Citation Nr: 21066462 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-42 663 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for right ankle degenerative joint disease status post right ankle injury with open reduction and internal fixation surgery (right ankle condition) is denied. Entitlement to an initial compensable rating prior to November 24, 2015 for right ankle scar is denied. Entitlement to an initial rating in excess of 10 percent from November 24, 2015 for right ankle scar is denied. Entitlement to a 20 percent, but no higher, rating prior to September 30, 2015 for lumbar spine degenerative joint disease is granted, subject to regulations governing the payment of monetary awards. Entitlement to a rating in excess of 20 percent from September 30, 2015 for lumbar spine degenerative joint disease is denied. REMANDED Entitlement to service connection for left shoulder bursitis, to include as secondary to a service-connected right ankle disability, is remanded. Entitlement to a separate compensable rating for neurological impairment of the bilateral lower extremities is remanded. FINDINGS OF FACT 1. The Veteran's service-connected right ankle condition has not resulted in ankylosis in plantar flexion or dorsiflexion. 2. Prior to November 24, 2015, the Veteran's right ankle scar was linear, with no pain, and was not unstable. 3. From November 24, 2015, the Veteran's right ankle scar is linear, approximately 12 centimeters in length, with no pain, and is not unstable. 4. Prior to September 30, 2015, the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 90 degrees with pain at 60 degrees with functional impairment causing difficulty with lifting, stooping, bending, and prolonged sitting. 5. From September 30, 2015, the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, with no ankylosis, and without IVDS. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right ankle condition are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2021). 2. Prior to November 24, 2015, the criteria for a compensable rating for right ankle scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2021). 3. From November 24, 2015, the criteria for a rating in excess of 10 percent for right ankle scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2021). 4. Prior to September 30, 2015, the criteria for a 20 percent, but no higher, rating for lumbar spine degenerative joint disease are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2021). 5. From September 30, 2015, the criteria for a rating in excess of 20 percent for lumbar spine degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1978 to February 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the ratings for the Veteran's lumbar spine degenerative joint disease from 10 percent to 20 percent, effective September 30, 2015 and for his right ankle scar from noncompensable to 10 percent, effective November 24, 2015. The Veteran testified before the Board at a hearing held by the undersigned in June 2018. A transcript of the hearing is of record. Thereafter, in April 2019, the Board remanded the Veteran's claims currently before the Board for further development. A September 2020 rating decision awarded service connection for posttraumatic stress disorder, a right shoulder disability, and left and right knee disabilities. As those awards represent full grants of the service connection claims that were previously before the Board, those claims are no longer before the Board and will not be discussed further. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. 1. Right Ankle The Veteran and his representative generally contend the Veteran is entitled to a rating in excess of 20 percent for his right ankle condition based on range of motion during flare-ups. See Informal Hearing Presentation, dated March 2021. The AOJ has assigned the Veteran's right ankle condition a 20 percent rating throughout the appeal period under Diagnostic Code 5271. The maximum schedular rating available for limitation of motion of the ankle is 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5271. As the Veteran has been assigned a 20 percent rating under Diagnostic Code 5271 throughout the appeal period, no higher rating is available under this Diagnostic Code. The rating criteria under Diagnostic Code 5271 were revised effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). However, the amendment to the criteria defined moderate and marked limitation of motion and did not change the ratings assigned for moderate and marked limitation of motion. As the amendment does not provide for a higher than 20 percent rating, the amended criteria will not be further discussed. The only diagnostic code that provide for a higher disability rating for ankle conditions is Diagnostic Code 5270. 38 C.F.R. § 4.71a, Diagnostic Code 5270-5274. Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating. If ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, a 30 percent rating is warranted. If ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity, a 40 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5270. October 2012 and December 2015 VA examination reports reflect that the Veteran did not have ankylosis. The Veteran's treatment records also do not contain findings of ankylosis of the right ankle. The November 2019 VA examination report reflects that the Veteran had ankylosis in good weight-bearing position, and the examiner described the ankylosis as surgical ankylosis due to retained hardware. However, based on there being no evidence of ankylosis in plantar flexion or in dorsiflexion or with an abduction, adduction, inversion, or eversion deformity, the Board finds that the Veteran is not entitled to a higher disability rating under Diagnostic Code 5270. The Board has considered the special considerations under DeLuca and 38 C.F.R. §§ 4.40 and 4.59. However, these direct the Board to consider whether a claimant's disability should receive a higher schedular disability rating based on increased disability during flare-ups, after repetitive use, repeated use over time, or other circumstances. Under the circumstances of this case, where the evidence demonstrates that the Veteran's right ankle is not ankylosed in plantar flexion or dorsiflexion throughout the entirety of the appeal period, and no rating code for the relevant joint provides for a higher rating in the absence of ankylosis in plantar flexion or dorsiflexion, the Board finds that these further considerations do not warrant a rating in excess of 20 percent for limitation of range of motion based on consideration of functional impairment. The functional impairment based on pain, swelling, weakened movement, disturbance of locomotion, and interference with standing do not more nearly approximate findings of ankylosis. The Board has also considered whether the Veteran would be entitled to a higher rating by analogy under Diagnostic Code 5262, which prior to February 7, 2021, evaluates tibia and fibula impairment and provides for a higher 30 percent rating where there is malunion of the tibia and fibula with marked knee or ankle disability, or a higher 40 percent rating where there is nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a. Effective from February 7, 2021, Diagnostic Code 5262 continues to provide for a 40 percent rating where impairment of the tibia and fibula results in nonunion with loose motion, requiring a brace. Where there is malunion causing ankle impairment, the criteria instruct to evaluate under Diagnostic Code 5270 or 5271, whichever results in the highest evaluation. The Board acknowledges that the VA treatment records and the VA examination reports reflect the Veteran has reported having pain and weakness in the ankle, that he uses a cane for ambulation, and that he uses an ankle brace and an orthopedic boot for right ankle support. Although the Veteran is competent to report such symptoms and disability manifestations, and the Board finds his statements to be credible, the Board finds that his reports do not reflect marked ankle disability beyond the marked limitation of motion with pain and other factors for which he is already being compensated under Diagnostic Code 5271. Notably, the October 2012, November 2015, and November 2019 VA examination reports are all negative for right ankle instability. Furthermore, there is no indication in the record that the Veteran experiences falls due to his right ankle. Therefore, the Board concludes that a preponderance of the evidence is against a finding that the Veteran's right ankle disability more nearly approximates malunion of the tibia and fibula with marked ankle disability that is beyond the marked limitation of motion for which he is being compensated. There is also no evidence that there is impairment that would more nearly approximate nonunion of the tibia and fibula with loose motion. Although the Veteran wears a brace for ankle support, the evidence does not indicate this is due to loose motion of the ankle or that there is nonunion of the tibia and fibula. In sum, the criteria for a rating in excess of 20 percent for a right ankle condition have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Right Ankle Scar The Veteran and his representative generally contend the Veteran is entitled to higher ratings for his right ankle scar. See Informal Hearing Presentation, dated March 2021. The AOJ has assigned the Veteran's right ankle scar a noncompensable rating prior to November 24, 2015 and a 10 percent rating thereafter under Diagnostic Code 7804. Diagnostic Code 7804 provides that a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. Note 1 to the Diagnostic Code indicates that an unstable scar is one where, for any reason, there is frequent loss of skin covering over the scar. Note 2 provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation based on the number of unstable or painful scars. Note 3 states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7805 may receive a separate evaluation under this Diagnostic Code when applicable. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018 amendments. Prior to November 24, 2015 Prior to November 24, 2015, the Veteran had a noncompensable rating for his right ankle scar under Diagnostic Code 7804. The Board finds that a compensable rating is not warranted prior to November 24, 2015. Turning to the evidence of record relevant to this period, the Veteran attended a VA examination in October 2012 for an evaluation of his right ankle scar. The examiner noted the Veteran's scar was not painful and/or unstable. Furthermore, the examiner noted that the total area was not greater than 39 square centimeters. Following a review of the record, the Board finds that a compensable rating under Diagnostic Code 7804 is not warranted prior to November 24, 2015 because the Veteran's right ankle scar was not painful or unstable. Furthermore, there is no evidence that the Veteran's right ankle scar resulted in limitation of function. As such a compensable rating is not warranted. The Board has also considered the other diagnostic codes pertaining to scars. However, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, is not associated with underlying soft tissue damage, and is not superficial and nonlinear. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018 are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Therefore, the Board concludes that as the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for a compensable rating prior to November 24, 2015 for right ankle scar is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. From November 24, 2015 From November 24, 2015, the Veteran has been assigned a 10 percent rating for his right ankle scar under Diagnostic Code 7804. The Board finds that a rating in excess of 10 percent is not warranted since November 24, 2015. The Board finds that a rating in excess of 10 percent under Diagnostic Code 7804 is not warranted in this case because the evidence of record shows the Veteran has one scar that is not painful or unstable. As noted above, a 20 percent rating is warranted in cases of three or four painful or unstable scars. There is no evidence of three or more painful or unstable scars in this case and the Veteran has not claimed to have them. The Veteran attended VA examinations in November 2015 and November 2019 for an evaluation of his scar. Notably, at the November 2015 VA examination, the examiner noted that the Veteran's right ankle scar was both painful and unstable. However, the examination report also reflects that the Veteran's scar was "tender to mid portion to touch of scar but stable." The examiner noted the Veteran's linear scar was 12.0 centimeters in length. Furthermore, the examiner noted the Veteran reported his scar gets thin, red, and has bleeding at times. In addition, the examiner noted the Veteran's scar did not result in limitation of function. However, at the November 2019 VA examination, the examiner noted the Veteran had one scar that was 9.0 centimeters in length, and the examiner noted the scar was not painful or unstable. Regarding the scar being painful, the examiner specifically noted that "[t]he scar itself is not tender to palpation, but the underlying easily palpable screw is exquisitely tender to palpation." Furthermore, the examiner noted that "[i]t is understandable why the [V]eteran would think that the pain is in his scar because he is not medically trained." The examiner continued by saying that it is not understandable why the November 2015 VA examiner "could not tell the difference on examination" in terms of the source of the pain, and reiterated that it was not the scar that was painful, but the underlying retained hardware. The Board places more probative weight on the November 2019 VA examination report than the November 2015 VA examination report regarding the Veteran's scar not being painful or unstable. First, the November 2019 VA examiner provided detailed rationale regarding the Veteran's pain coming from the retained hardware from his surgery and not the scar itself. Second, the November 2015 VA examination report contains conflicting evidence regarding whether the Veteran's scar was unstable. In addition, the Veteran is competent to report observable symptomatology of his condition. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is not competent, however, to attribute any of his claimed symptoms of pain specifically to his right ankle scar and not the surgical hardware as the issue is medically complex as it requires specialized medical education; thus, the Board places greater weight of probative value on the November 2019 VA examiner's conclusions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, as the Board concludes the preponderance of the evidence is against a finding that the Veteran's scar is both painful and unstable, the Veteran is not entitled to an additional 10 percent rating based on having a scar that is both unstable and painful. The Board has also considered the other diagnostic codes pertaining to scars. However, the Veteran's scar is not of the head face or neck, is not deep and nonlinear, is not associated with underlying soft tissue damage, and is not superficial and nonlinear. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018 are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Finally, the evidence of record does not show that there are any other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Accordingly, the Board concludes that as the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for a rating in excess of 10 percent from November 24, 2015 for right ankle scar is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 3. Lumbar Spine The Veteran and his representative generally contend the Veteran is entitled to higher ratings for his lumbar spine disabilities. See Informal Hearing Presentation, dated March 2021. The AOJ has assigned the Veteran's lumbar spine disability a 10 percent rating prior to September 30, 2015 and a 20 percent rating thereafter under Diagnostic Code 5242. The Veteran's lumbar spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasms, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal; or, vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or, muscle spasms 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted 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 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 with incapacitating episodes having a total duration of at least 6 months. 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. 38 C.F.R. § 4.71a. Note (1) provides that for purposes of evaluating under Diagnostic Code 5243, 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. 38 C.F.R. § 4.71a. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. 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. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5242 was assigned for degenerative arthritis of the spine (see also Diagnostic Code 5003) and Diagnostic Code 5243 for IVDS. As of February 7, 2021, under the amended criteria, Diagnostic Code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS (see also either Diagnostic Code 5003 or 5010). It also amends Diagnostic Code 5243 for IVDS allowing the Diagnostic Code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each Diagnostic Code was unchanged. As the evidence of record throughout the appeal period reflects that the Veteran does not have IVDS that requires treatment and bed rest prescribed by a physician, the Veteran is not entitled to a rating under Diagnostic Code 5243, and he will be evaluated under Diagnostic Code 5242 prior to and from February 7, 2021. See October 2012, November 2015, and November 2019 VA examination reports. Prior to September 30, 2015 Prior to September 30, 2015, the Veteran had a 10 percent rating for his lumbar spine disability under Diagnostic Code 5242. The Board finds that a rating in excess of 10 percent is not warranted prior to September 30, 2015. Turning to the evidence of record relevant to this period, the Veteran attended a VA examination in October 2012 for an evaluation of his lumbar spine disability. Range of motion testing revealed the Veteran had forward flexion to 90 degrees with pain at 60 degrees and extension to 10 degrees with pain. He had left and right lateral flexion to 25 degrees with pain. He had left and right lateral rotation to 15 degrees with pain. The Veteran had no additional loss of range of motion upon repetitive use testing. Upon repetitive use testing, the Veteran had functional loss in the form of less movement than normal; pain on movement; and interference with sitting, standing, and/or weight bearing. The examiner noted the Veteran had localized tenderness or pain on palpation for joints and/or soft tissue of the thoracolumbar spin, which was further described as paralumbar tenderness. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran had normal muscle strength throughout, no muscle atrophy, and no IVDS. The examiner noted the Veteran's lumbar spine disability caused functional impact in the form of decreased capacity for lifting, stooping, and bending. The Veteran reported he had flare-ups that result in reduced capacity for bending and lifting, and he reported having pain and stiffness with prolonged sitting. A November 2012 lumbar spine MRI showed mild disc bulge at L5-S1 with right paracentral component possibly touching the right S1, and the MRI showed no evidence of severe neuroforaminal narrowing. During this period, the Veteran attended physical therapy for his back pain with little positive effect. Furthermore, the physical therapy notes reflect that the Veteran reported wearing a back brace. In addition, a November 2012 VA treatment note reflects that the Veteran had forward flexion to about 90 degrees and extension to 20 degrees, and a November 2013 VA treatment note reflects that the Veteran had limited flexion and extension with pain. However, the November 2013 treatment note does not contain the specific degree of limitation. Along with the Veteran's lay reports at the VA examination noted above, a review of the VA treatment records in 2012 and 2013 reveals that the Veteran reported his back pain is exacerbated with lifting items and is relieved by lying supine. Furthermore, he reported difficulty standing up from the toilet after a bowel movement. The evidence reflects that forward flexion on range of motion testing was not to 60 degrees or less prior to September 30, 2015. During this period, objective evidence showed forward flexion was limited to 90 degrees. However, in evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, on the October 2012 VA examination, the examiner noted that pain during initial range of motion testing started