Citation Nr: 20007849 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-24 822A DATE: January 30, 2020 ORDER An initial rating in excess of 10 percent for hypertension is denied. An initial rating of 10 percent for left foot plantar fasciitis is granted. An initial rating of 10 percent for right foot plantar fasciitis is granted. From December 23, 2009, to December 21, 2010, an initial rating in excess of 10 percent for a lumbar spine disability is denied. From December 22, 2010, to April 27, 2011, a rating of 20 percent for a lumbar spine disability is granted. From April 28, 2011, a rating of 40 percent, but not higher, for a lumbar spine disability is granted. REMANDED Entitlement to bilateral lower extremity radiculopathy, to include as secondary to a service-connected lumbar spine disability, is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension requires continuous medication, but diastolic readings predominantly 110 or more nor systolic readings predominantly 200 or more are not shown. 2. The Veteran’s left foot plantar fasciitis with degenerative arthritis (left foot disability) is a moderately severe foot injury, a severe foot injury is not shown. 3. The Veteran’s right foot plantar fasciitis with degenerative arthritis (right foot disability) is a moderately severe foot injury, a severe foot injury is not shown. 4. From December 23, 2009, to December 21, 2010, even considering his complaints of pain and functional loss, forward flexion in the Veteran’s thoracolumbar spine functionally limited to 60 degrees or less or combined range of motion of the thoracolumbar spine limited to 120 degrees or less was not shown; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; ankylosis of the thoracolumbar spine was not shown; and the Veteran was not been prescribed bed rest to treat his lumbar spine disability. 5. From December 22, 2010, to April 27, 2011, the Veteran’s lumbar spine disability resulted in forward flexion of 60 degrees or less; but ankylosis was not shown and the Veteran was not been prescribed bed rest having a total duration of at least four weeks but less than six weeks to treat his lumbar spine disability. 6. Beginning April 28, 2011, the Veteran’s lumbar spine disability resulted in forward flexion of 30 degrees or less; but ankylosis has not been shown and the Veteran has not been prescribed bed rest having a total duration of at least six weeks to treat his lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for hypertension are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. The criteria for an initial rating of 10 percent for a left disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 3. The criteria for an initial rating of 10 percent for a right foot disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 4. From December 23, 2009, to December 21, 2010, the criteria for an initial schedular rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242-43. 5. From December 22, 2010, to April 27, 2011, the criteria for a schedular rating of 20 percent for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242-43. 6. Beginning April 28, 2011, the criteria for a schedular rating of 40 percent, but not higher, for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242-43. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1993 to August 2003 and August 2007 to May 2008. In connection with this appeal, the Veteran testified at a hearing before the undersigned in July 2017. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Hypertension The Veteran filed a service connection claim for hypertension in December 2009. A February 2012 rating decision granted service connection and assigned an initial rating of 10 percent effective December 23, 2009, the date his service connection claim was received by VA. The Veteran asserts he is entitled to a higher rating. Specifically, the Veteran reported that his hypertension medications have been increased. He also testified that pain increases his hypertension symptoms. The Veteran’s hypertension is evaluated under Diagnostic Code 7101. A 10 percent rating is assigned for diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more, or an individual with a history of diastolic blood pressure predominately 100 or more requiring continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominately 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a systolic blood pressure of less than 90 mm. Id. The Veteran’s medical records show he is prescribed medications to control his hypertension. Treatment visits show blood pressure readings that range between 125 and 139 diastolic pressure and 78 and 93 systolic pressure. As such, the Veteran’s treatment record does not show he has diastolic pressure predominately 200 or more or systolic pressure predominately 110 or more. In December 2010, the Veteran was afforded a VA examination. On examination, the Veteran’s blood pressure readings were 151/101, 147/104, and 157/103. In January 2012, the Veteran