left lateral rotation to 10 degrees. The examiner noted that pain was observed in all ranges of motion and there was objective evidence of localized tenderness. There was no additional limitation of range of motion after three repetitions and there was no estimated additional range of motion loss with repeated use over time. The examination was conducted during a flare-up and no additional range of motion loss was noted. The examiner also found guarding and muscle spasms of the thoracolumbar spine which did not result in abnormal gait or abnormal spine contour. The examiner noted that the Veteran displayed 4/5 strength and hypoactive deep tendon reflexes. The examiner found no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or ankylosis.

The Veteran was afforded another thoracolumbar exam in September 2016. At that time, the Veteran reported that his pain was constant and increasing in severity. The Veteran denied flare-ups. He reported functional loss in that his walking was limited to one block, he was unable to run, he could lift and carry no more than 10 pounds, and had limitation in bending, crawling, and stooping. Physical examination revealed flexion to 70 degrees; extension to 10 degrees; left and right lateral rotation to 10 degrees; and right and left lateral flexion to 10 degrees. The examiner noted that pain was seen on examination in all range of motion testing and there was objective evidence of localized tenderness. The examiner noted that the Veteran displayed 5/5 strength and normal deep tendon reflexes. The examiner found no guarding or muscle spasm, no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or ankylosis. The examiner also noted that the Veteran was being examined immediately after repetitive use over time and that pain and fatigue limited the Veteran's functional ability but that the examiner was not able to describe the limitation in terms of range of motion.

Next, the Veteran was provided with another VA thoracolumbar examination in August 2018. At that time, the Veteran reported that since his prior VA examination, his back had progressively worsened. The examiner diagnosed the Veteran with a lumbar strain, degenerative disc disease and bilateral lower extremity radiculopathy. Examination revealed flexion to 40 degrees, extension to 10 degrees. Lateral flexion was to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 15 degrees. The examiner noted that pain was seen on examination in all range of motion testing and there was objective evidence of localized tenderness. The Veteran was in too much pain to complete three repetitions. The examiner did not find any gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or ankylosis. The examiner described the functional impact of the Veteran's back disability as consisting of an inability to be on his feet for any length of time, difficulty standing, walking, going up and down stairs, lifting and sitting.

In accordance with the January 2025 Board remand, the Veteran was afforded another VA examination in March 2025 but failed to report to the examination. Neither the Veteran nor his representative have provided good reason for the Veteran's failure to report to the examination. Thus, the Board will base the evaluation on the evidence of record.

VA treatment records are consistent with the VA examination reports.

Considering the above, the Board finds that a rating greater than 40 percent is not warranted at any time. The Board acknowledges that the Veteran has competently and credibly reported ongoing symptoms including constant pain, stiffness, and intermittent spasms.

The assigned 40 percent rating contemplates forward flexion of the thoracolumbar spine to 30 degrees or less, including zero degrees of motion, and favorable ankylosis of the entire thoracolumbar spine or its functional equivalent. In this case, the physical examinations have demonstrated flexion as no worse than 40 degrees, even during a flare-up. See e.g. January 2016 VA examination report.

The question for the Board is whether unfavorable ankylosis, or its functional equivalent, have been present or more closely approximated so as to warrant a 50 or 100 percent evaluation for the Veteran's back disability. After reviewing the evidence, the Board concludes a rating higher than 40 percent is not warranted for the Veteran's back disability for the entire period on appeal as unfavorable ankylosis, or its functional equivalent, has not been shown.

In reaching this conclusion, the Board acknowledges the Veteran's reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had constant back pain that limited daily activities requiring movement do not indicate that such limitation would result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Despite the limited ranges of spinal motion during the claim period, the Board finds that even considering back pain, flare ups, and other functional factors, the Veteran has not experienced the functional equivalent of unfavorable ankylosis at any time during the claim period.

The Board has also considered whether a 60 percent disability rating is warranted for IVDS with physician-prescribed bedrest but finds that it is not. In this regard, although IVDS was diagnosed in the January 2016 VA examination, the evidence does not indicate that bedrest for a period of six weeks in any pertinent 12-month period was prescribed. Further, it is more beneficial to the Veteran to rate the low back disorder under the general rating formula with separate 40 percent ratings for lower extremity radiculopathy than to rate under IVDS.

For all of these reasons, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for the lumbar spine disability. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. � 5107 (b); 38 C.F.R. �� 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to an initial disability 40 percent disability rating for service-connected left lower extremity radiculopathy.

3. Entitlement to an initial disability 40 percent disability rating for service-connected right lower extremity radiculopathy.

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. A 20 percent rating requires moderate, incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe, incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe, incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. � 4.124a.

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. � 4.124a, Disease of the Peripheral Nerves, Schedule of Ratings Explanation for Diagnostic Codes 8510-8540.

Words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. � 4.6.

It should also be noted that use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. � 7104 (a); 38 C.F.R. �� 4.2, 4.6.

In this case, the January 2016 VA examiner found severe incomplete paralysis involving the sciatic nerve for the bilateral lower extremities; however, there was no indication of marked muscular atrophy.

During the August 2018 VA examination, the Veteran reported that his low back pain radiated down both legs, left greater than right, along with intermittent numbness and tingling.

Pursuant to the January 2025 Board remand, the Veteran was afforded another VA examination in March 2025. Unfortunately, the Veteran did not report to the examination and neither the Veteran, nor his attorney, have provided good cause for the Veteran's failure to report. Therefore, the Board will evaluate the claims based on the evidence of record.