at 60 degrees of forward flexion. When considering this finding coupled with the Veteran's reports of pain and functional impairment throughout this period as a result of his lumbar spine disability, notably his difficulty with lifting, stooping, bending, and prolonged sitting, the Board concludes that the evidence more nearly approximates forward flexion greater than 30 degrees, but not greater than 60 degrees. Therefore, the Veteran is entitled to a higher 20 percent rating prior to September 30, 2015. Regarding whether the Veteran is entitled to a rating in excess of 20 percent, the medical evidence of record illustrates that the Veteran had pain with forward flexion throughout this period to a level that most nearly approximates forward flexion to 60 degrees. Thus, even when considering the reported functional loss, the Veteran's disability picture does not more nearly approximate forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Thus, a rating in excess of 20 percent is not warranted. The October 2012 VA examination contains no evidence of IVDS or incapacitating episodes. Therefore, the evidence does not more nearly approximate the criteria for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has had any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. However, as is noted in the remand section below, the record is unclear whether the Veteran has a neurological impairment of the bilateral lower extremities. Thus, the Board has remanded the issue for further development. As such, the Board finds that the evidence more nearly approximates findings for a 20 percent rating, but no higher, for the Veteran's lumbar spine degenerative joint disease prior to September 30, 2015. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. From September 30, 2015 From September 30, 2015, the Veteran has had a 20 percent rating for his lumbar spine disability under Diagnostic Code 5242. The Board finds that a rating in excess of 20 percent is not warranted from September 30, 2015. Turning to the evidence of record, the Veteran attended a VA examination in November 2015 where range of motion testing revealed the Veteran had forward flexion to 60 degrees and extension to 5 degrees. He had left and right lateral flexion to 10 degrees and left and right lateral rotation to 15 degrees. The examiner noted the Veteran had pain in all planes of motion. The examiner noted that range of motion itself contributed to functional loss in the form of difficulty bending and lifting. The examiner noted the Veteran had pain with weight bearing, but the Veteran had no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran had no additional loss of function or range of motion upon repetitive use testing. With repeated use, pain, weakness, fatigability, or incoordination did not significantly limit functional ability. The Veteran did not have localized tenderness, guarding, or muscle spasm of the thoracolumbar spine. The examiner noted an additional factor contributing to disability was less movement than normal. The Veteran had normal muscle strength, no muscle atrophy, no ankylosis, and no IVDS. The examination report reflects that the Veteran used a back brace and a cane on a regular basis. The examiner noted the Veteran's lumbar spine disability caused functional impact in the form of the Veteran being unable to engage in occupations that require bending, lifting, and carrying. The Veteran reported having sharp pain in his lower back on both sides, with the pain being worse on the right side. The Veteran also reported being unable to sit or stand for prolonged periods, and he reported his need for analgesic pain medications had increased. The Veteran did not report having flare-ups. The Veteran attended an additional VA examination in November 2019 where range of motion testing revealed the Veteran had forward flexion to 60 degrees and extension to 0 degrees. He had left and right lateral flexion to 30 degrees and left and right lateral rotation to 30 degrees. The examiner noted the Veteran had pain with flexion and extension and the pain caused functional loss. The examiner noted that range of motion itself contributed to functional loss in the form of his stooped posture affects ambulation. The examiner noted the Veteran had pain with weight bearing, but the Veteran had no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran had no additional loss of function or range of motion upon repetitive use testing. With repeated use, pain, fatigue, and lack of endurance significantly limited functional ability. The examiner noted the Veteran's range of motion did not change after repetitive use. During flare-ups, pain, fatigue, and lack of endurance significantly limited functional ability. The examiner noted the Veteran's range of motion did not change during flare-ups. The Veteran had muscle spasm that resulted in abnormal gait or abnormal spinal contour. He did not have guarding. The examiner noted additional factors contributing to disability were deformity, disturbance of locomotion, and interference with standing. The Veteran had normal muscle strength throughout except for reduced strength to 4/5 with ankle dorsiflexion on the right and great