was afforded a VA examination. The examiner indicated that the Veteran took continuous medications for his hypertension. On examination, the Veteran’s blood pressure readings were 150/89, 136/91, and 144/90. In July 2019, the Veteran was afforded a VA examination. He reported that his blood ranges in the 140/90 range. The examiner indicated that the Veteran took continuous medications for his hypertension. On examination, the Veteran’s blood pressure readings were 136/82, 130/82, and 130/82. Based on a review of the above evidence, entitlement to a disability evaluation in excess of 10 percent is not warranted. In order to receive a 20 percent evaluation or higher, the Veteran must have a diastolic pressure predominately 110 or more or systolic pressure predominantly 200 or more. His readings have consistently been well-below these levels. Accordingly, the schedular criteria for an initial rating in excess of 10 percent for hypertension have not been met, and the claim is denied. Bilateral Foot Disabilities The Veteran filed a service connection claim for bilateral foot disabilities in December 2009. A February 2012 rating decision granted service connection for a left foot disability and a right foot disability and assigned initial noncompensable ratings effective December 23, 2009, the date his service connection claims were received by VA. A September 2019 rating decision granted an increased rating of 10 percent effective January 31, 2011, but combined the Veteran’s left foot disability and right foot disability into a single bilateral foot disability. The Veteran asserts he is entitled to a higher rating. Specifically, the Veteran testified that he has pain with prolonged walking and standing. He testified that he was prescribed special soles that only provided temporary relief. The Veteran’s bilateral foot disabilities are evaluated under Diagnostic Code 5276 for acquired flatfoot. A noncompensable rating is assigned for mild flatfoot that is relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate bilateral flatfoot with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. A 50 percent rating is assigned for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation that is not improved by orthopedic shoes or appliances. Under Diagnostic Code 5284 for other foot injures, a 10 percent rating is assigned for a moderate foot injury, a 20 percent rating is assigned for moderately severe foot injuries, a 30 percent rating is assigned for severe foot injuries, and a 40 percent rating is assigned for actual loss of the foot. The words “mild,” “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 for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran’s treatment records show he treated for foot pain. In December 2010, the Veteran was afforded a VA examination. He reported ongoing pain in both feet near the heel. The examiner diagnosed the Veteran with bilateral plantar fasciitis with arthritis. The examiner reported that the Veteran’s bilateral plantar fasciitis had a moderate effect on the Veteran’s ability to do chores, shopping, exercise, sports, recreation, and traveling. The examiner reported that the Veteran had been assigned different duties and work and had increased absenteeism. In January 2012, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had bilateral foot injuries of bilateral foot arthritis and other foot conditions of bilateral plantar fasciitis. In October 2019, the Veteran’s physician Dr. Manuel Portalatin completed a Foot Conditions Disability Benefits Questionnaire. Dr. Portalatin indicated that the Veteran was diagnosed with plantar fasciitis. Dr. Portalatin reported that the Veteran’s plantar fasciitis did not respond to conservative therapy. Dr. Portalatin reported that the Veteran had flare-ups that affected his activities of daily living. Dr. Portalatin reported that the Veteran had pain with ambulation, pain on manipulation of both feet that was accentuated, and extreme tenderness of plantar surfaces of both feet. Dr. Portalatin indicated that the Veteran’s bilateral foot pain resulted in functional loss that included excess fatigability, pain on movement, pain on weight-bearing, disturbance of locomotion, and interference with standing. Thus, the objective medical evidence shows that the Veteran’s bilateral foot disabilities resulted in a moderate functional impact. The Veteran has not been diagnosed with acquired flatfoot. Accordingly, it is more appropriate for the Veteran to rate his bilateral foot disabilities separately under Diagnostic Code 5284. Accordingly, moderate foot injuries have been shown for the Veteran’s left foot disability and right foot disability, and separate 10 percent ratings under Diagnostic Code 5284 are warranted as of the Veteran’s application date of December 23, 2009. However, moderately severe foot injuries have not been shown, and as such, ratings in excess of 10 percent are not warranted. The Board has considered other possible Diagnostic Codes for evaluating the Veteran’s foot disabilities. Here, the Board notes that the Veteran is not service connected for flatfoot, weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion of the tarsal bones. As such, a diagnostic code that is directly on point for the disabilities on appeal is not available. As such, Diagnostic Code 5284 best contemplates the symptoms caused by the Veteran’s left foot disability and right foot disability. Accordingly, the criteria for an initial separate schedular rating of 10 percent for the Veteran’s left foot disability and a schedular rating of 10 percent for the Veteran’s right foot disability have been met, and the claims are granted.   