Citation Nr: 21072066 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 10-43 152 DATE: December 2, 2021 ORDER Entitlement to a 20 percent rating for degenerative arthritis of the spine, to include cervical spondylosis with disc protrusion C5-6 and C6-7, is granted for the time period prior to November 14, 2014, and a rating in excess of 20 percent disabling for any time during the appeal period is denied. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right ankle is denied. REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine, including degenerative arthritis, is remanded. Entitlement to service connection for radiculopathy, bilateral lower extremities, to include paralysis of the sciatic nerve, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's cervical spine degenerative arthritis and degenerative disc disease manifested as a combined range of motion of less than 170 degrees when considering functional impairment on use and during flares, but has not resulted in forward flexion limited to 15 degrees or less, ankylosis or functional ankylosis. 2. Throughout the period on appeal, the Veteran's right ankle disability has been manifested by pain on motion, limitations on walking, standing lifting and bending and flare-ups, resulting in no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for cervical spine degenerative arthritis and degenerative disc disease have been met for the time period prior to November 14, 2014, but the criteria for a rating in excess of 20 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.45, 4.59, 4.71(a). Diagnostic Code 5242. 2. The criteria for an increased rating in excess of 10 percent for right ankle degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1977. This appeal comes before the Board of Veterans' Appeals (Board) from several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (Agency of Original Jurisdiction (AOJ)). A January 2009 AOJ rating decision granted service connection for degenerative joint disease of the right ankle and assigned an initial 10 percent rating effective July 15, 2004. A September 2009 AOJ rating decision denied service connection claims for degenerative disc disease of the lumbar spine, radiculopathy of the lower extremities and degenerative joint disease of the left ankle. A September 2010 AOJ rating decision implemented a Board's decision which awarded service connection for cervical spine spondylosis and assigned an initial 10 percent rating effective July 15, 2004. The Veteran limited the appeal to the initial rating assigned. Additionally, an August 2013 AOJ rating decision denied service connection claims for avascular necrosis of the right and left wrists. In a January 2016 rating decision, the AOJ denied entitlement to TDIU. In an October 2015 rating decision, the AOJ increased the Veteran's disability rating for his service-connected cervical spine spondylosis with disc protrusion at C5-C6 and C6-C7, from 10 percent disabling to 20 percent effective November 14, 2014. The Board has rephrased this issue to reflect that a staged rating has been assigned. See Fenderson v. West, 12 Vet. App. 119 (1999). In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In conjunction with his Board hearing the Veteran submitted additional evidence with a waiver of AOJ review. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R.§ 20.800. In October 2017, the Board remanded the appeal to the AOJ for further development. In October 2018, the Board remanded the appeal to the AOJ for further development. In November 2020, the Board remanded the appeal to the AOJ for further development. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During the pendency of the Veteran's increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended in November 2020, December 2020, and February 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The change, effective February 7, 2021, added certain diagnostic codes and amended the rating criteria for several diagnostic codes listed under 38 C.F.R. § 4.71a. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). As there is no indication that the above amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. For the entire appeal period, the criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. See 38 C.F.R. § 4.71a. The General Rating Formula provides that with or without symptom such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees, but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. The highest rating, 100 percent rating, is assigned for unfavorable ankylosis of entire spine. Id. Note (2) provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation of the cervical spine are both zero to 80 degrees. The regulations applicable to rating musculoskeletal disabilities require that VA must also consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ('flare-ups') due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees, extension to 45 degrees, left and right lateral flexion are to 45 degrees, and left and right lateral rotation to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Note (2); see also Plate V. For VA compensation purposes, 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 the spinal segment in a neutral position (zero