Citation Nr: 21065569 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-40 728 DATE: October 26, 2021 ORDER Entitlement to a disability rating greater than 20 percent for service-connected cervical spondylosis (hereafter referred to as a "neck disability") is denied. Entitlement to a disability rating greater than 20 percent for service-connected postoperative lumbar disc disease (hereafter referred to as a "low back disability") is denied Beginning June 3, 2016, entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran's service-connected neck disability does not manifest limitation of forward flexion to at least 15 degrees or any form ankylosis. 2. The Veteran's service-connected low back disability does not manifest limitation of forward flexion to at least 30 degrees or any form ankylosis. 3. Beginning June 3, 2016, the Veteran's service-connected radiculopathy of the right lower extremity manifests incomplete paralysis with moderate symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 20 percent for service-connected neck disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 52355243. 2. The criteria for entitlement to a disability rating greater than 20 percent for service-connected low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 52355243. 3. Beginning June 3, 2016, entitlement to a disability rating greater than 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to July 1971, September 2005 to September 2006, November 2006 to November 2007, and January 2010 to January 2014. Among those periods of active service, the Veteran served in the Army Reserve from April 1979 to January 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. A hearing was conducted at the Board in Washington, D.C. A transcript of this hearing is contained within the electronic claims file. In February 2020, the Veteran's representative submitted a "Waiver of local jurisdiction" indicating that the Veteran was waiving review of any evidence not assessed by the agency of original jurisdiction (AOJ) and asking the Board to adjudicate the issues herein. Thus, remand for AOJ consideration of any evidence after the May 2017 Statement of the Case (SOC) is not necessary. See 38C.F.R. §20.1305(c). In a June 2020 Decision, the Board denied entitlement to a disability rating greater than (1) 10 percent for the neck disability, prior to August 23, 2017; (2) 20 percent, prior to June 3, 2016, for the back disability; (3) 20 percent, prior to June 3, 2016, for radiculopathy; and remanded entitlement to a disability rating greater than (4) 10 percent for the neck disability, beginning August 23, 2017; (5) 20 percent, beginning June 3, 2016, for the back disability; and (6) 20 percent, beginning June 3, 2016, for radiculopathy. The remanded claims were part of staged ratings, and the Board required updated examinations of those conditions. Those examinations were obtained in September 2020. In a November 2020 Rating Decision, the agency of original jurisdiction (AOJ) awarded the Veteran a 20 percent disability rating for his neck disability, beginning November 6, 2019. The Veteran appealed issues (1) and (2) listed above to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of an August 4, 2021, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board erred by relying on an inadequate February 2015 that did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Parties agreed that a retrospective medical opinion was needed. By a February 11, 2021, Order, the CAVC adopted the Parties' JMPR and vacated the Board's June 2020 Decision with respect to issues (1) and (2), remanding them back to the Board. In a June 2021 Decision, the Board remanded the issues of entitlement to a disability rating greater than (1) 10 percent, prior to November 6, 2019, for the neck disability; (2) 20 percent, beginning November 6, 2019, for the neck disability; (3) 20 percent for the back disability; and (4) 20 percent, beginning June 3, 2016, for radiculopathy of the right lower extremity. The first three issues required retrospective medical opinions to comply with the JMPR's mandate, and the fourth issue was remanded as inextricably intertwined. Retrospective opinions were obtained in August 2021. In an August 2021 Rating Decision, the AOJ awarded the Veteran a 20 percent disability rating for his neck disability, effective January 15, 2014the first day after his separation from service of his last period of active duty. Thus, the neck claim now before the Board is one for a disability rating in excess of 20 percent for the entire appellate period. Because the AOJ substantially has complied with both the Board's June 2020 remand directives, as well as the JMPR's mandate, the Board finds that it substantially has complied, permitting the Board to readjudicate these matters. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Ibid. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. DCs 5235 through 5242 pertain to various disease and injuries of the spine. Invertebral disc syndrome based on incapacitating episodes (IVDS) (DC 5243), however, is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). Under 38 C.F.R. § 4.71a, DCs 52355242, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Normal range of motion of the cervical spine encompasses forward flexion and extension of 045 degrees; bilateral flexion of 045 degrees; and bilateral rotation of 080 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The thoracolumbar spine encompasses forward flexion of 090 degrees; extension of 030 degrees; and bilateral lateral flexion and bilateral rotation of 030 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. All record ranges of motion are to be rounded to the nearest five degrees. Id. at Notes (2), (4), Plate V. 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. Id. at Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Nothing suggests that the factors in in 38 C.F.R. §§ 4.40 and 4.45 "should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion." Chavis v. McDonough, 34 Vet. App. 1, 19 (2021). Thus, "application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis." Id. at 20. During the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,469 (Nov. 30, 2020). The rating criteria for the spine also did not undergo any substantive changes. Rather, the rating schedule merely reflects updated DCs. DC 5242 now is assigned for degenerative arthritis and degenerative disc disease other than IVDS. DC 5243IVDSnow will be assigned only where there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 should be assigned for all other disc diagnoses. DC 5244 is created for complete, traumatic paralysis; if it does not cause loss of use of both hands or feet, then it is incomplete paralysis, and the residuals thereof should be rated under the appropriate DCs for the peripheral nerves. Paraplegia is to be rated under DC 5110. 85 Fed. Reg. 76,453, 76,463, 76,469 (Nov. 30, 2020). Neurological or convulsive disorders ordinarily are to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating disability from the conditions in the preceding sentence refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The opening paragraph to 38 C.F.R. § 4.124a states that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. The United States Court of Appeals for the Federal Circuit has held that the M21-1 Adjudication Procedures Manual (M21) of the Veterans Benefits Administration (VBA) does not "carry the force of law." DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017) overruled by Nat'l Org. of Veterans' Advocs., Inc. v. Sec'y of Veterans Affs., 981 F.3d 1360, 1374, 1378 (Fed. Cir. 2020) (en banc) (holding that, when certain M21 rules are of "general applicability" and should have been published in the Federal Register, the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review them). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Ibid. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)). The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Ibid.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. The Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Furthermore, where the applicable rating criteria contains terms that are undefined, the Board must define those terms as it applies them to the veteran at hand to satisfy its obligation to provide adequate reasons or bases. Johnson v. Wilkie, 30 Vet. App. 245, 25455 (2018); Spellers v. Wilkie, 30 Vet. App. 211, 21920 (2018). Section III.iv.4.N.4.c. provides a table that assists VBA adjudicators in determining the appropriate level of severity for incomplete paralysis, neuritis, and neuralgia. That table is as follows: Degree of Incomplete Paralysis Description Mild As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Moderate is also the maximum evaluation that can be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Moderately Severe The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520. Severe In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). The opening paragraph to the table for diseases of the peripheral nerves states that the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Under 38 C.F.R. § 4.124, DC 8520, an 80 percent disability rating is warranted for complete paralysis with the following symptoms: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent disability rating is warranted for incomplete paralysis with severe symptoms marked by muscular atrophy. A 40 percent disability rating is warranted for incomplete paralysis with moderately severe symptoms. 1. Entitlement to a disability rating greater than 20 percent for service-connected neck disability is denied. The Veteran seeks on appeal a higher rating for his service-connected neck disability. By way of history, a December 2009 Rating Decision awarded him service connection for his neck disability; he was assigned a 10 percent rating effective May 29, 2009. The 10 percent rating was assigned on the basis of limitation of forward flexion from 035 degrees. As noted above, the November 2020 Rating Decision assigned a 20 percent rating effective January 15, 2014. A February 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that Veteran suffers from cervical spondylosis. The Veteran did not report flareups. Range of motion was recorded as follows: forward flexion: 035degrees; extension: 035 degrees; bilateral lateral flexion: 040 degrees; bilateral rotation: 070 degrees. There was no pain noted on examination. Repetitive use testing was performed without any additional loss of range of motion. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, guarding, or muscle spasm of the cervical spine. Muscle strength was noted to be normal. There was no muscle atrophy, radiculopathy, ankylosis, or IVDS. The Veteran's cervical spine condition did not impact his ability to work. The August 2021 retrospective medical opinion noted that, at the time of this examination, repeated use over time would produce additional loss of range of motion by 5 degrees for each movement. The examiner also noted that the Veteran experienced pain on both active and passive motion but that there was no evidence for pain on weight bearing. In his June 2016 Notice of Disagreement (NOD), the Veteran stated that he has constant pain, spasms, and is required to take stronger painkillers and muscle relaxers. In an August 2017 statement, he indicated that he receives injections in the sides of his neck for pain. At his hearing, the Veteran reiterated that contention. Oct. 23, 2019, Hearing Transcript (Tr.) at 27. VA medical center (VAMC) records from November 2019 note that the Veteran received radiofrequency ablation (RFA) for neck pain. January 2020 entries showed additional neck injections for the pain. In March 2020, he complained of worsening neck pain over the last month, namely a return of the pain he experienced prior to his RFA treatment. A September 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that the Veteran suffers from cervical spondylosis. He did not report flare-ups. Functional impact was noted as difficulty turning the head and the presence of tightness. Initial range of motion was recorded as follows: forward flexion: 045 degrees; extension: 030 degrees; bilateral lateral flexion: 020 degrees; and bilateral lateral rotation: 025 degrees. Pain was noted for all ranges of motion but not on weight bearing. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. Repetitive use testing was performed without additional loss of range of motion. While the Veteran was not observed immediately after repeated use over time, the examiner opined that loss of range of motion would occur as follows: forward flexion: 040 degrees; extension: 025 degrees; bilateral lateral flexion: 015 degrees; and bilateral lateral rotation: 020 degrees. The Veteran did not experience guarding or muscle spasm of the cervical spine. Muscle strength was normal. There was no muscle atrophy, radiculopathy, ankylosis, or IVDS. Imaging studies were performed and confirmed arthritis. The examiner noted occasional use of a brace and a cane. The Veteran's occupational limitations were noted as difficulty with head rotation. There was evidence of pain on non-weight bearing. Passive range of motion values and the pain that flowed from that testing were the same as active range of motion and its associated pain. VAMC records from September 2020 note that the Veteran received more RFA treatment, which yielded improved range of motion. The Board finds that the Veteran's current 20 percent rating for his neck disability is the most appropriate. Examining the record, it reveals that, at its worst, the Veteran's forward flexion of his cervical spine is limited to 30 degrees. This qualifies him for a 20 percent rating. See 38 C.F.R. § 4.71a, DCs 52355243. For range of motion purposes, he is not entitled to a 30 percent rating unless his neck disability manifests limitation of forward flexion to at least 15 degrees; the record does not reflect such limitation. The evidence also does not disclose that he experiences any form ankylosis, either favorable or unfavorable (officially diagnosed or its functional equivalent). Thus, he also is not entitled to a rating based on that basis. See Chavis, 34 Vet. App. at 19; ibid. The Board also is satisfied that the Veteran's pain and the functional loss attributed thereto has been considered in his current rating. Indeed, it was not until after the retrospective medical opinion was obtained that the AOJ saw fit to award a 20 percent rating back to January 2014. That opinion considered the additional loss of range of motion due to pain after repeated use over time and noted pain on both active and passive motion. Thus, the Board is satisfied that all relevant provisions have been considered in the assignment of his 20 percent rating. See DeLuca, 8 Vet. App. at 20407; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran, therefore, is not entitled to a disability rating greater than 20 percent for his service-connected neck disability. 2. Entitlement to a disability rating greater than 20 percent for service-connected low back disability is denied. The Veteran seeks on appeal a higher rating for his service-connected low back disability. By way of history, a June 2004 Rating Decision awarded the Veteran service connection for his low back disability; he was assigned a 20 percent rating effective August 16, 2003. His rating was assigned on the basis of moderate limitation of motion of the spine (older criteria not currently in use). A February 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that Veteran suffers from degenerative arthritis of the spine. The Veteran did not report flareups. Range of motion was recorded as follows: forward flexion: 065 degrees; extension: 020 degrees; bilateral lateral flexion: 025 degrees; bilateral rotation: 025 degrees. There was no pain noted on examination. Repetitive use testing was performed without any additional loss of range of motion. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, guarding, or muscle spasm of the thoracolumbar spine. Muscle strength was noted to be normal except for right ankle dorsiflexion, which was noted as 4/5. There was no muscle atrophy, ankylosis, or IVDS. Mild radiculopathy was noted in the right lower extremity (a separate nerve examination was performed and will be discussed in more detail below). The Veteran's thoracolumbar spine condition did not impact his ability to work. The August 2021 retrospective medical opinion noted that, at the time of this examination, repeated use over time would produce additional loss of range of motion by 5 degrees for each movement. The examiner also noted that the Veteran experienced pain on both active and passive motion, as well as in non-weight bearing. In his June 3, 2016, NOD, the Veteran stated that his back condition has worsened. In his July 2017 VA Form 9, he alleges that he receives injections for pain. At his hearing, the Veteran testified that his only recourse for possible longterm pain management, as relayed to him by his doctor, is surgery. Tr. at 16. He endorsed constant pain, guarding, an inability to sit and walk for long periods of time, difficulty lifting above his lower chest or anything heavier than 2530 pounds, an altered gait, and wearing a brace for his back. Id. at 1620. VAMC records from January 2020 confirm that the Veteran received injections in his back for pain. Other records verify his continued complaints of pain. A September 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that he suffers from lumbar disc disease with laminectomy and microdiskectomy. He did not report flare-ups. Functional impact was noted as difficulty bending down and getting up out of a chair, as well as walking up stairs and a ramp. Initial range of motion was recorded as follows: forward flexion: 075 degrees; extension: 05 degrees; right lateral flexion: 020 degrees; left lateral flexion: 010 degrees; right lateral rotation: 020 degrees; and left lateral rotation: 020 degrees. Pain was noted for all ranges of motion, as well as on weight bearing. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. Repetitive use testing was performed without additional loss of range of motion. While the Veteran was not observed immediately after repeated use over time, the examiner opined that loss of range of motion would occur as follows: forward flexion: 060 degrees; extension: 05 degrees; right lateral flexion: 010 degrees; left lateral flexion: 05 degrees; and bilateral lateral rotation: 010 degrees. The Veteran did not experience guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal. There was no muscle atrophy, ankylosis, or IVDS. Imaging studies were performed and confirmed arthritis. The examiner noted occasional use of a brace and a cane. His occupational limitations were noted as difficulty with heavy lifting, inability to run, difficulty with prolonged standing, walking, and standing form a seated position. There was no evidence of pain on non-weight bearing. Passive range of motion testing was listed as not bale to test or not medically appropriate. The Board finds that the Veteran's current 20 percent rating for his service-connected low back disability is appropriate. As the regulations explain, a 40 percent rating for the thoracolumbar spine can be achieved either through limitation of forward flexion to at least 30 degrees or favorable ankylosis of the entire thoracolumbar spine. The record reveals that, at its worst, the Veteran's forward flexion of the thoracolumbar spine has been limited to 60 degrees. This limitation includes factoring in the Veteran's pain after repeated use over time as noted both in the September 2020 examination report and the 2021 retrospective opinion. Thus, the Board is satisfied that the various factors within the regulations have been considered. See DeLuca, 8 Vet. App. at 20407; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 52355243. The evidence also does not show that the Veteran experiences any form of ankylosis or its functional equivalent, so a higher rating also is not warranted on that basis. See Chavis, 34 Vet. App. at 19. Because the evidence does not show that the Veteran meets any of the criteria for an increased rating, his appeal on this issue is denied. 3. Beginning June 3, 2016, entitlement to a disability greater than 20 percent for radiculopathy of the right lower extremity is denied. VAMC records from 2017 and 2018 routinely show that the Veteran experiences sciatica with right lower extremity weakness. The September 2020 VA back examination also evaluated the Veteran for radiculopathy and documented as such in the right L4S3 nerve roots. Muscle strength testing was normal. Atrophy was not present, and both reflexes and sensation were normal; however, there was mild intermittent pain in the right lower extremity. There is scant-to-no guidance on how to define the severity terms for the peripheral nerves. Where the Board otherwise is required to define these terms when adjudicating the Veteran's appeal, see Overton, 30 Vet. App. at 264, it finds the guidance contained in M21 III.iv.4.N.4.c. helpful and instructive. Because the Board must ensure that it defines these criteria as applied to the Veteran, see Johnson, 30 Vet. App. at 25455; Spellers, 30 Vet. App. at 21920, and discuss "any relevant provisions contained in the [M21]," it turns to, and, in the absence of any other prevailing authority, relies on, the various M21 charts noted herein. Overton, 30 Vet. App. at 264. The next higher rating for radiculopathy under DC 8520 is at the moderately severe level. Such a rating, according to the M21, will reflet motor and/or reflex impairment at a grade reflecting a "high level of limitation." Atrophy could be present at this stage. The evidence clearly weighs against finding entitlement to a rating greater than 20 percent. While the notations in the VAMC records document right lower extremity "weakness," there is no real indication of the overall severity. Nevertheless, the September 2020 examination noted that the Veteran experienced no limitation in muscle strength or reflexes. Indeed, the only symptom documented was mild, intermittent pain. Some weakness in the right lower extremity coupled with mild, intermittent pain surely does not rise to the level of moderately severe, which contemplates a high level of motor and reflex impairment. As such, the Board finds that the Veteran's radiculopathy of the right lower extremity does not manifest the symptoms necessary for a disability rating greater than 20 percent, so his appeal is denied. See Johnson, 30 Vet. App. at 25455; Spellers, 30 Vet. App. at 21920; 38 C.F.R. § 4.124a, DC 8520; M21 III.iv.4.N.4.c. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.