Citation Nr: 21066173 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-40 008 DATE: October 28, 2021 ORDER A 20 percent rating, but no higher, for disc bulge of the thoracolumbar spine, thoracic back pain syndrome prior to September 8, 2017 is granted, subject to regulations governing the payment of monetary awards. A separate 10 percent rating, but no higher, for right lower extremity radiculopathy prior to August 8, 2016 is granted, subject to regulations governing the payment of monetary awards. A 20 percent rating, but no higher, for disc bulge of the thoracolumbar spine, thoracic back pain syndrome from January 1, 2018 is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to September 8, 2017, the Veteran's disc bulge of the thoracolumbar spine, thoracic back pain syndrome is manifest by pain that significantly limited functional ability and muscle spasm severe enough to result in an abnormal gait. 2. Prior to August 8, 2016, the Veteran's right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis. 3. From January 1, 2018. the Veteran's disc bulge of the thoracolumbar spine, thoracic back pain syndrome is manifest by muscle spasms, stiffness, giving way, and sharp pains at times. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, and the Veteran's combined range of motion was 120 degrees following repeated use over time. CONCLUSIONS OF LAW 1. Prior to September 8, 2017, the criteria for a 20 percent rating, but no higher, for disc bulge of the thoracolumbar spine, thoracic back pain syndrome are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2021). 2. Prior to August 8, 2016, the criteria for a disability rating of 10 percent, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2021). 3. From January 1, 2018, the criteria for a 20 percent rating, but no higher, for disc bulge of the thoracolumbar spine, thoracic back pain syndrome are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1991 to September 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in July 2018, July 2020, and March 2021 when it was remanded for further development. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the Veteran does not currently contend, and the evidence does not show, that he is unemployable due to his service-connected disabilities. The record reflects that the Veteran has been employed during the appeal period. Thus, the Board finds that a claim for TDIU under Rice has not been inferred. The Board notes that following the March 2021 remand, the RO requested the Veteran complete authorizations for the treatment records from Emerge Ortho and Dr. W.N., the Veteran's PCP, but the Veteran did not respond to the request. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating The Veteran is seeking a rating in excess of 10 percent for disc bulge of the thoracolumbar spine, thoracic back pain syndrome prior to September 8, 2017 and a rating in excess of 10 percent for disc bulge of the thoracolumbar spine, thoracic back pain syndrome from January 1, 2018. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for IVDS with 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 IVDS with 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 IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. However, under the new rating criteria from February 7, 2021, the rating criteria for Diagnostic Code 5237 remained unchanged. Diagnostic Code 5243 for IVDS was modified to clarify that Diagnostic Code 5243 is to be assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root"; otherwise, "assign Diagnostic Code 5242 for all other disc diagnoses." However, the rating criteria addressing IVDS based on incapacitating episodes was otherwise unchanged. Prior to September 8, 2017 Prior to September 8, 2017, the Veteran's disc bulge of the thoracolumbar spine, thoracic back pain syndrome with right lower extremity radiculopathy is rated as 10 percent under 38 C.F.R. §§ 4.124a, 4.71a, Diagnostic Code 8520-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, which is stated above. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C. § 4.124a, Diagnostic Code 8520. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Private treatment records from March 2010 note sciatica like symptoms, pain running down from the buttock to the Veteran's right heel and toe. It was suspected that there was nerve root irritation, but no radicular symptoms to the extent that he would need any further imaging. April 2011 private neurology records indicate no bowel or bladder dysfunction. The Veteran underwent a VA examination in August 2011. The Veteran reported stiffness, fatigue, spasms, decreased motion, and numbness. The Veteran also reported weakness of the spine, leg, and foot. He had no bowel or bladder problems and no erectile dysfunction in relation to the spine condition. Pain was constant and traveled to the lower back, waist, and legs. The Veteran indicated the pain level was moderate and was exacerbated by physical activity. During flare-ups he experienced functional impairment which was described as weakness and lack of speed. The Veteran stated that he had never been hospitalized or had surgery for his back condition, and in the past 12 months, his back condition had not resulted in any incapacitation. During a physical examination, the Veteran was noted to have normal posture, antalgic gait, and normal tandem gait. Walking was unsteady, but the Veteran had no difficulty with weight bearing, balancing, or with ambulation. He did not require assistive devices. Examination revealed no evidence of radiating pain on movement. Muscle spasms were absent. There was tenderness at the paraspinal muscles. There was no guarding, no weakness, and muscle tone was normal. Straight leg raising was negative. Lasegue's sign was negative and there was no atrophy and no ankylosis. Range of motion testing showed flexion to 90 degrees, extension to 30 degrees, right lateral flexion and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. Repetitive use testing was possible, but there was no additional degree of limitation. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There was symmetry of spinal motion with normal curves of the spine. Neurological examination was normal, and there were no signs of lumbar intervertebral disc syndrome with chronic and permanent root involvement. The Veteran was unable to perform physically demanding activities, but was able to tolerate sedentary activities of employment. In June 2012 VA treatment records, it was indicated that the Veteran had chronic low back pain with pain down both legs, right greater than left. It was throbbing, shooting pain, with pins and needles in the feet. There was positive straight leg raising on the right. He had a normal gait pattern but difficulty performing a pelvic tilt and maintaining neutral spine. An August 2013 VA lumbar spine MRI found mild degenerative changes, worse at L5-S1, correlate with right S1 radiculopathy. In September 2013, the Veteran complained of an acute flare of back pain for two months. In September 2013 private neurology records, it was noted that the Veteran had low back pain shooting down the right leg, and that radiculopathy may be at play. Electrodiagnostic studies were suspicious for root lesion. In June 2015 VA treatment records, the Veteran complained of back pain and stated that his back "went out" on him again. In September 2015, he stated his symptoms improved but he could not jog. He was noted to have low back pain with radicular symptoms into his right leg at times. In November 2015 it was indicated that pain was aching, which worsened with sitting and improved with standing and walking. Pain was associated with weakness, numbness, tingling, stiffness, and other joint pain. In March 2016, the Veteran indicated that walking on hard floors made his back pain worse, but he is able to work and is in school. He denied radiating pain, weakness, and incontinence. An August 2016 back disability benefits questionnaire (DBQ) completed by the Veteran's private provider, J.B., DC, noted that the Veteran had flare-ups of the spine and functional impairment which caused him to be unable to work at times, unable to run or jog, and affected his driving and motion. Range of motion testing showed flexion to 75 degrees, extension to 10 degrees, right lateral flexion and left lateral flexion to 25 degrees, and right and left rotation to 20 degrees. The Veteran was unable to perform repetitive use testing because pain was significant and limited performance. Range of motion movements were painful on active, passive, and repetitive use testing, as well as weight-bearing and non-weight bearing. Pain contributed to functional loss. The Veteran had tenderness or pain to palpation of joints. There was guarding and muscle spasm which affected gait and spinal contour. Contributing factors of disability were less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, disturbance of locomotion, and interference with standing. Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups and when the joint is used repeatedly over a period of time. Flexion would be lowered by 10 degrees, and right and left lateral flexion would be lowered by 10 degrees. The functional loss was increased pain causing fatigue, decreased strength, decreased endurance, and required slow and guarded movements. Muscle strength testing showed active movement against some resistance, and was due to the Veteran's back condition. It was also indicated that the Veteran had muscle atrophy in the calf muscle 9 centimeters (cm) below the knee. Measured atrophy appeared false and visual and palpations were accurate. There was no ankylosis noted. Reflex, sensory exams, and straight leg raising testing were normal. There was radiculopathy which was severe in the right and moderate in the left. It was also noted that the Veteran had IVDS, with incapacitating episodes less than one week over the past 12 months. The Veteran used a back brace on a regular basis. The Veteran's back condition impacted his ability to perform occupational tasks, such as repeated lifting and bending, prolonged standing or sitting. In February 2017 VA treatment records, the Veteran indicated he injured his back two weeks ago and was suffering from pain with severe exacerbations twice a year with a dull constant ache. He had pain with forward bending and left side bending. Pain was mostly on the right side. In April 2017, the Veteran stated his back pain had worsened. In May 2017, the Veteran was assessed with acute chronic low back pain with L5-S1 radiculopathy. In July 2017, the Veteran indicated that his back pain was worse, varying from throbbing to sharp and radiating down to his leg. Over the past four months the pain was severe and would get worse with no specific cause. Physical therapy was stopped because it did not help. Surgery to relieve pressure on the right nerve at S1 was discussed. After review of the competent and probative evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that a higher 20 percent rating is warranted prior to September 8, 2017. Although the Veteran's flexion was no worse than 65 degrees as reflected in the August 2016 DBQ, the record reflects that throughout this period, the Veteran had pain with movement. Moreover, pain significantly limited functional ability, and the August 2016 private DBQ indicated that he had muscle spasm and guarding severe enough to result in an abnormal gait. The records show that the Veteran has constant pain and would have exacerbations that would cause problems such as in June 2015, when he reported that his back went out. The record also reflects that he had participated in physical therapy, which he stopped because it did not help with pain. He has functional loss in that he cannot sit or stand for any extended duration, and he cannot lift objects or bend for any extended duration. As such, the Board finds that the Veteran's symptoms are more nearly approximated by a rating of 20 percent prior to September 8, 2017. 