Citation Nr: 18116790 Decision Date: 07/09/18 Archive Date: 07/06/18 DOCKET NO. 11-29 541 DATE: July 9, 2018 ORDER With respect to the orthopedic manifestations of thoracolumbar spine intervertebral disc syndrome (IVDS), a rating in excess of 20 percent prior to July 14, 2010 is denied, a 40 percent rating is granted from November 1, 2010, to October 1, 2013, a rating in excess of 60 percent from From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016 is denied, and a rating greater than 100 percent from October 25, 2016 is denied. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, a 10 percent rating for radiculopathy in the right lower extremity is granted. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, a 10 percent rating for radiculopathy in the left lower extremity is granted. From June 12, 2008, to February 29, 2016, a 10 percent rating for chronic residuals of gout in the right foot is granted. From June 12, 2008, to February 29, 2016, a 10 percent rating for chronic residuals of gout in the left foot is granted. From March 1, 2016, to October 14, 2016, a 40 percent rating for gout is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. From June 12, 2008, to July 14, 2010, the Veteran’s thoracolumbar forward flexion was, at worst, decreased by 40 percent with no ankylosis and no evidence of IVDS with incapacitating episodes of at least four weeks during any 12-month period. 2. From June 12, 2008, to July 14, 2010, the Veteran experienced radiculopathy of the left and right lower extremities manifested by pain, numbness, and weakness which was no more than mild in degree. 3. From November 1, 2010, to October 1, 2013, thoracolumbar forward flexion was, at worst, decreased by 80 percent. 4. From November 1, 2010, to October 1, 2013, the Veteran experienced radiculopathy of the left and right lower extremities manifested by pain, numbness, and weakness which was no more than mild in degree. 5. From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016, the low back disorder demonstrated at least 6 weeks of incapacitating episodes over a 12-month period due to IVDS, but did not demonstrate unfavorable ankylosis of the entire spine. 6. From June 12, 2008, to February 29, 2016, chronic residuals of gout caused limitation of motion in the ankles, feet and toes, bilaterally. 7. Since March 1, 2016, gout has demonstrated three incapacitating exacerbations per year.12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, a ten percent for radiculopathy in the right lower extremity. CONCLUSIONS OF LAW 1. With respect to the orthopedic manifestations of thoracolumbar spine IVDS, a rating in excess of 20 percent prior to July 14, 2010 is denied, a 40 percent rating is granted from November 1, 2010, to October 1, 2013, a rating in excess of 60 percent from From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016 is denied, and a rating greater than 100 percent from October 25, 2016 is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235- 5243 (2017). 2. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, radiculopathy in the right lower extremity most closely resembled the criteria for a 10 percent ratings. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.124a, Diagnostic Code 8799-8725. 3. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, radiculopathy in the left lower extremity most closely resembled the criteria for a 10 percent ratings. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.124a, Diagnostic Code 8799-8725. 4. From June 12, 2008, to February 29, 2016, chronic residuals of gout in the left and right feet exhibited symptoms that most closely resembled the criteria for separate 10 percent ratings, and since March 1, 2016, the criteria for a single disability rating of 40 percent, but no higher, for gout have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.3102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1995. The Board notes that the May 2014 rating decision declined to reopen service connection for sleep apnea on the basis of no submission of new and material evidence since the previous rating decision. However, subsequent to the original August 2009 rating decision, the Veteran filed a November 2009 notice of disagreement. Subsequent to an August 2011 statement of the case, the Veteran filed an October 2011 substantive appeal. Therefore, the issue of service connection for sleep apnea is properly before the Board and does not need to be reopened. In February 2014, the Veteran raised a claim for entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU), noting he became too disabled to work on July 30, 2013. In a May 2014 rating decision, the AOJ granted entitlement to TDIU effective July 30, 2013. Entitlement to TDIU is not reasonably raised by the record prior to July 30, 2013, as the Veteran was substantially gainfully employed. See February 2014 Application for Increased Compensation Based on Unemployability (stating Veteran last worked full-time on July 30, 2013). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (7). 