Lumbar Spine Disability The Veteran filed a service connection claim for a lumbar spine disability in December 2009. A September 2010 rating decision granted service connection and assigned an initial rating of 10 percent effective December 23, 2009, the date his service connection claim was received by VA. A February 2012 rating decision granted an increased rating of 20 percent effective December 22, 2010. A September 2019 rating decision granted an increased rating of 40 percent effective July 23, 2019. The Veteran asserts he is entitled to higher ratings. Specifically, the Veteran testified that he had incapacitating episodes that totaled about 30 days per year. He also testified that his physician told him that lay down and do nothing during these episodes. Finally, the Veteran testified that he had pain that radiated down from his back down both legs. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS for his lumbar spine disability prior to February 2015. July 2010, December 2010, April 2011, and January 2012 VA examiners indicated that the Veteran either did not have IVDS or had IVDS but with not have any episodes during the previous we months. In February 2015 and April 2018, Dr. Portalatin indicated that the Veteran had IVDS with the total duration of all incapacitating episodes over the previous 12 months being at least one week but less than two weeks. A July 2019 VA examiner indicated that the Veteran did not have IVDS. Finally, in October 2019, Dr. Portalatin indicated that the Veteran had IVDS with the total duration of all incapacitation episodes over the previous 12 months being at least six weeks. However, Dr. Portalatin clarified in a letter that it was six weeks in the last three to four years. At the July 2017 Board hearing, the Veteran testified that he had about 30 days of incapacitating episodes per year, which would be approximately at least four weeks but less than six weeks. The Veteran also testified that his physician advised him that during periods of experiencing incapacitating episodes, his physician advised him to lay down and do nothing. Accordingly, prior to June 2016, one year prior to the Board hearing, the Veteran’s IVDS was equivalent to a 10 percent rating. As of June 2016, the Veteran’s IVDS the Veteran’s IVDS was equivalent to a 40 percent rating. However, as the Veteran would be entitled to higher ratings based on his lumbar spine range of motion, as discussed more fully below, a rating based on IVDS is not appropriate and the Veteran’s lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran’s treatment records show he treated for lumbar spine pain, but do not the results of range of motion testing. In July 2010, the Veteran was afforded a VA examination. He reported having low back pain that had increased. On examination, he demonstrated thoracolumbar spine flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Repetitive use testing resulted in no additional limitation of motion but did cause pain. The examiner indicated that the Veteran did not have muscle spasms, localized tenderness, or guarding severe enough to result in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis. He retained normal 5/5 lower extremity strength with no muscle atrophy. In December 2010, the Veteran was afforded a VA examination. He reported having low back pain that radiated down both lower extremities. On examination, he demonstrated thoracolumbar spine flexion to 40 degrees, extension to 10 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The examiner indicated there was objective evidence of pain on active range of motion. Repetitive use testing resulted in no additional limitation of motion but resulted in objective evidence of pain. The examiner reported that the Veteran had radiating pain to his bilateral lower extremities. The examiner indicated that the Veteran did not have muscle spasms, localized tenderness, or guarding severe enough to result in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis. He retained normal 5/5 lower extremity strength with no muscle atrophy. In April 2011, the Veteran was afforded a VA examination. He reported having low back pain that radiated down both lower extremities. He reported some difficulty with walking due to severe pain. On examination, he demonstrated thoracolumbar spine