Citation Nr: 1804336 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-20 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial disability rating in excess of 20 percent prior to April 13, 2011, in excess of 10 percent from April 13, 2011, and in excess of 20 percent from December 8, 2016 for the lumbar sprain with degenerative changes. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1980 to May 1980, from August 2006 to November 2006, and from January 2008 to January 2009. He was awarded the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in January 2010, December 2010, and August 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The July 2010 rating decision granted service connection for lumbar strain with degenerative changes and assigned a 20 percent rating from January 21, 2009 under Diagnostic code 5242. An August 2011 rating decision reduced the disability rating was assigned to the lumbar spine disability to 10 percent effective April 13, 2011. In June 2016, the Veteran testified during a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. In an October 2016 decision, the Board determined that a rating reduction to a 10 percent evaluation was proper for the service-connected lumbar spine disability. The issue of entitlement to higher disability ratings for the service-connected lumbar sprain with degenerative changes was remanded to the Agency of Original Jurisdiction (AOJ) for additional development; specifically for a VA examination. The directed development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). A January 2017 rating decision assigned a 20 percent rating to the lumbar strain with degenerative changes from December 8, 2016. During the pendency of this appeal, a 100 percent disability rating was assigned to the service-connected post traumatic stress disorder from January 21, 2009. The issue of service connection for traumatic brain injury on the basis of reopening with new and material evidence was raised by the Veteran in May 2017. This new claim has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it and this issue is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to April 13, 2011 and from December 8, 2016, the service-connected lumbar sprain with degenerative changes was manifested by pain and forward flexion functionally limited to 50 to 60 degrees; without findings of favorable or unfavorable ankylosis of the entire thoracolumbar spine, and without incapacitating episodes due to the disc disease lasting a duration of at least 6 weeks during any 12 month period. 2. From April 13, 2011 to December 7, 2016, the service-connected lumbar sprain with degenerative changes was manifested by pain, painful motion, and forward flexion to greater than 60 degrees; but not by muscle spasm, guarding, or localized tenderness, abnormal gait or posture, combined range of motion 120 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or by incapacitating episodes due to the disc disease lasting a duration of at least 2 weeks during any 12 month period. 3. Prior to December 8, 2016, the service-connected lumbar sprain with degenerative changes was not manifested by objective nerve involvement or neurological manifestations or abnormalities of the right lower extremity. 4. From December 8, 2016, the service-connected lumbar sprain with degenerative changes was manifested by right lower extremity radiculopathy productive of no more than moderate incomplete paralysis or impairment of the sciatic nerve. 5. For the entire period of the appeal, the service-connected lumbar sprain with degenerative changes was not manifested by objective nerve involvement or neurological manifestations or abnormalities of the left lower extremity. CONCLUSIONS OF LAW 1. Prior to April 13, 2011 and from December 8, 2016, the criteria for the assignment of an initial disability evaluation in excess of 20 percent for the service-connected lumbar strain with degenerative changes have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2017). 2. From April 13, 2011 to December 7, 2016, the criteria for the assignment of an initial disability evaluation in excess of 10 percent for the service-connected lumbar strain with degenerative changes have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2017). 3. Prior to December 8, 2016, a separate compensable rating for neurological manifestations of right lower extremity due to the thoracolumbar spine disability is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 8520 (2017). 4. From December 8, 2016, the criteria for a 20 percent disability evaluation for the right lower extremity radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 5. For the entire period of the appeal, a separate compensable rating for neurological manifestations of left lower extremity due to the thoracolumbar spine disability is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in October 2009, January 2010, May 2010, April 2011, September 2014, and October 2016. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. 2. Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that, in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. In Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation will be assigned 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 20 percent rating is assigned 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, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 40 percent rating will be 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 evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Under Diagnostic Code 5243, a 20 percent rating is warranted where there are incapacitating episodes 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 where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. 