Citation Nr: 21068853 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-43 499 DATE: November 15, 2021 ORDER Entitlement to an initial disability rating of 40 percent for degenerative disc disease of the lumbar spine is granted. Entitlement to a disability rating greater than 40 percent for degenerative disc disease of the lumbar spine is denied. A separate 20 percent rating for radiculopathy, femoral nerve, the right lower extremity is granted beginning August 27, 2021. A separate 20 percent rating for radiculopathy, femoral nerve, left lower extremity is granted beginning August 27, 2021. FINDINGS OF FACT 1. Before August 19, 2019, it was determined that the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine 30 degrees or less, absent the ameliorative effects of his medications. 2. During the entire appeal period, the Veteran's lumbar spine disability did not manifest unfavorable ankylosis of the entire thoracolumbar spine. 3. Beginning August 27, 2021, the Veteran's radiculopathy, femoral nerve, right lower extremity manifested as moderate incomplete paralysis. 4. Beginning August 27, 2021, the Veteran's radiculopathy, femoral nerve, right lower extremity manifested as moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 40 percent for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243. 2. During the entire appeal period, the criteria for a disability rating greater than 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243. 3. Beginning August 27, 2021, the criteria for a separate disability rating of 20 percent for radiculopathy, femoral nerve, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8526. 4. Beginning August 27, 2021, the criteria for a separate disability rating of 20 percent for radiculopathy, femoral nerve, left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1979 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The issues were previously remanded by the Board in August 2018 and July 2021. Based on the Board's August 2018 remand, a new VA examination was obtained in September 2019, from which the RO assigned a 40 percent for a lower back disability, effective August 19, 2019, and assigned separate ratings of 10 percent, each, for radiculopathy of the right and left lower extremities, effective October 28, 2010. The Board, in a March 2020 decision, denied an increased rating greater than 10 percent for the lumbar spine disability before August 19, 2019, and denied an increase greater than 20 percent for radiculopathy of the bilateral lower extremity. The Veteran appealed the March 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in February 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and vacated the Board's denials. The issues of greater than 10 percent for degenerative disc disease of the lumbar spine before August 19, 2019, and ratings greater than 20 percent for right and left lower extremity radiculopathy were then remanded to the Board for development consistent with the JMPR. In July 2021, the Board again denied ratings greater than 20 percent for right and left lower extremity radiculopathy and remanded an initial rating greater than 10 percent before August 19, 2019, for degenerative disc disease of the lumbar spine and a rating greater than 40 percent from August 19, 2019. The remand mandated that the RO provide the Veteran with a VA examination to determine the current severity of his service-connected lumbar spine disability and to obtain a retrospective opinion for the period before August 19, 2019, specifically addressing the severity of the Veteran's lumbar spine symptoms with and absent the ameliorative effects of his medication. In August 2021, both the retrospective opinion and the examination addressing the severity of the Veteran's lumbar disorder were provided. The retrospective opinion estimated the additional impairment with and without the ameliorative effects of medication. Also, the examination addressing the current severity of hi slower back disorder, is in compliance with VA statute and regulations. The Board finds the opinion and examination adequate for adjudication. Thus, there has been substantial compliance with the remand directive. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also to be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (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 the motion is limited, under 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. 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."). The Veteran's lumbar spine disability was rated under Diagnostic Codes 5237 and 5243. Diagnostic Codes 5237 and 5243 allow for a rating under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § § 4.71a. A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § § 4.71a. Under the rating schedule, forward to 90 degrees, extension, lateral flexion, and rotation to 30 degrees are considered normal range of motion of the thoracolumbar spine. Id. at Note 2 and Plate V. Ankylosis is the complete immobility of a joint in a fixed position. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the joint in a fixed position). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). 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 are more favorable to the Veteran will be applied. Prior to the regulatory change, for purposes of assigning evaluations for IVDS under Diagnostic Code 5243, an "incapacitating episode" was defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. IVDS (preoperatively or postoperatively) was evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. IVDS warrants a 20 percent rating when the Veteran has incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted when the Veteran has incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when the Veteran has incapacitating episodes having a total duration of a least six weeks but less during the past 12 months. 38 C.F.R. § 4.71a. Under the new changes implemented on February 07, 2021, Intervertebral Disc Syndrome, under Diagnostic Code 5243, is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses. Here, as no clinician nor VA examiner during the period on appeal has noted that the has had an incapacitating episode defined by the regulation, or disc herniation with compression and/or irritation of the adjacent nerve root, the Formula for Rating Intervertebral Disc Syndrome is not applicable under the prior or revised criteria. A. Entitlement to an initial disability rating of 40 percent before August 19, 2019, for degenerative disc disease of the lumbar spine is granted. B. Entitlement to a disability rating greater than 40 percent before August 19, 2019, for degenerative disc disease of the lumbar spine is denied. The Veteran contends that he is entitled to a higher than 10 percent initial disability rating and a greater than 40 percent, beginning August 19, 2019, for his lower back disability. In his April 2015 notice of disagreement (NOD), he argues that the 10 percent rating assigned before August 19, 2019, does not consider functional loss due to pain on movement or the effect of his treating medication. The Veteran's treatment records chronicle continuous complaints of chronic back pain, his taking of medication, and attending physical therapy to alleviate said back pain. Treatment notes dated in December 2010 note the Veteran's report of chronic low back pain for the last 10 years, radiating to lower extremity with tingling and numbness. He denied weakness, falls, bladder, and bowel incontinence. Treatment records dated in April 2012 note a complaint of back pain not controlled by current medication. Treatment notes dated in January 2013 note his complaint of chronic low back pain with radiation to the lower left extremity. He denied falls. The examiner noted that the Veteran's back pain was "partially controlled with current medication." During a June 2019 spinal injury consultation, the clinician found "slightly worse muscle strength, all else seems in-line with VA exams." In March 2013, the Veteran was afforded a VA back conditions examination. He reported on an off pain that did not become chronic until 2009-2010. The examiner diagnosed mild degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy. The initial ROM testing revealed forward flexion at 70 degrees, with painful motion beginning at 35 degrees; extension at 30 degrees, with painful motion beginning at 5 degrees; right lateral flexion at 30 degrees, with painful motion beginning at 5 degrees; left lateral flexion at 30 degrees, with painful motion beginning at 5 degrees; right lateral rotation at 30 degrees, with painful motion beginning at 30 degrees; and left lateral rotation at 30 degrees, with painful motion beginning at 30 degrees. His combined range of motion was 220 degrees. There was no additional limitation in ROM of the thoracolumbar spine following repetitive use testing. A functional and/or functional impairment of the thoracolumbar spine was noted in the form of less movement than normal and pain on movement. The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions. The post-test forward flexion at 70 degrees; extension at 30 degrees; right lateral flexion at 30 degrees; left lateral flexion at 30 degrees; right lateral rotation at 30 degrees; and left lateral rotation at 30 degrees. There was objective evidence of moderate localized tenderness or pain on palpation of the joint along the L4-L5 regions. The examiner reported that the Veteran had guarding and/or muscle spasms, which did not result in abnormal gait or spinal contour. Muscle strength testing was noted as normal, 5/5, bilaterally. The deep tendon reflexes (DTR) were noted as 2+, normal, as was the sensation of light touch. The straight leg raising test was negative bilaterally. There was radicular pain or any other signs or symptoms due to radiculopathy as evidenced by moderate Paresthesias and/or dysesthesia and numbness bilaterally. The radiculopathy involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) nerve