flexion to 20 degrees, extension to 10 degrees, left lateral flexion to 5 degrees, right lateral flexion to 30 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 30 degrees. Repetitive use testing resulted in no additional limitation of motion but resulted in objective evidence of pain. The examiner reported that the Veteran had radiating pain to his bilateral lower extremities. The examiner indicated that the Veteran did not have muscle spasms, localized tenderness, or guarding severe enough to result in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis. He retained normal 5/5 lower extremity strength with no muscle atrophy. In January 2012, the Veteran was afforded a VA examination. On examination, he demonstrated thoracolumbar spine flexion to 40 degrees, extension to 15 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 30 degrees. The examiner indicated there was objective evidence of pain on active range of motion. Repetitive use testing resulted in no additional limitation of motion but resulted in less movement than normal and pain on movement. The examiner indicated that the Veteran did not have muscle spasms, localized tenderness, or guarding. He retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In February 2015, Dr. Portalatin completed a Back Conditions Disability Benefits Questionnaire. Dr. Portalatin reported that pain during flare-ups affected mobility, activities of daily living, and sleep. Dr. Portalatin reported that the Veteran had thoracolumbar spine flexion to 60 degrees, extension to 10 degrees, full left and right lateral flexion, and full left and right lateral rotation. Dr. Portalatin indicated that repetitive use testing resulted in no additional limitation of motion but resulted in increased pain. Dr. Portalatin indicated there was evidence of pain with weight bearing. Dr. Portalatin indicated there not have localized tenderness or pain to palpation, muscle spasm, or guarding. Dr. Portalatin reported that the Veteran indicated normal strength with no muscle atrophy. Dr. Portalatin indicated that the Veteran did not have ankylosis. Dr. Portalatin indicated that the Veteran had moderate left lower extremity radiculopathy. In April 2019, Dr. Portalatin completed a Back Conditions Disability Benefits Questionnaire. Dr. Portalatin reported that the Veteran had thoracolumbar spine flexion to 45 degrees, extension to 10 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees. Dr. Portalatin indicated that repetitive use testing resulted in no additional limitation of motion but resulted in increased pain. Dr. Portalatin indicated there was evidence of pain with weight bearing. Dr. Portalatin indicated there not have localized tenderness or pain to palpation, muscle spasm, or guarding. Dr. Portalatin indicated that the Veteran retained normal strength with no muscle atrophy. Dr. Portalatin indicated that the Veteran did not have ankylosis. Dr. Portalatin indicated that the Veteran had moderate left lower extremity radiculopathy. In July 2019, the Veteran was afforded a VA examination. He reported having flare-ups one to two times per week which lasted a couple of days and required bedrest. He reported his lumbar spine disability affected his activities of daily living. On examination, he demonstrated lumbar spine flexion to 5 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, and left and right lateral rotation to 5 degrees, all with pain. The examiner indicated there was evidence of pain with weight bearing and evidence of localized tenderness or pain on palpation. Repetitive use testing resulted in no additional limitation of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner indicated that the Veteran did not have muscle spasm. The Veteran retained normal 5/5 strength in his lower extremities with no muscle atrophy. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated that the Veteran did not have ankylosis. In October 2019, Dr. Portalatin completed a Back Conditions Disability Benefits Questionnaire. Dr. Portalatin reported that during flare-the Veteran was unable to ambulate. Dr. Portalatin reported that the Veteran had thoracolumbar spine flexion to 20 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, and left and right lateral rotation to 5 degrees. Dr. Portalatin indicated that the Veteran was unable to perform range of motion testing due to pain. Dr. Portalatin indicated there was evidence of pain with weight bearing. Dr. Portalatin indicated there was localized tenderness or pain to palpation. Dr. Portalatin indicated that the Veteran had guarding. Dr. Portalatin indicated that the Veteran’s lumbar spine disability resulted in less movement than normal, pain on movement, disturbance of locomotion, and interference with standing. Dr. Portalatin indicated that during flare-ups, the Veteran had flexion to 0 degrees, extension to 0 degrees, left and right lateral flexion to 5 degrees, and left and right lateral rotation to 0 degrees. Dr. Portalatin reported that