degrees) is indicative of favorable ankylosis, not unfavorable ankylosis. Additionally, the Formula for Rating IVDS, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). It noted that VA had previously defined ankylosis as "bony fixation" in older criteria and, in proposing the current regulatory terms decided to define the terms of favorable and unfavorable in Note (5) of the General Rating Formula. The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Moderate has been defined as tending toward the mean or average amount of dimension. https://www.merriam-webster.com/dictionary/moderate. A 20 percent rating was warranted for marked limitation of motion which is not further defined. Marked has been defined as having a distinctive or emphasized character, and is synonymous with terms such as conspicuous, dramatic, eye-catching, noticeable and pronounced. https://www.merriam-webster.com/dictionary/marked. Normal range of motion for the ankles is 0 to 20 degrees dorsiflexion and 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. The new amendments to the rating schedule for the musculoskeletal system, effective February 7, 2021, include changed to Diagnostic Code 5271 which clarifies that marked limited motion is dorsiflexion less than five degrees or plantar flexion less than 10 degrees and moderate limited motion is dorsiflexion less than 15 degrees or plantar flexion less than 30 degrees. See Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 1. Entitlement to an increased rating for degenerative arthritis of the spine, to include cervical spondylosis with disc protrusion at C5-6 and C6-7. The Veteran asserts that he is entitled to an increased rating for his cervical condition, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. The Veteran has been rated for cervical spondylosis with disc protrusion C5-6 and C6-7 under 38 C.F.R. § 4.71a, DC 5010-5242. Notably, by rating decision dated July 2018, the AOJ granted service connection for left and right upper extremity radiculopathy, and assigned separate 20 percent ratings effective October 23, 2017. The Veteran has not appealed the initial ratings assigned nor the effective date of awards. In pertinent part, private medical records in 2005 included the Veteran's report of neck pain with bilateral shoulder pain. A magnetic resonance imaging (MRI) scan was interpreted as showing right paracentral disc protrusion at C5-C6 and C6-C7 impinging on the anterior cord which suggested neural impingement and might explain a right-sided radiculopathy. He was later diagnosed with cervical radiculopathy, but it was also noted that the Veteran was pain free after a steroid injection. In pertinent part, VA clinic records in 2008 reflect the Veteran's report of sharp neck pain with radiation into his hands at times. Significant findings included cervical flexion to 40 degrees with pain, extension to 45 degrees with pain, left lateral flexion to 45 degrees with pain, right lateral flexion to 40 degrees with pain, left rotation to 70 degrees with pain and right rotation to 75 degrees with pain. There was muscle spasm, but no neurologic complications. There was otherwise a description of "mild" guarded range of motion. A November 2008 VA examination report reflected the Veteran's description of constant, pressure-like pain at the base of his neck of 10/10 severity. He denied radiation of pain, or numbness or tingling to the upper extremities. Examination showed no edema or effusion noted to the cervical spine. There are no muscle spasms noted to the paraspinous muscles around the cervical spine. There was no discoloration or ecchymosis noted around the cervical spine. There was no guarding noted at the cervical spine. The Veteran had normal cervical lordosis. The cervical spine was nontender and there was no pain noted upon palpation. Initial range of motion (ROM) testing revealed forward flexion to 45 degrees, extension was to 45 degrees, right and left lateral flexion was to 45 degrees; and right and left lateral rotation was to 80 degrees. Range of motion itself contributed to functional loss with prolonged standing. The examiner noted that active and passive range of motion were the same and were "pain-free." The Veteran had 5/5 muscle strength of the bilateral upper extremities and to the paraspinous muscles. Sensory testing was intact to light brush strokes of the bilateral upper extremities. Deep tissue reflexes at C5, C6 and C7 were normal. The examiner did not diagnosis ankylosis. X-ray examination was interpreted as showing multi-level degenerative changes. Thereafter, the Veteran's clinic records include his report of neck pain which radiated to his shoulders and arms. An April 2011 electromyography and nerve conduction study (EMG/NCV) included a finding of abnormal cervical nerve root irritation. A February 2013 MRI was interpreted as showing 1) chronic bilateral shoulder subacromial tendinopathy/impingement; 2) degenerative disc and joint changes of the cervical spine; 3) secondary upper back and neck, mechanical and myofascial pain, improving and 4) low clinical suspicion for an acute/ongoing cervical radiculopathy, or neurogenic cervical spinal stenosis, as a source of patient's symptoms. A May 2014 MRI was interpreted