roots, bilaterally. The severity of the radiculopathy was deemed moderate. There were no other signs or symptoms of radiculopathy. The examiner specifically found no muscle atrophy, ankylosis of the spine or other neurological abnormalities or IVDS. The Veteran did not use any assistive device as a normal mode of locomotion for his lower back disability. Regarding other pertinent signs or symptoms, the examiner noted that the Veteran had guarded behavior and objective pain throughout the examination but demonstrated good effort when attempting to perform the clinical examinations. Imaging studies of the thoracolumbar spine had been performed, and arthritis was documented. The Veteran did not have a vertebral fracture. The examiner noted that the Veteran's back disorder impacted his ability to work. Although the Veteran reported no problems with the primary scope of work for his current desk job, he was unable to carry or lift anything greater than 15 pounds. In August 2019, the Veteran was afforded a VA Back Conditions examination. He reported daily lower back pain, severe functional loss with repetitive use over time due to pain, weakness, fatigue, incoordination, and lack of endurance. The pain radiated into the buttocks and down the back of legs into the bottom of the feet intermittently throughout the day of variable duration. He also reported having acupuncture and taking Trazodone every night before sleep, Tramadol and Nortriptyline twice a day, Baclofen and Gabapentin three times a day, Meloxicam and Codeine/Acetaminophen every day as needed. The Veteran reported regular flare-ups with variable duration, severe functional loss with flare-ups due to pain, weakness, fatigue, incoordination, and lack of endurance. He reported that it was "[v]ery painful" during flare-ups. The Veteran reported having functional loss or functional impairment of the thoracolumbar spine (regardless of repetitive use), with movement and the "inability to do normal things [that he] used to do." The examiner diagnosed degenerative arthritis of the spine. Additional disabilities included degenerative disc disease of the lumbar spine with radiculopathy. The ROM itself contributed to a functional loss with limited ROM impacting prolonged sitting/standing, lifting, bending. Regarding the forward flexion, it was noted at 50 degrees; extension at 25 degrees; right lateral flexion at 30 degrees; left lateral flexion at 30 degrees; right lateral rotation at 30 degrees; and left lateral rotation at 30 degrees. His combined range of motion was 195 degrees. The ROM itself contributed to a functional loss with bending, lifting, pushing, and pulling. Pain with the forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, left lateral rotation was noted on the examination and caused a functional loss. There was objective evidence of moderate localized tenderness or pain on palpation of the joint, along both sides of the lumbar spine, and bilateral lower back musculature. There was evidence of weight-bearing. The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or ROM after three repetitions. The examination was not being conducted immediately after repetitive use over time. However, the examiner noted that it was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, fatigue, weakness, lack of endurance, and incoordination were noted to cause a functional loss. In terms of ROM, the forward flexion was noted at 30 degrees; extension at 15 degrees; right lateral flexion at 25 degrees; left lateral flexion at 25 degrees; right lateral rotation at 25 degrees; and left lateral rotation at 25 degrees. His combined range of motion was 145 degrees. The examiner noted that the Veteran was not being examined during a flare-up. However, the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain, fatigue, weakness, lack of endurance, and incoordination caused a functional loss. In terms of ROM, the forward flexion was noted at 30 degrees; extension at 15 degrees; right lateral flexion at 25 degrees; left lateral flexion at 25 degrees; right lateral rotation at 25 degrees; and left lateral rotation at 25 degrees. His combined range of motion was 145 degrees. The examiner did not report that the Veteran had muscle spasms. There was, however, guarding resulting in abnormal gait or abnormal spine contour. The examiner explained that there was a slow and antalgic gait and moderate difficulty with the heel, toe, and tandem walking. Regarding additional factors contributing to the disability, the examiner noted disturbance of locomotion and postural activities. "On exam, the Veteran had a moderately slow and antalgic gait; moderate difficulty with heel, toe, and tandem walking; and moderate difficulty with squatting and kneeling." Muscle strength testing was noted as an active movement against some resistance, 4/5, bilaterally. The deep tendon reflexes were noted as 2+, normal, as was the sensation of light touch. The straight leg raising test was negative bilaterally. There was radicular pain or any other signs or symptoms due to radiculopathy, as evidenced by moderate intermittent pain bilaterally. The radiculopathy involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) nerve roots, bilaterally. The severity of the radiculopathy was deemed moderate. There were no other signs or symptoms of radiculopathy. The examiner specifically found no muscle atrophy, ankylosis of the spine or other neurological abnormalities or IVDS. The Veteran regularly used a cane as an assisted device for normal mode of locomotion for his lower back disability. Imaging studies of the thoracolumbar spine had been performed, and arthritis was documented. The examiner noted that the Veteran's back disorder impacted his ability to work. The examiner noted that the Veteran had decreased ROM, a moderately slow and antalgic gait, and moderate difficulty with heel, toe, and tandem walking. "It is thus estimated that the [V]eteran's thoracolumbar spine (back) conditions have an impact on walking, walking steps/stairs, lifting, carrying, pushing, pulling, squatting, and kneeling. It is estimated that there is only mild impact on sedentary activities, i.e., probable need to stand and walk every hour." Regarding the Correia criteria, the examiner noted that there was no objective evidence of pain on non-weight bearing. The passive ROM was not performed or not medically appropriate. In August 2021, in response to the Board's remand, a retrospective opinion was afforded the Veteran. The examiner determined that the Veteran's lumbar spine symptoms before August 19, 2019, were moderately severe absent the ameliorative effects of his medications, and mild to moderate with medication. The examiner explained that based on a review of the Veteran's medical records, he had been prescribed Baclofen, Codeine, Meloxicam, and Gabapentin for his back condition. On examination, the pain was noted with limited range of motion (40 degrees of flexion, 15 degrees extension, 20 degrees lateral flexion), and bilateral lower extremity radicular symptoms (decreased muscle strength and subjective numbness/paresthesia) were noted. Antalgic gait and ambulation with a cane were also noted during the examination. These symptoms impacted his capacity to tolerate duties that involved prolonged standing/walking, bending, and lifting. Without the ameliorative effects of the prescribed medication, which reduced pain and relieved neuropathy symptoms, the Veteran's ROM (flexion <30 degrees and extension/lateral flexion 10 degrees), mobility, endurance, and capacity to perform the aforementioned duties was significantly reduced. With the finding of mild to moderate symptoms with his use of medication, the examiner explained that the MRI of the lumbar spine dated in 2012 showed multilevel degenerative disc changes. Further, a review of the thoracolumbar examination conducted in 2013 noted the ROM was mild in severity compared to recent measurements (70 degrees flexion, extension, lateral flexion, and rotation >30 degrees). Also, the Veteran reported radicular symptoms; however, there were no objective findings for the condition. No assistive devices for gait were used at the time. In terms of disability, the Veteran reported no problems with the primary scope of work for a desk job at the time; he stated that he was not able to lift/carry anything more than 15 pounds. The examination conducted in 2013 recorded ROM as mild in severity compared to recent measurements (70 degrees flexion, extension, lateral flexion, and rotation >30 degrees). The Veteran reported radicular symptoms; however, there were no objective findings for the condition. No assistive devices for gait were used at the time. In terms of disability, the Veteran reported no problems with the primary scope of work for a desk job at the time; he stated that he was not able to lift/carry anything more than 15 pounds. Per the medical records, the Veteran was prescribed a similar medication regimen for pain management. Objective findings for bilateral lower extremity radiculopathy were noted during this exam which denotes a worsening of the Veteran's back condition. Compression of the spinal nerve roots due to degenerative changes may result in decreased DTR, muscle strength, sensation, and radiating pain to lower extremities. Also, in August 2021, the Veteran was afforded a VA Back Conditions examination. He reported sharp pain in the lower back with muscle spasms and numbness/tingling down both legs. He also reported having had Physical Therapy and acupuncture and using a TENS unit, Gabapentin, Tramadol, Meloxicam, Nortriptyline, Baclofen, and Codeine for his back disability. The Veteran reported moderate flare-ups of the thoracolumbar spine, occurring three times per week, lasting several hours. The pains were sharp, lasting several hours, and the precipitating factors included prolonged sitting/standing, lifting, bending. The alleviating factors included rest, pain medication, ice/heat, and the use of a TENS unit. The extent of the functional impairment included flare-ups impacting prolonged sitting/standing, lifting, and bending. The Veteran reported having functional loss or functional impairment of the thoracolumbar spine (regardless of repetitive use), with restriction in standing no more than 15 minutes before his back became painful, and then, he must sit down. The Veteran reported having always carried his cane with him because it was painful to walk around due to his back. The examiner diagnosed degenerative disc disease other than and bilateral lower extremity radiculopathy. The initial ROM testing revealed abnormal or outside of normal range. The ROM itself contributed to a functional loss with limited ROM impacting prolonged sitting/standing, lifting, bending. Regarding the forward flexion, it was noted at 40 degrees; extension at 15 degrees; right lateral flexion at 20 degrees; left lateral flexion at 20 degrees; right lateral rotation at 25 degrees; and left lateral rotation at 25 degrees. His combined range of motion was 145 degrees. Pain with the forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, left lateral rotation was noted on the examination and caused a functional loss. The examiner noted that the passive ROM testing was not performed because it was medically contraindicated (e.g., it may cause the Veteran severe pain or the risk of further injury). It was noted that passive ROM testing was "bypassed to prevent further injury." The examiner noted that there was evidence of pain on an active motion which caused a functional loss. Pain was noted during ROM and impacted prolonged sitting/standing, lifting, and bending. There was no objective evidence of crepitus. The examiner noted objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran had moderate tenderness to palpation in the lumbar spine. The examiner noted that the pain was consistent with lumbar degenerative disc disease. The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions. There was additional loss of function or ROM after three repetitions. The post forward flexion was noted at 35 degrees; extension at 15 degrees; right lateral flexion at 20 degrees; left lateral flexion at 20 degrees; right lateral rotation at 25 degrees; and left lateral rotation at 25 degrees. His combined range of motion was 140 degrees. Pain was noted to have caused a functional loss. The Veteran was not being conducted immediately after repetitive use over time. However, procured evidence suggested pain significantly limited functional ability with repeated use over time. Pain was noted to have caused a functional loss. The ROM immediately after repeated use over time based on information procured from relevant sources, including the lay statements of the Veteran, noted forward flexion was noted at 25 degrees; extension at 10 degrees; right lateral flexion at 15 degrees; left lateral flexion at 15 degrees; right lateral rotation at 20 degrees; and left lateral rotation at 20 degrees. His combined range of motion was 105 degrees. The examiner noted that the Veteran was not being examined during a flare-up. However, procured evidence (statements from the Veteran) suggested that pain significantly limited functional ability with flare-ups. The estimated ROM during a flare-up included: forward flexion at 25 degrees; extension at 10 degrees; right lateral flexion at 15 degrees; left lateral flexion at 15 degrees; right lateral rotation at 20 degrees; and left lateral rotation at 20 degrees. His combined range of motion was 105 degrees. The examiner did not report that the Veteran had muscle spasms and guarding from his lumbar spine disability. However, he had localized tenderness not resulting in abnormal gait or abnormal spinal contour. However, the examiner noted that the Veteran ambulated with a cane consistently due to back pain. No posture changes were noted. Regarding additional factors contributing to the disability, the examiner noted none. Muscle strength testing was noted as an active movement against some resistance, 4/5. The deep tendon reflexes were noted as 2+, normal, as was the sensation of light touch. The straight leg raising test was negative bilaterally. There was radicular pain or any other signs or symptoms due to radiculopathy as evidenced by moderate paresthesias and/or dysesthesias, and numbness, bilaterally. The radiculopathy involved the L2/L3/L4 nerve roots (femoral nerves) and L4/L5/S1/S2/S3 nerve roots (sciatic nerve) nerve roots, bilaterally. The examiner explained that the Veteran had numbness/tingling in the lower extremities and decreased muscle strength which was consistent with radiculopathy. The examiner specifically found no muscle atrophy, ankylosis of the spine or other neurological abnormalities. The Veteran constantly used a cane as an assisted device as a normal mode of locomotion for his lower back disability. Imaging studies of the thoracolumbar spine had not been performed in conjunction with the examination. The examiner noted that the Veteran's