38 C.F.R. §§ 4.40, 4.45, 4.59; Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Moreover, the Board finds several factors produce a disability picture more nearly approximated by a 20 percent schedular rating. In this regard, the Veteran reported frequent pain and interference with sitting, standing, and pain on movement. Additionally, the functional impact includes limitations with lifting. However, a rating in excess of 20 percent is not warranted prior to September 8, 2017. Even when considering functional loss, the evidence of record does not more nearly approximate findings of forward flexion of the thoracolumbar spine of 30 degrees. Additionally, at no point during this period, has he had either favorable or unfavorable ankylosis. As such, a rating in excess of 20 percent is not warranted. Although the August 2016 DBQ indicated that the Veteran had IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The August 2016 DBQ noted that the Veteran had incapacitating episodes less than one week over the past 12 months; however, a higher 40 percent rating is not warranted unless there are incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. Regarding neurological impairment, in the course of his claim for an increased rating for the thoracolumbar spine disability, the Veteran was granted service connection for right lower extremity sciatic radiculopathy in a January 2014 rating decision and a noncompensable rating was assigned effective April 17, 2013. Subsequently, in an April 2020 decision, a higher 10 percent rating was assigned effective August 8, 2016 and service connection was granted for left lower extremity radiculopathy and a 10 percent rating was assigned effective August 8, 2016. The Veteran has not appealed the ratings assigned; therefore, that question is not before the Board. However, the Board will consider whether a separate compensable rating is warranted for right and left lower extremity radiculopathy prior to August 8, 2016, as it is part of the consideration for the increased rating claim for the thoracolumbar spine as to whether there was any associated neurological impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). The evidence reflects that the Veteran complained of pain radiating from the back down the right leg, and in June 2012 treatment records there was a positive straight leg raising test. Subsequent records continued to document radiating pain down the right side. For these reasons, the Board finds that right lower extremity radiculopathy has been manifested by mild incomplete paralysis of the sciatic nerve. Resolving reasonable doubt in favor of the Veteran, the Board finds that a separate rating of 10 percent under Diagnostic Code 8520 for mild incomplete paralysis of the sciatic nerve for the right lower extremity is warranted prior to August 8, 2016. However, the weight of the evidence is against a finding that the Veteran's right lower extremity radiculopathy more nearly approximated moderate incomplete paralysis of the sciatic nerve during that time. Regarding left lower extremity radiculopathy, the Board does not find that a separate compensable rating is warranted prior to August 8, 2016. The August 2011 VA examiner specifically found no signs and symptoms of left lower extremity radiculopathy. Although June 2012 VA treatment records indicated that the Veteran had chronic low back pain with pain down both legs, right greater than left, there were no objective findings of radiculopathy. As such, a separate compensable rating for left lower extremity radiculopathy is not warranted prior to August 6, 2016. In addition, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, prior to September 8, 2017, the Board finds that a 20 percent rating, but no higher, is warranted for disc bulge of the thoracolumbar spine, thoracic back pain syndrome. In addition, the Board finds that a separate 10 percent rating, but no higher, for right lower extremity radiculopathy is warranted prior to August 8, 2016. From January 1, 2018 From January 1, 2018, the Veteran's disc bulge of the thoracolumbar spine, thoracic back pain syndrome is rated as 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The evidence of record includes VA treatment records from February 2018 which note that the Veteran was seen for followup after surgery in September 2017. He denied radiating pain, weakness, or incontinence. Walking on the hard floor made pain worse. During his April 2018 hearing, the Veteran stated that his back pain would increase during the day and would radiate down the legs. He had numbness, tingling, abnormal sensation, pain, and weakness in the legs. He missed three days of work that year due to his back. In January 2018 private records from Duke neurosurgery, the Veteran reported steady improvement in leg pain. Lower extremity motor examination was 5/5. In April 2018, the Veteran was seen for followup after surgery and it was noted that he had a gradual increase in right greater than left leg pain, but it was not as severe as before surgery. There was no mechanical back pain. Pain was exacerbated by heavy lifting that he did at work. He was overall doing well and had resumed most of his normal activities. An April 2018 buddy statement from the Veteran's co-worker stated that after his surgery, the Veteran appeared to be exhausted and barely making it through the workday. In December 2018 VA treatment records, the Veteran indicated that there was an increase in his back pain with a sharp pain in his right side. The Veteran stated that his stenosis symptoms had really increased that year. He also indicated that his family physician stated that the source of the pain was from the thoracic region. In February 2019, physical therapy records indicated that the Veteran had good range of motion and strength in the low back. The Veteran reported increased pain when performing work duties, including lifting heavy loads. He also indicated participating in high level activities and workouts. The Veteran underwent a VA examination in March 2019. The Veteran did not report flare-ups of the back. He reported functional loss or functional impairment in that he was not able to walk or stand for more than 30-minute intervals without back and lower extremity pain. Range of motion testing showed forward flexion to 80 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees each, and right and left lateral rotation to 25 degrees each. Range of motion itself did not contribute to a functional loss. Pain was noted on exam and caused functional loss. There was evidence of pain with weight bearing but no evidence of localized tenderness or pain on palpation of the joints. The Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. Estimated range of motion was the same as active range of motion. The Veteran did not have guarding or muscle spasm and did not have muscle atrophy. Muscle strength testing was normal. Reflex and sensory exams were normal. Straight leg raising test was negative. The Veteran had radiculopathy which was moderate in both lower extremities. There was no ankylosis. The Veteran had IVDS but no acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. The Veteran did not use assistive devices. There was pain with non-weight beating. The Veteran had a scar in the mid-line lumbar region measuring 3cm x 0.3cm. The Veteran's back condition impacted his ability to work in that standing and walking were limited to less than 30-minute intervals due to pain. VA treatment records from January 2020 note that the Veteran continued to have back pain and was being treated by a chiropractor and massage. Subsequent VA treatment records document the Veteran wearing a back brace and continuing in pain management. The Veteran underwent a VA examination in May 2021. The Veteran complained of limited range of motion, spasms, stiffness, giving out occasionally, and achy, sharp, shooting pain. The Veteran did not report flare-ups. He did report functional loss or functional impairment, consisting of limited range of motion, loss of strength, and limited lifting ability. Range of motion itself contributed to a functional loss in that the Veteran had occasional limitations in turning and twisting. Range of motion testing showed flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each. Pain was exhibited. Passive range of motion testing was performed, and the results were the same as active range of motion. There was evidence of pain with weight bearing and active motion and it caused functional loss. There was no objective evidence of crepitus but there was evidence of tenderness in the lumbar midline spinous process which was moderate. The Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. Pain and lack of endurance significantly limited functional ability with repeated use over time. Estimated range of motion findings were flexion to 70 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 10 degrees each. There was no guarding, muscle spasm, and localized tenderness of the spine. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensory exams were normal. Straight leg raising test was positive and the Veteran had signs and symptoms due to radiculopathy. There was moderate intermittent pain and mild numbness and paresthesias. There was no ankylosis. The examiner also indicated that the Veteran did not have IVDS. He did not use assistive devices. There was a 5cm scar on the lumbar spine. The Veteran's back disability impacted his ability to perform occupational tasks in that he was limited in lifting, and had frequent limitations in twisting and turning. A VA scar examination indicated that the Veteran had a laminectomy scar from 2017, which was not painful, not unstable, and not due to burns. For the period from January 1, 2018, the Board finds that resolving reasonable doubt in favor of the Veteran, a 20 percent is warranted for disc bulge of the thoracolumbar spine, thoracic back pain syndrome. The Veteran has complained of muscle spasms, stiffness, giving way, and sharp pains at times. The VA examiners found that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, and the May 2021 VA examiner determined that the Veteran would suffer a combined range of motion of 120 degrees following repeated use over time. It was also noted that the Veteran would suffer from exacerbations of pain when doing physical activities. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating is warranted from January 1, 2018. However, a rating in excess of 20 percent is not warranted from January 1, 2018. The Veteran has had no worse than 70 degrees of flexion, even when considering pain and functional loss, and at no point during this period, has he had either favorable or unfavorable ankylosis. As such, a rating in excess of 20 percent is not warranted. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The March 2019 VA examiner found that the Veteran had IVDS, but no acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. Regarding neurological impairment, as previously indicated, the Veteran has already been granted service connection for right and left lower extremity radiculopathy in an April 2020 decision and 10 percent ratings were assigned effective August 8, 2016. The Veteran has not, at this time, appealed the ratings assigned; therefore, that question is not before the Board. In addition, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board notes that the Veteran has a separate noncompensable rating for the surgical scar on his mid-line lumbar region (granted in a May 2021 rating decision) and has not yet appealed this evaluation. Therefore, the evaluation of the scar is not before the Board. For the foregoing reasons, from January 1, 2018, the Board finds that a 20 percent rating, but no higher, is warranted for disc bulge of the thoracolumbar spine, thoracic back pain syndrome. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.