Citation Nr: 21061676 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 02-21 699 DATE: October 5, 2021 ORDER Entitlement to an increased rating greater than 40 percent on a schedular basis from November 2, 2013, to February 9, 2015, for multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome is denied. Entitlement to an increased rating greater than 60 percent on a schedular and extraschedular basis from February 9, 2015, for multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome is denied. FINDINGS OF FACT 1. For the period prior to February 9, 2015, the Veteran's multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome was manifested by no to severe pain and limitation of motion. 2. For the period from February 9, 2015, the Veteran's multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome is manifested by such symptoms as radiculopathy, no to severe pain, limitation of motion, and muscle spasm, all with little intermittent relief. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating greater than 40 percent prior to February 9, 2015, for multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome have not been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2020). 2. The criteria for entitlement to an increased rating greater than 60 percent from February 9, 2015, for multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome have not been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from October 1952 to December 1956. In a November 1, 2013 decision, the Board (in relevant part) denied an increased rating greater than 10 percent prior to October 6, 2004, for a lumbar spine disability; granted an increased rating of 20 percent from October 6, 2004, to July 30, 2010, for the lumbar spine disability, and granted an increased rating of 40 percent for a lumbar spine disability, effective July 30, 2010. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a November 2014 Joint Motion for Partial Remand (JMR), the parties requested that the November 2013 Board decision be vacated only with respect to the denial of increased ratings for the lumbar spine disability solely on an extraschedular basis. A December 2014 Order from the Court granted the JMR and vacated the increased ratings only on an extraschedular basis and remanded the issues to the Board for further consideration. In a subsequent October 2018 decision, the Board denied to increased ratings for the lumbar spine disability on an extraschedular basis for any of the claims on appeal. The Veteran did not appeal that decision. As such, and as will be discussed in greater detail below with respect to the earlier effective date claim the November 2013 decision was final with respect to the denial of the Veteran's increased rating claims on a schedular basis and the October 2018 decision is final with respect to the denial of the claims on an extraschedular basis. While the appeal to the Court was waiting adjudication, in an August 2014 rating decision the VA Regional Office (RO) effectuated the lumbar spine grants in the November 2013 Board decision. In September 2014, the Veteran appealed the ratings assigned in the August 2014 rating decision. As noted above, however, the rating decision merely was effectuating the November 2013 Board decision, which was final with respect to all schedular ratings for the low back disability through November 1, 2013 (the date of the Board decision). The subsequent October 2018 Board decision is final with respect to the extraschedular portion of the 10, 20, and 40 percent ratings for the back disability. Thus, the Veteran was eligible to appeal entitlement to an increased schedular rating for the lumbar spine from November 2, 2013, and entitlement on an extraschedular basis from October 11, 2018 (the day following the final Board decision adjudicating the extraschedular rating portion of the claims). An April 2015 rating decision granted entitlement to a 60 percent rating for the Veteran's back disability (multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome), effective from February 9, 2015. As such, the increased rating issues on appeal are entitlement to an increased rating greater than 40 percent from November 2, 2013, to February 9, 2015, and greater than 60 percent from February 9, 2015. The issues have been adjusted above to reflect the status of the appeals. The issues were remanded by the Board in October 2018. The requested development having been completed, the matter again is before the Board. As to the characterization of the Veteran's claims, the October 2018 Board remand and prior adjudications by the VA Regional Office (RO) indicated that the claims were for an increased rating for the Veteran's back disability (greater than 40 percent prior to February 9, 2015, and greater than 60 percent from that date) as well as entitlement to an earlier effective date prior to February 9, 2015, for the award of a 60 percent rating for the Veteran's lumbar spine disability. The Board notes that the May 2015 notice of disagreement with the April 2015 rating decision that granted entitlement to an increased rating of 60 percent for the Veteran's back disability, effective from February 9, 2015, argued that the Veteran, "is entitled to an effective date earlier than February 9, 2015 for the increased evaluation of his multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome." The Board finds that such a contention essentially is requesting an increased rating of 60 percent prior to February 9, 2015. Such a contention is considered herein. There is no mechanism by which the Veteran's request could be obtained other than through the increased rating claim evaluated herein. As such, the Board has adjusted the issues as listed above and finds that the Veteran is not prejudiced by consideration of the claim as one for an increased rating greater than 40 percent for the period prior to February 9, 2015. The Board recognizes that had an increased rating of 60 percent had been granted for the period prior to February 9, 2015, that such a finding would have raised the possibility of an earlier effective date claim for the 60 percent rating. As discussed in greater detail below, however, the Board finds that a rating greater than 40 percent is not warranted for any period on appeal prior to February 9, 2015. As a preliminary matter, in March 2021, the Veteran's representative requested copies of all development and evidence on which VA relied in its February 2021 supplemental statement of the case. The representative also requested VA's "inquiry letter" and the curriculum vitae (CV) for the person who examined the Veteran in December 2020 and for the person who provided a medical opinion in February 2021. An electronic copy of the entire claims file was provided in April 2021. In correspondence in May 2021 and on several later occasions, the representative noted that an "engagement letter" and CVs were not provided and in July 2021 requested 60 days extension starting with the receipt of this material. Review of the file shows that this information was in the copy of the file provided in April 2021. Letters to the Veteran dated in November 2020 and February 2021 from the VA examination contractor indicated that it had been engaged by VA to provide examinations on a specified date and at a specified location. Importantly, both letters provided the names, licensing, medical specialties, board certifications, education, years of experience, and special VA compensation and pension training. These letters provide all the qualification, education, and training information that would otherwise appear on an academic and professional document labelled "CV" and has been adequate for the representative to offer any specific challenge since April 2021. Therefore, the Board finds that the request for information has been fulfilled and that the motion for further delay is denied. 1. Entitlement to an increased rating greater than 40 percent on a schedular basis from November 2, 2013, to February 9, 2015, for multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome 2. Entitlement to an increased rating greater than 60 percent on a schedular and extraschedular basis from February 9, 2015, for multilevel degenerative disc disease and spondylosis of the thoracic/lumbar spine with intervertebral disc syndrome Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. As noted above, the Veteran is in receipt of a 40 percent rating prior to February 9, 2015, and a 60 percent rating from that date for his back disability. The Veteran contends that his current ratings do not accurately reflect the severity of his current condition. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Notes appended to the new rating formula for diseases and injuries of the spine specify 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term "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"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Note (5) provides that, 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. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). DC 5293 provides for a 10 percent rating where the back condition resulted in incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months. A 20 percent rating is assigned where intervertebral disc syndrome is manifested with 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 where intervertebral disc syndrome is manifested with 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 where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293. "Incapacitating episodes" is defined in Note (1) as 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. Note (2) also allows the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. Shortly before the appellate time period, in October 2013, the Veteran reported that his pain level was 0 out of 10. In January 2014, the Veteran complained of ongoing neck pain, but failed to mention any low back pain. He was walking easily with the aid of a rolling walker, was in no noted distress, and denied any falls or other incidents. His pain level was 2 out of 10 and attributed entirely to his neck. In March 2014, the Veteran reported that he was "okay, just the same old aches and pains." The Veteran was ambulating with a rolling walker without difficulty. He denied any problems, pains, or discomfort and specifically reported that his pain level was 0 at the time of treatment. Screening responses indicated that the Veteran tried to walk some for exercise. In September 2014, the Veteran reported that his pain level was 0 out of 10, but noted chronic pain in the feet, shoulders, and back. That said, he specifically denied any pain or discomfort at the time of treatment. He was walking without difficulty with the assistance of a rolling walker. In January 2015, the Veteran reported that his pain level was 0 out of 10. He denied fatigue or loss of energy in the past few months. He reported chronic pain in the left shoulder and both feet, but did not report any back pain and, indeed, denied any pain or discomfort at the time of treatment. The Veteran underwent a VA examination on February 9, 2015. The Veteran reported worsening symptoms. He denied flare-ups impacting function of the thoracolumbar spine. On testing forward flexion of the thoracolumbar spine showed motion to 20 degrees and extension and right and left lateral flexion and rotation to 5 degrees each. As to each motion, there was pain onset at the endpoint. The Veteran was unable to undergo repetitive use testing due to pain and unsteadiness. There was functional loss due to less movement than normal, pain on movement, and unsteadiness. There was no guarding or muscle spasms and lower extremity motion was normal bilaterally. There was no muscle atrophy. Lower extremity reflexes were hypoactive bilaterally. Sensation was normal in the bilateral thighs, knees, and ankles, but was absent in the bilateral feet and toes. Straight leg raising testing could not be performed. There were no symptoms of radiculopathy, however, in either extremity. There were no other neurologic abnormalities. The Veteran had intervertebral disc syndrome that resulted in at least 6 weeks of incapacitating episodes over the past 12 months. The Veteran made constant use of a wheelchair or walker. The back disability affected the Veteran's ability to work due to minimal mobility and instability. The Veteran had a normal posture. His gait was slow and unsteady, but this was due to neuropathy and not the back disability. The examiner estimated that repetitive motion could result in more than 10 degrees of lost motion in the thoracolumbar spine. There was pain and moderate dysfunction. The Veteran was unemployable and could not walk or stand for extended periods due to the evaluated conditions. A total disability rating based on individual unemployability has been in effect since December 2001. In June 2015 and November 2015, the Veteran reported that his pain level was 0 out of 10. In March 2016, the Veteran denied any myalgias or arthralgias. During another March 2016 visit, the Veteran reported his pain level as 0 out of 10. In August 2016, the Veteran had pain in the shoulders, back, feet, and hands that he described as 4 out of 10, but varied between 3 and 9. The pain was exacerbated by movement and lying still at night and was relieved by repositioning. In December 2016, the Veteran described his pain level as 0 out of 10. During a January 2017 examination report for housebound status or permanent need for aid and attendance, the examiner noted mild kyphosis in the Veteran's posture, but there was no noted restriction of the spine, trunk, or neck. He needed assistance ambulating, but that was attributed to his history of frostbite to the bilateral lower extremities and resulting ongoing gait disturbances and loss of balance. The Veteran has been in receipt of special monthly compensation based on the need for aid and attendance of another person since January 2017. Ongoing treatment records note some level of exercise with the use of a rolling walker. In February 2017, for example, the Veteran reported that he intermittently walked within his home. In August 2017, the Veteran reported a pain level that was 3 out of 10 due to a combination of low back, bilateral shoulder, bilateral hand, and bilateral foot pain. During another August 2017 treatment visit, however, the Veteran stated that his pain level was 0 out of 10. In October 2017, the Veteran reported a pain level of 6 out of 10, which he attributed entirely to bilateral shoulder pain. In May 2018, the Veteran reported that his pain level was 0 out of 10. In August 2018, the Veteran denied any recent falls or pain at that time. During another August 2018 treatment visit, the Veteran reported that he was experiencing pain that was 3 out of 10 and attributed the pain entirely to his neck. In October 2018, the Veteran reported that his pain level was 0 out of 10. In December 2018, the Veteran reported severe pain in the bilateral legs and feet. He did not mention any back problems, but did mention a past history of shoulder pain that had been relieved by a steroid shot about one year previously. During another December 2018 treatment visit the Veteran reported that his pain level was 0 out of 10. In February 2019, the Veteran denied any muscle pain, but he did have pain that was 10 out of 10 due to his peripheral neuropathy. During another February 2019 treatment visit, the Veteran reported pain that was 2 out of 10 due to right shoulder pain. In August 2019, the Veteran reported that his pain level was 0 out of 10. In January 2020, the Veteran reported pain that was 10 out of 10, which he attributed solely to his right shoulder. In February 2020, the Veteran reported that his pain level was 0 out of 10. He specifically denied any recent pain. The Veteran was afforded a VA examination in December 2020. The Veteran reported flare-ups, which included sharp pain in the low back. There was functional loss due to problems standing up and walking. Range of motion testing could not be completed because the Veteran was having back pain and decreased lower extremity weakness. The Veteran was wheelchair bound and was a high fall risk. There was pain noted on rest that was described as 4 out of 10. He had pain with weight bearing and non-weight bearing. Pain, fatigue, weakness, and lack of endurance caused functional loss that resulted in a severe loss of motion. There were muscle spasms that caused pain and limited function, but did not result in abnormal gait or abnormal spinal contour. The Veteran also had disturbance of locomotion, interference with sitting, and interference with standing. The Veteran had problems with standing, sitting, and walking for long periods of time. Lower extremity strength was 4 out of 5 bilaterally and there was no muscle atrophy. Reflexes were hypoactive and sensation was decreased in the bilateral lower legs, ankles, feet, and toes. Straight leg raising testing could not be conducted, but the examiner concluded that there was evidence of bilateral lower extremity radiculopathy. There was moderate bilateral constant pain, severe bilateral intermittent pain, mild bilateral paresthesias and/or dysesthesias, and mild bilateral lower extremity numbness. The examiner indicated that the Veteran had moderate, bilateral lower extremity radiculopathy. The Veteran had intervertebral disc syndrome, but in the last 12 months had no episodes requiring bed rest prescribed by a physician and treatment by a physician in the last 12 months. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran was a high fall risk and would have difficulty completing any occupational task. Prior to February 9, 2015 As to the applicability of a higher rating greater than 40 percent for the period from November 2, 2013, to February 9, 2015, the Board finds that a higher rating is not warranted under DC 5243. The Board recognizes that the February 2015 examiner indicated that the Veteran had 6 or more weeks of prescribed bedrest by a physician in the previous 12 months due to the back disability, but the record does not reflect such prescribed bedrest. The Board is unsure of the basis for that finding, but it is not consistent with the record. Indeed, the Veteran did not have documented periods of required bedrest prescribed by a physician during the time period from November 2, 2013, to February 9, 2015. As noted above, during multiple treatment visits during the time period the Veteran denied back pain. In September 2014, the Veteran reported a chronic history of back pain, but during that visit he denied any back pain and also denied back pain during prior and subsequent treatment visits. Based on the foregoing, the Board finds the contemporaneous VA treatment records the most probative evidence of records regarding whether the Veteran met the criteria for a 60 percent rating under DC 5243. As such, a higher rating under DC 5243 is not warranted from November 2, 2013, to February 9, 2015. Similarly, the Veteran is not entitled to a greater rating under the General Rating Formula for Diseases and Injuries of the Spine. A 50 percent rating would be warranted for ankylosis of the entire thoracolumbar spine and a 100 percent rating would be warranted for ankylosis of the entire spine. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The lay and medical evidence does not support a finding of ankylosis of any segment of the spine during the period from November 2, 2013, to February 9, 2015. Again, the Veteran denied back pain on multiple occasions during the relevant time period and the Veteran was noted to be able to ambulate without difficulty with the assistance of a walker. The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the back. 38 C.F.R. §§ 4.40, 4.45. Again, the Veteran denied back pain on multiple occasions during the appellate time period and there is nothing to suggest limitation of function above that contemplated in the current 40 percent rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. Accordingly, the preponderance of the evidence is against assignment of an increased disability rating greater than 40 percent under DC 5243 for the Veteran's service-connected low back disability from November 2, 2013, to February 9, 2015. The Board has considered whether further staged ratings were appropriate in the present case but concludes that the current rating most closely reflects the Veteran's disability and that staged ratings are not warranted for any period on appeal from November 2, 2013, to February 9, 2015. From February 9, 2015 For the period from February 9, 2015, the Veteran is in receipt of the highest rating available under DC 5243. As such, the Board has considered whether a 100 percent rating is warranted under the General Rating Formula for Diseases and Injuries of the Spine. A 100 percent rating is available based on unfavorable ankylosis of the entire spine. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Following a review of the available evidence in this case, and the applicable laws and regulations, it is the Board's conclusion that the evidence does not warrant a rating greater than 60 percent from February 9, 2015, under any of the spine DCs. As to the granting of a 100 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, the medical evidence simply does not indicate that for any period on appeal that the Veteran's spine is ankylosed (frozen). Indeed, the Veteran has not directly asserted such. The Board recognizes that during testing the Veteran has not been able to undergo range of motion testing and that he has reported considerable pain in movement. That said, during numerous treatment visits during the appellate time period, such as those documented above, the Veteran explicitly denied any pain or attributed the pain to some other joint or body system. Even when reporting back pain along with other joint problems the Veteran did not report that the back pain prevented any movement of the spine. Indeed, the Veteran's back pain does not render his spine effectively ankylosed, as evidenced by the absence of muscle atrophy, which indicates that the Veteran is able to and does use the muscles in his back and lower extremities for the purposes of movement. See 38 C.F.R. § 4.40 (noting that, "A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like."). As such, a 100 percent rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has considered whether separate ratings would be warranted under DCs (DCs 5235 - 5242) based on limitation of motion. Note 2 for DC 5243, however, specifically indicates that ratings should be awarded under DC 5243 or the General Rating Formula for Diseases and Injuries of the Spine, whichever criteria would result in a higher rating. As discussed above, a higher rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Board recognizes that the December 2020 VA examination report found that the Veteran had moderate bilateral lower extremity radiculopathy. The Veteran already is in receipt of separate 20 percent ratings for right and left lower extremity peripheral neuropathy under DC 8526. These ratings were based on injuries associated with cold injury residuals and were awarded for moderate, incomplete paralysis of the bilateral femoral nerves. The Board recognizes that the December 2020 examination report indicated that both the Veteran's bilateral femoral and sciatic nerves were involved in the radiculopathy, but as DC 8520 also provides for a 20 percent rating for moderate, incomplete paralysis of the sciatic nerve and there is nothing to indicate that the Veteran's bilateral lower extremity radiculopathy symptoms result in any additional symptoms not related to the already service-connected bilateral lower extremity peripheral neuropathy under DC 8526, the Board concludes that separate ratings under DC 8520 are not warranted and that all radiculopathy symptoms are contemplated already in the assigned ratings under DC 8526. As noted, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In this case, these issues have not been associated with the Veteran's back disability. The Veteran's functional loss was considered. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. The Board accepts that the Veteran has experienced functional impairment and pain. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion (or total lack thereof, as evidenced by ankylosis) nor the functional equivalent of symptomatology required to warrant the next higher evaluation for the period considered. Moreover, as noted in VAOPGCPREC 36-97, and Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997), the Veteran's 60 percent rating represents the maximum rating available for his spinal disability that contemplates a loss of motion aside from ankylosis. Accordingly, consideration for additional disability under the above regulations is not required. In sum, the General Rating Formula for Diseases and Injuries of the Spine would not result in a higher rating for the Veteran's disability for the reasons discussed in detail above. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In applying the steps outlined above, in Long v. Wilkie, the Court clarified how VA is to apply the first Thun step (i.e., whether the established schedular criteria are inadequate to describe the severity and symptoms of the disability at issue). 33 Vet. App. 167 (2020). The Court first stated that Thun's first step is not a "mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the diagnostic code [at issue]." Id. at 173. The Court then specified that Thun is not a "more lenient, court-created, standard whereby anything not expressly listed in a diagnostic code is automatically deemed exceptional." With these foundational principles in mind, the Court held that Thun's first step centers on "whether the veteran's disability picture as a whole (that is, the full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance." Id. In providing a non-exhaustive list of guiding factors to address Thun's first step, the Court stated that determining whether a veteran's disability picture is exceptional "must be viewed in the context of all available rating tools and cannot be reduced to a mere comparison of a veteran's symptomatology with the language of a particular diagnostic code." Id. at 174 (citing Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018)). Applying Long to this case, the Board notes that the Veteran has primarily reported pain, limited motion, and radiculopathy symptoms in the lower extremities. The pain affects activities such as sleeping or extended sitting, standing, and walking. The Veteran has considerable problems with ambulation, but these problems have been attributed primarily to the bilateral lower extremity peripheral neuropathy, for which he is separately service connected and rated. Even assuming that the back pain and other symptoms affects his ambulation and other functions (as indicated in the examination reports of record) these problems are contemplated in the current ratings assigned. In addition, and as discussed above, the Board finds it extremely significant that the Veteran has repeatedly reported that he has no back pain during treatment visits and/or attributed any pain to other joints. During these same visits the Veteran did not report any other problems associated with his back. The Board finds that were the Veteran to be experiencing ongoing functional problems due to back pain and other symptoms that he would have regularly reported such problems when asked by his treatment providers. His extremely infrequent mentions of significant ongoing problems related to his back (other than during his VA examinations) clearly demonstrates that the current assigned ratings fully contemplate his functional limitations due to his back disability. Accordingly, the Board finds that entitlement to an extraschedular rating is not warranted in this case. 38 C.F.R. § 3.321(b)(1). Furthermore, the Board does not find that a compensable rating could be assigned for any symptoms not currently contemplated in the Veteran's assigned ratings for all service-connected disabilities. See Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017) (holding that entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.