Based on the foregoing, the Board finds that the Veteran's left lower extremity and right lower extremity sciatic radiculopathy, each, most closely approximate 40-percent disability rating for moderately severe incomplete paralysis. None of the evidence indicates that the Veteran's sciatic nerve disability has reached a "severe" level of disability in either lower extremity at any point pertinent to the appeal. Therefore, the Board finds the evidence is persuasively against a rating higher than 40 percent for either lower extremity, at any point.

J. NICHOLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Ebaugh, 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.


series: legacy

judge_norm: A P SIMPSON

judge_role: Veterans Law Judge

disposition: denied

text:
Citation Nr: 25010000
Decision Date: 08/01/25	Archive Date: 08/01/25

DOCKET NO. 18-51 278
DATE:  August 1, 2025

ORDER

1. Entitlement to service connection for peripheral vascular disease, status post right femoro-popliteal insitu saphenous vein bypass graft and angioplasty (PVD) is denied.

2. Entitlement to service connection for a right lower extremity nerve disability, to include peripheral neuropathy, femoral nerve palsy, and diffuse nerve damage, and to include as secondary to PVD, is denied.

FINDINGS OF FACT

1. PVD did not have its onset in service, was not manifested within one year of service discharge and is not otherwise related to service.

2. A right lower extremity nerve disability did not have its onset in service, was not manifested within one year of service discharge and is not otherwise related to service. A right lower extremity nerve disability is not caused by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for PVD have not been met. 38 U.S.C. �� 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for a right lower extremity nerve disability, to include peripheral neuropathy, femoral nerve palsy, and diffuse nerve damage, and to include as secondary to PVD, have not been met. 38 U.S.C. �� 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1978 to April 1985.

In a December 2022 decision, in relevant part, the Board remanded the issues of entitlement to service connection for PVD and for right lower extremity peripheral neuropathy to afford the Veteran a new VA examination and obtain medical opinions for these disabilities. The Veteran received a VA examination and opinion in March 2023, and a VA examination and opinion for PVD in July 2023. In November 2023, a VA addendum opinion was provided for PVD that also considered the Veteran's right lower extremity peripheral neuropathy. The Board finds that there has been substantial compliance of its prior remand directives and adjudication of the case on the merits may proceed.

In a May 2024 decision, the Board denied service connection for PVD and for right lower extremity nerve disability. The Veteran appealed the May 2024 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2025, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (Joint Motion) to vacate the Board's decision and remand the claims. Specifically, the parties agreed that the Board must consider the Veteran's contentions that a VA medical opinion was inadequate and address the competency of the examiner. The parties also agreed that the claim of service connection for a right lower extremity nerve disability was inextricably intertwined with the claim for PVD, and otherwise did not directly address this claim. The Court granted the motion, and the case returned to the Board for further appellate review. The Board will address the concerns raised in the Joint Motion below.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303(d).

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as PVD and peripheral neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. �� 1101, 1110, 1112, 1113; 38 C.F.R. �� 3.307, 3.309(a).

1. Entitlement to service connection for PVD

The Veteran contends that his PVD was incurred during a motor vehicle accident during service, which resulted in symptoms that have been continuous during service, and that this disability is directly related to service.

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of service connection for PVD. The reasons follow.

The Veteran has been diagnosed with PVD, and thus there is evidence of a current disability. For example, the June 2023 VA examination report shows that the Veteran was diagnosed with PVD in September 2016. Thus, the facts establish that the first element of a service-connection claim is met.

Additionally, as to an in-service disease or injury, the evidence supports a finding of a disease or injury in service indicative of PVD. The service treatment records (STRs) show that the Veteran was involved in a motor vehicle accident in February 1981. Following this, in a March 1981 STR, the Veteran was found have an inability to use the right quadriceps and a diagnosis of femoral nerve palsy, post-traumatic was provided. The STRs show that the Veteran was receiving EMG biofeedback, electrical stimulation, and cyber rehabilitation for the right leg during service. The STRs show that the Veteran experienced ongoing symptoms, including aspiration of 40 cc of right knee hemarthrosis and profiling for torn ligaments in April 1984. For these reasons, the Board finds the evidence supports a finding of disease or injury related to PVD during service, and the in-service disease or injury element is met.

However, the evidence persuasively weighs against a nexus between PVD and service. For example, in a February 2016 private treatment record, the Veteran first underwent a right femoro-popliteal insitu saphenous vein bypass graft and angioplasty, which is more than three decades (30 years) after service, and does not lend to a finding that PVD had its onset in service.

In a November 2016 Notice of Disagreement (NOD), the Veteran claimed that the leg symptoms he experienced during service have led to his current difficulties, which include trouble walking, running, and climbing. He mentioned that his condition has worsened over time and that he has undergone several surgeries to address these issues. In a September 2019 statement, the Veteran reported that he worked for a company for around 16 years before his leg symptoms reemerged, leading to surgical treatment in November 2014.

The Veteran has explicitly stated that he did not have continuous symptoms since service discharge. While he reported getting numbness and tingling down his right leg following service discharge in the September 2019 statement, he also stated he found a job that allowed him to work for 16 years before "all my problems with my legs started coming back." This establishes that the Veteran's symptoms were not continuous since service discharge.

In a May 2016 VA medical opinion, the examiner opined that the Veteran's PVD is related to service. The examiner cited a March 1981 STR, but did not provide a rationale for how he reached this conclusion.