3. Analysis: Higher Disability Ratings for the Lumbar Spine Disability The Veteran asserts that a higher disability ratings are warranted for the service-connected lumbar spine disability. By way of history, the July 2010 rating decision granted service connection for lumbar strain with degenerative changes and assigned a 20 percent rating from January 21, 2009 under Diagnostic code 5242. An August 2011 rating decision reduced the disability rating was assigned to the lumbar spine disability to 10 percent effective April 13, 2011. An October 2016 Board decision found that this rating reduction was proper. A January 2017 rating decision assigned a 20 percent rating to the lumbar strain with degenerative changes from December 8, 2016. The Board finds that the service-connected lumbar spine disability more nearly approximates the criteria for a 20 percent rating based upon the range of motion of the lumbar spine and guarding prior to April 13, 2011 and from December 8, 2016. For this time period, the service-connected lumbar sprain with degenerative changes was manifested by pain and forward flexion functionally limited to 60 degrees or less but greater than 30 degrees with pain on motion, a mild decrease in lumbar lordosis, moderate spasm and tenderness on VA examination in November 2009, and localized tenderness to palpation and guarding on VA examination in December 2016. The 20 percent rating was initially assigned based upon the findings of the November 2009 VA examination. The report shows a diagnosis of residuals of a lumbar sprain with degenerative changes. His primary complaint was intermittent low back pain with an intensity of 7/10. Prolonged sitting and walking were precipitating factors and the symptoms were relieved with Naproxen and rest. There was no functional impairment during flare-ups and no radiating symptoms to the legs. The Veteran was able to walk about 1/2 mile without assistive devices and did not have a back brace. He was not unsteady or prone to falls. He was independent in activities of daily living, but no longer played basketball or jogged on the treadmill due to back pain.. Physical examination showed mild thoracolumbar scoliosis, mild decrease in lumbar lordosis, moderate spasm, and tenderness to palpation. Forward flexion was to 60 degrees with pain at the end of range; extension to 20 degrees with pain at the end of range; left lateral flexion was to 20 degrees with pain at the end of range; right lateral flexion was to 30 degrees with no pain; and lateral rotation was to 20 degrees with pain at the end of range. The examiner could not determine with resorting to speculation whether pain, fatigue, weakness, lack of endurance or flare-ups caused any additional functional loss. Sensation was intact to light touch and motor examination did not reveal any muscle atrophy. Strength was normal at 5/5 and deep tendon reflexes were 1+ and symmetrical for knee and ankle jerks. Straight leg raising was to 60 degrees bilaterally with low back pain at the end, but Lasegue's sign was negative as there was no radicular complaints. X-rays showed a small amount of degenerative changes. The diagnosis was residuals of lumbar sprain with degenerative changes. VA outpatient treatment records dated after the November 2009 VA examination in general, do not include any specific findings showing lumbar range of motion or addressing functional impairment. The Veteran reported back pain. There were no days of prescribed bed rest for intervertebral disc syndrome and no findings or history to suggest any bladder, bowel, or erectile dysfunction. However an entry dated in February 2010 shows the Veteran had undergone physical therapy with a reported decrease in pain to a 3/10. A March 2011 VA record shows that during a pain management evaluation the Veteran's pain level was 6. The 20 percent rating was again assigned from December 8, 2016 based upon the findings of the December 8, 2016 VA examination. The report shows a diagnosis of degenerative arthritis of the lumbar spine. The veteran reported that he had chronic back pain that radiated down the right leg, he used naproxen daily, and he used a heating pad. The Veteran wore a brace. He avoided standing for any period of time and he tried to not bend down and tie shoes. He stated that flare-ups caused increased pain. Physical examination showed pain with weightbearing and tenderness to palpation. There was no muscle spasm on exam but guarding was detected; the guarding did not cause abnormal agit. Forward flexion was to 50 degrees with pain; extension to 10 degrees with pain; and right and left lateral flexion and rotation was to 15 with pain. The VA examiner noted that the pain noted on exam did not result in or cause functional loss. The VA examiner stated that the Veteran had fatigue and lack of endurance in addition to the pain. VA outpatient treatment records dated after the December 2016 VA examination in general, do not include any specific findings showing lumbar range of motion or addressing functional impairment. The Veteran reported back pain. There were no days of prescribed bed rest for intervertebral disc syndrome, and no findings or history to suggest any bladder, bowel, or erectile dysfunction. The weight of the competent and credible evidence shows that prior to April 13, 2011 and from December 8, 2016, the service-connected lumbar spine disability is manifested by forward flexion well beyond 30 degrees. The November 2009 VA examination report indicates that flexion of the lumbar spine was zero degrees to 60 degrees with pain at the end of flexion. The December 2016 VA examination report indicates that flexion of the lumbar spine was zero degrees to 50 degrees with pain on examination. The evidence shows that, even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the lumbar spine disability more nearly approximates the criteria for a higher disability rating of 40 percent (forward flexion of the thoracolumbar spine to 30 degrees or less) for the time period prior to April 13, 2011 and from December 8, 2016. Such factors that may additionally limit motion and function were considered and assessed by the VA examiners in November 2009 and December 2016. While the Veteran was noted to experience pain on the end of range of motion testing upon exam in November 2009 and pain with motion on exam in December 2016, this pain was not shown to functionally limit him, as additional loss of motion was not seen following repetitive motion testing. See Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). The December 2016 VA examination report indicates that there was pain on exam and with motion but the VA examiner specifically stated that the pain did not cause functional loss. The VA examiner noted that there was pain with weightbearing and symptoms of fatigue, and lack of endurance in addition to the pain but the weight of the evidence does not show that these symptoms caused additional functional loss or additional limited motion. Thus, the Board concludes that the Veteran has not been shown to have range of motion that is so limited as to merit a rating in excess of 20 percent prior to April 13, 2011 and from December 8, 2016. The evidence shows that, even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the lumbar spine disability more nearly approximates the criteria for a disability rating in excess of 40 percent prior to April 13, 2011 and from December 8, 2016. The 20 percent rating assigned contemplates the functional loss due to pain, less movement, fatigue, and lack of endurance caused by the lumbar spine disability. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). A rating in excess of 20 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243. The weight of the evidence shows that the lumbar spine disability is not productive of incapacitating episodes having a total duration of at least four weeks during the past 12 months prior to April 13, 2011 and from December 8, 2016. The treatment records and VA examination reports show that the Veteran had complaints of flare-ups of back pain but no evidence has been advanced showing that any physician has prescribed bed rest to treat any flare-ups. Physician-prescribed bed rest is the requirement for an incapacitating episode. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. In summary, on this record, the assignment of a disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to April 13, 2011 and from December 8, 2016 is not warranted under Diagnostic Codes 5235 to 5243. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected lumbar strain with degenerative changes from April 13, 2011 to December 7, 2016. The weight of the competent and credible evidence establishes that for the time period in question, the service-connected thoracolumbar spine disability is manifested by pain, painful motion, and forward flexion to 80 degrees; no muscle spasm, guarding, or localized tenderness; normal gait and posture; and normal spinal curvature; without findings of forward flexion of the thoracolumbar spine to not greater than 60 degrees; combined range of motion to not greater than 120 degrees; favorable or unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes due to the disc disease lasting a duration of at least 2 weeks during any 12 month period. See the April 2011 VA examination report. The April 2011 VA examination report indicates that the Veteran's complaints included chronic low back pain along with difficulty walking. He took medication daily and stated that hot showers help although there are times he has no relief from pain. The examiner noted that the Veteran was participating in a PTSD residential program and had been referred to physical therapy which he attended twice a week. He stated that he could walk 1 mile, stand for about 15-20 minutes, and climb one flight of stairs. He walked without any assistive devices including cane, walker or crutches and did not have a back brace. The Veteran also participated in the recreation activities on the ward. He also went to the gym several times a week and to walk on the treadmill about a mile and occasionally use the bike. He has not had any surgeries on his lower back and denied any bowel or bladder incontinence or other urinary symptoms. Physical examination revealed that the Veteran's posture and gait were normal and that he walked without any assistive devices. Spine curvature was normal and there was no evidence of muscle spasm or local tenderness to palpation over the lumbar spine. Forward flexion to 80 degrees; extension to 25 degrees; lateral flexion to 30 degrees bilaterally; and lateral rotation to 30 degrees bilaterally. Repetitive motion testing caused no further decrease in range of motion but the Veteran complained of a "stretching feeling" in the lower back. There was no evidence of weakness, incoordination, or loss of endurance or fatigue. Straight leg raise testing was negative bilaterally. He was able to walk on his toes and on his heels and partially squat. Neurological examination was essentially within normal limits and muscle bulk in the quad and calves was well developed bilaterally. Muscle power was equal bilaterally in the lower extremities. There was no focal sensory loss elicited and reflexes were physiological. Recent X-rays were compared to previous findings in 2009 and showed no significant change. There was mild narrowing of the disc spaces at L1-2, L2-3 and L5-S1 with mild facet disease at L5-S1. There were also osteophytes in the lower thoracic spine. VA treatment records dated from April 13, 2011 to December 7, 2016 show that low back pain ranged from a 6 to a 10 (0 is no pain and 10 is the worst pain). See the VA treatment records dated in October 2011, January 2013, July 2014, and June 2016. The Veteran sought medical treatment for a flare-up in June 2016 and he stated that the back pain had worsened to a 10 out of 10. The VA outpatient treatment records do not include any specific findings showing lumbar range of motion or addressing functional impairment. The Veteran reported back pain. There were no days of prescribed bed rest for intervertebral disc syndrome, and no findings or history to suggest any bladder, bowel, or erectile dysfunction. The weight of the competent and credible evidence shows that for the period of from April 13, 2011 to December 7, 2016, the Veteran had forward flexion of the thoracolumbar spine beyond 60 degrees and the combined range of motion of the thoracolumbar spine was more than 120 degrees. There were no findings of guarding or muscle spasm resulting in abnormal gait or abnormal spinal contour. The back symptoms during this time period were not severe enough to result in abnormal gait or abnormal spinal contour. There is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine. The rating criteria take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation. In any event, as discussed below, additional functional limitation warranting a higher rating has not been shown. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). The April 2011 VA examination report shows that the range of motion of the thoracolumbar spine was not additionally limited after repetitive motion. There was no evidence of weakness, incoordination, or loss of endurance or fatigue. There were no findings of weakness. Muscle strength was normal and there was no atrophy. VA treatment records and physical therapy records do not document flexion of the lumbar spine limited to 60 degrees or less. The Board finds the functional loss manifested by pain on movement and additional limited motion after repetitive testing is contemplated in the 10 percent rating. Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. The Board finds that the service-connected thoracolumbar spine disability picture more nearly approximates the criteria for a 10 percent rating, and has not, for the time period of April 13, 2011 to December 7, 2016, more nearly approximated the criteria for a higher disability rating of 20 percent. Thus, the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected thoracolumbar spine disability under the rating criteria for spine disabilities from April 13, 2011 to December 7, 2016. A rating in excess of 10 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243 from April 13, 2011 to December 7, 2016. The weight of the evidence shows that the lumbar spine disability is not productive of incapacitating episodes having a total duration of at least two weeks during the past 12 months for this time period. The treatment records and VA examination report show that the Veteran had complaints of flare-ups of back pain but no evidence has been advanced showing that any physician has prescribed bed rest to treat any flare-ups. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. In summary, on this record, the assignment of a disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to April 13, 2011 and from December 8, 2016 is not warranted under Diagnostic Codes 5235 to 5243. 4. Analysis: Separate Disability Ratings for Radiculopathy of the Left and Right Lower Extremities The Board has also considered whether separate disability ratings are warranted for the radiculopathy of the right and left lower extremities under Diagnostic Code 8520. After a review of the evidence, the Board finds that a separate 20 percent rating is warranted for right lower extremity radiculopathy from December 8, 2016, which is the date that radiculopathy of the right lower extremity was detected. The December 2016 VA examination report indicates that there were findings of moderate radiculopathy of the right sciatic nerve due to the service-connected lumbar spine disability. The VA examiner assessed that the radiculopathy of the right lower extremity was moderate in severity. The Board finds that the criteria for moderately incomplete paralysis of the right lower extremity under Diagnostic Code 8520 has been met from December 8, 2016. The appeal is granted to that extent. The Board finds that the criteria for moderately-severe or severe incomplete paralysis has not been met under Diagnostic Code 8520 from December 8, 2016. The medical evidence shows findings of mild to moderate symptoms and deficits, not moderately-severe or severe impairment. There are no findings of moderately-severe or severe symptoms or impairment. There are no findings of marked muscular atrophy. There are no findings of complete paralysis of the sciatic nerve with foot drop, a loss of active movement of muscles below the knee, or flexion of the knee weakened or lost for the time period in question. For these reasons, the Board concludes that the disability picture more nearly approximates moderate incomplete paralysis of the sciatic nerve of the right lower extremity and a 20 percent rating under Diagnostic Code 8520 is warranted for the right lower extremity from December 8, 2016. The weight of the evidence does not establish a separate neurological disability of the right lower extremity prior to December 8, 2016 or a separate neurological disability of the left lower extremity at any time during the appeal. Separate neurologic manifestations in the left and right lower extremities were not detected upon VA examination in November 2009 or April 2011. Neurologic physical examination of the lower extremities was normal. The record does not set forth any objective findings of neuropathy or other neurologic manifestations in the lower extremities prior to the findings of right lower extremity radiculopathy upon VA exam on December 8, 2016. As such, the Board concludes that the preponderance of the evidence is against the assignment of a separate rating for neurologic manifestations of the left lower extremity due to the thoracolumbar spine disability at any time during the appeal and is against the assignment of a separate rating for neurologic manifestations of the right lower extremity due to the thoracolumbar spine disability prior to December 8, 2016. ORDER Entitlement to an initial disability rating in excess of 20 percent prior to April 13, 2011 and from December 8, 2016 for the lumbar sprain with degenerative changes is denied. Entitlement to an initial disability rating in excess of 10 percent from April 13, 2011 to December 7, 2016 for the lumbar sprain with degenerative changes is denied. Entitlement to a separate disability evaluation for left lower extremity neurologic manifestations is denied. Entitlement to a separate disability evaluation for right lower extremity neurologic manifestations prior to December 8, 2016 is denied. Entitlement to a 20 percent disability evaluation for right lower extremity radiculopathy from December 8, 2016 is granted. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs