Citation Nr: 21070616 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-27 511 DATE: November 24, 2021 ORDER For the rating period on appeal prior to June 10, 2019, a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Beginning June 10, 2019, a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. FINDINGS OF FACT 1. For the rating period prior to June 10, 2019, the Veteran's service-connected lumbar spine disability manifested in painful limited motion and spasm, with forward flexion to 70 degrees, at worst, but with no evidence of ankylosis of the spine or intervertebral disc syndrome with incapacitating episodes with prescribed bed rest by a physician. 2. Beginning June 10, 2019, the Veteran's service-connected lumbar spine disability manifested in painful limited motion and spasm, with forward flexion to 15 degrees, at worst, and diagnoses of intervertebral disc syndrome with incapacitating episodes that did not require bed rest prescribed by a physician in the previous 12-months, and no evidence of ankylosis. CONCLUSIONS OF LAW 1. For the appeal period prior to June 10, 2019, the criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5242 (2020). 2. Beginning June 10, 2019, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5242 (2019-2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1980 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board is aware of the Court's decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. In this case, the Veteran appeared at a Board hearing before the undersigned in February 2018. To date, the Veteran has not requested another hearing. Procedural History In July 2018, the Board remanded this case to allow the RO to obtain and review outstanding treatment records and to provide the Veteran with a new VA examination to determine the then current severity of his low back disability. In a March 2020 rating decision, the RO, as pertinent here, granted an increased rating of 40 percent from June 10, 2019 for the Veteran's lumbar spine disability, but denied a rating higher than 20 percent prior to that date. See Rating Decision dated March 9, 2020. As this was a partial grant of the benefits sought on appeal for the claim, the case was returned to the Board for further appellate review. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2020, the Board again remanded this case to afford the Veteran a new VA examination to determine the current severity of his lumbar spine disability based on his claim of worsening symptoms during the February 2019 Board hearing. The Veteran was afforded a VA examination in October 2020. In March 2021, the Board again remanded the claims for clarification from the RO regarding VA's characterization of the Veteran's service-connected degenerative disc disease of the lumbar spine, which, until the March 2020 rating decision, included the phrase "with hip pain," and for review of the Veteran's claims for extraschedular consideration by the Director of Compensation Service under the provisions of 38C.F.R. §3.321(b)(1). The RO clarified that the Veteran's service-connected lumbar spine disability was no longer characterized to include hip pain because a March 9, 2020 rating decision granted separate evaluations for bilateral lower extremity radiculopathy, which accounted for hip pain. See Supplemental Statement of the Case dated August 18, 2021 at pg. 2. Additionally, a VA examiner opined that "[t]he subjective and objective findings as noted on exam and from the Veteran indicated the pain into the thigh, buttocks and hip area is more likely a radiculopathy secondary to either lumbar degenerative disc or arthritis." See VA Medical Opinion dated June 4, 2021. Thereafter, the Director of Compensation Service provided an advisory opinion that an extraschedular rating for the Veteran's service-connected degenerative disc disease of the lumbar spine is not warranted. See Advisory Opinion dated August 16, 2021. The Board finds substantial compliance with its March 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Accordingly, the Board proceeds to the merits of the claims in this appeal. Preliminary Matters The Board has recharacterized the issues on appeal as reflected on the title page herein, consistent with medical findings and the RO's present characterization of the claims, as discussed above. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes (DC or DCs), is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial 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, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 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). 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. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made 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. Under the General Rating Formula, 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, 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. See id. A 40 percent rating is available when there is forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent rating is available for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is 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; 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. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 20 percent rating requires 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 requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as 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, DC 5243, Note (1). Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. DC 5242 was changed to clarify that it applied to degenerative arthritis and degenerative disc disease other than IVDS (also, see either DC 5003 or 5010). DC 5243, applicable to IVDS, was changed to clarify that it is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 should be assigned for all other disc diagnoses. The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Rating Analysis The RO assigned a 20 percent rating effective October 20, 1999 under DC 5295-5293 based on muscle spasm on extreme forward bending and loss of lateral spine motion in a standing position. In 2011, the Veteran submitted a claim for an increased rating, and in 2020 the RO granted a 40 percent effective June 10, 2019 based on limitation of forward flexion. See 38 C.F.R. § 4.71a, DC 5242; Rating Decision dated March 9, 2020. The Veteran seeks a higher rating. In February 2010, the Veteran underwent a thoracolumbar spine evaluation conducted by non-VA physician G.S., M.D. The diagnosis was degenerative disc disease of the lumbar spine, chronic lumbar spine strain, and reversed lordosis of the lumbar spine. The Veteran reported numbness, weakness, and a general feeling of illness related to his lumbar spine disability. ROM testing of the lumbar spine revealed flexion to 90 degrees; extension to 25 degrees; lateral flexion to 30 degrees, bilaterally; and lateral rotation to 30 degrees, bilaterally. The combined ROM was 235 degrees. Pain and tenderness were observed on examination. He endorsed flare-ups described as severe pain three to four times a year lasting for days, which he said hindered his workload on the job but did not keep him from performing his job. Less severe flare-ups resulted in limited bending and lifting but the Veteran said he was able to work, although his productivity was markedly hindered during the lesser flare-ups. The examination report does not reflect additional loss of motion during flare-ups. The Veteran was negative for muscle spasm. Diminished rhythm of motion and loss of lordosis of the lumbar spine was noted. Reflex, motor, and sensory testing were normal. The Veteran endorsed an incapacitating episode during the 12 months prior to the evaluation, specifically that he was hospitalized for four days at a VA medical center. The Veteran was negative for ankylosis, scoliosis, and radiculopathy. The Veteran denied bladder and bowel dysfunction and erectile dysfunction. It was noted that imaging studies of the Veteran's lumbar spine were not obtained since it had already been established that arthritis was an established condition. See Thoracolumbar spine evaluation conducted by G.S., M.D dated February 2, 2010. In February 2011, the Veteran underwent a VA spine examination. The diagnosis was moderate to severe degenerative disc disease of the lumbar spine, with degeneration and disc herniation and radiation. The Veteran reported that he continued to experience low back pain, stiffness, and muscle spasm, and his symptoms had worsened with pain occurring weekly lasting one to two days, and he was experiencing pain radiating into his right buttock, groin, and leg. He was taking Tramadol and Sulindac twice a day and Gabapentin three times per day and had received a Toradol injection at a hospital emergency room. He described severe flare-ups that occurred every two to four months, lasting three to seven days, although he denied additional limitation of motion or other functional impairment during flare-ups. Notably, the Veteran reported that he experienced an incapacitating episode lasting 100 days over the 12-month period prior to the examination due to IVDS. However, the examiner did not render a diagnosis of IVDS, and the Veteran's private and VA treatment records do not reflect incapacitating episodes during this period. On examination, the Veteran's gait, posture, and spine symmetry were described as normal. ROM testing of the lumbar spine revealed flexion to 90 degrees; extension to 15 degrees; right lateral flexion to 30 degrees, left lateral flexion to 20 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. The combined ROM was 175 degrees. Pain was objectively indicated in all planes of motion. The examination report does not reflect additional loss of motion during flare-ups. The Veteran was negative for ankylosis, gibbus, kyphosis, lumbar lordosis, reverse lordosis, lumbar flattening, list, and scoliosis. He was negative for muscle spasm, atrophy, guarding, pain, tenderness, and weakness of the thoracolumbar spine. Reflex, sensory, and motor testing were normal. Straight-leg raising test was positive on the right. The VA examiner reviewed February 2011 MRI imagery of the lumbar spine, noting that the MRI indicated evidence of degenerative changes at all lumbar disc spaces except L4-L5 and were most severe at the L5-S1 level where a large eccentric disc herniation was seen. A small central disc herniation was seen at the L4-L5 level. Moderate central stenosis was present at the L2-L3 level, absent disc herniation. The neural foramina were bilaterally narrowed by marginal spurring at the L2-L3 and L5-S1 levels. The Veteran was negative for vertebral fracture. The examiner concluded that the Veteran's lumbar spine disability resulted in increased absenteeism and pain. See VA Spine Examination report dated February 28, 2011. During a VA outpatient appointment in January 2011, the Veteran complained of low back pain. On examination there was tenderness to palpation over the lumbar spine with associated lumbosacral muscle spasm. There was no costovertebral angle tenderness, no acute skin changes or deformities, no edema and no motor or sensory loss in the extremities. The physician appeared to indicate a normal straight leg raising test, bilaterally. The assessment was low back pain and degenerative joint disease. It was recommended that the Veteran avoid bending, stooping, or squatting and lifting over 10 pounds. The Veteran underwent a VA-provided MRI in February 2011, which showed degenerative changes at all lumbar disc spaces except L4-L5, most severe at the L5-S1 level. Moderate central stenosis was present at L2-L3. The neural foramina were bilaterally narrowed by marginal spurring at the L2-L3 and L5-S1 levels. VA treatment notes dated March 2011 reflect that the Veteran complained of low back pain described as a constant dull ache. He reported that prolonged standing makes his back stiff. He was taking the medications Tramadol, Sulindac, and Gabapentin. He denied pain radiating into his legs and bowel and bladder dysfunction. He endorsed flare-ups but there was not any one thing that caused them. On examination, the Veteran's gait was stable. He could walk on his tiptoes and heels without difficulty, and he had no problem with tandem walking. His back showed slight straightening of the lumbar lordosis. He had minimal discomfort with lateral bending, flexion, or extension and very mild discomfort on right lateral bending. Sensory, reflex, and muscle testing was normal. Surgical intervention was not recommended. Private treatment notes dated July 2011 reflect that the Veteran developed low back pain while carrying a 20-pound tool bag. On examination, the Veteran's gait was normal, he was able to walk on his heels and toes, and squat and get up again. Straight-leg raising test was negative in the supine and sitting positions. Sensation and reflex testing appeared normal. There was no evidence of sciatic nerve involvement and the pain seemed localized to the posterior buttocks with radiation through the hip. The Veteran was placed on modified work duties. X-rays of the right hip were obtained, revealing mild narrowing of the superior hip joint. During a private outpatient appointment in August 2011, the Veteran had painful ROM with flexion and rotation to the right. The Veteran's gait was steady and at normal pace but limited by pain. He had normal spinal alignment, he was negative for muscle spasm, and there was no vertebral tenderness. The Veteran was able to move all extremities and there were no obvious sensation deficits. Deep tendon reflexes were normal. The impression was chronic low back pain. In August 2011, VA treatment notes indicated that the Veteran was receiving workman compensation for a back injury. VA treatment notes dated February 2012 show that the Veteran had again injured his back while working and was off work for two months. During a VA outpatient appointment in October 2012, the reported pain radiating from his right buttock into his right leg and foot, made worse by physical activity. He noted that the pain worsened with prolonged standing. In a February 2013 statement in support of his claim, the Veteran said he experienced reduced function due to back pain, fatigue, weakness, and at least weekly muscle spasms, which affect his gait and his ability to walk. He also described being incapacitated by pain at times and unable to get out of bed. VA treatment notes dated April 2013 show that the Veteran reported low back recurrent muscle spasm aggravated by bending over. The Veteran denied new radiculopathy symptoms, neurologic deficits, or incontinence. He also denied numbness, tingling, and burning sensations to the lower extremities; however, he endorsed chronic left lower extremity weakness. On examination, the discomfort was localized and nonreproducible in the left lumbar paraspinal area. There was no spinal tenderness. Motor testing of the lower extremities was normal on the right but reflected some impairment on the left. The assessment was recurrent low back spasm. It was noted that the Veteran's gait was steady, he ambulated unassisted, and his bowel and bladder functions were normal. The Veteran continued to take the medications Tramadol and Sulindac. A May 2013 VA MRI showed chronic degenerative changes of the Veteran's lumbar spine, most affecting the L5-S1 vertebrae where a left sided disc extrusion had caused significant left subarticular zone narrowing and was contacting and likely affecting the descending left S-1 nerve root. During a VA neurosurgery appointment in August 2013, the Veteran described low back pain and spasm, but said he could avoid severe back pain and acute muscle spasm by restricting his movement and avoiding activity that would cause his symptoms to flare-up. He was taking the medications Tramadol, Sulindac, and Methocarbamol, which he said helped. The physician noted that surgical intervention would not help the Veteran. On examination, the Veteran's gait was stable, and he was able to walk on his tip toes and heels without difficulty. In the sitting position, the straight leg raise test was negative to 90 degrees, bilaterally. The Veteran had good muscle strength and knee jerk reflexes were brisk, bilaterally. He denied numbness, tingling or paresthesias in his feet and toes. In May 2015, the Veteran underwent another VA spine examination. The diagnosis was lumbar spine degenerative disc disease with hip pain. The Veteran described low back and right hip pain he described as burning, aching, and tight, with occasional stabbing pain that radiated into his right groin. He endorsed occasional use of a back brace. He said he had had several episodes of spasms, which prevented him from doing most activities of daily living. He said his symptoms are aggravated by prolonged standing, sitting, or bending. He said his pain level averaged 4/10. He managed the pain by taking Tramadol, Mobic, and with steroid injections. He described flare-ups as severe spasms that topped him from doing most ADLs and made it difficult to stand or walk with pain level at 8/10 and lasting two to three days occurring three to four times per month. The Veteran said he had been seeing a chiropractor on a regular basis for several years. On examination, ROM testing of the lumbar spine revealed flexion to 70 degrees; extension to 20 degrees; lateral flexion to 30 degrees, bilaterally; and lateral rotation to 20 degrees, bilaterally. The combined ROM was 170 degrees. Pain was objectively indicated in all planes of motion. There was no additional limitation of motion after three repetitions. The examiner noted functional loss due to pain as less movement than normal and interference with sitting, standing, and/or weight-bearing. The examiner noted that determination of additional loss of motion without speculation was not possible having not observed the Veteran during a flare-up or after repetitive use. The Veteran had localized tenderness of the paraspinal muscles and spinous process. He was positive for guarding, which did not result in abnormal gait or spinal contour. Sensory, reflex, and muscle strength testing were normal, and he was negative for muscle atrophy. Straight-leg raising test was positive on the right. The Veteran was positive for radiculopathy, with the examiner noting mild, intermittent pain of the right lower extremity involving the sciatic nerve. Notably, the examiner determined that the Veteran was negative for IVDS. Imaging studies indicated arthritis of the lumbar spine, but there was no evidence of vertebral fracture. The examiner concluded that the Veteran's lumbar spine disability limited his ability to walk, stand, bend, or lift repetitively, and that he missed work an average of six weeks a year due to his lumbar symptoms. See VA Thoracolumbar Spine Examination report dated May 4, 2015. Correspondence dated July 2015 from the Veteran's private practice chiropractor reflects that the chiropractor had routinely treated the Veteran since approximately September 2011 for spine related issues. He noted that the Veteran reported being progressively unable to participate in activities he once enjoyed because of his back problems. See Correspondence dated July 20, 2015 from S.I., D.C. In his September 2015 appeal to the Board, the Veteran asserted he was incapacitated five out of eight months due to degenerative disc disease of the spine. In a July 2015 statement submitted in support of his claim, the Veteran said VA treatment records show incapacitating episodes of more than six weeks within the 12 months prior to the Board decision. However, review of the private and VA treatment records does not reflect incapacitating episodes arising from the Veteran's lumbar spine disability during this period. A July 2015 statement from the Veteran's spouse described how the Veteran was incapacitated by back spasms triggered by walking short distances, transcending stairs, and standing for short periods of time, such as when he prepared food, shaved, or brushed his teeth, and that the spasms would leave him incapacitated for two to three days at a time, during which he required her assistance with daily activities such as personal hygiene and dressing. She also described how physical activity caused sharp pain in the Veteran's right hip, leg, and groin areas. She said the Veteran's back problems rendered him unable to play softball, bowl, or golf. An April 2016 VA CT scan of the Veteran's abdomen and pelvis showed degenerative changes of the lumbar and lower thoracic spine, marked loss of height of L2-L3 and L5-S1 discs, and mild to moderate loss of height of L1-L2 disc. November 2017 VA treatment notes reflect that the Veteran continued to have low back pain. During the February 2018 Board hearing, the Veteran said he was on prescribed bed rest for three months starting in January 2011 and again for a time in June 2011 after experiencing spasm and severe, sharp, burning, shooting pain in his hip and groin areas. See Board hearing transcript dated February 12, 2018 at pgs. 4, 6-7. The Veteran described flare-ups as burning, shooting pain in his back, and he was unable to get out of bed, was unable to walk. Transcript pg. 8. He said he generally did not experience numbness in his legs but was concerned about more frequent urination and constipation. He noted that because of his back disability, he was no longer able to play softball or go bowling. Id. at pgs. 12-15. A September 2018 VA MRI revealed severe loss of disc height with severe endplate degenerative change at L2-3, moderate loss of disc height and endplate degenerative change at L4-5 and L5-S1, and heavy facet degenerative changes at L4 and L5. The