A June 2016 VA examiner opined that the Veteran's PVD was not incurred in or otherwise related to service. The examiner noted that there is no documented medical evidence to support the claim that the Veteran's vascular system was compromised due to the in-service motor vehicle accident (MVA) from February 1981. The examiner discussed that the Veteran's March 1981 inpatient treatment record confirms that the injury was related to the MVA while the Veteran was on duty. The diagnoses from this record include femoral nerve palsy (post-traumatic) and cerebral contusion. However, the examiner noted that it is significant that there was no evidence of arterial involvement, and concluded that the evidence does not support a relationship between the Veteran's service and his current PVD.

A June 2019 private treatment opinion shows that Ms. Debra Allen, APRN, opined that the Veteran's PVD is related to service. She explained that the rollover accident during service had resulted in an inability to perform voluntary somatic movement (VSO) in the right quadricep muscle, which was related to femoral nerve palsy with ongoing difficulty with right leg use and circulation. Ms. Allen stated that, afterwards, the Veteran had ongoing critical disease in 2014, resulting in in failed stenting and femoro-popliteal insitu saphenous vein bypass graft and angioplasty.

In a February 2019 statement, the Veteran's representative contended that the June 2016 VA medical opinion was inadequate, because the examiner did not consider the Veteran's STRs of record or his post-service treatment records. The Veteran's representative provided several additional arguments in support of these contentions, stating that the examiner did not apply the benefit of the doubt doctrine, failed to review all evidence of record, did not use state-of-the-art medicine, and did not consider presumptive service connection. The Veteran contended that these medical opinions should not be entitled to any probative weight.

In the December 2022 Board decision, it found that the June 2016 VA medical opinion had diminished probative value. In the March 2025 Joint Motion, the parties agreed that the Board would more directly address the Veteran's February 2019 contentions regarding the examiner's failure to discuss relevant evidence, and the competency of the examiner. The Board finds that the June 2016 VA medical opinion, although it directly and competently addressed the Veteran's in-service injury and its relationship to his PVD, the examiner did not adequately consider relevant facts, namely the Veteran's post-service medical records. Thus, the current Board finds that the June 2016 VA medical opinion is of reduced probative value in this respect. However, when the examiner noted that there was "no documented medical evidence that the Veteran's vascular system was compromised due to the motor vehicle accident that occurred during service," such was an accurate statement, as the March 1981 inpatient treatment record documents, "No Artery Involvement" following the MVA.

With regard to the June 2016 examiner's competency, in the case of competent medical evidence, VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case. It is presumed that VA followed a regular process that ordinarily results in the selection of a competent medical professional. Viewed correctly, the presumption of competence is not about the person or a job title; it is about the process. Further, the provisions of 38 C.F.R. � 3.159(a)(1) state that competent medical evidence is evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions. However, once a veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications.

Here the examiner is a Nurse Practitioner. Nurse practitioners are subject to obtaining advanced degrees and licensure for their practice. As to the examiner's credentials, the American Association of Nurse Practitioners (AANP) states that, "Nurse practitioners (NPs) practice in nearly every health care setting, including clinics, hospitals, Veterans Affairs and Indian Health Care facilities, emergency rooms, urgent care sites, private physician or NP practices []. NP practice includes, but is not limited to, assessment; ordering, performing, supervising and interpreting diagnostic and laboratory tests; making diagnoses; initiating and managing treatment, including prescribing medication and non-pharmacologic treatments; coordinating care; counseling; and educating patients, their families and communities. [...] NPs provide a wide range of health care services, including the diagnosis and management of acute, chronic and complex health problems." See https://www.aanp.org/advocacy/advocacy-resource/position-statements/standards-of-practice-for-nurse-practitioners (describing the standards of practice for NPs, including sections on qualifications and process of care).

Their education covers a broad range of topics, including pathophysiology, pharmacology, and diagnostics, which provides them with the knowledge necessary to evaluate and manage the health of patients, including in this case, the Veteran. Nurse Practitioners must also undergo clinical training, which gives them significant medical experience and expertise. They are also required to pass standardized national board certification exams. See https://www.aanp.org/advocacy/advocacy-resource/position-statements/nurse-practitioner-education. Accordingly, the Board finds that the examiner was qualified through education and training or experience to offer medical diagnoses, statements, or opinions. Due to their training, they are equipped to critically evaluate medical literature and use it to inform their clinical decisions, lending additional credibility to their medical opinions. Thus, the Board finds that the June 2016 VA examiner was competent to provide the opinion.

In two July 2023 VA medical opinions from the same day, the examiner opined that the Veteran's PVD was not incurred in or otherwise related to service. In the first opinion, the examiner explained that without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. The examiner noted that the Veteran's history was silent for treatment, intervention and/or evidence of peripheral artery disease during service.

In the second opinion provided on the same day, the examiner indicated that, after reviewing the available evidence, it is less likely than not that the claimed condition is connected to military service. The examiner explained this conclusion is based on the absence of supporting evidence linking the current diagnosis of status post right femoro-popliteal in situ saphenous vein bypass graft angioplasty and aortic aneurysm to military service. The examiner noted that without evidence of chronicity during or after service, any post-service events, illnesses, or injuries are considered more likely explanations for the condition.

The examiner highlighted that, according to the National Library of Medicine, peripheral vascular disease is primarily caused by progressive atherosclerotic disease, which severely reduces blood perfusion to major organs and leads to end-organ ischemia. Additionally, the examiner identified comorbidities, such as smoking and hypertension, as significant factors that contribute to the progression of atherosclerosis. The examiner pointed out that the Veteran has a documented medical history of both hypertension and a smoking habit of half a pack per day. Furthermore, the examiner stated that current medical evidence does not support the idea that traumatic injuries, like those from a motor vehicle accident, are a risk factor for developing or worsening atherosclerosis related to peripheral vascular disease. The examiner backed her opinion with references to multiple pieces of scientific literature.