38 U.S.C. § 7107(a)(2) (2012). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. I. Low Back Disorder On June 12, 2008, the Veteran filed a claim for an increased rating for his service-connected low back disorder. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, his low back disorder is rated as 20 percent disabling under Diagnostic Code (DC) 5242; with a temporary total evaluation for surgery from July 15, 2010, to October 31, 2010. From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016, his low back disorder is rated as 60 percent disabling under DC 5243; with a temporary total evaluation for surgery from December 10, 2013, to February 28, 2014. Since October 15, 2016, the low back is rated at 100 percent disabling under DC 5243. The Veteran’s rating under DC 5242 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which provides a 20 percent disability rating for forward thoracolumbar flexion 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. Forward thoracolumbar flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling. Unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, DCs 5235-5243. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Plate V. Further, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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. Under Note 1, objective neurologic abnormalities associated with the Veteran’s low back disorder should be separately evaluated under an appropriate diagnostic code. For the time period of this appeal, the Veteran has had radiculopathy in both legs manifesting posteriorly as pain, weakness, and numbness. The Board finds the nature and symptoms most closely resemble neuralgia on the posterior tibial nerve, and therefore this decision will rate the radiculopathy by analogy. A ten percent rating contemplates both mild and moderate neuralgia, while a 20 percent rating contemplates severe neuralgia. 38 C.F.R. § 4.124a, DC 8725. VA’s Adjudication and Procedures Manual (M21-1) also provides additional guidance for determining the severity of peripheral nerve disabilities. The following table provides guidelines for assessing the level of incomplete paralysis for upper and lower peripheral nerves: Degree of Incomplete Paralysis Description Mild * As this is the lowest level of evaluation for each nerve, this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. * In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. * A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate * Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). * Symptoms will likely be described by the claimants and medically graded as significantly disabling. * In such cases a larger area in the nerve distribution may be affected by sensory symptoms. * Other sign/symptom combinations that may fall into the moderate category include: • combinations of significant sensory changes and reflex or motor changes of a lower degree, or • motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. * Moderate is also the maximum evaluation that can be assigned for: • neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or • neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Severe * In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. * Trophic changes may be seen in severe longstanding neuropathy cases. * Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. * Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). M21-1, pt. III, subpt. iv. ch. 4, § G(4)(c). The M21 also provides that in making a choice between mild and moderate, the mild level of evaluation would be more reasonably assigned when sensory symptoms are: recurrent but not continuous, assigned a lower medical grade reflecting less impairment, and/or are affecting a smaller area in the nerve distribution. M21-1, pt. III, subpt. iv. ch. 4, § G(4)(b). The moderate level of evaluation should be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are: continuous, assigned a higher medical grade reflecting greater impairment, and/or are affecting a larger area in the nerve distribution. M21-1, pt. III, subpt. iv. ch. 4, § G(4)(b). In Miller v. Shulkin, the Court recently stated that “[a]lthough the note preceding §4.124a directs the claims adjudicator to award no more than a 20 [percent] disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” See Miller v. Shulkin, No. 15-2904, 2017 U.S. App. Vet. Claims LEXIS 317, at *9-10 (Ct. Vet. App. Mar. 6, 2017). The M21 was also recently updated and reflects this change. Specifically, the manual states that the provision for a moderate level of evaluation does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness, or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. M21-1, pt. III, subpt. iv. ch. 4, § G(4)(b). Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is to 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 under § 4.25. For VA purposes, the term IVDS includes diagnostic terminology such as slipped or herniated disc, ruptured disc, prolapsed disc, bulging or protruding disc, degenerative disc disease, discogenic pain syndrome, herniated nucleus pulposus and pinched nerve. M21-1, pt. III, subpt. iv. ch. 4, § A(3)(a). According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating contemplates incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 states that 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. 1. From June 12, 2008, to July 14, 2010, a rating in excess of 20 percent for a low back From June 12, 2008, to July 14, 2010, the Veteran’s low back disorder is rated as 20 percent disabling under Diagnostic Code (DC) 5242. During an August 2008 VA examination, the Veteran’s gait and posture were normal. His thoracolumbar range of motion was forward flexion to 80 degrees; extension to 25 degrees; bilateral rotation to 30 degrees; left flexion to 30 degrees; and right flexion to 25 degrees. During the physical examination, he experienced some pain and pulling. His combined range of motion was 220 degrees. At that time, he was diagnosed with chronic lumbar strain. The Veteran also reported pain radiating from his back into both legs. February 2009 VA treatment records reflect that the Veteran had low back muscle spasms with a mild decrease in forward flexion due to pain, as well as pain radiating into his right glute and right leg. July 2009 VA treatment records reflect that he underwent physical therapy for his low back, and treatments were improving his back pain. A November 2009 letter from a private physician indicated that the Veteran had flare-ups of his low back pain, but did not indicate the frequency of the flare-ups or note that they were incapacitating. December 2009 private medical records also indicate left leg numbness as a result of his low back disorder. March 2010 private medical records reflect that the Veteran was diagnosed with lumbar spinal stenosis and lumbar radiculopathy. At that time, he had pain, numbness, and weakness in both legs, with pain radiating posteriorly. June 2010 private medical records reflect lumbar radiculopathy and that his lumbar spine range of motion was decreased by 40 percent, but does not include objective measurements of the thoracolumbar spine range of motion. Private medical records also reflect that the Veteran underwent surgery for his low back on July 15, 2010, and the AOJ awarded the Veteran a temporary evaluation of 100 percent for low back surgery. In his March 2017 testimony, the Veteran stated that the August 2008 VA examination included range-of-motion measurements that were done by sight, and not with a goniometer. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board notes that the August 2008 VA examination does not indicate that a goniometer was used to record measurements. Resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s testimony on the issue to be credible and probative. For the relevant time period, the August 2008 VA examiner estimated the range of motion of the Veteran’s thoracolumbar forward flexion to be 80 degrees. Further, June 2010 private medical records reflect that his lumbar spine range of motion was decreased by 40 percent. Under the General Rating Formula for Disease and Injuries of the Spine, a 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees. While there are no objective measurements for the relevant time period, private medical records reflect that thoracolumbar forward flexion was, at worst, decreased 40 percent, and a VA examiner estimated forward flexion to 80 degrees. As normal forward flexion is to 90 degrees, records reflecting a decrease of 40 percent and an estimate of forward flexion to 80 degrees both indicate forward flexion greater than 30 degrees even with considering functional impairment on use and during flares as represented by the findings in the clinic setting. Therefore, from June 12, 2008, to July 14, 2010, the Veteran’s low back disorder was most analogous to a rating of 20 percent disabled. For the relevant time period, the Veteran had radiculopathy in both legs manifesting posteriorly as subjective pain, weakness, and numbness that was no more than mild in degree. The clinic records showed normal reflexes and normal strength on testing with no evidence of muscle atrophy or trophic changes. The Board finds the nature and symptoms, when considering the relative impairment of sensory, motor and reflex abnormality, most closely resemble a mild rating. In the absence of significantly disabling symptoms affecting a large area of nerve distribution, a moderate rating is not warranted. Therefore, from June 12, 2008, to July 14, 2010, the Veteran is entitled to separate ratings of 10 percent disabled for radiculopathy for the right and left lower extremities. 