Citation Nr: 1757765 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-00 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for a right foot injury, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for lumbar disc narrowing at L4-5 with pain, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for a right elbow disability. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1971 to October 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing in August 2013 before the undersigned Veterans Law Judge. In October 2014, November 2015, and February 2017, the issues on appeal were remanded by the Board for additional development. The issue of entitlement to service connection for a right elbow disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right foot injury has been manifested by moderately severe foot impairment, without evidence of severe foot impairment. 2. The Veteran's lumbar spine disability was not manifested by forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis; neurological abnormalities; or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a right foot injury have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, 4.118, Diagnostic Codes 5284 (2017). 2. The criteria for an evaluation in excess of 10 percent for lumbar disc narrowing at L4-5 with pain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in December 2009 and July 2010. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In an October 2010 statement the Veteran asserted that the VA doctor who had examined him in January 2010 and September 2010 had ignored his reports of lack of movement, then forced his foot to move in a way that caused immense pain, which resulted in a sever increase in pain. Since that time the Veteran has been afforded two additional VA examinations and has not raised any issues with those examinations. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board's February 2017 remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board will address the merits of the claim. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation for distinct periods of time, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hence, the following analysis is undertaken with the possibility that staged rating may be warranted. Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id., quoting 38 C.F.R. § 4.40. Right Foot The General Rating Formula for Diseases and Injuries of the foot are governed under 38 C.F.R. 4.71a and there are multiple Diagnostic Codes for evaluation of impairment resulting from service connected disorders of the feet. The Veteran's foot disability is currently rated under as 20 percent disability under Diagnostic Code 5284. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent. The words "moderate" "moderately severe," and "severe," as used in the various diagnostic codes 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. In his December 2009 claim, the Veteran asserted that his right foot disability has worsened. In June 2009, in a private treatment record, the Veteran complained of a painful knot top of right foot and the toenail on his right foot was turning black. Dr. W.S. gave the Veteran a diagnosis of exostosis and possible ganglionic syst. The Veteran's range of motion was normal on examination, vascular examination was normal, and neurological examination was normal. Dr. W.S. performed surgery on the Veteran's right foot the same month and removed a mass. The Veteran was given a VA examination in January 2010. He rated his foot pain as nine on a scale of 10. He was not using any orthotic or assistive device. He could walk one hour or roughly one-half mile without difficulty. He reported having flare-ups with prolonged weight-bearing and with cold weather. Resting alleviated his pain. The examiner noted the June 2009 surgery. The Veteran reported that the right foot pain negatively affected his daily activities, and had an impact on his ability to work as a postal worker. Examination of the right foot revealed a well-healed, longitudinal, surgical incision centered roughly over the talonavicular joint. The Veteran had tenderness about his midfoot, but no tenderness about his forefoot. He had full active and passive range of motion at his ankle and subtalar joint. Repetitive range of motion increased pain in the midfoot, although it did not decrease range of motion. Repetitive range of motion did not cause pain or decrease range of motion in the tibiotalar or subtalar joints. Upon weight-bearing, the Veteran had a neutral tendo-Achilles/calcaneus alignment. His hindfoot was supple and painless when off loaded. He had intact distributions and dorsalis pedis pulse was normal. He had a well-maintained medial longitudinal arch. The examiner opined that while the Veteran had pain which could limit function, particularly with repetitive use, it was not feasible to attempt to express any loss of function in terms of additional limitation of motion as it could not be determined with any degree of medical certainty. In a September 2010 VA examination, the Veteran reported pain rated at eight out of 10. He reported flare-ups in which his pain became significantly worse, and stated that weather changes along with increased weight-bearing seemed to cause these flare-ups. He did not use an assistive device for this problem. The Veteran stated he could walk about 30 minutes and one-fourth of a mile. He asserted that his foot condition affected his activities of daily living and his ability to perform his job for the post office. The Veteran stated that most of his pain was at the mid dorsal aspect of his foot. On examination the Veteran's right foot brisk capillary refill at his toes. He did not have significant varus or valgus malalignment of his calcaneus and Achilles' with weight bearing and non-weight bearing. He did have what appeared to be a medial prominence of his midfoot with weight bearing. He was able to perform a single leg heel rise. He had significant tenderness to palpation at his dorsal midfoot, especially near his old incision. The incision was healed without any signs or symptoms of infection. The Veteran had some active motion at his first metatarsophalangeal joint, which caused him pain. He did not have any significant hallux valgus. He did not have any weakness with eversion and inversion of his foot. He did not have any weakness with ankle plantar flexion or ankle dorsiflexion. He did have a mildly antalgic gait, but did not have any significant unusual shoe wear. The examiner opined that while the Veteran had pain which could limit function, particularly with repetitive use, it was not feasible to attempt to express any loss of function in terms of additional limitation of motion as it could not be determined with any degree of medical certainty. In an August 2013 private treatment record, Dr. B.C. reported that the Veteran had moderate pronation of both feet. During the August 2013 hearing the Veteran testified that he had a knot removed from his foot in 2009. He reported that the knot was beginning to return, which was causing his toe nails to discolor. The Veteran was using Tylenol, ice, and elevation when his foot worsened. The Veteran was afforded a VA examination in June 2015 for his right foot disability. The Veteran reported pain on weight bearing, difficulty with shoe wear, and difficulty with prolonged ambulation. He did not report flare ups. The Veteran had pain in his right foot, accentuated with use and manipulation, but did not have swelling on use, characteristic callouses, or marked deformity. Arch supports relieved the Veteran's symptoms. The examiner reported that the Veteran had functional loss due to pain on weight-bearing and deformity. The examiner noted that the Veteran did not have pain, weakness, fatigability, incoordination, or additional functional during flare-ups or when the foot was used repeatedly over a period of time. Imaging studies confirmed arthritis. The examiner noted that the Veteran's would be limited in occupational tasks due to difficulty with prolonged ambulation. The Veteran was again afforded a VA examination for his right foot in April 2017. The Veteran reported continued occasional pain in his right foot since injury in service, and reported a recent increase in pain and swelling. The Veteran mentioned that for the last few years, he had noticed more pain and difficulty walking on uneven terrain. He also complained of sharp pain with prolonged standing and walking. His pain was aggravated if he walks on gravel. He stated that he had to rest after going up and down the stairs and after walking around the grocery store. The examiner noted that the Veteran had surgery for a "bone spur" in 2009. The Veteran reported he did well after this surgery but has had a recurrence of pain. Range of motion testing was normal bilaterally on both active and passive motion and on non-weight bearing. No pain was noted on range of motion testing. The examiner found that the Veteran's right foot disability was moderately severe, did not chronically comprise weight bearing, and did not require arch supports, custom orthotic inserts, or shoe modifications. The examiner found that there were no residual signs or symptoms related to a June 2009 right foot surgery. The examiner found that right foot pain contributed to functional loss, which resulted in interference with standing. Further, the examiner found that after repeated use over time the Veteran had functional loss due to pain. The Veteran reported tenderness on palpation in the right metatarsal region. He did not report pain on weight bearing, but stated that he had not done enough walking that day to have those symptoms. The examiner opined that while the Veteran was currently service connected for a right foot injury, a diagnosis of right foot degenerative arthritis was more appropriate. The examiner explained that the claims file had evidence of radiographic findings consistent with right foot arthritis, which correlated with the clinical findings on examination. The examiner further reported that the Veteran's documented foot injury could have developed into arthritis, noting that it was common knowledge that injury to a joint predisposes that joint to arthritic changes that. According to the examiner, the June 2009 surgery for right foot exostosis and scar tissue was a progression of the Veteran's arthritis over time with failure of non-operative management. The examiner also examined the Veteran's left foot, which was normal in all aspects. Here, the competent medical and lay evidence demonstrates that the Veteran's right foot disability is manifested by foot pain and tenderness which results in functional loss due to difficulty with prolonged ambulation and interference with standing. After a review of the lay and medical evidence of record the Board finds that the Board finds that at no point during the pendency of the appeal does the evidence of record demonstrate that a rating in excess of 20 percent for the right foot disability is warranted. The Board notes that for a 30 percent evaluation under Diagnostic 5284, the Veteran must demonstrate severe residuals of the foot disability. Simply put, based upon the evidence of record, severe residuals of a right foot disability are not demonstrated as the evidence does not reflect that the Veteran's disability was more than "moderately severe" in severity. While the term "severe" is not defined by regulation, the overall regulatory scheme contemplates 30 percent ratings in cases of problems so disabling there is objective evidence of marked deformity (pronation, abduction, etc.), or all toes tending to dorsiflexion, with marked tenderness under the metatarsal heads definite tenderness with dorsiflexion of the great toe and ankylosis of the ankle in plantar flexion, between 30 and 40 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5270, 5276, 5278. While the April 2017 VA examiner noted tenderness on palpation in the right metatarsal region, there was no indication that his toes tended toward dorsiflexion, no limitation of dorsiflexion at the ankle, and no evidence of shortened plantar fascia. Thus the record does not indicate that the Veteran's foot disability approximates such degree of severity. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40 , 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Additionally, the Board notes that the April 2017 VA examiner specifically determined that pain limited the Veteran's functional ability when the foot was used repeatedly over a period of time; however, even considering that loss, the examiner opined that the Veteran's right foot disability was moderately severe. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. The Board has also considered whether a separate rating is warranted under various other diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the above evidence is against assigning a rating under Diagnostic Code 5276 (acquired flat foot or pes planus), Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (anterior metatarsalgia), Diagnostic Code 5280, (hallux valgus), Diagnostic Code 5281 (hallux rigidus), Diagnostic Code 5282 (hammer toe), or Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). The Board has considered whether the Veteran's right foot disability would be better or more appropriately rated under any of these other codes, but finds that Diagnostic Code 5284 is most appropriate. See Butts v. Brown, 5 Vet. App. 532, 539 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). For the most part, the Veteran is not shown to have the type of impairment contemplated by these other diagnostic codes. Moreover, he is not shown to experience differing symptoms that would allow for application of these other diagnostic codes without violating VA's anti-pyramiding regulation. See 38 C.F.R. § 4.14. In light of the April 2017 examiner's opinion that the Veteran's disability would be better classified as right foot degenerative arthritis, the Board has also considered whether the Veteran would be more appropriately rated under Diagnostic Code 5003. However, as the Veteran has demonstrated no limitation of motion and only one joint is involved, the Veteran would not benefit from an evaluation under that code inasmuch as he is receiving a 20 percent rating instead under Diagnostic Code 5284. As a result, the Board finds that severe residuals of the right foot disability have not been demonstrated and a 30 percent disability rating for a right foot disability is not warranted. Accordingly, when affording the Veteran the benefit of the doubt, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's service-connected arthritis, right foot, 1st metatarsal, status post fusion for fracture. Lumbar Disc Narrowing Service connection was originally granted for lumbar disc narrowing L4-5 with pain in an March 1993 rating decision, which assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5293. At the time of the original grant of service connection, Diagnostic Code 5293 applied to ratings for Intervertebral Disc Syndrome. Intervertebral Disc Syndrome is now rated under Diagnostic Code 5243. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Veteran was given a VA examination in January 2010. The examiner gave the Veteran a diagnosis of lumbar spine degenerative disc disease. The Veteran rated his back pain as seven on a scale of 10 with some radiation to his bilateral posterior thighs. It did not extend below his knees. The Veteran reported some numbness over the posterior thigh, but it did not travel distally. He was not using an assistive device. He could walk one hour or one-half mile. The Veteran reported flare-ups of his low back pain when standing or walking for prolonged periods, alleviated by rest. He asserted that his low back pain had a negative impact on his daily activities as it did on his ability to work as a postal worker. He had not been on bedrest in the past 12 months. He denied any bowel or bladder dysfunction or fever or chills. On examination the Veteran localized his pain to the midline lumbar spine but had no tenderness to palpation. Range of motion was 90 degrees of flexion, 15 degrees of extension, 30 degrees of lateral flexion, and 30 degrees of lateral rotation to the right and to the left. Repetitive range of motion testing did not increase his pain or further decrease his range of motion. He had normal strength testing. He had intact sensation to light touch in the peripheral nerve distributions and dermatomes, L3 through Sl. Straight leg raise was negative bilaterally. He had no clonus. Babinski was down going. In an August 2013 private treatment record, Dr. B.C. reported that the Veteran's spine had worsened over the years and he has had to work through the pain. During the August 2013 hearing the Veteran reported he had experienced a decrease in flexibility and an increase in pain. He stated that his doctor told him he was developing degeneration of the disc. He was taking extra strength Tylenol and using heat and ice to alleviate his symptoms. The Veteran was still working full time as a letter carrier, but testified that he could no longer walk his route all day and had to drive his route. He was also having difficulty picking up and carrying items. The Veteran reported that over the year he had missed approximately a week of work due to flare ups in his back, more than he had the prior year. The Veteran was afforded a VA examination for his back in June 2015. The Veteran reported no flare-ups and no functional loss or functional impairment. Range of motion testing was normal. The examiner noted no pain on weight bearing and no localized tenderness. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The Veteran had guarding or muscle spasm that did not result in abnormal gait or spinal contour. Strength testing was normal. Reflex testing was normal. Strait leg raising test was normal. The examiner found that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He had no ankylosis of the spine. The examiner noted no other neurologic abnormalities and no Intervertebral Disc Syndrome. Imaging studies confirmed arthritis of the thoracolumbar spine. The examiner opined that the Veteran's back condition resulted in difficulty with heavy lifting and prolonged ambulation. The Veteran was afforded a VA examination for his back in April 2017. The examiner noted a diagnosis of L3-L4 and L4-L5 degenerative disc disease. The Veteran reported sharp and throbbing pain in his low back aggravated by prolonged standing, walking as well as bending and squatting. He stated he had to stop frequently due to pain and reported that everything took him longer as a result. The stated he had undergone chiropractic manipulation and had used a back brace. The examiner noted that the Veteran had not had any recent diagnostics, with the last X-ray dated in January 2010, which showed degenerative disc narrowing at L3-L4 and L4-L5. Range of motion testing was all normal. The examiner noted that the Veteran had pain on forward flexion, but it did not result in any functional loss. There was objective evidence of mild localized tenderness on palpation at the L4-L5 interspace. There was no pain on weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner reported that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran did not report having flare-ups. The examiner observed no guarding or muscle spasm. The examiner did not find any additional factors contributing the Veteran's disability. Testing did not reveal any radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have ankylosis, any neurologic abnormalities, or any intervertebral disc syndrome. At the time of the examination, the Veteran was not using any assistive devices. The examiner opined that the Veteran may have difficulty keeping up with pace of running, prolonged standing and lifting due to his lumbar spine degenerative disc disease. The examiner did not assess the Veteran's back in non-weight bearing or perform passive range of motion testing, explaining that it is not medically appropriate to do so as the individual joints comprising the column cannot be adequately assessed. The Board finds that the evidence demonstrates that the Veteran's service-connected lumbar disc narrowing at L4-5 with pain was not manifested by forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis; neurological abnormalities; or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. Flexion was, at worst, to 90 degrees with complaints of pain. These findings do not more nearly approximate or equate to limitation of flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, when considering additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As limitation of flexion does not more nearly approximate to greater than 30 degrees but not greater than 60 degrees, and there is no evidence of ankylosis, a rating higher than 10 percent is not warranted under the General Rating Formula. The Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40 , 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the assigned 10 