as showing multi-level degenerative disc disease with mild central canal stenosis at C4-C5, C5-C6, C6-C7 and C7-T1 with mild foraminal narrowing at several levels. His subsequent records reflect a diagnosis of cervical radiculopathy. Active, passive and resisted ROM and function were normal except for pain. A November 2014 VA examination included the Veteran's description of neck pain with numbness and loss of strength in the arms and hands as well as shooting pain in the shoulder and arms. He described symptoms of neck popping and an inability to turn his neck to look back. Initial ROM testing revealed forward flexion to 35 degrees and extension to 40 degrees. Right and left lateral flexion was to 20 degrees; right lateral rotation was to 20 degrees and left lateral rotation was to 30 degrees. Range of motion itself contributed to functional loss with prolonged standing. Pain was noted on all plains of motion which resulted in functional loss. There was no localized tenderness or pain on palpation. The Veteran was examined immediately after repetitive use. ROM testing revealed forward flexion to 35 degrees and extension to 40 degrees. Right and left lateral flexion was to 20 degrees; right lateral rotation was to 20 degrees and left lateral rotation was to 30 degrees. The examiner found factors of pain, weakness, fatigability and incoordination with an additional 10 degree motion loss in all movements during flares. The Veteran did not have guarding or muscle spasm. There was less movement than normal and painful movement. The Veteran did not have muscle atrophy. There was no bilateral upper extremity radiculopathy. There was no ankylosis of the spine. There was IVDS which did result in an episode of acute signs and symptoms which required treatment by a physician which lasted for one week. There is no evidence of physician-ordered bed rest. The Veteran's gait was normal. In a September 2015 statement, the Veteran reported pain in his shoulders and shoulder blades coming from pinched nerves and/or cervical radiculopathy. At a hearing in June 2017, the Veteran described flares of neck pain which caused him to be become nauseated and lose his balance. He felt that his symptoms of chest pain were attributable to the C7-T1 nerve root. He also had pain which radiated down his neck to his wrists and fingers with episodes of finger locking. It hurt to turn his neck sideways. He recalled being diagnosed with cervical radiculopathy. Private medical records in 2017 noted normal but painful cervical ROM with active, passive and resisted ROM. There was reduced strength in the upper extremities. An October 2017 VA examination report reflected that the Veteran had a diagnosis of cervical spondylosis with disc protrusion at C5-6 and C6-7, IVDS, and bilateral upper extremity radiculopathy. He reported recurrent episodes of neck pain, stiffness, and tenderness. The Veteran did not report flare-ups of the cervical spine. He reported functional loss including pain upon quick movement, limitations in movement, and discomfort. Initial ROM testing revealed forward flexion to 30 degrees and extension to 30 degrees. Right and left lateral flexion was to 35 degrees; right and left lateral rotation was to 60 degrees. Range of motion itself contributed to functional loss with prolonged standing. Pain was noted on all plains of motion which resulted in functional loss. There was evidence of pain with weight-bearing. There was objective evidence of mild localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm. There was less movement than normal. The Veteran did not have muscle atrophy. There was mild bilateral upper extremity radiculopathy. There was no ankylosis of the spine. There was IVDS which did not result in any episodes of acute signs and symptoms which required bed rest or treatment by a physician. His gait was normal. There were no palpable spasms. A November 2019 VA examination report reflected that the Veteran complained of limited neck movements and chronic pain with numbness and tingling which radiated down his right arm. The Veteran did not report flare-ups of the cervical spine. He reported functional loss including pain upon turning his head. Initial ROM testing revealed forward flexion to 30 degrees and extension to 30 degrees. Right and left lateral flexion was to 30 degrees; right lateral rotation was to 60 degrees and left lateral rotation was to 55 degrees. Range of motion itself contributed to functional loss with prolonged standing. Pain was noted on all planes of motion which resulted in functional loss. There was evidence of pain with weight-bearing. There was objective evidence of mild localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time. However, the examiner opined that there would not be a decrease in ROM, but that pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm. There was less movement than normal. The Veteran did not have muscle atrophy. There was mild right upper extremity radiculopathy. There was no ankylosis of the spine. His gait was normal. There were no palpable spasms. A November 2019 MRI was interpreted as showing multi-level degenerative changes, spinal canal stenosis at C4-C5, neural foraminal narrowing from C4 to C7, and straightening of normal cervical lordosis. A February 2021 VA examination report reflected that the Veteran reported chronic neck pain, stiffness, decreased ROM, sleep interference, and radiating pain with numbness and tingling radiating down both arms. The Veteran reported moderate flare-ups of the cervical spine which occurred two to three times per week with a duration of two days. He reported functional loss including pain upon turning his head and limitations in performing routine household activities. Initial ROM testing revealed forward flexion to 30 degrees and extension to 30 degrees. Right and left lateral flexion was to 30 degrees; right and left lateral rotation was to 60 degrees. Range of motion itself contributed to functional loss with prolonged standing. Pain was noted on right and left lateral flexion and extension which resulted in functional loss. There was evidence of pain with weight-bearing, non-weight bearing, active and passive motion, and on rest. There was objective evidence of crepitus, and mild localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with additional loss of function or ROM after three repetitions. The ROM testing after repetitive use revealed forward flexion to 20 degrees, extension to 25 degrees, right and left lateral flexion was to 30 degrees; right and left lateral rotation was to 50 degrees. The examiner opined that there was pain, weakness, fatigability or incoordination would significantly limit functional ability with repetitive use. The Veteran was not examined immediately after repetitive use over time. However, the examiner opined that there would be a decrease in ROM, but that pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time. The examiner obtained ROM estimates from the Veteran after repeated use indicating forward flexion to 20 degrees, extension to 25 degrees, right and left lateral flexion was to 30 degrees; right and left lateral rotation was to 50 degrees. The Veteran had localized pain and guarding which did not result in abnormal gait or spinal contour. However, the Veteran had muscle spasm which resulted in abnormal gait or spinal contour, to include favoring the side of the neck in spasm with slow movements and stiffness. There was less movement than normal, interference with standing and sitting, and disturbance with locomotion. The Veteran did not have muscle atrophy. There was mild right upper extremity radiculopathy. There was no ankylosis of the spine. There was no IVDS. Prior to November 14, 2014, the Veteran's ROM testing for his cervical spine revealed flexion from 35 to 45 degrees. The Veteran's flare-ups in 2014 were described as pain with stiffness and limitation where he reported he could not turn his neck all the way around. He also credibly reported symptoms such as pain, stiffness and tenderness exacerbated by use. During flares and with functional loss, the November 2014 VA examiner estimated an additional 10 degree motion loss in all planes of movement, which would result in 25 degrees of limitation of forward flexion, 30 degrees of extension, left and right lateral rotation to 10 degrees, right lateral rotation to 10 degrees and left lateral rotation to 20 degrees. Thus, when considering functional impairment on use or during flares pursuant to 38 C.F.R. §§ 4.40 and 4.45, the Veteran more nearly approximated a combined cervical ROM of 105 degrees which meets the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. As such, a uniform 20 percent rating is warranted for the entire appeal period. However, the Board finds that a rating in excess of 20 percent for the orthopedic aspects of cervical spine IVDS is not warranted for any time during the appeal period. The Veteran's cervical ROM has always measured greater than 15 degrees of forward flexion, and there has been active movement in all planes of motion. A VA examiner estimated that, during flares or repetitive use, the Veteran's forward flexion would be limited to 20 degrees which still falls short of the criteria for a 30 percent rating. Thus, even when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45, the Veteran did not meet or more nearly approximate limitation of flexion of 15 degrees or less. The Board further observes that the Veteran has described limited motion, stiffness and tenderness. His radiologic findings do not reflect fibrous union, bony fixation, or stiffening of his cervical vertebra due to disease process. Thus, there is no actual ankylosis. Furthermore, the multiple evaluations throughout the appeal period have found active motion in all planes of motion. Even when considering functional impairment during flares and repetitive use, the Veteran did not manifest functional ankylosis of the cervical spine for any time during the appeal period. As noted above, prior to October 23, 2017, the Veteran is not service-connected for any neurologic complications of cervical spine IVDS, and holds a 20 percent rating for the orthopedic manifestations of cervical spine IVDS. As such, a higher rating under the alternate criteria involving the Formula for Rating IVDS would require incapacitating episodes having a total duration of at least 4 weeks during a 12-month period. However, the evidentiary record does not reflect any 12-month period during the appeal period where IVDS episodes required at least 4 weeks of bed rest prescribed by a physician. As such, a higher rating under the Formula for Rating IVDS is not warranted for any time during the appeal period. 2. Entitlement to an initial rating, in excess of 10 percent, for degenerative joint disease of the right ankle. The Veteran asserts that he is entitled to an increased rating for his right ankle condition, specifically because his symptoms are more severe than contemplated by the currently assigned rating. The Board initially observes that a final August 2010 Board decision denied a rating in excess of 10 percent for right ankle disability. Thus, this issue was incorrectly noted as an "initial" rating claim in the prior Board remand. The issue of a rating in excess of 10 percent for right ankle disability was addressed in a March 2017 supplemental statement of the case essentially as part of the TDIU claim filed on January 3, 2014. Thus, at best, the appeal period for this issue begins January 3, 2014. Historically, the Veteran has a documented history of recurrent right ankle sprains with instability, particularly when on uneven terrain, for which he has worn an elastic ankle brace and Hi-Top shoes to help alleviate his symptoms. He has past diagnoses of equinus with chronic lateral ankle instability and degenerative changes involving the intertarsal joints. In March 2009, the Veteran described right ankle symptoms of top of foot pain, cramps, heel burning, and ankle popping which resulted in pain when standing and walking. He indicated that running was impossible. An MRI that same month was interpreted as showing a stress fracture injury to the distal tibia and talus with multiple osteochondral defects and tiny loose bodies. A loculated anterior and posterior joint effusion suggested hindfoot and anterior joint impingement with ligamentous laxity. The osteochondral defects were probably secondary to osteoarthritis and asymmetrical weight-bearing due to ligamentous laxity. It was also noted that the medial talar dome osteochondral defects could be quite painful, and the Veteran might have a neuropathic joint. A September 2014 VA orthopedic consultation included the Veteran's description of right ankle pain of 3/10 severity that worsened with weight-bearing and activity. He denied stiffness and instability. ROM testing was limited to the left lower extremity (LLE). On VA examination in November 2014, the Veteran described Achilles pain upon stepping on uneven surfaces and burning sensation in his heels. Examination demonstrated right plantar flexion to 45 degrees and dorsiflexion to 20 degrees. There was no loss of motion with repetitive testing, but there was functional impairment due to pain. There was full muscle strength absent instability or ankylosis. The examiner described the Veteran as manifesting pain, weakness, fatigability and incoordination with an additional 10 degree motion loss in all ankle movements during flares. A June 2015 VA examination included the Veteran's description of right ankle pain of 4/10 severity with flares of 6/10 severity that occurred 3 times a year and lasted for 1 week. He had difficulty ambulating for long distances, standing for long intervals and climbing stairs. Examination showed dorsiflexion to 30 degrees and plantar flexion to 20 degrees. There was no additional motion loss with repetitive testings, but there would be additional pain during flares. There was no ankylosis or instability. VA clinic records include the Veteran's self-description of poor ankle strength, and he was prescribed ankle strengthening exercises. In a September 2015 statement, the Veteran reported wearing an ankle support to relieve pain and avoid additional injury. At a hearing in June 2017, the Veteran described difficulty even walking especially on uneven surfaces, and he had difficulty ambulating stairs. He could be unable to use his ankle for about 3 days after a twisting injury. In an October 2017 examination, the examiner diagnosed the Veteran with degenerative joint disease of the intertarsal joint of the right ankle. The Veteran complained of daily ankle pain with walking and standing. The Veteran's condition has resulted in interference with standing, disturbance in locomotion, and less movement than normal. The Veteran uses a right ankle brace on a daily basis. He did not endorse flare-ups. His dorsiflexion was 0 to 15 degrees and plantar flexion was 0 to 30 degrees. Objective evidence of crepitus and localized tenderness or pain on palpation was noted to be mild and attributable to the medial and lateral ankle. He was tested after repetitive use, and the examiner indicated that his functional ability was not additionally limited. However, he was not tested after repeated use over time. No ankylosis was indicated. In a November 2019 examination, the examiner diagnosed the Veteran with degenerative joint disease of the intertarsal joint of the right ankle. The Veteran complained of daily ankle pain with walking and standing. The Veteran's condition has resulted in interference with standing, disturbance in locomotion, and less movement than normal. The Veteran uses a right ankle brace on a daily basis. He did not