during flare-ups the Veteran was unable to walk and had to lay down. Dr. Portalatin indicated that the Veteran retained normal strength with no muscle atrophy. Dr. Portalatin indicated that the Veteran had severe right lower extremity radiculopathy. Regarding the Veteran’s lumbar spine disability from December 23, 2009, to December 21, 2010, the Veteran demonstrated flexion limited, at worse, limited to 90 degrees and combined range of motion limited to 240 degrees at the July 2010 VA examination, which is equivalent to a 10 percent rating. Medical records do not show his flexion was functionally limited to 60 degrees or less, combined range of motion functionally limited to 120 degrees or less, or that he had ankylosis of the spine. As such, from December 23, 2009, to December 21, 2010, the Veteran did not meet the criteria for a rating in excess of 10 percent. From December 22, 2010, to April 27, 2011, the Veteran demonstrated flexion limited to 40 degrees, equivalent to a 20 percent rating. Medical records do not show his flexion was functionally limited to 30 degrees or less or that he had ankylosis of the spine. As such, from December 22, 2010, to April 27, 2011, the Veteran met the criteria for a 20 percent rating based on limitation of flexion. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 prior to April 28, 2011. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, while the Veteran had pain on range of motion, his lumbar spine pain did not result in additional limitation. In addition, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id., at 43; see also 38 C.F.R. § 4.40. In this case, the July 2010 and December 2010 VA examiners indicated that repetitive use testing resulted in no additional limitation of flexion. Furthermore, the Veteran’s rating is largely the result of the application of such functional limitations. The Veteran’s medical record does not demonstrate functional limitation from pain or other source that would effectively limit his forward flexion to 30 degrees or less prior April 28, 2011. From April 28, 2011, after a complete review of the medical record, the medical evidence shows that forward flexion of the Veteran’s lumbar spine was 20 degrees, which is equivalent to a 40 percent rating. At the July 2019 VA examination, the medical evidence shows that forward flexion of the Veteran’s lumbar spine was 5 degrees. However, at no time has ankylosis of the spine been shown. As such, a rating of 40 percent from April 28, 2011, is warranted. From April 28, 2011, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. However, the Veteran is now in receipt of the maximum rating allowed based on range of motion. The only higher ratings available contemplate ankylosis of the spine. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, the criteria for a schedular rating in excess of 10 percent December 23, 2009, to December 22, 2010, have not been met, and the Veteran’s claim is denied. A schedular rating of 20 percent from December 22, 2010, to April 28, 2011, and a schedular rating of 40 percent beginning April 28, 2011, have been met, and the Veteran’s claim is granted. There is no basis in the record for assignment of a rating higher than 40 percent. REASONS FOR REMAND At the July 2017 Board hearing, the Veteran reported that he had radiating back pain into his lower extremities. The Veteran’s medical records also show he reported radicular symptoms at the December 2010 and April 2011 VA examinations. Dr. Portalatin indicated that the Veteran had left lower extremity radiculopathy in February 2015 and April 2019 and that the Veteran had right lower extremity radiculopathy in October 2019. However, the January 2012 and July 2019 VA examiners indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy As such, a remand is necessary to adjudicate the service connection claim for right lower extremity radiculopathy. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain all outstanding VA and/or private medical records that pertain to any bilateral lower extremity radiculopathy. 2. Then, obtain a medical opinion to address the nature and etiology of any current bilateral lower extremity radiculopathy. If an opinion cannot be provided without a physical examination, one should be scheduled. The examiner should offer the following opinions: a. Is it at least as likely as not (50 percent or greater) that any bilateral lower extremity radiculopathy was caused by the Veteran’s service-connected lumbar spine disability? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any bilateral lower extremity radiculopathy was aggravated (made worse) by the Veteran’s service-connected lumbar spine disability? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of any bilateral lower extremity radiculopathy by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the bilateral lower extremity radiculopathy. If such cannot be done, it should be explained why. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.