38 C.F.R. § 4.124a, DC 8999-8725. For the relevant time period, the Veteran holds a 20 percent rating for the orthopedic manifestations of his low back disorder, and he holds separate 10 percent ratings for radiculopathy of the right and left lower extremities. These ratings result in a combined 40 percent rating. There are no other neurologic manifestations of his low back disorder which are not rated. See 38 C.F.R. § 4.25. Further, the Board has considered the formula for rating the low back disorder as IVDS during the relevant time period. See 38 C.F.R. § 4.71a, DC 5243. There is no medical evidence or lay testimony of incapacitating episodes of at least four weeks during any 12-month period. Therefore, a disability rating under DC 5243 in excess of 40 percent from June 12, 2008, to July 14, 2010, is not warranted. 2. From November 1, 2010, to October 1, 2013, a 40 percent rating for a low back disorder From November 1, 2010, to October 1, 2013, the Veteran’s low back disorder is rated as 20 percent disabling under Diagnostic Code (DC) 5242. August 2011 private medical records reflect chronic back pain with radiating pain, numbness, and weakness in both legs. His gait was non-antalgic and his posture was erect. The record notes his lumbar spine range of motion was decreased 40 percent, but does not include objective measurements of the thoracolumbar spine range of motion. An August 2011 letter from a private physician notes that the Veteran underwent periodic epidural injections to control his spinal pain. September 2011 private medical records reflect his lumbar spine range of motion was decreased 80 percent along with pain and numbness in both legs; September 2011 VA treatment records indicate it was limited to 30 percent; and February 2012 private medical records reflect it was decreased 60 percent. None of these records, however, include objective range of motion measurements. March 2012 private medical records reflect that the Veteran underwent an MRI, which indicated bulging discs and stenosis. May 2012 private medical records reflect lumbar range of motion limited by stiffness and pain, along with associated pain, numbness, and weakness in the left leg. The private physician assessed the Veteran with lumbar spinal stenosis and lumbar post laminectomy syndrome. The private physician noted that the Veteran would have continual gradual worsening of his symptoms, and would likely eventually need extensive lumbar decompression. See also July 2012 Private Medical Records. VA treatment records also reflect treatment for lumbar pain during the relevant time period, and June 2012 VA treatment records note occasional flare-ups of back pain. October 2012 VA treatment records note radiculopathy of the left leg and limited lumbar range of motion as a result of previous low back surgery. February 2013 private medical records include another MRI reflecting disc bulging and space narrowing. May 2013 VA treatment records reflect that the Veteran reported trouble getting into and out of his garden bathtub, and sought assistance devices for use after a low back surgery scheduled for the near future. Under the General Rating Formula for Disease and Injuries of the Spine, a 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees. While there are no objective measurements for the relevant time period, private medical records reflect that thoracolumbar forward flexion was, at worst, decreased 80 percent, and VA treatment records indicate it was limited to 30 percent. As normal forward flexion is to 90 degrees, records reflecting a decrease of 80 percent and flexion limited to 30 percent both indicate forward flexion lower than 30 degrees. Therefore, from November 1 2010, to October 1, 2013, the Veteran’s low back disorder was most analogous to a rating of 40 percent disabled. The evidence of record does not indicate unfavorable ankylosis of the thoracolumbar spine during the relevant time period, and a rating in excess of 40 percent is not warranted. For the relevant time period, the Veteran had radiculopathy in both legs manifesting as subjective pain, weakness, and numbness. The clinic records showed normal reflexes and normal strength on testing with no evidence of muscle atrophy or trophic changes. The Board finds the nature and symptoms, when considering the relative impairment of sensory, motor and reflex abnormality, most closely resemble a mild rating The Board finds the nature and symptoms most closely resemble a mild rating. In the absence of significantly disabling symptoms affecting a large area of nerve distribution, a moderate rating is not warranted. Therefore, from November 1, 2010, to October 1, 2013, the Veteran is entitled to separate ratings of ten percent disabled for radiculopathy for the right and left lower extremities. 38 C.F.R. § 4.124a, DC 8999-8725. For the relevant time period, the Veteran holds a 40 percent rating for the orthopedic manifestations of his low back disorder, and he holds separate 10 percent ratings for radiculopathy of the right and left lower extremities. These ratings result in a combined 50 percent rating. There are no other neurologic manifestations of his low back disorder which are not rated. See 38 C.F.R. § 4.25. Further, the Board has considered the formula for rating the low back disorder as IVDS during the relevant time period. See 38 C.F.R. § 4.71a, DC 5243. Imaging during this time period reflects bulging discs, stenosis, and narrowing disc space. Based on the imaging, the Veteran meets the definition of IVDS. See M21-1, pt. III, subpt. iv. ch. 4, § A(3)(a). However, there is no evidence of incapacitating episodes of at least six weeks during any 12-month period. Therefore, a disability rating under DC 5243 of 60 percent from November 1, 2010, to October 1, 2013, is not warranted 3. From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016, a rating in excess of 60 percent for a low back disorder From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016, his low back disorder is rated as 60 percent disabling under DC 5243; with a temporary total evaluation for surgery from December 10, 2013, to February 28, 2014. See May 2014 Rating Decision. Private medical records also reflect that the Veteran underwent surgery for his low back on December 10, 2013. During an April 2014 VA examination, the Veteran was diagnosed with lumbar degenerative joint disorder, status post laminectomy, and IVDS. At that time, he reported flare-ups when sitting or standing for long periods of time, and when bending. His thoracolumbar range of motion was forward flexion to 20 degrees; extension to ten degrees; bilateral rotation to five degrees; and bilateral flexion to five degrees. His combined range of motion was 50 degrees. He had an abnormal gait and abnormal spine contour. He had experienced at least 6 weeks of incapacitating episodes over the past 12 months due to IVDS. The examiner did not indicate that the Veteran had any thoracolumbar ankylosis at this time. Private medical records show continued treatment for the Veteran’s low back disorder during the relevant time period. See, e.g., April 2016 Private Medical Records. VA treatment records also reflect continued low back treatment. See, e.g., August 2015 VA Treatment Records. From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016, the evidence of record indicates at least 6 weeks of incapacitating episodes over a 12-month period due to IVDS. The Board notes that the Veteran has the maximum scheduler rating for IVDS under DC 5243 for this time period. For the relevant time period, the Board has also considered rating the Veteran under the General Rating Formula for Diseases and Injuries of the Spine. During this time period, thoracolumbar forward flexion was limited to 20 degrees, for a rating of 40 percent disabled. In the absence of evidence of unfavorable ankylosis of the entire spine, a rating in excess of 40 percent is not warranted. Therefore, for the relevant time period, the Veteran would be rated as 40 percent disabled for the orthopedic manifestations of his low back disorder, and he would be rated as 10 percent disabled for radiculopathy of the right and left lower extremities, separately. These ratings would result in a combined 50 percent rating. See 38 C.F.R. § 4.25. This rating would be lower than the Veteran’s rating of 60 percent disabled under DC 5243 for this time period. From October 2, 2013, to December 9, 2013, and from March 1, 2014, to October 14, 2016, a rating in excess of 60 percent for a low back disorder is not warranted. 4. Since October 15, 2016, the low back disorder is in receipt of a disability rating of 100 percent, the maximum schedular rating allowed by law Since October 15, 2016, the low back is rated at 100 percent disabling. On October 15, 2016, the Veteran underwent a VA examination for his low back disorder. At that time, he had unfavorable ankylosis of the entire spine. Since October 15, 2016, the Veteran is in receipt of the highest scheduler rating for his low back disorder. II. Correia Testing The Board is aware of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016) as it pertains to VA examinations recording the results of range of motion testing for pain on both active and passive motion in weight-bearing and nonweight-bearing. The Veteran has been assigned the maximum schedular rating for his low back disorder since October 15, 2016. As the current issue pertains to ankylosis, the principles enunciated in Correia do not apply. Further, current testing that complies with Correia would provide no additional information on which to evaluate rating criteria for previous stages of the rating for a low back disorder. III. Radiculopathy 5. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, a ten percent rating for radiculopathy in the right lower extremity 6. From June 12, 2008, to July 14, 2010, and from November 1, 2010, to October 1, 2013, a ten percent rating for radiculopathy in the left lower extremity For the reasons discussed above, for the time period from June 12, 2008, to July 14, 2010, and the time period from November 1, 2010 to October 1, 2013, the Veteran was entitled to separate 10 percent ratings. His lower extremity symptoms and limitations have not significantly changed. Since October 2, 2013, the RO has evaluated the low back disability as 60 percent disabling under the Formula for Rating IVDS and, even with consideration of 38 C.F.R. § 4.25 and 4.26, separate ratings for the orthopedic and neurologic manifestations of thoracolumbar spine IVDS would not result in a higher rating still. IV. Gout 7. From June 12, 2008, to February 29, 2016, a 10 percent rating for chronic residuals of gout in the right foot 8. From June 12, 2008, to February 29, 2016, a 10 percent rating for chronic residuals of gout in the left foot 9. From March 1, 2016, to October 14, 2016, a 40 percent rating for gout 10. Since October 15, 2016, a rating in excess of 40 percent for gout On June 12, 2008, the Veteran filed a claim for an increased rating for his service-connected gout. From June 12, 2008, to October 14, 2016, his gout is rated as noncompensible. Since October 15, 2016, his gout is rated as 40 percent disabling. DC 5017, the scheduler rating criteria for gout, directs that disability percentages are established by reference to DC 5002 for rheumatoid arthritis. Under DC 5002, rheumatoid arthritis as an active process is to be rated 20 percent for one or two exacerbations a year in a well-established diagnosis; 40 percent for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year; 60 percent for symptoms that are less than criteria for 100 percent rating, but with weight loss and anemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods; and a 100 percent rating for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, DC 5002. Under DC 5002, chronic residuals such as limitation of motion or favorable or unfavorable ankylosis are to be rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensible under the codes a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A note to the rating formula indicates the rating for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. The higher evaluation will be assigned. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. See 38 C.F.R. § 4.45. May 2008 VA treatment records reflect that the Veteran had no current gout symptoms, but was treated with Darvocet when his gout and arthritis pain was severe. During an August 2008 VA examination, the Veteran reported no recent treatment for acute gout, with no swelling or redness in any foot joints. Upon examination, he had no physical signs of gout, and the range of motion for his toes was normal. The examiner noted no active gout and normal feet. A May 2009 VA examiner noted that the Veteran had missed three weeks of work due to “gout, joint difficulties.” VA treatment records reflect that the Veteran takes allopurinol for gout. See, e.g., July 2009, December 2013 VA Treatment Records. September 2008 VA treatment records reflect recent symptoms of gout in his ankle but no flare-up. After September 2008, VA treatment records reflect that the gout was stable, with occasional flare –ups. See, e.g., January 2009, May 2009, February 2012 VA Treatment Records (indicating stable gout); May 2012 VA Treatment Records. During an April 2014 VA examination, the Veteran was diagnosed with gout of the big toes and feet, bilaterally. He did not exhibit weight loss or anemia due to gout. The examiner indicated that the Veteran had pain and limitation of joint movement in his feet and toes, but described it simply as “tender over hind foot.” The examiner indicated that there were no exacerbations due to gout. The examiner also indicated that the Veteran had gout in his ankles bilaterally, along with status post right ankle fracture and left ankle condition. The examination reflected limited range of motion in both ankles, with weakness, pain, and fatigability on motion. During an October 2016 VA examination, the examiner noted no weight loss or anemia due to gout. The examiner noted pain in the ankles, feet, and toes, with limitation of motion. The examiner indicated four or more non-incapacitating exacerbations per year, with the most recent exacerbation in March 2016 lasting three-to-five days. Further, the examiner indicated 3 incapacitating exacerbations in the past year, with the most recent exacerbation in June 2016 lasting three-to-five days. The Veteran experienced two-to-four weeks of incapacitation over the past year. In a December 2016 addendum, the examiner indicated manifestations of severely incapacitating exacerbations did not occur four-or-more times a year, or a lesser number over prolonged periods. In his March 2017 hearing testimony, the Veteran stated that gout causes his feet and toes to swell for three or four days at a time. He further testified to having one or two incapacitating episodes every 90-day period during 2008. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology of gout. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, however, his testimony is in conflict with an August 2008 VA examination in which he reported no current gout symptomology. Further, the August 2008 examiner found no physical signs of gout at the time. Therefore, regarding exacerbations of gout in 2008, the specific opinion of the VA examiner is of greater probative weight. Prior to March 2016, the evidence of record does not indicate gout as an active process. Treatment records from 2008 indicate no active gout. Between 2008 and 2014, treatment records reflect stable gout with an occasional flare-up, but there is no evidence of one or two exacerbations of gout as an active process per year. An April 2014 VA examiner also noted no exacerbations of gout. Therefore, prior to March 2016, the Veteran is not entitled to a compensable rating for gout as an active process under DC 5002. The evidence of record indicates that the Veteran has gout in his ankles, feet, and toes, bilaterally. See April 2014 VA Examination. The Board notes that the residuals of the Veteran’s right ankle fracture have been rated as 10 percent disabling since January 6, 1998; and residuals of the left ankle disability have been rated as 10 percent disabling since December 2, 2003. Both ankles were rated for limitation of motion. These symptoms overlap with the symptoms of the chronic residuals of gout in the ankles bilaterally. Any additional compensation for range of motion limitations of the ankles bilaterally, prior to March 2016, would constitute prohibited pyramiding. The Court has held that a veteran may not be compensated twice for the same symptomatology as “such a result would over compensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). Multiple involvements of the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints. See 38 C.F.R. § 4.45 (2016). The evidence of record reflects that, prior to March 2016, the Veteran had chronic residuals of gout, including limitation of motion, in his feet and toes, bilaterally. Therefore, prior to March 2016, the Veteran is entitled to a ten percent rating for the right foot and toes, and a ten percent rating for the left foot and toes for chronic residuals of gout. The October 2016 VA examination noted four or more non-incapacitating exacerbations of gout per year, with the most recent exacerbation in March 2016; and three incapacitating exacerbations in the past year, with the most recent exacerbation in June 2016. Resolving reasonable doubt in the Veteran’s favor, since March 1, 2016, gout as an active process most closely resembles the criteria for a rating of 40 percent disabled. However, in a December 2016 addendum, the examiner indicated manifestations of severely incapacitating exacerbations did not occur four-or-more times a year, or a lesser number over prolonged periods. In the absence of evidence of weight loss and anemia that are productive of severe impairment of health, or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, a rating in excess of 40 percent since March 1, 2016, is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks entitlement to service connection for sleep apnea. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has diagnosis of obstructive sleep apnea. See, e.g., August 2011 VA Treatment Records. Further, service treatment records contain a hand-written note indicating sleeping trouble in October 1991, and the Veteran noted frequent trouble sleeping on his February 1995 report of medical history. Additionally, during the March 2017 hearing testimony, the Veteran testified to sleeping problems since service, and his spouse testified that she noticed severe snoring in the early 1990s. Finally, the record contains an expert medical opinion noted a probability of sleep apnea, but also noted no sleep study tests of record that would confirm a diagnosis. Therefore, the Board finds that a VA examination with a sleep study is needed to determine the nature and etiology of the Veteran’s sleep apnea. The matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate all VA treatment records since May 2018 with the claims file. 2. Thereafter, schedule the Veteran for an examination that includes a sleep study with an appropriate examiner to determine the nature and etiology of any diagnosed obstructive sleep apnea. The examiner should answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s sleep apnea had its onset in service or is otherwise related to service? In providing this opinion, the examiner is requested to identify the criteria for diagnosing sleep apnea and provide opinion as to whether there is any medical reason to accept or reject the spouse’s lay observations of severe snoring and the Veteran’s testimony of trouble sleeping during service as demonstrating the initial manifestation of sleep apnea. See February 1995 Service Treatment Records; March 2017 Hearing Testimony (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s service-connected disabilities have aggravated beyond the normal progress of the disorder the Veteran’s sleep apnea? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep apnea (i.e., a baseline) before onset of the aggravation. A complete rationale must be provided for any opinion offered. 3. After completing the actions detailed above, readjudicate the claim remaining on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel