Citation Nr: 21062197 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 13-27 704 DATE: October 6, 2021 ORDER From September 16, 2010, to July 5, 2021, an initial 30 percent rating, but not higher, for a cervical spine disability, is granted. Beginning July 5, 2021, a rating higher than 30 percent for a cervical spine disability is denied. From September 16, 2010, to June 25, 2013, an initial 20 percent rating, but not higher, for a lumbar spine disability, is granted. From June 25, 2013, to July 5, 2021, a 40 percent rating, but not higher, for a lumbar spine disability, is granted. Beginning July 5, 2021, a rating higher than 40 percent for a lumbar spine disability is denied. An initial rating higher than 10 percent for right lumbar radiculopathy is denied. An initial rating higher than 10 percent for left lumbar radiculopathy is denied. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the weight of the competent and probative evidence demonstrates that the limitation of motion of the cervical spine was at worse 10 degrees, even during flare-ups and/or after repetitive use over time; unfavorable ankylosis of the entire cervical spine is not shown. 2. From September 16, 2010, to June 25, 2013, the lumbar spine disability more nearly approximates forward flexion of the thoracolumbar spine to 50 degrees at worse without any incapacitating episodes of IVDS that resulted in prescribed bed rest by a physician. 3. Beginning June 25, 2013, symptoms of the lumbar spine disability more nearly result in forward flexion to 30 degrees, but do not meet or more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes of at least six weeks during any 12-months period. 4. The right and left lumbar radiculopathy more nearly approximate, at worst, mild incomplete paralysis of the sciatic nerves. 5. The Veteran is currently working in a gainful occupation. CONCLUSIONS OF LAW 1. From September 16, 2010, to July 5, 2021, the criteria for an initial 30 percent rating, but not higher, for a cervical spine disability are approximated. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. Beginning July 5, 2021, the criteria for a rating higher than 30 percent for a cervical spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code (DC) 5242. 3. From September 16, 2010, to June 25, 2013, the criteria for an initial 20 percent rating, but not higher, for a lumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5243. 4. From June 25, 2013, to July 5, 2021, the criteria for a 40 percent rating, but not higher, for a lumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5243. 5. Beginning July 5, 2021, the criteria for a rating higher than 40 percent for a lumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5243. 6. The criteria for a rating higher than 10 percent for right lumbar radiculopathy are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520. 7. The criteria for a rating higher than 10 percent for left lumbar radiculopathy are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520. 8. The criteria for an award of TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to September 2010. This appeal stems from a February 2011 rating decision that granted service connection for cervical and lumbar spine disabilities and assigned the initial 20 and noncompensable ratings. In a December 2011 rating decision, the RO increased the lumbar spine disability rating to 10 percent effective July 8, 2011. In September 2017, the Board remanded the claims to provide the Veteran with new VA examinations. In November 2019, the Board remanded the case for the issuance of a supplemental statement of the case. An August 2020 rating decision assigned a 10 percent rating for a lumbar spine disability effective September 16, 2010 and a 20 percent rating effective June 25, 2013. The decision assigned a 10 percent rating for right and left lumbar radiculopathy effective September 16, 2010. In February 2021, the Board remanded the claims to provide the Veteran with new VA examinations. Subsequent to the most recent remand, in a July 2021 rating decision, the RO increased the lumbar spine disability rating to 40 percent and the cervical spine disability rating to 30 percent, effective July 5, 2021. The decision further granted service connection for narcolepsy, this is considered a full grant of the benefits sought on appeal, and as such, this issue is no longer in appellate status. Initial Rating Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cervical and Lumbar Spines Rating Criteria When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). 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 diagnostic codes 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). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 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 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided 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 to 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. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned to a cervical spine disability where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine is not greater than 170 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal fate or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of the evaluations under the general formula for rating spine injuries consider the disabilities 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. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined 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. Id. at Note (1). On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect. See 85 Fed. Reg. 76460 (November 30, 2020). The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS. The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Cervical Spine Rating Analysis In June 2010, the Veteran underwent a pre-discharge examination, at which time the Veteran reported that he reported constant moderate neck pain that radiated down both arms. He did not report having flare-ups associated with the cervical spine. Upon physical examination, range of motion of the cervical spine revealed forward flexion to 45 degrees with pain at 30 degrees; extension to 45 degrees with pain at 12 degrees; lateral flexion to 45 degrees with pain at 30 degrees, bilaterally; and, lateral rotation to 80 degrees, bilaterally. After repetitive use testing, range of motion revealed flexion to 30 degrees with pain at 15 degrees; extension to 12 degrees with pain at 33 degrees; lateral flexion to 30 degrees with pain at 15 degrees, bilaterally; and lateral rotation to 30 degrees, bilaterally. There was no evidence of radiating pain on movement, muscle spasm, guarding, weakness, and loss of tone/atrophy pf limbs. There was localized tenderness. There was no ankylosis of the cervical spine. According to September 2011 private treatment records, the Veteran complained of neck pain that was continuous and worsened over time. On physical examination, the medical professional noted that flexion was limited to 75 percent, extension to 50 percent, and bilateral side bending was within functional limits. Muscle strength testing was normal. In May 2013, the Veteran complained of neck pain that travelled down both arms. The medical professional noted that these symptoms were more likely due to carpal tunnel syndrome and that there was no evidence of any cervical radiculopathy. In July 2014, the Veteran underwent a VA cervical spine examination, at which time the examiner rendered a diagnosis of degenerative arthritis of the cervical spine. The Veteran reported that physical therapy and steroid injections were not helpful. Pain was described as constant, 8 out of 10 in severity, and aggravated by prolonged sitting, standing, and walking. The Veteran used ice, medications, and cervical traction for relief. He did not report having flare-ups. On physical examination, range of motion of the cervical spine revealed forward flexion to 35 degrees; extension to 20 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 50 degrees, bilaterally, all with pain. There was no additional limitation in range of motion after repetitive use testing. Functional loss/impairment was due to less movement than normal and pain on movement. Localized tenderness did not result in abnormal gait or abnormal spinal contour. There was no evidence of muscle spasm or guarding. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal. The examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or IVDS. The Veteran used no assistive devices. According to an October 2014 private EMG study, there was no electrodiagnostic evidence of cervical radiculopathy and all symptoms associated with the upper extremities were associated with carpal tunnel syndrome and ulnar neuropathy unrelated to the cervical spine disability. In December 2014, the Veteran underwent an additional VA neck examination, at which time the examiner rendered a diagnosis of degenerative arthritis of the spine. The Veteran was confused as to why he was scheduled for another examination and noted that there were no changes since the last examination. He reported daily neck pain, which he treated with ice usually at the end of the day. The Veteran did not report having flare-ups and/or functional loss/impairment. On physical examination, range of motion of the cervical spine revealed forward flexion to 35 degrees; extension to 30 degrees; right lateral flexion to 40 degrees; left lateral flexion to 30 degrees; right lateral rotation to 60 degrees; and, left lateral rotation to 45 degrees. No pain was noted on examination and range of motion itself did not contribute to functional loss. There was no objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use testing. The examiner noted that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time or during flare-ups. The examiner indicated that it would be mere speculation to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability under these conditions because the Veteran was not examined under such conditions. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex examination was hypoactive (1+) throughout. Sensory examination was decreased in the hand/fingers. The examiner noted that the Veteran had no radicular pain or signs/symptoms of radiculopathy. There was no ankylosis or IVDS. The Veteran used no assistive devices. During a peripheral nerve conditions examination at the same time, the examiner confirmed diagnoses of bilateral carpal tunnel syndrome and bilateral ulnar neuropathy at the elbow, which was asymptomatic and an incidental finding. However, the examiner explained that this was unrelated to the Veteran's cervical spine disability. In February 2018, the Veteran underwent an additional neck compensation examination, at which time the examiner rendered a diagnosis of cervical spine degenerative arthritis. The Veteran reported neck pain that radiated down his shoulders and neck stiffness. Flare-ups were described as constant pain with stiffness and increased headaches. The Veteran did not report any functional loss/impairment. On physical examination, range of motion of the cervical spine revealed forward flexion to 35 degrees; extension to 30 degrees; lateral flexion to 35 degrees, bilaterally; and, lateral rotation to 70 degrees, bilaterally. Range of motion itself did not contribute to functional loss. Pain was not noted on examination and there was no objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use testing. The examiner indicated that it was not possible to estimate without resorting to mere speculation the degree of loss during flare-ups and/or after repetitive use. There was no guarding or muscle spasm. Muscle strength testing was normal throughout with the exception of the right elbow and wrist, which showed active movement against some resistance (4/5) and with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising test was negative, bilaterally. The examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of IVDS. The Veteran used a cervical traction device. In July 2021, the Veteran underwent an additional neck compensation examination, at which time the examiner confirmed a diagnosis of cervical spine degenerative arthritis. The Veteran reported that his pain increased in severity as well as his limitation of motion. He treated with ibuprofen, injections, and physical therapy. He denied having flare-ups. Functional loss/impairment was described as inability to move head to look and constant pain. Upon physical examination, range of motion of the cervical spine revealed forward flexion to 35 degrees; extension to 30 degrees; lateral flexion to 5 degrees, bilaterally; and, lateral rotation to 5 degrees, bilaterally. Range of motion itself contributed to functional loss due to lack of full field of view. There was pain on weight bearing and active motion, which caused functional loss due to the inability to perform repetitive movements without pain. There was no objective evidence of crepitus. There was moderate localized tenderness in the paracervical area. There was no additional loss of functional or range of motion after repetitive use testing. Pain, fatigability, weakness, and lack of endurance significantly limited functional ability with repeated use over time. The examiner estimated that after repetitive use over time, range of motion will reveal forward flexion to 15 degrees, extension to 15 degrees, and lateral flexion and rotation to 0 degrees, bilaterally. There was localized tenderness that did not result in abnormal gait or abnormal spinal contour. There was no evidence of muscle spasm or guarding. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout with no radicular pain or signs and symptoms of radiculopathy. There was no ankylosis of the cervical spine. There was no IVDS. The Veteran used no assistive devices. On review of all the evidence, lay and medical, the Board finds that an initial 30 percent rating is approximated. Notably, the only examination report that estimated the range of motion loss after repetitive use over time was the most recent 2021 examination. In this regard, the examiner estimated that after repeated use over time, the Veteran's cervical spine flexion would decrease by 20 degrees. Applying this estimation to earlier examination results in forward flexion that meets the criteria for a 30 percent rating for the entire initial rating period. As such, resolving all doubt in the Veteran's favor, an initial 30 percent rating is warranted for the entire rating period. Nevertheless, a rating higher than 30 percent is not warranted. In this regard, in order for the Veteran to receive a higher rating, there needs to be evidence of unfavorable ankylosis of the entire cervical spine. In Chavis v. McDonough, 34 Vet. App. 1, 1-2 (2021), the Court held that evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Here, the maximum rating for limitation of motion of the cervical spine is 30 percent but pursuant to Chavis the Board must consider whether there is evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis. As noted above, the Veteran's forward flexion range of motion was limited to, at worst, 10 degrees. The Veteran also experienced pain, which is contemplated by the 30 percent rating. However, as the medical evidence does not show, and the Veteran has not asserted otherwise, the presence of ankylosis of the entire cervical spine, a rating of 40 percent is not warranted, even with consideration of the functional impairment resulting from pain and other such factors. In addition, the Board finds that the lay evidence likewise does not show that the Veteran's cervical spine disability is productive of the functional equivalent of ankylosis. Lastly, there is no diagnosis of IVDS of the cervical spine throughout the initial rating period on appeal. Accordingly, a 30 percent, but not higher, is warranted for the entire initial rating period. Additionally, throughout the pendency of the appeal, the competent medical evidence is against finding that the Veteran has any neurological impairment that is associated with the cervical spine disability. As discussed above, all neurological impairments shown were specifically attributed to other disabilities unrelated to the cervical spine and all studies conducted confirmed no evidence of cervical radiculopathy. As such, separate ratings are not warranted. Lumbar Spine Rating Analysis From September 16, 2010, to June 25, 2013 In June 2010, the Veteran underwent a pre-discharge examination, at which time the Veteran reported that he had limitation in walking because of his spine condition. He added that he could walk up to 500 yards and that it took 20 minutes to accomplish this. Additional symptoms reported included stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. He also had weakness of the spine, leg, and foot. He did not have any bladder problems. The back pain was constant, moderate, and radiated down both legs. During flare-ups he experienced functional impairment, which was described as joint pain and limitation of motion of the joint with difficulty walking and bending. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 90 degrees; extension to 30 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally, all without evidence of pain. There was no additional loss after repetitive use testing. There was no evidence of radiating pain on movement, muscle spasm, guarding, weakness, and loss of tone/atrophy pf limbs. There was localized tenderness. There was no ankylosis of the lumbar spine. According to June 2011 private treatment records, the Veteran complained of low back pain that radiated down to his lower extremities, which worsened recently. According to September 2011 private treatment records, the Veteran complained of low back and leg pain. Upon physical examination, the medical professional noted that range of motion as within functional limits except for extension that was limited to 50 percent. The Veteran denied lower extremity symptoms with repeated flexion or extension. Muscle strength testing and sensory examination were normal. In October 2011, the Veteran underwent a VA examination, at which time the examiner confirmed a diagnosis of degeneration of the lumbar spine. The Veteran reported back pain and impaired mobility for several years during and since service. He indicated that the pain worsened and became constant. He had intermittent aching/sharp shooting pain that radiated down both legs. Prolonged sitting and bending as well as lifting heavy objects worsened his pain. He attempted several treatments without significant benefits. He did not require the use of an assistive device. He denied having flare-ups. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 70 degrees with pain at 5 degrees; extension to 20 degrees with pain at 5 degrees; right lateral flexion to 25 degrees with pain at 5 degrees; left lateral flexion to 30 degrees with pain at 5 degrees; and, lateral rotation to 30 degrees with pain at 5 degrees, bilaterally. After repetitive use testing, range of motion revealed forward flexion to 70 degrees; extension to 15 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; and lateral rotation to 30 degrees, bilaterally. Functional loss/impairment was due to less movement than normal and pain on movement. There was no localized tenderness or pain on palpation. There was no guarding or muscle spasm. Muscle strength testing was normal (5/5) throughout with the exception of the right hip where it showed active movement against some resistance (4/5) and with no evidence of muscle atrophy. Reflex examination was hyperactive without clonus (3+) throughout. Sensory examination was normal throughout. Straight leg raising test was negative, bilaterally. The examiner noted that signs and symptoms of radiculopathy only included mild intermittent pain of the right lower extremity, which amounted to mild incomplete paralysis. The Veteran had IVDS but no incapacitating episodes requiring bedrest prescribed by a physician in the previous 12 months. The Veteran used no assistive devices. In December 2011, the Veteran received epidural injections to the lower back. He continued to complain of back pain and received regular treatment in 2011, 2012, and 2013. On review of all evidence, lay and medical, the Board finds that the criteria for a 20 percent rating is approximated for this initial rating period on appeal. Notably, the only examiner to estimate loss of range of motion after repetitive use testing was the 2021 examiner, which determined that after repetitive use testing, there would be an additional 20-degree loss. Applying this estimation to this initial rating period on appeal supports the assignment of a 20 percent rating. However, a rating higher than 20 percent during this initial rating period is not warranted. In this regard, even assuming a 20-degree loss after repetitive use over time, forward flexion of the lumbar spine, at worse, was to 50 degrees, and does not more nearly approximate flexion to 30 degrees or less. From June 25, 2013, to July 5, 2021 According to VA treatment records dated June 2013, forward flexion of the lumbar spine was to 40 degrees with extension to 20 degrees. In July 2014, the Veteran underwent a VA back examination, at which time the examiner rendered a diagnosis of lumbar spine degenerative changes and right lumbar radiculopathy. The Veteran reported back pain that was 5 out of 10 in severity. The pain was aggravated by lifting and standing. Epidural injections provided temporary relief. During flare-ups, the pain radiated down the posterior thighs to the knees. Flare-ups occurred at least once a week. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 70 degrees; extension to 20 degrees; lateral flexion to 25 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally. There was no additional limitation in range of motion after repetitive use testing. Functional loss/impairment was due to less movement than normal and pain on use. There was localized tenderness over the lumbar paraspinals. There was no muscle spasm or guarding. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising test was negative, bilaterally. Although the examiner noted a diagnosis of right lumbar radiculopathy, it was noted that the Veteran had no radicular pain or signs/symptoms of radiculopathy. There was no ankylosis of IVDS. The Veteran used no assistive devices. In December 2014, the Veteran underwent an additional VA back examination, at which time the examiner rendered a diagnosis of degenerative arthritis of the spine. The Veteran was confused as to why he was scheduled for another examination and noted that there were no changes since the last examination. He reported daily back pain, which he treated with ice usually at the end of the day. The Veteran did not report having flare-ups and/or functional loss/impairment. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 80 degrees; extension to 30 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally. No pain was noted on examination and range of motion itself did not contribute to functional loss. There was no evidence of pain with weightbearing and no localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use testing. The examiner noted that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time or during flare-ups. The examiner indicated that it would be mere speculation to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability under these conditions because the Veteran was not examined under such conditions. There was no guarding or muscle spasm. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising test was negative, bilaterally. The examiner noted that the Veteran had no radicular pain or sign/symptoms of radiculopathy. There was no ankylosis or IVDS. The Veteran used no assistive devices. In February 2018, the Veteran underwent an additional back compensation examination, at which time the examiner rendered a diagnosis of lumbar spine degeneration with right lumbar radiculopathy. The Veteran reported aches and shooting pain ot the legs. He experienced loss of mobility and prolonged bending and sitting caused pain. He treated with pain medication and trigger point injections every three weeks. The Veteran reported daily flare-ups that were 8 out of 10 in severity. Those were especially triggered by driving long distances. The Veteran reported no functional loss/impairment of the lumbar spine. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 75 degrees; extension to 20 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 20 degrees, bilaterally. Range of motion itself did not contribute to functional loss. No pain was noted on examination and there was no evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use testing. The examiner indicated that it was not possible to estimate without resorting to mere speculation the degree of loss during flare-ups and/or after repetitive use. There was no guarding or muscle spasm. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising test was negative, bilaterally. The examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of IVDS. In September 2018 correspondence the Veteran stated that there have been times he was bedridden for three weeks at a time. In June 2019, the Veteran underwent an additional back compensation examination, at which time the examiner rendered diagnoses of degenerative arthritis of the spine and IVDS with right lumbar radiculopathy. The Veteran reported having back pain with occasional radiating pain and tingling to both legs. Flare-ups were described as incapacitating low back pain that required him to lay down with legs elevated and pillow under knees. These flare-ups occurred once a week and lasted for one to two days at a time. Functional loss/impairment was described as inability to stand or sit for prolonged time and having to leave work to go home. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 45 degrees; extension to 15 degrees; right lateral flexion to 10 degrees; left lateral flexion to 20 degrees; right lateral rotation to 15 degrees; and, left lateral rotation to 30 degrees. Range of motion itself contributed to a functional loss due to difficulty picking up items from the floor or reaching behind. Pain was noted on examination and there was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation. The Veteran refused to perform repetitive use testing. The examiner noted that the examination was medically consistent with the Veteran's statement describing functional loss with repeated use over time/during flare-ups and that pain, fatigue, and weakness significantly limited functional ability under these conditions. However, the examiner indicated that it was not possible to determine without mere speculation the estimated range of motion under these conditions because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. There was no guarding or muscle spasms. Muscle strength testing was normal throughout with the exception of the right ankle dorsiflexion and great toe extension, which showed active movement against some resistance (4/5) but with no evidence of muscle atrophy. Reflex examination was normal throughout. Sensory examination was decreased for the upper anterior thigh, bilaterally, but normal otherwise. Straight leg raising test was negative, bilaterally. Signs and symptoms of radiculopathy included mild intermittent pain, bilaterally. The examiner concluded that the Veteran had mild incomplete paralysis of the femoral nerve, bilaterally. There was no ankylosis. IVDS resulted in episodes of bed rest having a total duration of at least one week but less than two weeks in the previous 12 months. The Veteran used a brace regularly. On review of all the evidence, lay and medical, the Board resolves all doubt in the Veteran's favor in finding that beginning June 25, 2013, forward flexion of the lumbar spine approximated the criteria for a 40 percent rating. In this regard, when applied, the 2021 estimation that after repetitive use over time there would be a 20-degree loss supports the assignment of a 40 percent rating already beginning on June 25, 2013. As will be discussed below, a rating higher than 40 percent is not warranted. From July 5, 2021, Forward In July 2021, the Veteran underwent an additional back compensation examination, at which time the examiner confirmed a diagnosis of lumbar spine degenerative arthritis with IVDS. The Veteran reported that his pain increased in severity and that he treated it with ibuprofen and injections. He denied having flare-ups. Functional loss/impairment was described as inability to lift. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 30 degrees; extension to 0 degrees; lateral flexion to 5 degrees, bilaterally; and, lateral rotation to 5 degrees, bilaterally. There was evidence of pain with weight bearing and on active motion, which caused functional loss. The examiner noted that the Veteran was unable to perform repetitive movement without pain. There was no objective evidence of crepitus. There was no additional loss of function/range of motion after repetitive use testing. Pain, fatigability, weakness, and lack of endurance significantly limited functional ability with repeated use over time. The examiner estimated that after repetitive use over time, range of motion will reveal forward flexion to 10 degrees and extension, lateral flexion, and lateral rotation to 0 degrees. There was localized tenderness that did not result in abnormal gait or abnormal spinal contour. There was no evidence of muscle spasm or guarding. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising test was negative, bilaterally. The Veteran had no radicular pain or signs/ symptoms of radiculopathy. There was no ankylosis of the lumbar spine. IVDS resulted in episodes of bed rest having a total duration of at least six weeks during the previous 12 months. The examiner indicated that this was based solely on the Veteran's described history without documentation. The Veteran used no assistive devices. On review, the Board finds that a rating higher than 40 percent is not warranted. Under the General Rating Formula based on limitation of motion, unfavorable ankylosis of the entire lumbar spine is not approximated. In this regard, in order for the Veteran to receive a higher rating, there needs to be evidence of unfavorable ankylosis of the entire lumbar spine. In Chavis v. McDonough, 34 Vet. App. 1, 1-2 (2021), the Court held that evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Here, the maximum rating for limitation of motion of the lumbar spine is 40 percent but pursuant to Chavis the Board must consider whether there is evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis. As noted above, the Veteran's forward flexion range of motion was limited to, at worst, 10 degrees. The Veteran also experienced pain, which is contemplated by the 40 percent rating. However, as the medical evidence does not show, and the Veteran has not asserted otherwise, the presence of ankylosis of the entire lumbar spine, a rating of 50 percent is not warranted, even with consideration of the functional impairment resulting from pain and other such factors. In addition, the Board finds that the lay evidence likewise does not show that the Veteran's lumbar spine disability is productive of the functional equivalent of ankylosis. Regarding IVDS, although the Veteran self-reported episodes of bed rest having a total duration of at least six weeks during the previous 12 months, the examiner indicated that this was based solely on the Veteran's described history without documentation. A careful review of the medical evidence does not show any prescribed bed rest by a physician as required by the rating criteria for IVDS. The Board recognizes that the Veteran is competent to describe symptoms that are known to him; however, neither bed rest prescribed by a physician nor the claimed periods of incapacitation are shown in, or referenced by, private or VA treatment records during the pendency of the appeal. The Board assigns more probative value to the Veteran's medical records made for treatment purposes than to subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Lastly, there is no evidence of disc herniation, which is necessary to satisfy the threshold requirement for application of DC 5243 under the 2021 amended rating criteria, and regardless, as noted above, the record does not demonstrate that bed rest was prescribed by a physician due to incapacitating episodes. Therefore, on this record the Board finds that there is no basis for a higher rating under DC 5243 at any time during the rating period. Neurological Impairment In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." See Spellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Here, the Veteran is in receipt of an initial 10 percent rating for each lower extremity lumbar radiculopathy. On review, the Board finds that a rating higher than 10 percent is not warranted for either extremity. In so finding, the Board notes that there is no evidence to support moderate incomplete paralysis. Specifically, throughout the entire initial rating period on appeal, the Veteran's muscle strength, reflex, and sensory examinations were normal with negative straight leg raising test, bilaterally. Only on one occasion mild intermittent pain was associated with the Veteran's subjective complaints of radiating pain. Numbness was never mentioned, and tingling was noted to only be occasional. Overall, the evidence does not support the assignment of a rating higher than 10 percent at any point during the pendency of the claim. Entitlement to a TDIU The Veteran asserts that he is precluded from obtaining or maintaining substantially gainful employment due to his service-connected disabilities. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran meets the schedular criteria for entitlement a TDIU for the entire rating period on appeal. The question remains, however, whether the Veteran has been precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities. On review, the Board finds that despite difficulties with his job, the Veteran continued to maintain full-time gainful occupation with the Social Security Administration. During the October 2011 back examination, the Veteran reported that his back pain interfered with his job, which required long periods of sitting and driving. He worked as an insurance salesman and the sedentary nature of the job worsened his pain. During the February 2018 back and neck compensation examinations, the Veteran reported that he was still working. Specifically, the Veteran indicated that he was able to tolerate his job since it was a stationary position. In September 2018 correspondence the Veteran stated that he took 18 weeks of sick leave from work directly related to his back condition and that there have been times he was bedridden for three weeks at a time. In the May 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran noted that he still worked full-time. In a June 2019 individual unemployability statement, a VA examiner indicated that the Veteran's service-connected headaches and hypertension caused no restrictions for job activities required. The shoulder and back disabilities did not prevent sedentary work. During the back examination, the examiner noted that the Veteran continued to work as a social security financial claims evaluator and missed two to four weeks of work in the previous 12 months due to his back condition. The Veteran stated that he had a negative time-off work because he had to leave work frequently due to back pain. During the July 2021 back examination, the examiner noted that the Veteran would be unable to work in occupations such as paramedic, police officer, or other occupation requiring lifting and use of the lower back. During the neck examination, the examiner noted that the Veteran was unable to work in occupations such as commercial truck driver, surveyor, or any other occupation requiring full field of view and use of neck. (Continued on the next page) After careful consideration of the record, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for a TDIU. The Board does not doubt that the Veteran may have some limitations in performing tasks at work due to his service-connected disabilities; however, despite these difficulties, he has continued to maintain full-time his job. For these reasons, the preponderance of the evidence is against the Veteran's claim, therefore the benefit-of-the-doubt rule does not apply, and a TDIU is not warranted. Should the Veteran's employment status change, he is invited to file a new claim for entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.