back disorder impacted his ability to work. The examiner noted that the Veteran's pain and limited ROM may impact his ability to perform duties that involve prolonged sitting/standing, lifting, and bending. Based on the evidence presented above, the Board finds that an initial 40 percent rating for the Veteran's lumbar spine disability is warranted during the period is period on appeal. The August 2021 examiner specifically found that without the ameliorative effects of his medications, the Veteran's symptoms would have produced ROM with flexion less than 30 degrees and extension/lateral flexion of 10 degrees, and significantly reduced mobility, endurance, and capacity to perform duties. With the grant of 40 percent herein from October 10, 2010, date of claim, the Board finds that based on the above-presented evidence, a rating higher than 40 percent for the Veteran's lumbar spine disability is not warranted at any time during the pendency of this appeal. His lumbar spine disability is not more closely approximated by the next higher 50 percent criteria. There is no probative medical or lay evidence supporting a finding that the Veteran has ankylosis. The March 2013, August 2019, August 2021 specifically found that he did not. Additionally, unfavorable ankylosis is defined by regulation. "Unfavorable ankylosis" is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; the restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to the 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." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran does not have any of these factors. A 50 percent rating, therefore, is not warranted. The Board considers whether a separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under Diagnostic Code 5237 and 5242. 38 C.F.R. §§ 4.71a Note 1. The Board notes that during the appeal periods, no bladder, bowel, or any other neurological abnormalities other than radiculopathy were associated with the Veteran's lumbar spine disability. C. A separate 20 percent rating for radiculopathy, femoral nerve, the right lower extremity is granted. D. A separate 20 percent rating for radiculopathy, femoral nerve, the left lower extremity is granted. The Veteran's radiculopathy has been deemed moderate during the entirety of the appeal period, and he has been rated at 20 percent therefor, for the involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) nerve roots, bilaterally effective October 10, 2010, under Diagnostic Codes 8520. Notwithstanding, the Board finds that beginning August 27, 2021, a 20 percent each for radiculopathy of the left and right femoral nerves of the lower extremities is granted. Under Diagnostic Code 8526, paralysis of the anterior crural nerve (femoral), a 20 percent evaluation is warranted for moderate incomplete paralysis, a 30 percent evaluation is warranted for severe incomplete paralysis, and a 40 percent evaluation if warranted for complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. Regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017). The August 27, 2021 examiner noted that the Veteran's radiculopathy of the bilateral lower extremity not only involved that sciatic nerve but also the femoral nerves. During the said examination, the muscle strength testing was noted as an active movement against some resistance, 4/5, for the bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great extension. The DTRs were noted to be 2+, normal, as was the sensation to light touch. The bilateral straight leg rising tests were negative, but the examiner noted that the Veteran had radicular symptoms as reflected by moderate paresthesias and/or dysesthesias and numbness in the bilateral lower extremity. The radiculopathy involved the L2/L3/L4 nerve roots (femoral nerve) and the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides. Based on the evidence presented, the Board finds that the Veteran's radiculopathy of the bilateral lower extremity (femoral nerves) has been defined as moderate in severity beginning August 27, 2021. The evidence shows complaints of moderate paresthesias and/or dysesthesias and numbness and decreased muscle strength for the bilateral lower extremity. (Continued on the next page) As the evidence shows that the Veteran's radiculopathy (of the femoral nerves) has been deemed moderate by the August 2021 VA examiner, a 20 percent is warranted for bilateral femoral nerve radiculopathy under Diagnostic Code 8526. The information in the August 2021 examination report does not contain information making it factually ascertainable that it began earlier. The Veteran has not provided a lay description of his symptoms outside of what is documented in the medical record. A higher rating is not warranted for neither the lay nor clinical records support a finding of severe for the Veteran's radiculopathy in the lower extremity. A higher than 20 percent rating, for each lower extremity, under Diagnostic Code 8526 is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.