impression was degenerative disc disease and spondyloarthropathy. During a VA outpatient appointment in September 2018, the Veteran reported increasing low back pain he described as a dull burning pain with stabbing and cramping sensations in the bilateral hips, pressure on the coccyx, and radiating pain in the inner legs to his feet, bilaterally, especially after standing up from a prolonged sitting position. He denied numbness, tingling, incontinence of bowel and bladder, and edema. He was taking the medications Tramadol, Methocarbamol, and Meloxicam for pain and spasm. The Veteran said he was not using his back brace due to discomfort. On examination, ROM was described as "intact," there was tenderness over the L5-S1 vertebrae, straight leg test was negative, there was no cyanosis, no clubbing, and no edema. The Veteran's sensory function and gait were intact. The Veteran was fitted for a lumbar corset which was intended to provide symmetry and decrease ROM. December 2018 VA outpatient notes reflect that the Veteran reported worsening low back pain with new symptoms of stiffness in his center low back, intermittent radiation of burning pain into the lower extremities, bilaterally, with standing, walking and turning. He reported bilateral leg fatigue. He denied incontinence. A January 2019 VA MRI indicated multilevel discogenic changes most prominent at the L4-L5 level where there was multifactorial severe central canal narrowing, which was described as a significant change from the prior examination. The Veteran was referred for a neurosurgical/spine surgery consultation. During a February 2019 VA neurosurgery consultation, the Veteran described a dull low back pain that radiated into his lower extremities. He described progressive difficulty walking, being able to walk only a half block before a burning sensation developed in both legs, forcing him to stop and rest. The surgeon concluded that this was likely due to the collapsed disc shown in the January 2019 MRI. The surgeon also noted that overall, the Veteran's neurological function remained very good. On examination, a straight leg raising test was negative. It was noted that surgical decompression would be helpful. The risks and complications of surgery were explained to the Veteran, who then requested that he be considered for the surgery. The diagnoses were degenerative lumbar disc disease, lumbar spondylosis, lumbar spinal stenosis with neurogenic claudication, and back pain. In June 2019, the Veteran underwent another VA spine examination. The examiner noted diagnoses of degenerative disc disease of the lumbar spine and lumbar radiculopathy. The Veteran described moderate back pain as well as numbness and tingling in both legs. He was taking the medications Tramadol, Meloxicam, and Methocarbamol, and Gabapentin. He reported difficulty with bending, prolonged standing, walking, and sitting, and endorsed occasional use of a cane for ambulation. On examination, ROM testing of the lumbar spine revealed flexion to 30 degrees; extension to 10 degrees; lateral flexion to 15 degrees, bilaterally; and lateral rotation to 15 degrees, bilaterally. The combined ROM was 100 degrees. Pain was objectively indicated in all planes of motion and following repetitive motion, and on non-weight bearing testing. There was additional limitation of flexion, to 25 degrees, after three repetitions. The examiner estimated limitation of ROM with repetitive use as flexion to 20 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and lateral rotation to 10 degrees, bilaterally. Pain and lack of endurance contributed to functional limitation with repeated use. Limitation of ROM due to flare-ups was estimated as flexion to 15 degrees; extension to 5 degrees; lateral flexion to 5 degrees, bilaterally; and lateral rotation to 5 degrees, bilaterally. The VA examiner did not indicate if the Veteran had muscle spasms or guarding. The Veteran was negative for muscle atrophy. Muscle strength, including hip flexion, bilaterally, and reflex testing were normal. Sensory examination revealed decreased sensation at the upper anterior thigh, thigh/knee, and lower leg/ankle, bilaterally; sensory testing of the foot/toes was normal, bilaterally. The straight leg raising test was positive, bilaterally. The Veteran was positive for radiculopathy, with the examiner noting moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the lower extremities, bilaterally, involving the right and left sciatic nerves. The Veteran was negative for ankylosis and IVDS as well as incapacitating episodes requiring bed rest over the prior 12 months. Imaging studies reflected arthritis of the lumbar spine. The examiner noted that the Veteran's lumbar spine disability impacted his ability to work due to difficulty with back pain, prolonged standing and walking. See VA Thoracolumbar Spine Examination report dated June 10, 2019. In October 2020, the Veteran underwent another VA spine examination. The diagnosis was lumbar spine degenerative disc disease /IVDS and lumbar degenerative arthritis. The Veteran described ongoing chronic back pain and stiffness with intermittent spasms as well as radicular flare-ups with any prolonged sitting, prolonged walking, and jarring electrical sensation in his leg when stepping off a curb. The Veteran said he was unable to bend or lift. The Veteran endorsed occasional use of a cane for ambulation as well as a back brace, but he had difficulty wearing the brace because it caused spasms and increased pain. He was managing pain by taking the medications Gabapentin, Robaxin, Mobic, and Tramadol. He denied loss of bowel or bladder control. The Veteran noted that he stopped working in February 2020. On examination, ROM testing of the lumbar spine revealed flexion to 35 degrees; extension to 15 degrees; right lateral flexion to 15 degrees, left lateral flexion to 10 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 10 degrees. The combined ROM was 100 degrees. Pain was objectively indicated in all planes of motion and following repetitive motion. ROM after three repetitions revealed flexion to 30 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and lateral rotation to 10 degrees, bilaterally. The combined ROM was 80 degrees. The examiner ROM with repeated use or flare-ups is flexion to 20 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and lateral rotation to 10 degrees, bilaterally. The combined ROM was therefore estimated to be 70 degrees. There was evidence of pain with weight-bearing. The examiner noted that passive ROM testing not done to avoid risk of injury to Veteran's spine. There was objective evidence of moderate pain with compression along paraspinal lumbar muscles as well as with compression along L3/L4/L5 spinous process and along bilateral sciatic nerve notch. There was no abnormal contour, erythema or edema noted. There was very mild slight guarding that does not result in an abnormal gait. Reflex and muscle strength testing were normal and there was no muscle atrophy. Sensory testing was normal except for decreased sensation at the foot/toes, bilaterally. Straight-leg raising test was normal, bilaterally. The Veteran was positive for radiculopathy, with the examiner noting moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the lower extremities, bilaterally, involving the right and left sciatic nerves. The Veteran was negative for ankylosis. Incapacitating episodes of IVDS were noted but did not require bed rest prescribed by a physician in the previous 12-months. Imaging studies reflected arthritis of the lumbar spine. The Veteran was negative for vertebral fracture. The examiner noted that January 2019 spine imagery revealed severe spinal stenosis at the L4-L5 space in the lumbar region, which was open before, but in the interim the disc collapsed. See VA Thoracolumbar Spine Examination report dated October 2, 2020. In March 2021, when contacted regarding an upcoming appointment, the Veteran reported that he was "working in Georgia." In June 2021, a VA physician contacted the Veteran, who denied any new health concerns. The Veteran endorsed chronic low back and hip pain, and he was advised to continue taking prescribed Meloxicam and Tramadol for pain. See VA Ambulatory Care Telephonic Contact dated June 2, 2021. During the June 2021 VA hip examination, the Veteran described pain and pressure radiating from his low back into his buttocks, anterior pelvis/hips, and both legs. As it was a hip examination, a spine evaluation, including ROM testing, was not conducted at that time. The June 2021 VA opinion regarding the likely etiology of the Veteran's hip pain reflects the VA examiner's conclusion that "[t]he subjective and objective findings as noted on exam[ination] and from the Veteran indicated the pain into the thigh, buttocks and hip area is more likely a radiculopathy secondary to either lumbar degenerative disc or arthritis." See VA Medical Opinion dated June 4, 2021. The Board affords the June 2021 VA opinion significant probative weight. The opinion reflects that the Veteran was examined, and the claims file was reviewed, and it provides supporting clinical data. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Board acknowledges the Veteran's assertion on appeal that the June 2021 opinion is speculative and fails to consider the Veteran's lay statements. See Appellant's Post-Remand Brief dated September 24, 2021 at pg. 3. However, the examiner recorded the Veteran's subjective remarks describing his symptoms in the associated June 2021 VA hip examination report and specifically referred to these remarks in the opinion. Additionally, the examiner's opinion that pain radiating from the Veteran's low back into his hip, buttocks, and thighs is more likely radiculopathy secondary to either lumbar degenerative disc or arthritis," is consistent with the standard of proof for VA claims, i.e., whether a claimed condition is at least as likely as not proximately due to or the result of a service-connected disorder, see 38 C.F.R. §§ 3.102, 3.310, as well as findings reflected in the June 2019 VA thoracolumbar spine examination. Upon review of the lay and medical evidence of record, the Board finds that a disability rating higher than 20 percent for the period prior to June 10, 2019 is not warranted under the General Rating Formula. The Veteran's lumbar spine disability prior to June 10, 2019 has not been shown to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, which is required by the criteria for the next higher rating of 40 percent. As discussed above, the record reflects an absence of ankylosis of the spine for the entire period on appeal. Although the record reflects that the Veteran's lumbar spine disability impacted his employment due to pain, limited motion, spasm, and carrying restrictions, muscle strength was normal, there was no evidence of muscle atrophy, and the Veteran was generally negative for guarding. When guarding was observed, it did not result in an abnormal gait or spinal contour. Moreover, the record for this period does not reflect a diagnosis of IVDS or evidence of bed rest prescribed by a physician due to incapacitating episodes, which is required for a higher rating under DC 5243. Thus, the Board finds that the 20 percent evaluation contemplates functional impairment due to pain and restricted range of motion, as well as some interference with employment prior to June 10, 2019. See DeLuca, supra. Accordingly, a rating higher than 20 percent under the General Rating Formula for the period prior to June 10, 2019 must be denied. For the period from June 10, 2019, the 40 percent rating current assigned represents the maximum rating for limitation of motion, absent ankylosis, under the General Rating Formula. There is no evidence of any ankylosis at any time during the claim period. Moreover, the Veteran endorsed flare-ups, but there is no evidence or argument that flare-ups were so severe that they resulted in symptoms more nearly approximating ankylosis. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021) (when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, ie., functional loss consistent with that contemplated by ankylosis). Therefore, a rating greater than 40 percent is not warranted. Although the Veteran has been variably diagnosed with IVDS during this period, the record does not reflect bed rest prescribed by a physician due to incapacitating episodes, which is required for a higher rating under DC 5243. The Board recognizes that the Veteran is competent to describe symptoms that are known to him. See Layno, supra. However, neither bed rest prescribed by a physician nor the claimed periods of incapacitation are shown in, or referenced by, private or VA treatment records dating from a year prior to commencement of the period on appeal in January 2011. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2) (increase in disability rating may be effective as of the date the increase is "factually ascertainable" up to one year prior to the claim). The Board assigns more probative value to the Veteran's medical records made for treatment purposes than to subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). While there is evidence of disc herniation, which satisfies the threshold requirement for application of DC 5243 under the 2021 amended rating criteria, the record does not demonstrate that bed rest was prescribed by a physician due to incapacitating episodes. Therefore, on this record the Board finds that there is no basis for a higher rating under DC 5243 at any time during the rating period. Accordingly, there is no basis to support the assignment of a rating higher than 20 percent for the Veteran's lumbar spine disability for the rating period prior to June 10, 2019, or a rating higher than 40 percent thereafter. As a preponderance of the evidence is against the assignment of higher ratings in this regard, the benefit-of-the-doubt rule does not apply, and the claim must be denied. In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Here, although the treatment records and examinations reflect subjective complaints of radicular symptoms of the bilateral lower extremities throughout the rating periods, there is no objective evidence of radiculopathy prior the June 10, 2019 VA examination. Additionally, prior to June 2019, straight leg raise testing, which is performed to detect neurologic impairment, was consistently negative and there was no formal diagnosis of radiculopathies or lay reports of such prior June 2019. A rating in excess of 20 percent is not warranted for the bilateral lower extremity radiculopathies (sciatic nerves), as there is no evidence that the radiculopathies result in moderately severe incomplete paralysis as contemplated by the 40 percent rating criteria. Although sensory examination revealed decreased sensation at the upper anterior thigh, thigh/knee, and lower leg/ankle, bilaterally; sensory testing of the Veteran's feet and toes was normal, bilaterally. Additionally, the Veteran has been negative bilaterally for guarding, muscle spasms, and muscle atrophy, and muscle strength and reflex testing were normal, bilaterally, throughout the rating periods. Notably, the June 2019 VA examiner noted moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the lower extremities, bilaterally, involving the right and left sciatic nerves. Thus, the Veteran's wholly sensory symptoms, and objective testing of record, more nearly approximate moderate, but no worse, incomplete paralysis of the sciatic nerve roots. There is no evidence of muscle atrophy or complete paralysis of the nerve resulting in foot drop with no active movement below the knee. See 38 C.F.R. § 4.124a, DC 8520. The Board further notes that the RO granted entitlement to a total disability rating based on individual unemployability (TDIU), effective February 29, 2020, the day after the date the Veteran claimed he became too disabled to work due to service-connected disabilities. See Rating Decision dated July 28, 2020; Application for Increased Compensation Based on Unemployability received March 6, 2020. The evidence during the appeal period prior to February 2020 does not raise the issue of unemployability. (Continued on the next page) Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.