The examiner reviewed the evidence and provided two medical opinions with rationales that were based on the specific facts of the case and medical principles. In light of the VA examiner's consideration of the Veteran's risk factors, analysis of medical literature, and application of those to the Veteran's specific medical history, the Board affords this opinion probative value and finds that it is evidence against a finding that PVD had its onset in service or is otherwise related to service. The facts upon which the examiner based the opinion are the same facts that the Board finds are the most accurate facts, which is that the Veteran's history was silent for treatment, intervention and/or evidence of peripheral artery disease during service and that the Veteran had risk factors, such as hypertension and a smoking history. Thus, the VA examiner's medical opinion is based on an accurate set of facts.

Here the July 2023 examiner held the degree of Nurse Practitioner - General Practice. Accordingly, for the same reasons as enumerated above, the Board finds that the examiner was qualified through education, training or experience to offer medical diagnoses, statements, and opinions in this case.

To the extent that Ms. Allen's medical opinion has probative value, it is outweighed by the July 2023 VA medical opinions, which are significantly more comprehensive and offer a detailed rationale for why PVD is not associated with the Veteran's military service. This includes an explanation of how the lack of symptoms in the years following service weighs against a finding of a nexus to service. Additionally, Ms. Allen did not provide a rationale for the conclusion that the in-service accident caused the Veteran's symptoms decades later.

As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his current PVD in service and that his PVD did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service. See 38 C.F.R. �� 3.303(b), 3.307, 3.309(a). In the September 2019 statement, the Veteran noted that he was able to work for 16 years before his symptoms began to come back. This is evidence against continuity of symptomatology.

While the Veteran alleges that the PVD is related to service, he is not competent to attribute PVD to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent and probative evidence that outweighs the July 2023 VA medical opinions, which are evidence against that the post-service PVD is related to service, and the nexus element of a service-connection claim is not met.

The Veteran has provided several articles in support of his claims, including titles such as "Deep Femoral Vein," "Peripheral Vascular Disease," "Post-Traumatic Arthritis," "Peripheral Vascular Injuries Due to Blunt Trauma: Management and Outcome," "Occlusive Peripheral Arterial Disease," and "Vascular Diseases." However, these articles offer only general insights into the scientific aspects of peripheral vascular disease (PVD). They do not represent a medical opinion from a qualified professional who has reviewed the Veteran's medical history and formed an opinion based on the specifics of that history, to include the in-service finding of no artery involvement. Therefore, these articles do not establish evidence of a nexus between the Veteran's post-service PVD and his military service.

In the March 2025 Joint Motion, the parties agreed that the Board would discuss evidence from these articles that suggest that injury to the legs is a known causal factor for the Veteran's disability. The Board finds that the July 2023 VA medical opinions address this theory, by noting that current medical evidence does not support the idea that traumatic injuries, like those from a motor vehicle accident, are a risk factor for developing or worsening atherosclerosis related to peripheral vascular disease. The examiner backed her opinion with references to multiple pieces of scientific literature. The examiner also based the opinions on evidence from the Veteran's medical history during service and after separation from service, which bolstered the probative value of the July 2023 VA medical opinions.

Additionally, the Board notes that in one of the articles that the Veteran's representative submitted from WebMD, entitled, "Peripheral Vascular Disease," it provided that the most common cause of PVD is peripheral artery disease, which is due to atherosclerosis. Other causes were listed as well, which included, "Injury: Blood vessels can be injured in an accident such as a car wreck or bad fall." The Veteran's representative also submitted a study from the International Journal of Surgery, entitled, "Peripheral vascular injuries due to blunt trauma (road traffic accident): Management and outcome." Both the article and the study discuss blood vessels being damaged in a traffic accident. The service treatment records show that following the 1981 motor vehicle accident, the examiner made a specific finding that there was, "No artery involvement." Thus, the injury that would need to occur to cause peripheral vascular disease would be an artery injury, and the Veteran did not experience such injury at the time of the in-service motor vehicle accident. Thus, it is reasonable for the VA examiner to conclude that a general traumatic injury would not cause the development of peripheral vascular disease, since an artery injury was ruled out in the service treatment records.

The Veteran's representative made multiple allegations about the medical opinions provided by a VA examiner; however, it is unclear which examiner he is addressing when stating that the examiner based the opinion "on the absence of [service treatment records] (which were actually present)" and on the absence of post-service continuing treatment. The June 2023 examiner provided medical opinions in July 2023. She documented she reviewed the claims file within that opinion, which included the service treatment records. She also cited to the service treatment record showing the Veteran's inability to use the right quadricep. Thus, the representative's allegation that the opinion was based on an absence of service treatment records is inaccurate. The representative also stated that the examiner based the opinion on "the absence of post-service continuing treatment." The Veteran's own September 2019 statement provided facts to support that there was not continuing treatment. Specifically, in the statement, the Veteran wrote, "Worked with a company for about 16 y[ea]rs before all my problems with my legs started coming back." It is a reasonable conclusion that the Veteran did not have ongoing symptoms for 16 years, since he specifically stated that the symptoms "started" to come back after 16 years. Thus, the examiner's reliance on the lack of continuing treatment was supported by the Veteran's own statement.

The Veteran's representative's assertions that the examination is not entitled to any probative weight and cannot be used to decide this claim because it is based on an inaccurate factual premise is not supported by the facts. Again, the Veteran's own lay statements about not having symptoms for 16 years was allowed to be considered by the examiner. This shows that the examiner considered the lay evidence in the file when forming her opinion.

The representative also attacked the probative value of the VA opinions because the examiner did not address the positive medical opinion. That is not a basis to find that the VA medical opinion is inadequate. It is the adjudicator who needs to weigh the various medical opinions of record and not the examiner. The examiner wa asked if the current disability was related to service, and she addressed that question. The allegation that the examiner provided a bare statement of facts without any supporting rationale is not supported. The examiner provided a rationale for the July 2023 medical opinions.

To the extent that the representative attacked the medical opinions because the examiner did not apply the benefit of the doubt doctrine, that doctrine does not apply to medical opinions. That is for VA to apply to the facts of a case.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for PVD is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38?U.S.C. �?5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

2. Entitlement to service connection for a right lower extremity nerve disability, to include peripheral neuropathy, femoral nerve palsy, and diffuse

The Veteran contends that his right lower extremity nerve disability was incurred in the same in-service motor vehicle accident described above and is directly related to service. Alternatively, the Veteran contends that his right lower extremity nerve disability is due to his PVD under a secondary theory of entitlement.

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of service connection for a right lower extremity nerve disability, to include peripheral neuropathy, femoral nerve palsy, and diffuse nerve damage, and to include as secondary to PVD. The reasons follow.

The evidence establishes that the Veteran has a current disability, although there has been some debate in the record as to the nature of the Veteran's diagnosis. For example, a May 2016 VA examination report shows that the Veteran was diagnosed with right lower extremity peripheral neuropathy. However, a subsequent March 2023 VA examination shows that examiner stated that the Veteran does not have a diagnosis of peripheral neuropathy. Instead, the examiner concluded the symptoms experienced are due to complications from PVD, which can mimic those of peripheral neuropathy. The examiner noted that the Veteran is receiving treatment for PVD, which includes symptoms like vascular claudication and chronic pain. Additionally, the Veteran has complications from a failed bypass surgery that led to a right below-knee amputation in 2017. The examiner emphasized that both current and past treatment records do not indicate a diagnosis of peripheral neuropathy. Instead, all treatment has focused on managing the peripheral vascular disease, which is a distinct condition. Furthermore, a VA examination conducted in June 2023 diagnosed the Veteran with post-traumatic femoral nerve palsy.

In a November 2023 VA addendum opinion, the examiner clarified findings from the March 2023 VA examination, noting that there was no loss of strength or changes in reflexes in the lower extremities. The only observation was some decreased sensation, which the examiner attributed to the Veteran's longstanding and severe PVD. The examiner explained that a femoral nerve palsy persisting for more than 30 years would typically present with more pronounced and progressive symptoms. The examiner concluded that the Veteran does not have a separate diagnosis of peripheral neuropathy. Instead, he has diffuse nerve damage characterized by decreased sensation in both lower extremities, which stems from vascular compromise. While the examiner acknowledged that the severe PVD causes functional impairments, the examiner explained the associated nerve dysfunction is considered a manifestation of the PVD itself.

Furthermore, the examiner emphasized the complex relationship between vascular and nerve function in the lower extremities, which she stated made it impossible to distinguish the specific contributions of each to the overall functional impairment without resorting to speculation. The examiner ultimately asserted that both vascular and nerve dysfunction contribute to the Veteran's functional impairments, with the vascular issues being the more significant factor. However, accurately estimating the contribution percentages from each system is deemed unreasonable.

The Board finds that the November 2023 VA medical opinion is highly probative. The examiner based her opinion regarding the Veteran's diagnosis on the findings of the in-person March 2023 VA examination, and considered alternative diagnoses documented in the May 2016 and the June 2023 VA examination reports. The opinion is consistent with medical principles, and she provided an in-depth analysis that reviews the Veteran's symptoms over time, discounts the other diagnoses of record, and is based upon a well-reasoned rationale.

In this case, although the examiner determined that the Veteran does not have a separate diagnosis apart from PVD, the opinion identified distinct functional impairments resulting from diffuse nerve damage. Therefore, the Board concedes that the Veteran has a current disability for VA purposes, confirming that the first element of a service-connection claim is satisfied.

Additionally, as to an in-service disease or injury, the evidence supports a finding of a disease or injury in service indicative of a right lower extremity nerve disability. The STRs show that the Veteran had a motor vehicle accident in February 1981. By March 1981, he was diagnosed with post-traumatic femoral nerve palsy and continued to experience issues with his right leg through June 1981. Additionally, in February 1982, the Veteran received treatments including EMG biofeedback, electrical stimulation, and cyber rehabilitation for his right leg. Thus, the Board finds the evidence supports a finding of disease or injury related to right lower extremity nerve disability during service, and the in-service disease or injury element is met.

However, the evidence persuasively weighs against a nexus between right lower extremity nerve disability and service. The Veteran claims that his right lower extremity nerve disability has been continuous since the motor vehicle accident during service in 1981. However, review of medical treatment records from July 2015, September 2015, and February 2016, related to his treatment for PVD, does not support complaints or problems that may have been reported as, or otherwise indicative of, nerve issues, including in the right lower extremity. For example, these records indicate consistent findings of normal neurological function, revealing that the Veteran was non-focal, with intact sensory examinations and normal motor strength in both upper and lower extremities. Specifically, a July 2015 record noted intact sensory examination and normal motor strength, as did the records from September 2015, and February 2016. The lack of reported nerve symptoms or related medical history, in addition the clinical findings that affirmatively demonstrate normal function regarding the nerves is highly probative evidence against a finding that his symptoms were continuous since service.