toe extension on the right. He had no muscle atrophy attributable to his back condition, no ankylosis, and no IVDS. The examination report reflects that the Veteran used a back brace on an occasional basis and a cane on a constant basis. The examiner noted the Veteran's lumbar spine disability caused functional impact in the form of that he would have significant functional limitation due to his lumbar spine condition due to a stooped posture and limitation of motion, limiting his ability to ambulate or stand for any realistic period of time. The Veteran reported flare-ups consisting of increased baseline pain that occur one to three times per week and last for hours. He reported the flare-ups are precipitated by cleaning floors, cooking, grocery shopping, and putting gasoline in the car. He reported the flare-ups are alleviated by rest, use of a heating pad, and wearing a back brace. On November 2015 and November 2019 VA examinations, the Veteran exhibited forward flexion to 60 degrees. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board recognizes the Veteran's reports at the VA examinations addressed above of pain and difficulty with prolonged sitting, standing, and walking. Furthermore, the Board recognizes the Veteran's reports of flare-ups that occur one to three times per week and last for hours. In addition, the Board acknowledges the Veteran's use of a back brace and his use of a cane for ambulation in part due to his back disability. Even when considering these reports, the evidence shows the Veteran's thoracolumbar range of motion has been greater than 30 degrees throughout the period on appeal, with flexion being noted at 60 degrees with pain. Thus, even when considering the reported functional loss, the Veteran's disability picture does not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less or the functional equivalent of favorable ankylosis of the entire thoracolumbar spine. Therefore, with consideration of the provisions of §§ 4.40 and 4.45, the Veteran's lumbar spine disability most nearly approximates the criteria for the currently assigned 20 percent rating since September 30, 2015 and a rating in excess of 20 percent is not warranted for this period. Regarding the functional equivalence of favorable or unfavorable ankylosis, when considering the evidence of functional loss in the preceding paragraph, the degree of additional limitation reflected would not result in symptoms reflecting the fixation of a spinal segment in neutral position or more nearly approximating the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5 to the General Rating Formula, even during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board acknowledges the record reflects that the Veteran used a back brace on a regular basis for support as of the November 2015 VA examination and on an occasional basis as of the November 2019 VA examination. However, the record does not reflect that the Veteran's use of a back brace was to keep his lumbosacral spine in a neutral position. In addition, even with the reports of flare-ups precipitated by cleaning floors, cooking, grocery shopping, and putting gasoline in the car, the evidence fails to show that such limitations equate to the functional equivalence of favorable or unfavorable ankylosis. See Chavis, 34 Vet. App. 1. Moreover, the evidence of a stooped posture, as was noted by the November 2019 VA examiner does not illustrate that the Veteran's lumbosacral spine is functionally equivalent to being fixed in a neutral position. Id. The evidence during this period contains no evidence of IVDS or incapacitating episodes. Therefore, the evidence does not more nearly approximate the criteria for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has had any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. However, as is noted in the remand section below, the record is unclear whether the Veteran has a neurological impairment of the bilateral lower extremities. Thus, the Board has remanded the issue for further development. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's lumbar spine degenerative joint disease from September 30, 2015. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for left shoulder bursitis is remanded. Following the April 2019 Board remand, the Veteran was afforded a VA examination in November 2019 for an evaluation of his left shoulder. The examination report reflects no diagnosis of a left shoulder condition; however, the examiner further noted that she had a "very strong clinical impression of age-related osteoarthritis." The report further reflects that "[t]he evidence of record does not support that the [V]eteran's left shoulder likely age-related osteoarthritis with no formal diagnosis rendered is due to military service including the duties of his MOS." Furthermore, the examination report reflects that the Veteran had reduced flexion with pain in the left shoulder. In addition, as is noted in the April 2019 Board remand, an August 2015 VA treatment note reflects that the Veteran called to report chronic bilateral shoulder pain at 10 out of 10, and he reported that he was unable to lift and move his arms. Therefore, as it is unclear from the record whether the Veteran has a left shoulder condition, an additional remand is required to afford a VA examiner the opportunity to clarify any diagnosis of the Veteran's left shoulder, and if a diagnosis is not identified, then to determine if pain alone results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability); see also Wait v. Wilkie, 33 Vet. App. 8 (2020) (to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). In addition, the Veteran reported in a March 2007 VA Form 21-4138 Statement in Support of Claim and his February 2014 VA Form 21-0958, Notice of Disagreement, that his shoulder conditions worsened when he needed to use crutches for his service-connected right ankle disability. Thus, the theory of secondary service connection has been raised, so upon remand, the VA examiner should opine as to whether the Veteran's service-connected right ankle disability has caused or aggravated any diagnosed left shoulder condition or symptoms that cause functional impairment of earning capacity. 2. Entitlement to a separate compensable rating for neurological impairment of the bilateral lower extremities is remanded. Pursuant to Note (1) of the General Rating Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). In this case, as it is unclear from the evidence of record whether the Veteran has neurologic impairment of the bilateral lower extremities that is caused or aggravated by his service-connected lumbar spine disability, a VA examination is necessary to determine the nature and etiology of any bilateral lower extremity radiculopathy. Of note, the October 2012 and November 2019 lumbar spine VA examinations are silent for any radicular pain or other signs or symptoms due to radiculopathy. In addition, the November 2015 lumbar spine VA examination report reflects that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. However, the November 2015 VA examiner noted that the Veteran developed femoral intermittent paresthesia in the last year. In addition, November 2012, February 2013, and November 2013 VA treatment notes contain reports of bilateral lower extremity radicular pain. However, that same November 2013 treatment note reflects that the physical examination showed the Veteran's sensation was intact throughout the bilateral lower extremities. A November 2012 lumbar spine MRI showed mild disc bulge at L5-S1 with right paracentral component possibly touching the right S1 and no evidence of severe neuroforaminal narrowing. Given the conflicting nature of the evidence above, a remand is required to obtain an examination to determine the nature and etiology of any bilateral lower extremity radiculopathy. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic record any outstanding VA treatment records. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature and etiology of any left shoulder condition. The electronic claims file must be made available to the examiner for review in connection with the examination. As the record indicates the Veteran may have left shoulder arthritis, X-ray testing of the left shoulder should be completed to determine if the Veteran has osteoarthritis. The report of any such study should be incorporated into the examination report to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Does the Veteran have a diagnosis of any left shoulder condition or any symptoms that cause functional impairment of earning capacity? In addressing this question, the examiner is requested to consider the November 2019 VA examination report that reflects that the Veteran has "likely age-related osteoarthritis," and that the Veteran had reduced flexion with pain. (b.) For any diagnosed left shoulder condition/functional impairment of earning capacity, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service, to include the duties of his military occupational specialty, which required lifting the Missile Guidance Test Set? (c.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left shoulder condition/functional impairment of earning capacity is caused by his service-connected right ankle disability, including the use of crutches after an ankle fracture? (d.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left shoulder condition/functional impairment of earning capacity is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected right ankle disability, including the use of crutches after an ankle fracture? If the Veteran's left shoulder condition/functional impairment of earning capacity has been aggravated by a service-connected disability, the VA examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any bilateral lower extremity radiculopathy. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that any bilateral lower extremity radiculopathy is caused by his service-connected lumbar spine disability? (b.) Is it at least as likely as not (50 percent or greater probability) that any bilateral lower extremity radiculopathy is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected lumbar spine disability? If the Veteran's bilateral lower extremity radiculopathy has been aggravated by his service-connected lumbar spine disability, the VA examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.