Citation Nr: 21065577 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 11-01 293 ,DATE: October 26, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to January 12, 2018, for status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis is denied. Entitlement to a rating in excess of 40 percent from January 12, 2018 for status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis is denied. REMANDED Entitlement to a finding of total disability based on individual unemployability due to service connected disabilities (TDIU), prior to August 22, 2014, is remanded. FINDINGS OF FACT 1. Prior to January 12, 2018, the Veteran's status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis was manifested by forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees. Forward flexion of the thoracolumbar spine 30 degrees or less was not shown. 2. From January 12, 2018 forward, the Veteran's status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis is manifested by forward flexion of the thoracolumbar spine to 30 degrees. Unfavorable ankylosis of the thoracolumbar spine has not been shown. CONCLUSIONS OF LAW 1. Prior to January 12, 2018, the criteria for a rating in excess of 20 percent for status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. From January 12, 2018 forward, the criteria for a rating in excess of 40 percent for status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1990 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In March 2017, November 2017, and October 2020, the Board remanded this matter for further evidentiary development. The directives have been substantially complied with and the matters again are before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ, in an April 2016 rating decision, awarded TDIU, effective August 22, 2014. Although the AOJ granted TDIU effective August 22, 2014, such does not cover the entirety of the appellate period, and the matter remains on appeal as part of the pending claim for increase. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a subsequent July 2020 rating decision, the AOJ increased the rating for status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis to 40 percent disabling, effective January 12, 2018. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the maximum benefit has not yet been awarded for the entire period on appeal, the claims are still in controversy and on appeal. Id. Thus, the appeal has been recharacterized on the title page to reflect the issues properly before the Board. Duty to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran..."). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's status-post fracture of L3-L4 with bulging disk and degenerative disk disease with arthritis is currently rated under Diagnostic Code 5243, covering intervertebral disc syndrome (IVDS), and is assigned a 10 percent rating, effective June 14, 1991; a 20 percent rating, effective June 6, 2005; and a 40 percent rating, effective January 12, 2018. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Effective February 7, 2021, the schedular criteria for rating the musculoskeletal system were amended. Prior to February 7, 2021, pursuant to 38 C.F.R. § 4.71a, disabilities evaluated under Diagnostic Code 5242 may be rated either under the General Formula for Diseases and Injuries of the Spine (General Formula) or 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. After February 7, 2021, Diagnostic Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise Diagnostic Code 5242 is assigned for all other disc diagnoses. Where the rating criteria is amended during the course of an appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise)). Under the General Rating Formula, a 10 percent rating is warranted 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 rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note 1 specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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. Comparatively, under the formula for rating IVDS, a 10 percent rating is warranted for 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 warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS based on incapacitating episodes defines an incapacitating episode as "a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician." The Veteran filed an informal claim for an increased rating for his back disability, which was received by the AOJ on October 27, 2009. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran's disability increased in severity, such as to warrant a higher rating, during that one year period. Private and VA treatment records reflect treatment for the Veteran's chronic lower back pain symptoms throughout the relevant period on appeal, including transforaminal epidural steroid injections and physical therapy. The evidence of record reflects that the Veteran was afforded a VA examination in December 2009. The Veteran endorsed difficulty walking and that he experienced falls. He further reported symptoms of stiffness, decreased motion, and numbness associated with his service-connected back disability. The Veteran characterized his back pain as severe, exacerbated by physical activity, and relieved by rest and medication. The Veteran noted that during flare-ups, he experienced limitation of motion of the joint, and denied hospitalization or surgery, and in the past 12 months, his back disability did not result in any incapacitation. The VA examiner indicated that the Veteran exhibited normal posture and gait, and that the Veteran did not require any assistive device for ambulation. On physical examination, the VA examiner observed tenderness, but no guarding, weakness, or ankylosis. The examination report further indicated that there was no evidence of radiating pain on movement or muscle spasm, and that muscle tone and musculature were normal, and that straight leg raises were negative bilaterally, and there was no atrophy present in the limbs. Upon range of motion testing, the Veteran exhibited 45 degrees of forward flexion, 5 degrees of extension, 5 degrees of lateral flexion bilaterally, and 20 degrees of lateral rotation bilaterally. The VA examiner reported that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The VA examiner indicated that joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use, and that upon inspection, the spine was symmetric in appearance and motion with normal curves. The examination report noted that there were no sensory deficits from L1-L5, no sensory deficits of S1, no lumbosacral motor weakness, no pathologic reflexes, and no signs of lumbar IVDS with chronic and permanent nerve root involvement. The VA examiner opined that the effect of the Veteran's back disability on his usual occupation and daily activities was mild. Thereafter, the Veteran was afforded a subsequent VA examination in August 2015. The examination report referenced the Veteran's diagnosis of status-post fracture of L3-L4 with bulging disk and degenerative disk disease. The Veteran reported that lifting more than 20 pounds caused pain, bending was painful, and that he was unable to squat. The Veteran further endorsed flare-ups every two weeks, and that he had daily pain in his back, and stiffness and pain upon awakening in the morning. On range of motion testing, the Veteran exhibited 50 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion bilaterally, and 20 degrees of lateral rotation bilaterally with objective evidence of painful motion for each. The VA examiner reported that the pain noted on the examination caused functional loss with evidence of pain with weight bearing. The VA examiner further observed moderately severe paralumbar and lumbar tenderness. The VA examiner reported that the Veteran had additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing, as he displayed 45 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion bilaterally, and 20 degrees of lateral rotation bilaterally, due to pain and fatigue. The VA examiner indicated that pain significantly limited functional ability with repeated use over a period of time, and described it in terms of range of motion, as forward flexion would be limited to 45 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees. The examination report noted that the examination was not conducted during a flare-up, but the VA examiner stated that pain and fatigue significantly limited functional ability with flare-ups, and described it in terms of range of motion, as forward flexion would be limited to 40 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. The VA examiner further reported that the Veteran had muscle spasm and localized tenderness of the thoracolumbar spine resulting in abnormal gait or spine contour, but that guarding did not result in abnormal gait or spinal contour. Muscle stress and reflex testing were assessed as normal, with no muscle atrophy noted on examination. The VA examiner reported decreased sensation to light touch in the thigh knee (L3-L4), lower leg and ankle (L4-L5, S1), and in the foot and toes (L5) of the left leg, with normal sensation to light touch in the right leg. The examination report indicated that the VA examiner was unable to perform a straight leg raising test, and that the Veteran did not have radicular pain or signs or symptoms due to radiculopathy, or had ankylosis or IVDS. The VA examiner indicated that the Veteran used a cane on a constant basis for ambulation due to back pain. The VA examiner opined that the Veteran was unable to lift or carry anything above 15 to 20 pounds, and that he had significant pain with bending. Pursuant to the Board's March 2017 remand, a VA examination was held in May 2017. The Veteran endorsed worsening back pain symptoms and stiffness, and noted that he used a cane for ambulation assistance. He stated that he experienced flare-ups of pain and stiffness in his lower back, and whenever he lifted more than 10 pounds. The examination report indicated that the Veteran denied any functional loss or functional impairment of the thoracolumbar spine. On range of motion testing, the Veteran exhibited 60 degrees of forward flexion, 10 degrees of extension, 20 degrees of lateral flexion bilaterally, and 20 degrees of lateral rotation bilaterally with objective evidence of painful motion on forward flexion and bilateral lateral rotation. The VA examiner reported that the pain noted on the examination caused functional loss with evidence of pain with weight bearing. The VA examiner reported that the Veteran was unable to pick up items from the floor and that dressing (socks) was difficult to accomplish. The VA examiner further observed no objective evidence of localized tenderness and reported that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The VA examiner indicated that pain significantly limited functional ability with repeated use over a period of time, and described it in terms of range of motion, as forward flexion would be limited to 60 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The examination report noted that the examination was not conducted during a flare-up, but the VA examiner stated that pain significantly limited functional ability with flare-ups, and described it in terms of range of motion, as forward flexion would be limited to 60 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The examination report indicated that the Veteran did not have localized tenderness, guarding, or muscle spasm of the thoracolumbar spine, but that the Veteran experienced disturbance of locomotion, and interference with sitting and standing. Muscle stress and reflex testing were assessed as normal, with no muscle atrophy noted on examination. The VA examiner reported normal sensation to light touch and that straight leg raises were positive bilaterally. The VA examiner further indicated that the Veteran did not have radicular pain or signs or symptoms due to radiculopathy, or had ankylosis or IVDS. The examination report referenced the Veteran's constant use of a cane for ambulation, but the VA examiner opined that the Veteran's lumbar spine disability did not impact his ability to work. Subsequent to the Board's November 2017 remand, the Veteran was afforded a VA examination in January 2018. However, as indicated in the October 2020 remand, the January 2018 VA examiner provided internally contradictory statements regarding whether pain caused functional loss upon initial range of motion testing, and while the July 2019 addendum opinion addressed repetitive use and flare-ups, it did not clarify the findings on initial range of motion testing. The Board, in its October 2020 remand, also stated that pursuant to Correia v. McDonald, 28 Vet. App. 158, 169 (2016), the January 2018 and July 2019 VA examiners did not indicate the point in the range of motion when pain began and, if so, where in the range of motion the pain set in and whether that pain caused functional loss. Nevertheless, the Board notes that the July 2019 VA addendum opinion regarding the estimated additional limitation in range of motion of 10 degrees during flare-ups served as the AOJ's basis for the award of a 40 percent rating in a July 2020 rating decision. The AOJ assigned an effective date of January 12, 2018 (the date of VA examination) for the award of the increased rating. The Board also notes that as a 40 percent rating for the Veteran's lumbar spine is the highest schedular rating for limitation of motion, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Of further note, the January 2018 VA examiner indicated that the Veteran did not have ankylosis of the spine, and while the Veteran had IVDS of the thoracolumbar spine, the VA examiner stated that he did not have any episodes of acute signs and symptoms of IVDS that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The record thereafter reflects that the Veteran underwent a VA examination in April 2021. The Veteran reported that he was unable to perform his regular activities and experienced "5/10" constant burning pain that went to "6-7/10" sharp pain in the lower back. He noted that he was referred to pain management for years and that an orthopedist told him that initially that he would have surgery but later was informed that he was a high-risk and could not do surgery. The Veteran further endorsed daily, moderate-to-severe flare-ups of the back which last up to eight hours and were precipitated by all events and were alleviated by laying down and pain medication. He also noted that he was unable to walk or stand for extended periods. On active range of motion testing, the Veteran exhibited 15 degrees of forward flexion, 15 degrees of extension, 15 degrees of right lateral flexion, 10 degrees of left lateral flexion, and 30 degrees of lateral rotation bilaterally with objective evidence of painful motion on forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation. Upon passive range of motion testing, the Veteran displayed 10 degrees of forward flexion, 10 degrees of extension, 10 degrees of lateral flexion bilaterally, and 25 degrees of lateral rotation bilaterally with objective evidence of painful motion on forward flexion, extension, bilateral lateral flexion, and left lateral rotation. The VA examiner noted that there was evidence of pain with weight-bearing, nonweight-bearing, active motion, passive motion, and on rest and non-movement. While the VA examiner referenced no evidence of crepitus, moderate to severe tenderness was observed at the mid-lower back and paraspinal muscles. The VA examiner reported that the Veteran had additional limitation in range of motion following repetitive-use testing, as he displayed 10 degrees of forward flexion, 10 degrees of extension, 10 degrees of lateral flexion bilaterally, and 25 degrees of lateral rotation bilaterally, due to pain, weakness, and lack of endurance. The VA examiner indicated that pain, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time, and described it in terms of range of motion, as forward flexion would be limited to 10 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 25 degrees. The examination report noted that the examination was not conducted during a flare-up, but the VA examiner stated that pain, fatigability, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-ups, and described it in terms of range of motion, as forward flexion would be limited to 5 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and bilateral lateral rotation to 20 degrees. Although the VA examiner reported that localized tenderness did not result in an abnormal gait or spinal contour, the Veteran's muscle spasm and guarding did. The examination report also indicated that the Veteran had disturbance of locomotion, instability of station, interference with sitting and standing, less movement than normal, and weakened movement due to the Veteran's degenerative disc disease, degenerative arthritis, and bilateral lower extremity radiculopathy. Upon muscle strength testing, the VA examiner reported "4/5" strength on the right and left sides, and hypoactive right knee ankle and left knee on reflex testing. The examination report noted that the Veteran did not have muscle atrophy, and that sensation to light touch was assessed as normal. The examination report indicated that the Veteran had radicular pain in the bilateral lower extremities involving the sciatic nerve, which caused constant moderate right lower extremity and mild left lower extremity pain, and severe intermittent pain in the right lower extremity and moderate intermittent pain in the left lower extremity. The examination report further indicated that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The VA examiner noted that the Veteran occasionally used a cane and constantly used a rollator for ambulation. The VA examiner opined that the Veteran was unable to perform regular activities, to include walking or standing for long which would affect his ability to complete his daily routines and tasks. All of the spine examinations affirmatively reflect findings of no ankylosis, and no other medical evidence of record reflects any such limitation of ankylosis of the spine. There is no evidence of range of forward flexion of 30 degrees or less prior to January 12, 2018. Accordingly, the 20 percent rating for the period prior to January 12, 2018, and 40 percent rating thereafter, adequately represents any functional impairment attributable to the disability during the appellate period. See 38 C.F.R. §§ 4.10, 4.41. The record reflects that only the January 2018 VA examination referenced IVDS in relation to the Veteran's service-connected back disability during the appellate period. Nevertheless, the January 2018 VA examiner indicated that the Veteran did not have any episodes of acute signs and symptoms of IVDS that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. Consequently, the General Formula for the Spine more appropriately encompasses the current nature and severity of the Veteran's service-connected status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for radiculopathy of the left and right lower extremities have already been granted by the AOJ in a June 2021 rating decision, and therefore are already contemplated by their assigned ratings. There is no evidence of any other nerve involvement. As such, additional separate compensable ratings are not warranted at this time. 38 C.F.R. § 4.71a, General Formula, Note 1. Therefore, the Board finds that a rating in excess of 20 percent prior to January 12, 2018, and in excess of 40 percent thereafter, for the Veteran's status-post fracture of L3-L4 with bulging disk and degenerative disc disease with arthritis is not warranted. REASONS FOR REMAND Further development is required in connection with the claim of a TDIU prior to August 22, 2014. In the Veteran's May 2015 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated the month and day his service-connected posttraumatic stress disorder, back disability, and interstitial fibrosis with chronic cough affected his ability to perform full-time employment, the date he last worked full-time, and the date he became too disabled to work. The Veteran did not indicate the year associated with the aforementioned date. Thus, an updated VA Form 21-8940 should be requested to ensure that all factors for consideration in such a claim have been addressed. The matters are REMANDED for the following action: 1. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and then return the matter to the Board after an appropriate period to respond, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.