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. In this regard, on VA examination in January 2010 the Veteran reported flare-ups. The examiner indicated that there was no increased pain or additional loss of range of motion repetitive use. The Veteran reported flare-ups that had caused him to miss approximately a week of work during the August 2013 hearing. However, in subsequent June 2015 and April 2017 VA examination, the Veteran did not report flare-ups. Additionally, on both occasions the VA examiner found that the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Therefore, the Board finds that the Veteran's functional loss is not equivalent to limitation of flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or with muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour to meet the criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5237. Specifically, although range of motion findings were essentially normal during this timeframe, the Veteran consistently reported that the major functional impact of his disability was pain resulting in difficulty standing, walking, and lifting. Thus, the Board finds that the 10 percent evaluation assigned under 38 C.F.R. § 4.59 based on functional loss due to painful motion adequately portrays any functional impairment and pain that the Veteran experienced as a consequence of his lumbar spine disability. Moreover, during this timeframe, there were no findings of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. As noted above, during the August 2013 hearing the Veteran asserted he had missed approximately one week of work due to his back disability. However, there is no evidence the Veteran was ever prescribed bed rest by a physician due to an incapacitating episode. Moreover, both the June 2015 and April 2017 VA examiners reported that the Veteran did not have intervertebral disc syndrome. Thus the Veteran does not meet the criteria for the next higher rating of 20 percent under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the preponderance of the evidence is against assignment of an increased evaluation in excess of 10 percent for the Veteran's service-connected lumbar disc narrowing at L4-5 with pain. ORDER Entitlement to an evaluation in excess of 20 percent for a right foot injury is denied. Entitlement to an evaluation in excess of 10 percent for lumbar disc narrowing at L4-5 with pain is denied. REMAND The Board finds that the Veteran's claim for entitlement to service connection for a right elbow disability must be remanded for compliance with the February 2017 remand directives. In its February 2017 remand, the Board directed the RO to obtain an addendum opinion to determine if the Veteran's diagnosed right elbow cubital tunnel syndrome had been aggravated by his service-connected cervical spine disability. The RO obtained an addendum opinion related to the Veteran's claimed right elbow disability in April 2017. However, the examiner did not provide an opinion as to aggravation, and instead reported that the Veteran did not have a diagnosis of cubital tunnel syndrome but did not address the previous diagnosis of cubital tunnel syndrome already of record. Thus the Board finds that there has not been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). Further, the examiner noted that there was no evidence of electromyography or nerve conduction velocity testing in the claims file to substantiate nerve compression at the elbow such that a diagnosis of cubital tunnel syndrome could be made, or determine if the Veteran's symptoms suggestive of ulnar nerve entrapment were due to compression at the level of the elbow or at Guyon's canal, the two more likely diagnostic considerations based on the history and clinical findings. Therefore, in addition to an opinion as to aggravation, the Board finds an additional VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of any right elbow condition. All necessary tests and studies, including electromyography and/or nerve conduction velocity testing, should be accomplished and all complaints and clinical manifestations should be reported in detail. The entire claims file, including a copy of this remand, should be reviewed in conjunction with the above evaluation. After reviewing the claims file and examining the Veteran, the examiner should address the following inquiries: (a) Identify all current diagnoses associated with the Veteran's right elbow that have been present at any time during the appeal period. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition is caused by or etiologically related to active duty service. (c) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition is secondary any already service-connected disability. (d) Provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the any diagnosed right elbow disability was aggravated by any already service-connected disability. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. Along with any opinion provided, the examiner must fully discuss the Veteran's March 1985 treatment for right elbow pain, the July 2010 letter from Dr. B.C. indicating treatment related to the cervical brachial nerve roots, and the June 2015 VA examiner's diagnosis of cubital tunnel syndrome. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs