Citation Nr: 21066072 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-52 693 DATE: October 28, 2021 ORDER Service connection for a vertebral compression fracture is granted. Service connection for neuropathy of the feet is granted. Before May 25, 2015, a rating in excess of 10 percent for a back disability is denied. On and after May 25, 2015, a rating in excess of 40 percent for a back disability is denied. Before October 20, 2020, a rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity is denied. On and after October 20, 2020, a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity is denied. Before October 20, 2020, a rating in excess of 10 percent for femoral radiculopathy of the left lower extremity is denied. On and after October 20, 2020, a rating in excess of 20 percent for femoral radiculopathy of the left lower extremity is denied. On and after October 20, 2020, a rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity is denied. Before October 20, 2020, a rating of 20 percent for a right ankle disability is granted. On and after October 20, 2020, a rating in excess of 20 percent for a right ankle disability is denied. REMANDED Service connection for a cervical spine disability is remanded. Before June 28, 2015, entitlement to a total disability rating based on individual unemployability as the result of service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A vertebral compression fracture was aggravated by the Veteran's service connected back disability. 2. Neuropathy of the feet was caused by the Veteran's service connected back disability. 3. Before May 25, 2015, the Veteran's back disability did not result in forward flexion limited to 60 degrees or fewer, a combined range of motion of 120 degrees or fewer, muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS). 4. On and after May 25, 2015, the Veteran's back disability has not resulted in unfavorable ankylosis or incapacitating episodes of IVDS. 5. Before October 20, 2020, the Veteran's sciatic radiculopathy of the left lower extremity did not result in symptoms approximating moderate incomplete paralysis or worse. 6. On and after October 20, 2020, the Veteran's sciatic radiculopathy of the left lower extremity did not result in symptoms approximating moderately severe incomplete paralysis or worse. 7. Before October 20, 2020, the Veteran's femoral radiculopathy of the left lower extremity did not result in symptoms approximating moderate incomplete paralysis or worse. 8. On and after October 20, 2020, the Veteran's femoral radiculopathy of the left lower extremity did not result in symptoms approximating severe incomplete paralysis or worse. 9. On and after October 20, 2020, the Veteran's sciatic radiculopathy of the right lower extremity has not resulted in symptoms approximating moderately severe incomplete paralysis or worse. 10. Throughout the appeal, the Veteran's right ankle disability has resulted in a marked impairment of motion, but it has not resulted in ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for service connection for a vertebral compression fracture have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for neuropathy of the feet have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Before May 25, 2015, the criteria for a rating in excess of 10 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 4. On and after May 25, 2015, the criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 5. Before October 20, 2020, the criteria for a rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. On and after October 20, 2020, the criteria for a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 7. Before October 20, 2020, the criteria for a rating in excess of 10 percent for femoral radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 8. On and after October 20, 2020, the criteria for a rating in excess of 20 percent for femoral radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 9. On and after October 20, 2020, the criteria for a rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 10. From January 10, 2014, to October 20, 2020, the criteria for a rating of 20 percent for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5271. 11. The criteria for a rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to August 1978. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Agency of Original Jurisdiction (AOJ). A July 2014 rating decision continued an existing 10 percent rating for a back disability, an existing 10 percent rating for sciatic radiculopathy of the left lower extremity, and an existing a 10 percent rating for a right ankle disability. A June 2015 rating decision, in pertinent part, denied service connection for a cervical spine disability, vertebral compression fractures, and neuropathy of the feet. A September 2016 rating decision increased the rating of the back disability to 40 percent effective May 25, 2015, and it granted a separate 10 percent rating for femoral radiculopathy of the left lower extremity. This matter was most recently before the Board in August 2019, when it remanded the Veteran's claims in order to further develop the medical evidence of record, including affording the Veteran with additional examinations addressing the nature and etiology of her disabilities. The Board finds that the AOJ has substantially complied with its August 2019 remand directives, and it will proceed to a decision. Post-remand a March 2021 rating decision increased the rating of a right ankle disability to 20 percent effective October 20, 2020, increased the rating of sciatic radiculopathy of the left lower extremity to 20 percent effective October 20, 2020, increased the rating of femoral radiculopathy of the left lower extremity to 20 percent effective October 20, 2020, granted service connection for sciatic radiculopathy of the right lower extremity effective October 20, 2020, and it granted a TDIU effective June 8, 2015. In August 2019, the Board additionally remanded the issues of service connection for sinusitis, bronchitis, and chronic obstructive pulmonary disease. In March 2021, the AOJ granted service connection for these disabilities. The Board will not further consider these claims because the AOJ's March 2021 rating decision granted the Veteran's claims in full. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The AOJ's March 2021 rating decision additionally granted a TDIU effective June 8, 2015. When, as in this case, the AOJ's grant of a TDIU does not span the entire period on appeal, the issue of entitlement to an earlier effective date for the award of a TDIU remains on appeal. The Board thus retains jurisdiction over the issue of entitlement to a TDIU before June 8, 2015. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183 (1993). To establish service connection on a secondary basis, there must be evidence of a current disability, a service connected disability, and medical evidence of a nexus between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Service Connection for a Vertebral Compression Fracture A June 2013 imaging test measuring bone density showed significant osteopenia with prominently declining bone mineral density since an April 2010 study. A November 2013 magnetic resonance imaging (MRI) scan showed a subacute to chronic vertebral compression fracture at L2. In May 2015, a VA examiner noted that the Veteran had experienced osteopenic thoracolumbar compression fractures and opined that such fractures were not related to her back disability. Instead, the examiner found that the vertebral compression fractures were the result of osteopenia and osteoporosis, which occurred frequently in post-menopausal women with low levels of estrogen, poor diet, and genetic tendencies. The Board previously found this opinion to be inadequate because the examiner did not address whether the Veteran's service connected back disability aggravated her vertebral compression fractures. The Veteran underwent a VA examination in October 2020, at which time the examiner opined that the Veteran's back disability indeed aggravated her vertebral compression fractures. The examiner explained that the intervertebral discs of the spine provide cushioning between the vertebrae and absorb pressure placed on the spine. The examiner noted that the Veteran's service connected IVDS was characterized by the breakdown of the discs that separate the bones of the spine. The examiner noted that a degenerating disc may break down completely, leaving no space between the vertebrae and no cushioning to absorb the vertical forces applied to the spine. Over time, such forces cause microfractures of the vertebrae, weakening the bones and eventually causing a fracture. The examiner acknowledged that the Veteran's compression fracture had been attributed to osteopenia, but the examiner stated that IVDS additionally contributed to the Veteran's compression fracture. The Board finds that the October 2020 opinion indeed supports a finding that the Veteran's service connected back disability aggravated her vertebral compression fractures, and service connection is granted on this basis. In making this determination, the Board acknowledges that in an April 2021 addendum opinion, the October 2020 examiner appeared to opine that the Veteran's back disability had not aggravated the Veteran's vertebral fractures, seemingly contradicting his previous opinion. With that said, the Board places little probative weight in the April 2021 addendum opinion because its rationale relies upon irrelevant information, including that the "claimed vertebral fracture did not exist prior to the Veteran entered [sic] the service, there was no condition to aggravate". In sum, the Veteran's claim for service connection for aggravation of her vertebral compression fractures, secondary to her service connected back disability, is granted. Service Connection for Neuropathy of the Feet The Veteran is service connected for both a back disability and associated radiculopathy of the bilateral lower extremities. In October 2020, an examiner noted that the radicular symptoms affecting the lower extremities included decreased sensation to light touch of the bilateral feet and toes. Furthermore, in April 2021, an examiner concluded that the symptoms affecting the Veteran's feet were related to the Veteran's lumbar radiculopathy. Accordingly, the evidence shows that the radicular symptoms affecting the Veteran's lower extremities include symptoms affecting the feet, and service connection for neuropathy of the feet is granted secondary to the Veteran's service connected back disability. Increased Ratings Increased Rating for a Back Disability The Veteran's back disability is rated 10 percent disabling under Diagnostic Code 5243, applicable to IVDS, before May 25, 2015, and 40 percent disabling thereafter. Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings, in pertinent part: 20 percent: 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. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Ankylosis is "unfavorable" when such immobility 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. The Formula for Rating IVDS Based on Incapacitating Episodes rates spine disabilities as follows, in pertinent part: 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5237. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. This revision did not, however, change the General Rating Formula for Diseases and Injuries of the Spine, nor did it change the Formula for Rating IVDS Based on Incapacitating Episodes. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Therefore, the revised criteria effective February 7, 2021, are not applicable in this case and the Board will not consider them. Turning to the facts in this case, the Veteran filed her claim for an increased rating in January 2014. The Veteran underwent a VA examination in March 2014, at which time the Veteran complained of pain in her back with activities such as extended sitting, bending, lifting, and crawling. The Veteran had forward flexion to 80 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 25 degrees. The Veteran showed no objective evidence of painful motion, and there was no ankylosis. Repetitive use testing did not result in an additional loss of motion or other functional loss. The examiner noted that the Veteran showed functional loss in the form of less movement than normal and painful movement. The examiner found that it would be speculative to estimate any additional functional loss, including loss of motion, that the Veteran experienced during flare-ups or with repetitive use over time. There was no localized tenderness, pain to palpation, or muscle spasm of the back. While the Veteran showed guarding of the back, such guarding did not result in an abnormal gait or spinal contour. While the examiner diagnosed the Veteran with IVDS, the examiner later stated that the Veteran did not have IVDS. The Veteran underwent an additional VA examination in May 2015, at which time the Veteran complained of constant pain in her back. The Veteran declined to participate in range of motion testing. With that said, the examiner observed that the Veteran could, outside of the examination room, flex her back to at least 40 degrees in order to enter her vehicle. As a result, the examiner concluded that the examination report did not reliably measure the Veteran's current back symptoms. The examiner noted that there was evidence of pain with weight-bearing. There was no tenderness or pain on palpation of the back, nor was there ankylosis. The examiner did not address whether the Veteran experienced flare-ups. The examiner could not address without speculation whether pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use over time or during flare-ups. There was no guarding or muscle spasm. The examination report both diagnosed the Veteran with IVDS and stated that the Veteran did not have IVDS. The examiner explained that the severity of the Veteran's subjectively reported symptoms was incongruent with the findings of imaging studies and clinical examination. Also in May 2015, a private clinician noted the Veteran's complaints of constant back pain that worsened with standing, sitting, walking, using stairs, and changing positions. The clinician stated that the Veteran's "true lumbar ranges of motion (hips immobile)" was forward flexion to 10 degrees, extension "minus 5 degrees", bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 5 degrees. The examiner indicated that the Veteran stood and walked "in a 5 degree flexed position as an orthopedic restriction". The Veteran underwent an additional VA examination in October 2020, at which time the Veteran complained of pain, a limited range of motion, numbness, and stiffness. The Veteran indicated that her back symptoms resulted in functional impairments such as difficulty standing, lifting, and driving, and an inability to clean the house or otherwise engage in household chores. The Veteran had forward flexion to 20 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 10 degrees. The Veteran experienced pain with all movement and with both weight-bearing and non-weight bearing. The pain associated with repetitive use testing and repeated use over time resulted in forward flexion to 10 degrees, extension to 5 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 10 degrees. The Veteran described experiencing moderate-to-severe weekly flare-ups of back pain that lasted all day. The flare-ups were precipitated by activities of daily living, and they were alleviated by rest, pain medication, and stretching. While the Veteran was not being examined during a flare-up, the examiner found that the pain associated with flare-ups would limit forward flexion to 5 degrees, extension to 0 degrees, bilateral lateral flexion to 0 degrees, and bilateral lateral rotation to 0 degrees. The Veteran had muscle spasm and guarding that did not result in an abnormal gait or spinal contour. There was no ankylosis of the spine. The examiner found that the Veteran had IVDS that had not resulted in acute signs or symptoms requiring physician-prescribed bed rest and treatment by a physician during the preceding 12 months. In addition to the results of these VA examinations, the Board has reviewed the Veteran's medical treatment records, which show a symptom picture that is broadly consistent with the observations of VA examiners. For example, the Veteran has sought treatment for low back pain on a number of occasions since filing her claim, including in March 2014 and March 2021. In February 2021, a clinician noted that the Veteran had forward flexion "fingertips to toes with no symptoms", a back bend within normal limits "with no exacerbation of symptoms", normal bilateral rotation without symptoms, and a bilateral side bend "fingertips to knee joint with no symptoms". Turning to an analysis of these facts, the Veteran's back disability is rated 40 percent on and after May 25, 2015; the Board will address whether a rating in excess of 40 percent is warranted at any time. A rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine requires the presence of unfavorable ankylosis of the entire thoracolumbar spine. Though the Veteran has experienced painful movement throughout the appeal, the Veteran has consistently maintained a range of motion of the thoracolumbar spine, even during repetitive movement and flare-ups. Even if, however, the Board were to find that the Veteran's lumbar spine were essentially fixed in position at any time during the appeal, the evidence is against a finding that such position has ever been "unfavorable" or that the Veteran has experienced the functional equivalent of such. The weight of the evidence does not support a finding that the Veteran has experienced symptoms associated with unfavorable ankylosis such as 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. Without such symptoms associated with unfavorable ankylosis, a rating in excess of 40 percent for a back disability is unwarranted. The Veteran is thus in receipt of a maximum 40 percent rating for her back disability on and after May 25, 2015. With a rating in excess of 40 percent unwarranted at any time, the Board will next address whether a 40 percent rating is warranted for the Veteran's back disability at any time before May 25, 2015. Such a rating requires either favorable ankylosis of the spine or a limitation of forward flexion to 30 degrees or fewer. At no time before May 25, 2015, was the Veteran's back ankylosed, or immobile. As noted above, though the Veteran experienced painful movement of the back before this time, the Veteran consistently maintained a range of motion of the thoracolumbar spine. Furthermore, the medical evidence does not suggest that pain would result in functional impairment akin to favorable ankylosis. Similarly, the Veteran's back was not functionally limited to 30 degrees of forward flexion or fewer at any time before May 25, 2015. The Veteran showed forward flexion to 80 degrees at the time of her March 2014 examination, and medical treatment records do not otherwise demonstrate a restriction of forward flexion to 30 degrees or fewer. A rating in excess of 20 percent is unwarranted at any time before May 25, 2015. With a rating in excess of 20 percent unwarranted at any time before May 25, 2015, the Board will next address whether a 20 percent rating is warranted for the Veteran's back disability at any time before such date. Such a rating requires forward flexion limited to 60 degrees, or a combined range of motion limited to 120 degrees, or muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour. The Veteran's back was not functionally limited to 60 degrees of forward flexion or fewer at any time before May 25, 2015. The Veteran showed forward flexion to 80 degrees at the time of her March 2014 examination, and medical treatment records before May 25, 2015 do not show forward flexion limited to 60 degrees or fewer. Similarly, the Veteran's back was not functionally limited to a combined range of motion of 120 degrees at any time before May 25, 2015; to the contrary, the Veteran showed a combined range of motion of approximately 165 degrees at the time of her March 2014 examination. Medical treatment records from before May 25, 2015, do not otherwise show a combined range of motion of 120 degrees or fewer. While, for example, the March 2014 examiner noted guarding of the back, such guarding did not result in an abnormal gait or spinal contour. In sum, the Board finds that the criteria for a rating in excess of 10 percent is unavailable at any time before May 25, 2015. With greater ratings unavailable based on the General Rating Formula for Diseases and Injuries of the Spine, the Board will next consider whether greater ratings are warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. The record shows that the Veteran indeed has IVDS. With that said, ratings in excess of those currently assigned require not only such a diagnosis, but also the presence of incapacitating episodes with bed rest and treatment prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the weight of the evidence, including the findings of examiners in March 2014, May 2015, and October 2020, do not support a finding that the Veteran has experienced incapacitating episodes with physician-prescribed bed rest. In sum, the evidence does not show the presence of incapacitating episodes of IVDS, and the criteria for greater ratings based on IVDS have not been met. Consideration has been given to whether the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board accepts the Veteran's competent and credible assertions that her service-connected back disability causes her to experience pain, and the Veteran's existing ratings have been assigned based in part on those assertions. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board has also considered the effects of flare-ups on the Veteran's functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board's above analysis considers the Veteran's reports of the nature and extent of her flare-ups and finds that these reports do not warrant greater ratings than those currently assigned. Generally, when evaluating diseases and injuries of the spine, the Board is to separately evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, the Veteran's back disability results in neurological symptoms affecting the bilateral lower extremities, and the Board will next address the appropriate ratings for these symptoms. Increased Rating for Neuropathy of the Lower Extremities The Veteran's sciatic radiculopathy of the left lower extremity is rated 10 percent disabling before October 20, 2020, and 20 percent disabling thereafter. The Veteran's femoral radiculopathy of the left lower extremity is rated 10 percent disabling before October 20, 2020, and 20 percent disabling thereafter. The Veteran's sciatic radiculopathy of the right lower extremity is rated 20 percent disabling on and after October 20, 2020. A 10 percent rating applies to mild incomplete paralysis of the sciatic nerve, a 20 percent rating applies to moderate incomplete paralysis, a 40 percent rating applies to moderately severe incomplete paralysis, and a 60 percent rating applies to severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. While an 80 percent rating applies to complete paralysis of the sciatic nerve, the record contains no clinical evidence of complete paralysis, nor has the Veteran alleged that she has complete paralysis. Id. A 10 percent rating applies to mild incomplete paralysis of the femoral nerve, a 20 percent rating applies to moderate incomplete paralysis, and a 30 percent rating applies to severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8526. While a 40 percent rating applies to complete paralysis of the femoral nerve, the record contains no clinical evidence of complete paralysis, nor has the Veteran alleged that she has complete paralysis. Id. Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Turning to the facts in this case, the Veteran filed her claim for an increased rating in January 2014. The Veteran underwent a VA examination in March 2014, at which time she reported experiencing paresthesias in the left lower extremity. Muscle strength testing was normal, and no muscle atrophy was noted. Reflex testing was normal. Sensory testing was normal with the exception of decreased sensation at the left feet and toes. With no objective evidence of radiculopathy, the examiner found that the Veteran did not have radicular pain or any other signs or symptoms attributable to radiculopathy. The Veteran underwent an additional examination in May 2015, at which time she complained of pain, burning, and numbness that radiated from her back down her legs and into her feet. Muscle strength, reflex, and sensory testing was normal. The examiner found no objective evidence of radiculopathy affecting the bilateral lower extremities. Also in May 2015, a private clinician noted that the Veteran experienced constant pain in the left leg that intensified with sitting, standing, and walking. The clinician found the Veteran to have both femoral and sciatic radicular pain affecting the left leg. The Veteran underwent an additional VA examination in October 2020, at which time the Veteran complained of a burning sensation extending down her legs and unsure footing when walking and standing. Muscle strength testing was normal, except that the Veteran showed active movement against some resistance for hip flexion bilaterally. The Veteran did not have muscle atrophy. Reflex testing was normal. Sensory examination showed decreased sensation to light touch bilaterally at the upper anterior thigh, thigh, knee, lower leg, ankle, feet, and toes. There were no trophic changes, and the Veteran's gait was normal. The examiner found that the Veteran's radicular symptoms resulted in mild constant pain, moderate intermittent pain, moderate paresthesias and dysesthesias, and mild numbness of the bilateral lower extremities. The examiner indicated that the Veteran had moderate incomplete paralysis of the femoral and sciatic nerves of the left lower extremity, and moderate incomplete paralysis of the sciatic nerve of the right lower extremity. In addition to the results of these VA examinations, the Board has reviewed the Veteran's medical treatment records, which show a symptom picture that is broadly consistent with the observations of VA examiners. For example, in March 2014, the Veteran indicated that she experienced pain that radiated into the left extremity greater than the right. The Veteran experienced occasional tingling and aching in her posterior thighs, but she denied experiencing weakness. In July 2014, the Veteran complained of experiencing numbness in both lower extremities. In September 2016 and August 2017, clinicians noted the Veteran's complaints of pain and numbness radiating into both lower extremities, greater on the left side than the right. In February 2021, a clinician noted that the Veteran had normal muscle strength at the knees and ankles, 4-/5 strength for bilateral hip extension, 4/5 strength for bilateral hip abduction, and 4+/5 strength for bilateral hip flexion. Turning to an analysis of this evidence, the Board will first address the appropriate ratings for radiculopathy of the left lower extremity. Before October 20, 2020, the Veteran is in receipt of a 10 percent rating for sciatic radiculopathy of the left lower extremity and a 10 percent rating for femoral radiculopathy of the left lower extremity. Ratings in excess of those currently assigned require a finding of at least moderate incomplete paralysis of these nerves. Before October 20, 2020, no clinician or examiner found the Veteran's left radicular symptoms to result in at least moderate incomplete paralysis. Consistent with this finding, the Board observes that the before October 20, 2020, while the Veteran complained of subjective symptoms such as pain and burning, sensory, muscle, and reflex testing of the left lower extremity was generally either normal or mildly impaired. The Board otherwise finds that the Veteran's medical treatment records do not support a finding that the Veteran suffered from moderate incomplete paralysis of the sciatic or femoral nerves of the left lower extremity before October 20, 2020. Before October 20, 2020, ratings in excess of those currently assigned for radiculopathy of the left lower extremity are unwarranted. On and after October 20, 2020, the Veteran is in receipt of a 20 percent rating for sciatic radiculopathy of the left lower extremity, and a 20 percent rating for femoral radiculopathy of the left lower extremity. Ratings in excess of those currently assigned require a finding of at least moderately severe incomplete paralysis of the sciatic nerve or severe incomplete paralysis of the femoral nerve. No clinician or examiner has found the Veteran's left radicular symptoms to result in symptoms of such severity. To the contrary, in October 2020, an examiner found the Veteran's radicular symptoms to be moderate in severity. Consistent with this finding, the Board observes that the Veteran has maintained normal or only mildly impaired muscle strength in the lower extremity since October 20, 2020, and reflex testing has remained normal. The Board otherwise finds that the Veteran's medical treatment records do not support a finding that the Veteran suffered from either moderately severe incomplete paralysis of the left sciatic nerve or severe incomplete paralysis of the left femoral nerve at any time since October 20, 2020. In sum, on and after October 20, 2020, ratings in excess of those currently assigned for radiculopathy of the left lower extremity are unwarranted. Having established that ratings in excess of those currently assigned are unwarranted for radiculopathy of the left lower extremity, the Board will next address the appropriate ratings for radiculopathy of the right lower extremity. The Veteran's radiculopathy of the right lower extremity is not compensably rated before October 20, 2020; a compensable rating requires a finding of at least mild incomplete paralysis of the right sciatic nerve. No clinician or examinerincluding the May 2015 private clinicianfound the Veteran's right radicular symptoms to result in even mild symptoms at any time before October 20, 2020. Before October 20, 2020, the Veteran's radicular complaints focused on her left, rather than right, lower extremity. To the extent that the Veteran subjectively complained of symptoms such as pain and tingling in the right lower extremity before October 20, 2020, such symptoms were no more than slight. In sum, before October 20, 2020, a compensable rating for radiculopathy of the right lower extremity is unwarranted. On and after October 20, 2020, the Veteran is in receipt of a 20 percent rating for sciatic radiculopathy of the right lower extremity. A greater rating requires a finding of at least moderate incomplete paralysis of the right sciatic nerve. No clinician or examiner has found the Veteran's right radicular symptoms to result in symptoms of such severity. To the contrary, in October 2020, an examiner found the Veteran's right radicular symptoms to be moderate in severity. Consistent with this finding, the Board observes that the Veteran has maintained normal or only mildly impaired muscle strength in the right lower extremity since October 20, 2020, and reflex testing has remained normal. The Board otherwise finds that the Veteran's medical treatment records do not support a finding that the Veteran suffered from moderately severe incomplete paralysis of the right sciatic nerve at any time since October 20, 2020. In sum, on and after October 20, 2020, a rating in excess of 20 percent for radiculopathy of the right lower extremity is unwarranted. Increased Rating for a Right Ankle Disability The Veteran's right ankle disability is rated 10 percent disabling under Diagnostic Code 5271, applicable to limited motion of the ankle, before October 20, 2020, and 20 percent disabling thereafter. Disabilities of the ankle are addressed under Diagnostic Codes 5270 through 5274. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These revisions affect only one relevant Diagnostic Code in this case: Diagnostic Code 5271, applicable to limited motion of the ankle. VA's General Counsel has held that when a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). In this regard, the Board has the authority to consider appeals in light of laws, statutes, regulations, and court decisions that were not previously considered by the AOJ. See Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.904(d)(2). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, and it will apply the criteria that is most favorable to the Veteran. Turning to the facts in this case, the Veteran filed her claim for an increased rating in January 2014. The Veteran underwent a VA examination in March 2014, at which time the Veteran reported experiencing increasing soreness in her right ankle. Range of motion testing showed that the right ankle had plantar flexion to 45 degrees or greater without pain and dorsiflexion to 20 degrees or greater without pain. Repetitive use testing did not result in an additional loss of motion or other functional loss. The Veteran denied experiencing flare-ups, and the examiner found that it would be speculative to estimate any additional functional loss, including loss of range of motion, that the Veteran experienced during flare-ups or with repetitive use over time. There was no localized tenderness or pain on palpation of the right ankle. Muscle strength testing was normal, and the Veteran had no muscle atrophy or ankylosis. Joint stability testing was normal. The Veteran did not have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus (os calcis) or talus (astragalus), nor had the Veteran undergone a talectomy (astragalectomy). The right ankle showed no erythema, edema, tenderness, abnormal warmth, inflammation, deformity, or laxity, and the Veteran's gait was normal. The Veteran underwent an additional VA examination in May 2015, at which time the Veteran reported experiencing continuing soreness in her right ankle. Range of motion testing showed that the right ankle had plantar flexion to 45 degrees and dorsiflexion to 15 degrees. There was no pain on examination, nor was there pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the right ankle. No crepitus was noted. Repetitive use testing did not result in an additional loss of motion or other functional loss. The examiner did not address whether the Veteran experienced flare-ups. The examiner found that it would be speculative to estimate any additional functional loss, including loss of range of motion, that the Veteran experienced with repetitive use over time. Muscle strength testing was normal, and the Veteran had no muscle atrophy or ankylosis. Joint stability testing was normal. The Veteran did not have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus (os calcis) or talus (astragalus), nor had the Veteran undergone a talectomy (astragalectomy). The right ankle showed no erythema, edema, tenderness, abnormal warmth, inflammation, deformity, or laxity, and the Veteran's gait was normal. The examiner stated that the Veteran "displayed very poor effort" during the examination, with her subjective complaints appearing "out of proportion" to objective examination findings. Also in May 2015, a private clinician noted that the Veteran experienced constant right ankle pain that worsened with weight-bearing and walking. The Veteran experienced "random swelling", and the examiner observed the Veteran to have normal plantar flexion and dorsiflexion to 10 degrees. The examiner found that "inversion and eversion [were] ankylosed with no motion". The Veteran underwent an additional VA examination in October 2020, at which time the Veteran reported experiencing sharp pains, swelling, instability, and an inability to bear weight on the right ankle. Range of motion testing showed that the right ankle had plantar flexion to 30 degrees and dorsiflexion to 10 degrees. The Veteran experienced pain with passive motion that resulted in a functional loss. There was pain with weight-bearing, and the examiner observed crepitus. There was no objective evidence of localized tenderness or pain on palpation of the right ankle. The pain associated with repetitive use testing resulted in a limitation of plantar flexion to 20 degrees and dorsiflexion to 5 degrees. Similarly, the pain associated with repetitive use over time would result in a limitation of plantar flexion to 20 degrees and dorsiflexion to 5 degrees. The Veteran stated that she experienced monthly flare-ups of moderate symptoms affecting her right ankle that lasted for days at a time. The examiner indicated that the pain associated with such flare-ups would result in a limitation of plantar flexion to 15 degrees and dorsiflexion to 0 degrees. Muscle strength testing was normal, and the Veteran had no muscle atrophy or ankylosis. The examiner did not suspect joint instability in the right ankle. The Veteran did not have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus (os calcis) or talus (astragalus), nor had the Veteran undergone a talectomy (astragalectomy). In addition to the results of these VA examinations, the Board has reviewed the Veteran's medical treatment records, which show a symptom picture that is broadly consistent with the observations of VA examiners. For example, in January 2017, a clinician noted that the Veteran had right ankle pain that was "well controlled" with her current treatment. In February 2021, a clinician noted that the Veteran's right ankle muscle strength was normal. Turning to an analysis of this evidence, the Board will address the Diagnostic Codes that are potentially applicable to the Veteran's right ankle disability. Diagnostic Code 5270, applicable to ankylosis of the ankle, and Diagnostic Code 5272, applicable to ankylosis of the subastragalar or tarsal joint, do not apply because the weight of the evidence is against a finding that the right ankle has been ankylosed, or immobile, at any time. Instead, throughout the period on appeal, and as noted by examiners in March 2014, May 2015, and October 2020, the Veteran has consistently demonstrated a range of motion in her right ankle, though such motion has been limited by pain. With that said, the Board acknowledges that in May 2015, a clinician stated that the Veteran's "inversion and eversion [were] ankylosed with no motion". The Board finds that this observation does not itself support a greater rating based on ankylosis because it is inconsistent with the remainder of the evidence; for example, the Veteran has not, before or since that time, sought clinical treatment for immobility of the ankle. Diagnostic Code 5273, applicable to malunion of the os calcis or astragalus, does not apply because the record does not contain evidence of such malunion. Diagnostic Code 5274, applicable to astragalectomy, does not apply because the Veteran has never undergone such a procedure. With these Diagnostic Codes excluded, the Board notes that the Veteran's right ankle disability is rated 10 percent disabling under the Diagnostic Code applicable to limited motion of the ankle before October 20, 2020, and 20 percent disabling on and after October 20, 2020. See 38 C.F.R. § 4.71A, Diagnostic Code 5271. Under the provisions of Diagnostic Code 5271 in effect before February 7, 2021, a 10 percent rating applied to a "moderate" limitation of motion of the ankle, and a 20 percent rating applied to a "marked" limitation of motion of the ankle. The words "moderate" and "marked" were not defined in the VA Schedule for Rating Disabilities. Clinicians' use of such terms, although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. See 38 C.F.R. § 4.6. The provisions of Diagnostic Code 5271 in effect as of February 7, 2021, maintain the same 10 percent rating for a "moderate" limitation of motion of the ankle, and a 20 percent rating for a "marked" limitation of motion of the ankle. 38 C.F.R. § 4.71a. The revised rating criteria now, however, define a "moderate" limitation of motion as fewer than 15 degrees of dorsiflexion or fewer than 30 degrees of plantar flexion, and a "marked" limitation of motion is fewer than 5 degrees of dorsiflexion or fewer than 10 degrees of plantar flexion. Id. Under both the old and the revised regulatory criteria, a normal range of motion of the ankle involves dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Affording the Veteran with the benefit of the doubt, the Board finds that a single 20 percent rating, which is the maximum available rating on the basis of impaired motion of the ankle, is warranted throughout the appeal period. In October 2020, an examiner found that during flare-ups, which the Veteran had been experiencing for months, right ankle plantar flexion was limited to 15 degrees and right ankle dorsiflexion was limited to 0 degrees. While previous examiners, for example in May 2015, did not find the motion of the right ankle to be so limited, the examiner failed to discuss the impact of the Veteran's reported flare-ups on her right ankle motion. The Board finds this range of motion to be consistent with a finding that the Veteran's impaired movement of the right ankle was "marked" before October 20, 2020. To this end, while the Board cannot apply the amended version of Diagnostic Code 5271 before its February 7, 2021, effective date, the Board finds its definition of the term "marked", including a limitation of dorsiflexion to 5 degrees or fewer, to be consistent with the Board's finding that the Veteran's impaired motion has indeed been marked throughout the appeal. In this regard, the regulatory criteria in effect both before and after the February 7, 2021, amendment are equally favorable to the Veteran and both result in a finding that a 20 percent rating is warranted for the Veteran's right ankle based on impaired motion. When, as in this case, the veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional impairment do not apply. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board therefore will not consider functional loss due to factors such as pain and weakness that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In sum, the Board finds that the Veteran's right ankle disability warrants a single 20 percent rating throughout the entire period on appeal. Accordingly, a 20 percent rating is granted for a right ankle disability January 10, 2014, and a rating in excess of 20 percent is denied for a right ankle disability on and after October 20, 2020. (REMAND NEXT PAGE) REASONS FOR REMAND Service Connection for a Cervical Spine Disability In August 2019, the Board remanded the Veteran's claim for service connection in order to afford her with an examination addressing the nature and etiology of her cervical spine disability. The Board, in pertinent part, instructed the examiner to opine, with all "underlying reasons for all opinions expressed", whether it was at least as likely as not that the Veteran's cervical spine disability was either secondarily related to, or aggravated by, her service connected back disability. The Veteran underwent a VA examination in October 2020, at which time the examiner diagnosed the Veteran with a disorder of the cervical spine. While the examiner opined that it was less likely than not that the Veteran's cervical spine disability was directly related to her military service, the examiner did not address the secondary relationship between the Veteran's cervical spine disability and her service connected lumbar spine disability. The AOJ requested clarification of the examiner's opinion, and in an April 2021 addendum, the examiner stated, without explanation, that the Veteran's cervical spine disability was less likely than not aggravated by her back disability. The examiner did not address whether the Veteran's cervical spine disability was caused by her back disability. The Board finds this opinion to be inadequate because it neither addresses a pertinent question nor contains a rationale. On remand, the AOJ should obtain an additional opinion addressing the etiology of the Veteran's cervical spine disability. TDIU Before June 8, 2015 The appeals period in this case began with the Veteran's January 10, 10 2014 claims for increased ratings. Service connection for vertebral compression fracture and neuropathy of the feet has been awarded in this decision. Ratings and effective dates need to be assigned for those disabilities. The AOJ must also effectuate the award herein of the 20 percent rating for right ankle disability that has been assigned from January 2014. Such could show that the Veteran meets the schedular requirements for TDIU for the period between January 10, 2014, and June 8, 2015. Further, to the extent that the ratings of the Veteran's service-connected disabilities do not meet the schedular criteria for the award of a TDIU between January 10, 2014 and June 8, 2015, under 38 C.F.R. § 4.16(a), a TDIU may nonetheless be appropriate when service connected disabilities preclude gainful employment, regardless of the schedular ratings. See 38 C.F.R. § 4.16(b). In this case, the evidence, for example, records from the Social Security Administration, suggests that the Veteran has not worked since at least 2013 as the result of her service connected disabilities. With that said, the Board cannot grant a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular disability rating under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). These matters are REMANDED for the following actions: 1. Obtain the following opinions from a VA examiner of appropriate expertise. An additional physical examination should occur only if the examiner determines that it is required in order to offer the requested opinions. Following a review of the Veteran's claims file, the examiner should address the following questions, in each case considering not only the pertinent medical evidence of record, but also the Veteran's lay statements: (a.) Is it at least as likely as not that the Veteran's cervical spine disability was caused by any of the Veteran's service connected disabilities, including her back disability? (b.) Is it at least as likely as not that the Veteran's cervical spine disability any incremental increase in disability, regardless of its permanence, due to any of the Veteran's service connected disabilities, including her back disability? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. 2. After effectuating the award of a 20 percent rating for right ankle disability from January 10, 204, and assigning ratings and effective dates for vertebral fracture and neuropathy of the feet, the AOJ should readjudicate the claim for TDIU for the period between January 10, 2014, and June 28, 2015. 3. If the Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) for any period between January 10, 2014, and June 28, 2015, refer the issue of entitlement to a TDIU to the Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.