By the time these records had been generated, it was approximately 30 years following service discharge and the Veteran was not reporting right lower extremity nerve symptoms or a related medical history verus the peripheral vascular disease. Concurrent physical examinations normal neurological function. This evidence does not tend to support that the Veteran had chronic symptoms in the years following service discharge. As noted above,  discharge.

In a May 2016 VA medical opinion, the examiner opined that the Veteran's right lower extremity nerve disability is related to service. The examiner did not provide a specific opinion regarding the right lower extremity nerve disability, and, instead, repeated another opinion that the Veteran's right leg vascular condition, namely his PVD is related to service.

In a February 2019 statement, the Veteran contended that the May 2016 VA examination was sufficient to decide the claim. However, the Board finds that as the May 2016 VA medical opinion does not include a rationale, the Board finds that it is not probative.

In the June 2019 private treatment record discussed above, Ms. Allen opined that the Veteran's PVD is related to service, and she included a discussion of the Veteran's right lower extremity nerve disability. She explained that the rollover accident during service resulted had inability to perform VSO in the right quadricep muscle, which was related to femoral nerve palsy with ongoing difficulty with right leg use and circulation. Ms. Allen stated that afterwards, the Veteran had ongoing critical disease in 2014, resulting in in failed stenting and femoro-popliteal insitu saphenous vein bypass graft and angioplasty.

In a November 2023 VA addendum opinion, the examiner opined that the Veteran's right lower extremity nerve disability is caused by his PVD. The examiner stated that the Veteran's accident while in service in 1981 resulted in a temporary femoral nerve palsy that improved with physical therapy, as documented in the STRs. The examiner stated that the evidence does not support a diagnosis of chronic peripheral neuropathy or an additional nerve palsy during or after time in service. Prior to the Veteran's claims of peripheral neuropathy, the examiner stated that there were no medical complaints or findings indicative of this condition in his medical history. The examiner also noted that if the Veteran had ongoing femoral nerve palsy for more than 30 years, it would manifest with more progressive significant findings. This opinion was provided as a supplement to two July 2023 VA medical opinions in which the examiner opined that the Veteran's PVD is not related to service.

The examiner thoroughly reviewed the evidence and provided an opinion grounded in the specific facts of the case, as well as established medical principles. Given the examiner's comprehensive analysis of the Veteran's symptoms and consideration of the typical etiology and progression of nerve disabilities, the Board finds this opinion to be highly probative. It serves as evidence against a finding that the right lower extremity nerve disability had its onset during service or is otherwise related to service and counters the notion that the condition is secondary to a service-connected disability. The examiner's opinion is based on the same factual evidence that the Board deems most accurate. Specifically, the Veteran had a period of time while working where he did not have symptoms for approximately 16 years, which symptoms started up after that time period. Therefore, the examiner's opinion is established on a reliable and accurate set of facts.

Here the examiner holds the degree of Medical Doctor (MD). The Board notes that medical doctors undergo a rigorous and comprehensive education that covers a vast array of medical subjects, including anatomy, physiology, biochemistry, pharmacology, and pathology. Additionally, their post graduate clinical training prepares them for the complexities of medical practice. Accordingly, the Board finds that the November 2023 VA examiner was qualified through education, training or experience to offer medical diagnoses, statements, or opinions.

The Board finds that Ms. Allen's June 2019 private medical opinion is outweighed by the November 2023 VA medical opinion, which is significantly more thorough in its consideration of the evidence. Furthermore, the November 2023 VA medical opinion provides a more detailed and medically supported basis for the finding that the peripheral neuropathy is not related to service, to include addressing how the absence of symptoms in the years following service refutes a nexus to service. Ms. Allen's opinion provided no explanation for how she determined that the in-service accident caused the Veteran's symptoms decades after service.

As to presumptive service connection for a chronic disease, as the Veteran is not diagnosed with peripheral neuropathy, consideration of presumptive service connection is not warranted. However, even if the Veteran's right lower extremity nerve disability were to be considered a chronic disease, the Board finds that a chronic right lower extremity nerve disability did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service. See 38 C.F.R. �� 3.303(b), 3.307, 3.309(a). As noted above, the Veteran reported having a 16-year period where he did not have symptoms, which refutes continuity of symptomatology.

While the Veteran alleges that the right lower extremity nerve disability is related to service, he is not competent to attribute the right lower extremity nerve disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent and probative evidence of a nexus between the right lower extremity nerve disability and service to weigh against the November 2023 VA medical opinion, and the nexus element of a service-connection claim is not met.

The Veteran is not service connected for PVD, and the Board has denied service connection for PVD herein. Therefore, as a matter of law, the Veteran is not entitled to service connection for right lower extremity nerve disability based on a secondary theory of entitlement. Notably, the November 2023 VA medical opinion specifically stated that the Veteran's right lower extremity nerve disability caused by PVD induced vascular compromise.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for right lower extremity nerve disability is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38?U.S.C. �?5107(b), is therefore not for application. Lynch, 21 F.4th 776.

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Husain, Rahat

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.


judge_norm: A C MACKENZIE

disposition: granted

disposition: remanded

text:
Citation Nr: 25011000
Decision Date: 08/26/25	Archive Date: 08/26/25

DOCKET NO. 15-09 776
DATE: August 26, 2025

ORDER

Entitlement to an earlier effective date of June 15, 2010, for the grant of service connection for left lower extremity sciatic radiculopathy is granted.

REMANDED

Entitlement to service connection for a bladder disorder, to include as secondary to the service-connected lumbar spine degenerative disc disease, is remanded.

Entitlement to an initial rating in excess of 10 percent prior to July 23, 2015; in excess of 20 percent from July 23, 2015, to January 4, 2021; and excess of 40 percent thereafter, for lumbar spine degenerative disc disease is remanded.

Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to January 4, 2021, is remanded.

FINDING OF FACT

An initial claim for service connection for a lumbar spine disorder was received on June 15, 2010; resolving reasonable doubt in the Veteran's favor, he had left lower extremity sciatic radiculopathy at that time.

CONCLUSION OF LAW

The criteria for an earlier effective date of June 15, 2010, for the grant of service connection for left lower extremity sciatic radiculopathy are met.  38 U.S.C. � 5110; 38 C.F.R. �� 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service, including from June 1976 to October 1976, from May 1983 to August 1983, and from February 1985 to April 1986.  This matter is on appeal from December 2014, April 2017, and June 2017 rating decisions.

In September 2019, the Board of Veterans' Appeals (Board) denied effective dates prior to June 20, 2016, for the awards of service connection for both right lower extremity radiculopathy and left lower extremity radiculopathy.  The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) insofar as it denied those claims.  In July 2020, the Court granted the Parties' Joint Motion for Partial Remand (JMPR); vacated those portions of the September 2020 Board decision which denied effective dates prior to June 20, 2016, for the awards of service connection for both right lower extremity radiculopathy and left lower extremity radiculopathy; and remanded the issues to the Board for additional action consistent with the JMPR.

In May 2022, the Agency of Original Jurisdiction (AOJ) granted August 14, 2014, as the effective dates for the awards of service connection for right lower extremity sciatic nerve radiculopathy and left lower extremity sciatic nerve radiculopathy.

In April 2023 the Board denied service connection for bladder impairment; denied an effective date prior to August 14, 2014, for the award of service connection for left lower extremity sciatic nerve radiculopathy; and remanded the issues of a rating in excess of 10 percent prior to July 23, 2015; in excess of 20 percent from July 23, 2015, to January 3, 2021, and in excess of 40 percent thereafter, for lumbar spine degenerative disc disease and TDIU prior to January 4, 2021.  The Veteran subsequently appealed to the Court insofar as it denied the service connection and earlier effective date claims.  In September 2023, the Court granted the Parties' JMPR; vacated those portions of the April 2023 Board decision which denied service connection for bladder impairment and an effective date prior to August 14, 2014, for the award of service connection for left lower extremity sciatic nerve radiculopathy; and remanded the issues to the Board for additional action consistent with the JMPR.  In March 2024 and March 2025, the Board remanded the claims for development consistent with the JMPR.  The Board's remands also included the claims for higher ratings for the lumbar spine disability and for entitlement to TDIU prior to January 4, 2021.

Earlier Effective Date

The Veteran contends that an earlier effective date for the grant of service for his left lower extremity sciatic radiculopathy is warranted.

In general, the effective date of an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. � 5110(b)(1); 38 C.F.R. � 3.400(b).

A formal claim was one that has been filed in the form prescribed by the Secretary.  38 C.F.R. � 3.151.  Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant could be considered an informal claim.  Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, the formal claim was considered to have been filed as of the date of receipt of the informal claim.  When a claim had been filed which met the requirements of 38 C.F.R. � 3.151, an informal request for increase or reopening was accepted as a claim.  38 C.F.R. � 3.155.

The Veteran was discharged from his final period of service in April 1986.  An initial claim seeking service connection for a back condition was received on June 15, 2010.  In the present case, the Veteran did not explicitly file a claim or application for service connection for radiculopathy of his left lower extremity.  Rather, while his appeal for a higher rating for his lumbar spine disability was pending, the AOJ granted service connection for sciatic nerve radiculopathy, effective June 20, 2016, the date of a VA examination report showing that he had radiculopathy associated with his service-connected lumbar spine disability.  See 38 C.F.R. �� 3.310, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  Consequently, the Veteran's claim for service connection his left lower extremity radiculopathy dates back to the June 15, 2010, claim for service connection for his lumbar spine disability.

After additional development ordered by the Board in December 2020, following the July 2020 JMPR, the AOJ assigned an earlier effective date of August 14, 2014, for sciatic nerve radiculopathy of the left lower extremity, which is the date of a statement from the Veteran reporting a "bee stinging" sensation in his lower extremities.  See May 2022 rating decision.

The question for the Board's present consideration is whether the evidence establishes that the Veteran had sciatic nerve radiculopathy of the left lower extremity, associated with the service-connected disability of his lumbar spine, prior to August 14, 2014.

A July 2010 VA examination does not show a diagnosis of radiculopathy.  A January 2013 treatment record shows that the Veteran reported experiencing "pins and needles" and numbness.  The Veteran was provided a VA examination in December 2024.  After examining and interviewing the evidence, and reviewing the claims file, the examiner diagnosed the Veteran with bilateral lower extremity sciatica with the date of diagnosis being June 15, 2020.

Based on a review of the evidence, and when affording the Veteran the benefit-of-the-doubt, the Board finds that an earlier effective date of June 15, 2010, is warranted.  As noted above, the Veteran's claim dates back to June 15, 2010, as that is the date the claim for service connection for the lumbar spine disability was received.  The Board acknowledges that the initial examination in July 2010 did not show that the Veteran had left lower extremity radiculopathy.  However, treatment records dated in 2013 suggested radicular symptoms.  Moreover, the December 2024 examiner, after interviewing and examining the Veteran, and reviewing his claims file, provided an onset date of June 15, 2010, for the current diagnosis of left lower extremity radiculopathy.  As such, the Board finds that the evidence is in approximate balance as to whether the Veteran had left lower extremity radiculopathy at the time of his initial service connection claim.  Therefore, an earlier effective date of June 15, 2010, is warranted.  Thus, the appeal is granted in full.

REASONS FOR REMAND

1. Entitlement to service connection for a bladder disorder, to include as secondary to the service-connected lumbar spine degenerative disc disease

For the reasons set forth below, a remand of the increased rating claim for the lumbar spine is necessary to provide the Veteran a VA examination.  As the findings from that examination could significantly impact a decision on the issue of service connection for a bladder disorder, the issues are inextricably intertwined.  A remand of this claim is required.

2. Entitlement to an initial rating in excess of 10 percent prior to July 23, 2015; in excess of 20 percent from July 23, 2015, to January 4, 2021, and in excess of 40 percent thereafter, for lumbar spine degenerative disc disease

Regrettably, another remand is necessary.  This issue has been remanded several times to obtain a VA examination and medical opinion regarding the severity of the Veteran's lumbar spine disability dating back to the date of claim, June 15, 2010.  As discussed by the Board in its March 2024 and March 2025 remands, examinations and opinions obtained in November 2023, November 2024, and December 2024 were not adequate, insofar as they addressed the Veteran's incapacitating episodes.

A November 2023 VA medical opinion states that a January 4, 2021, VA back examination reports that the lumbar spine disability necessitated episodes of bed rest having a total duration of at least 6 weeks during the past 12 months.  The examiner commented that: "[i]ndividual treatments records from this visit stated the bed rest was 09/15/2015 and 09/21/2015, which would not be 6 weeks' worth of bed rest;" "[o]f note, the visit discussed from 1/4/2021 is the only documentation that states Veteran had been prescribed bed rest and care by a physician;" and "[t]here is also no physician documentation that supports this claim."  This opinion was not clear and not responsive to the Board's April 2023 remand instructions which directed the VA examiner to opine "as to whether, based on the available lay and medical evidence, it is at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that the appellant's service-connected lumbar spine disability has resulted in incapacitating episodes due to IVDS and, if so, the duration of such episodes over each 12-month period since approximately June 2010, to the extent possible."

The report of the November 2024 examination shows that the examiner commented that the diagnosed intervertebral disc syndrome necessitated episodes of bed rest prescribed by a physician having a total duration of at least 6 weeks during the prior 12 months.  The examiner based their opinion on the Veteran's subjective history and did not cite to any clinical documentation, to include a prescription by a physician for bed rest, to support their finding.

The report of the December 2024 examination shows that the examiner reported that the Veteran did not have any episodes of acute signs and symptoms due to intervertebral disc syndrome which required bed rest prescribed by a physician.  The examiner did not reconcile their findings with the November 2024 VA examination showing that the Veteran had intervertebral disc syndrome with episodes of bedrest prescribed by a physician having a total duration of at least 6 weeks during the prior 12 months.  A December 2024 addendum to the December 2024 examination report did not provide an opinion as to incapacitating episodes in and after June 2010.

Consequently, this issue was most recently remanded in March 2025 to provide the Veteran with a new examination to address the deficiencies in previous examinations and opinions.  The Veteran was scheduled for a new examination, but did not want to report for the examination.  Correspondence received in July 2025 shows that the Veteran did not report for the examination due to a misunderstanding.  The Veteran reported that he was willing and able to report for a scheduled examination.  In this case, the Board finds that the Veteran has provided good cause for his failure to report for a scheduled examination.  Therefore, remand is necessary to reschedule the Veteran for an examination to comply with previous Board remand directives.

3. Entitlement to TDIU prior to January 4, 2021

Finally, because a decision on the remanded issue of an increased rating for the lumbar spine disability could significantly impact a decision on this issue, the issues are inextricably intertwined.  A remand of the claim for TDIU prior to January 4, 2021, is required.

The matters are REMANDED for the following action:

1. In accordance with the provisions of 38 C.F.R. � 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records.

2. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the nature and severity of the service-connected lumbar spine degenerative disc disease.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided. The examiner should provide the following opinions:

(a.) Provide ranges of motion for passive and active motion of the lumbar spine for weight bearing and non-weightbearing.  The examiner should indicate the degree of lumbar spine motion at which any observed pain begins.  The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination.

(b.) Indicate to what extent the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare-ups or with repeated use.

(c.) Note any incapacitating episodes associated with the lumbar spine disability in and after June 2010 and the duration of such episodes.  In providing the opinion, the examiner must consider and address the July 2010 VA examination; the September 2015 private medical opinions from Dr, D.D., Dr. D.A., Dr. S.S., and Dr. D.S.; the June 2016 private Disability Benefits Questionnaire (DBQ); the December 2019 VA medical opinion; the January 2021 VA examination; the February 2022 VA examination; the July 2023 examination; the November 2023 VA medical opinion; the November 2024 examination; and the December 2024 VA examination and addendum medical opinion.  The examiner is advised that an "incapacitating episode" is defined for rating purposes as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician.

(d.) Note any associated bladder or bowel abnormalities, and their severity if shown.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Barstow, 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.