Citation Nr: 21066560 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-25 066 DATE: November 1, 2021 ORDER Entitlement to revision of a December 1998 rating decision on the claim of service connection for left heel bone spurs on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105 is denied. Entitlement to an evaluation in excess of 10 percent prior to December 18, 2015, for degenerative disc disease of the lumbar spine is denied. Entitlement to an evaluation of 20 percent, but no higher, for the period from December 18, 2015 to April 4, 2021, for degenerative disc disease of the lumbar spine is granted. Entitlement to an evaluation in excess of 40 percent from April 4, 2021, for degenerative disc disease of the lumbar spine is denied. REMANDED Entitlement to a left foot disability, to include left heel bone spurs, plantar fasciitis, and degenerative joint disease of the left foot, is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for left heel bone spurs was denied in a December 1998 rating decision that became final because he did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in December 1998 and the statutory and regulatory provisions extant at the time were correctly applied. 3. Prior to December 18, 2015, the Veteran had forward flexion to 80 degrees with pain; after December 18, 2015 prior to April 4, 2021, forward flexion further decreased to 45 degrees, at worst, with consideration of pain or functional loss during flareup; and after April 4, 2021, the forward flexion further worsened to 25 degrees in estimation with repeated use over a period of time. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of a December 1998 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. Prior to December 18, 2015, the criteria for entitlement to a rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, Diagnostic Code 5242. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a rating of 20 percent, but not higher, for the period from December 18, 2015 to April 4, 2021, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, Diagnostic Code 5242. 4. The criteria for entitlement to an evaluation in excess of 40 percent for the period from April 4, 2021, for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to August 1998. The Board previously remanded the issue for further development in March 2020. The case has now been returned to the Board for appellate review. The Board previously considered the issue of service connection for varicose veins and remanded for additional development in March 2020. Subsequent to the remand, the RO granted service connection for varicose veins. That decision is considered a full grant of benefits sought on appeal, and the appeal concerning diabetes is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Although the Veteran initially filed a claim for left heel bone spurs, the Veteran has also been diagnosed with plantar fasciitis and degenerative joint disease of the left foot. See February 2016 VA examination. To afford the Veteran the broadest possible scope for his claim of entitlement to a left foot disorder, the issue has been recharacterized accordingly to that of entitlement to service connection for a left foot disability, to include left heel bone spurs, plantar fasciitis, and degenerative joint disease of the left foot. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). 1. Entitlement to revision of a December 1998 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 The Veteran asserts that there is CUE in the December 1998 rating decision that denied service connection for left heel bone spurs. He contends that his service treatment records (STRs) show bone spurs in the bilateral heels and pain in both feet. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, a December 1998 rating action denied his claim for service connection for left heel bone spurs, and the Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the December 1998 rating decision became final. 38 U.S.C. § 7105 (c) (1994); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1998). Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim. As noted above, the Veteran's contention is that VA failed to review the facts found in his STRs adequately because the STRs reflect a finding of left heel spurs while in service and when a separation examination was conducted. In the December 1998 rating decision, the RO denied his claim because it did not find the evidence of left heel bone spurs showing a chronic disability while in service or otherwise. It also noted that a June 1998 separation examination did not show a diagnosis of left heel bone spurs. It determined that the Veteran did not establish a well-grounded claim. At the time of the December 1998 rating decision, the following "well-grounded claim" standard existed: The Court has defined a well-grounded claim as follows: "A well[-] grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In addition, the Court held in Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (quoting section 5107(a)), that to be well grounded a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a)." Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Moreover, in the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as current disability, there must be evidence of the condition at some time during the claim period or approximate thereto. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998). A review of the Veteran's STRs indicates that he had frequently sought treatment for his right heel bone spur. A May 1991 physical therapy consultation indicates that he had a diagnosis of right foot plantar fasciitis. The clinician noted that the Veteran was wearing inserts that he had purchased on his own and heel cups that he received from the medical facility. It was further noted that the Veteran was not wearing inserts on the other foot. He had two bone spurs, one on the calcaneus just at the point of insertion of the Achilles and the other on the bottom of the calcaneus. A June 5, 1991 treatment record indicates that the Veteran had bone spurs and right foot plantar fasciitis and had a previous history of old fracture of the left tibia. A June 11, 1991 STR reflects that the Veteran reported the bottom of his foot was doing considerably better and it did not bother him anymore. The clinician further noted the presence of two bone spurs. A June 13, 1991 treatment record indicates that he still had complaint of "post heel pain," though his plantar fasciitis improved in response to therapy. An October 1994 treatment record document complaints of dorsal bilateral feet pain for 6 months and he was diagnosed with plantar fasciitis. This is the single note that refers to both feet in the entire collection of treatment records from service. In a June 1998 report of medical history, the Veteran reported having "foot trouble" with an additional note stating "1994 - reviewed for foot pain caused by bone spurs on both heels. Continued problem with no further action pending." The accompanying June 1998 report of medical examination documents normal feet with no further pertinent remarks by the examining physician. In a November 2019 statement, the Veteran specifically refers to the October 1994 and a June 1991 STR and contends that these treatment records showed that he had bone spurs on both heels. However, as noted above, the June 1991 treatment records reflect a finding and treatment of right foot plantar fasciitis, right heel bone spurs, and a finding of old fracture of left tibia, and they do not indicate that the Veteran had bone spurs on the left heel. As for the October 1994 treatment record, it indicates that the Veteran had pain in the dorsal part of the left foot as well as the right foot, but it does not show the presence of bone spurs on the left foot, the condition that the Veteran had claimed. The facts before VA at the time of December 1998 show that the Veteran did not have a diagnosis of bone spurs on the left heel, or any disability of the left foot, in service and at the time of adjudication, that is supported by medical evidence. There was no errors in the facts found in the December 1998 rating decision. Moreover, the Board finds that the statutory or regulatory provisions in existence at the time were correctly applied. A well-grounded claim required: Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a)." Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). No competent medical evidence establishes that the Veteran had a diagnosis of bone spurs on the left heel while in service or at the time of December 1998 adjudication. Without evidence of diagnosis of left heel spurs or a left foot disability, the Veteran's claim could not be successful at the time of December 1998 adjudication. See Brammer, 3 Vet. App. at 225. In the November 2009 statement, the Veteran reports that he had pain on a scale of 5 out of 10 in the heels of both of his feet on the day of the June 1998 separation examination. However, this lay statement was not of record at the time the December 1998 rating decision was issued. A determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the December 1998 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). In conclusion, the Veteran's request to revise the December 1998 rating decision on the claim of service connection for left heel bone spurs on the basis of CUE pursuant to 38 C.F.R. § 3.105 is not warranted. 2. Evaluation in excess of 10 percent prior to April 4, 2021 and in excess of 40 precent thereafter for degenerative disc disease, status post laminectomy with L-3 hemangioma The Veteran's claim for increased rating for his lumbar spine disability was received on January 27, 2010. He indicated that his back condition had gotten worse since the last evaluation. The Veteran's lumbar spine disability is evaluated under Diagnostic Code 5015-5237. Diagnostic Code 5015 evaluates benign new growth of bones, and Diagnostic Code 5237 evaluates lumbosacral strain. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532; VAOPGCPREC 71-91 (Nov. 7, 1991). Here, the Board finds that Diagnostic Code 5242 for degenerative arthritis of the spine is more appropriate for evaluating the Veteran's progressed, service-connected lumbar spine disability, now diagnosed as degenerative disc disease of lumbar spine, based on, most recently, an April 2021 VA examination. The Board notes that Diagnostic Code 5242 still refers to the General Rating Formula, as Diagnostic Code 5237 did, as explained below, and the same formula applies. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. While a veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. VA amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. These February 7, 2021 amendments do not present any changes to the rating criteria for Diagnostic Codes 5015, 5237, or 5242. Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App.119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to specific diagnostic codes pertinent to the Veteran's case, for Diagnostic Code 5015 ("Bones, new growths of, benign") (prior to February 7, 2021), the Rating Schedule instructs: "The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002." Diagnostic Code 5015 was amended as of February 7, 2021. 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020). Diagnostic Code 5015 now instructs an adjudicator to "[e]valuate the diseases under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts." The substance of Diagnostic Code 5015 has not changed; the evaluation criteria has simply been reworded. Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine applied by Diagnostic Code 5237 or Diagnostic Code 5242, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating requires thoracolumbar spine forward flexion 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 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. The IVDS Rating Formula provides a 20 percent rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a , general rating formula, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The February 2021 amendment did not change the General Rating Formula substantively. A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Turning to the evidence of record, an April 2010 VA examination reflects the Veteran's report that the back condition had progressively gotten worse. Current treatment consisted of ibuprofen. The range of motion test showed forward flexion to 80 degrees with combined range of motion in 245 degrees, in both active and passive motions. There was no additional loss of motion on repetitive use of the spine. Pain was noted at 80 degrees in the flexion. A July 2009 X-ray showed multilevel lumbar lower thoracic spondylosis with moderate disc space narrowing at L4-5 and mild disc space narrowing at L3-4. Functional impairment to his ability to work was decreased mobility and problems with lifting and carrying due to pain. Moderate impact on chores, shopping, exercise, sports, and recreation, and mild impact on traveling were noted. An October 2013 non-VA treatment record shows a complaint of low back pain. He reported having difficulty sitting due to pain. Pain was aggravated with standing, sitting, walking, movement, bending, lying down, bending forward, coughing/sneezing. The clinician noted restricted range of motion with flexion, extension, and lateral rotation and muscle spasm and tenderness along the paravertebral muscles of the lumbar region. The facet loading test was positive of the lumbar spine. Assessment included low back pain, degeneration of lumbar intervertebral disc, and facet arthropathy/syndrome. Norco was started, and lumbar epidural steroid injection at L5-S2 was administered. VA treatment records document that the Veteran had laminectomy at L4-5 in November 2013. The Veteran reported that the condition had been stable with back pain free and the back condition had improved some. A December 2015 VA examination reflects a diagnosis of L-3 hemangioma with degenerative disc disease. The Veteran reported flareups and poor gait, decreased balance, and decreased walking distance. The range of motion test showed forward flexion to 50 degrees with combined range of motion in 150 degrees. Pain was noted with forward flexion. There was no additional loss of function or range of motion after three repetitions. Repeated use over time caused additional loss in range of motion with forward flexion now to 45 degrees with combined range of motion in 170 degrees. Pain during flareups caused the same loss in the range of motion. There was no localized tenderness, guarding, or muscle spasm of the thoracolumbar spine. No ankylosis was found. He did not have IVDS. The Veteran had difficulty with prolonged walking, standing, and climbing stairs due to the back disability. An April 2021 VA examination reflects a diagnosis of degenerative disc disease other than IVDS, status post laminectomy, L-3 hemangioma. The Veteran reported that his low back pain was intermittent and no medication was taken for management. The current symptoms consisted of pain, stiffness, fatigue, and limited movement. He did not report flareups. The Veteran reported difficulty with sitting for too long, bending or twisting around sometimes. The range of motion test showed forward flexion to 40 degrees with combined range of motion in 140 degrees, with pain in all motions. Passive range of motion test produced the same results as the active one. There was objective pain of localized tenderness. With observed repetitive use, forward flexion further decreased to 30 degrees with combined range of motion in 100 degrees, and pain, fatigability, and lack of endurance caused this additional loss in the range of motion. With repeated use over time, forward flexion was estimated to 25 degrees with estimated combined range of motion in 75 degrees, limited by pain, fatigability, weakness, and lack of endurance. The observed localized tenderness did not result in abnormal gait or abnormal spinal contour. There was no muscle spasm or guarding. Additional factors contributing to disability were interference with sitting and standing and disturbance of locomotion. No ankylosis was found. He did not have IVDS. The Veteran reported that he was retired and previously had worked as a VA service counselor. He reported losing 2-4 weeks of work time in a 12 month period. A corrected diagnosis for the service-connected lumbar disability was degenerative disc disease, status post laminectomy L3-L5, which was provided separately from status post laminectomy, C7-T1, with radiculopathy of the left upper extremity. The Board finds that the Veteran's lumbar spine disability has gotten worse during the appeal period, as manifested by decreased forward flexion over the years. In April 2010, he had forward flexion to 80 degrees with pain, but this decreased to 45 degrees, at worst, in December 2015 with consideration of pain or functional loss during flareup, even after 2013 lumbar laminectomy. It further worsened to 25 degrees of estimated forward flexion with repeated use over a period of time in the most recent April 2021 examination. The evidence preponderates against finding that the Veteran's lumbar spine disability warrants an evaluation in excess of 10 percent prior to December 18, 2015, and the evidence is at least evenly balanced as to whether it warrants an increased evaluation of 20 percent since December 18, 2015. Most recently, as of April 4, 2021, the evidence shows decreased forward flexion of thoracolumbar spine to 25 degrees with consideration of functional loss with repeated use over time. However, the evidence does not indicate that the Veteran had unfavorable ankylosis, or similar symptoms of the entire thoracolumbar spine or entire spine. A rating in excess of 40 percent is not warranted at any time during the appeal period. REASONS FOR REMAND Entitlement to service connection for a left foot disability, to include left heel bone spurs, plantar fasciitis, and degenerative joint disease of the left foot As noted in the introduction, a February 2016 VA examination provided a diagnosis of left foot calcaneal spur, left foot plantar fasciitis, and degenerative joint disease of the left foot. Based, in part, on this, the Board reopened the previously denied claim of service connection for left heel bone spurs and remanded the claim for an addendum opinion for the theory of secondary service connection in March 2020. Per the Board remand, medical opinions were obtained in October 2020. The October 2020 examiner opined that the Veteran's left heel spur was not caused by left lower extremity neuropathy, but that there was positive "permanent aggravation of his left heel bone spur on a 2013 podiatry X-ray ... from left lower extremity neuropathy." In June 2021, an addendum opinion was obtained, which states the Veteran's bilateral heel spurs have not been aggravated by any of the service-connected disabilities. The June 2021 examiner further stated that heel spurs were caused by strains on foot muscles and ligaments, stretching plantar fascia, and repeated tearing of the membrane that covers heel bone and that risk factors include an abnormal gait, poorly fitted shoes, excess weight, and increasing age. The examiner noted that the Veteran's bilateral plantar fasciitis, degenerate joint disease of the left foot and left foot calcaneal spur would all play a role in an abnormal gait and painful symptoms. Related to this, the Board notes that a December 2015 peripheral neuropathy VA examination found that the Veteran's gait was abnormal due to shortening of the left leg. All these opinions and finding are confounding and somewhat inconsistent, and thus, in need of further clarification. Moreover, as noted above, the Veteran's STRs reflects a diagnosis of bilateral plantar fasciitis and a history of old fracture of the left tibia. And the Veteran's claim is now broadened to include left foot plantar fasciitis and degenerative joint disease of the left foot as well as left heel bone spurs. In light of this, the Veteran must be scheduled for a new VA examination, and an etiology opinion must be provided, after review of the evidence of record, to include the above-mentioned October 2020 and June 2021 medical opinions, as well as the evidence referenced therein, and December 2015 VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left foot disability. The examiner must review the entire claims file, to include this Board decision and remand. For each diagnosed condition, the examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including an in-service diagnosis of plantar fasciitis with left foot pain or left leg pain? Is the disability at least as likely as not proximately due to or aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? Is it at least as likely as not that the disability, if it is listed as a presumptive disease under 38 C.F.R. § 3.309(a), (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? All opinions must accompany sufficient explanation. 2. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 3. Finally, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.