endorse flare-ups. His dorsiflexion was 0 to 15 degrees and plantar flexion was 0 to 35 degrees. Objective evidence of localized tenderness or pain on palpation was noted to be mild and attributable to the medial and lateral ankle. He was tested after repetitive use, and the examiner indicated that his functional ability was not additionally limited. However, he was not tested after repeated use over time. No ankylosis was indicated. In a February 2021 examination, the Veteran described right ankle symptoms of pain, stiffness, swelling on use, foot numbness when driving too long, easy rolling of ankle. He had difficulty walking on uneven ground, and his pain was worse at the end of the day. He endorsed flare-ups, with prolonged standing and use, occurring two to three times per day. The Veteran's condition has resulted in interference with standing, disturbance in locomotion, and less movement than normal. The Veteran used a right ankle brace on a daily basis. His dorsiflexion was 0 to 15 degrees and plantar flexion was 0 to 30 degrees, with pain. Objective evidence of crepitus and localized tenderness or pain on palpation was noted to be mild and attributable to the medial and lateral ankle. The Veteran was tested immediately after repeated use over time, and pain caused a functional loss with dorsiflexion 0 to 15 degrees and plantar flexion 0 to 25 degrees. The examination was also conducted during a flare-up, and the examiner found the Veteran's most reduced ROM in such circumstances was dorsiflexion 0 to 15 degrees and plantar flexion 0 to 25 degrees. No ankylosis was indicated. During the appeal period, the Veteran has manifested ROM in dorsiflexion and plantar flexion as 20 and 45 degrees (2014), 30 and 20 degrees (2015), 15 and 30 degrees (2017), 15 and 35 degrees (2019) and 15 and 30 degrees (2021), which respectively is 100 percent of full ROM (2014), 150 and 44 percent (2015), 75 percent and 67 percent (2017), 75 percent and 78 percent (2019) and 75 percent and 67 percent (2021). Thus, with the exception of the abnormal findings in 2015 of excessive dorsiflexion and plantar flexion of 44 percent of normal which is still near the median range, the Veteran's range of motion findings have been 67 percent of normal or better. This demonstrates no more than moderate limitation of motion (greater than tending toward the mean or average amount of dimension) and, under the new criteria, do not meet the specific degrees of limitations to meet the definition of "marked" motion loss. The Veteran has credibly described right ankle symptoms such as recurrent right ankle sprains with instability, particularly when on uneven terrain, foot pain, stiffness, cramps, heel burning, and ankle popping. The November 2014 VA examination estimated an additional 10 degree of motion loss in plantar flexion and dorsiflexion during flares and/or repetitive use while the 2021 VA examiner found a 5 degree loss of plantar flexion with flares and/or repetitive use. The Veteran described a frequency of symptoms as daily and generally at the end of the day. When considering the frequency, severity and duration of flares as reported by the Veteran, the Board finds that the additional motion loss does not meet, or more nearly approximate, "marked" (noticeable) motion loss under the old criteria or meet the specific definition of marked under the new criteria. Comparing the Veteran's ROM to normal ROM under § 4.71, Plate II, while his ROM is certainly abnormal, he still retains approximately half of his ankle ROM at his most reduced, even in consideration of functional impairment due to pain. A preponderance of the evidence shows that even considering pain, flare-ups, and other functional factors, the Veteran's right ankle symptoms have not been shown to have been so disabling to actually or effectively result in limitation of motion more closely approximating marked limitation of motion. Lastly, although the Veteran has also been diagnosed as having right ankle degenerative joint disease. The Veteran has described limited motion, stiffness and tenderness. However, his radiologic findings do not reflect fibrous union, bony fixation, or stiffening of his right ankle joint by disease process. There is no actual ankylosis. Furthermore, the multiple evaluations throughout the appeal period have found active motion in all planes of motion. Even when considering functional impairment during flares and repetitive use, the Veteran did not manifest functional ankylosis of the right ankle for any time during the appeal period. Overall, the Veteran's right ankle disability has resulted in limitation of ankle motion that is no more than 10 percent disabling under Diagnostic Code 5271 during the entire claim period. Accordingly, an initial rating higher than 10 percent for right ankle disability is not warranted at any time throughout the appeal period. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for degenerative disc disease of the lumbar spine, including degenerative arthritis, is remanded. 2. Entitlement to service connection for radiculopathy, bilateral lower extremities, to include paralysis of the sciatic nerve, is remanded. The Board has sought medical opinion regarding whether the Veteran's lumbar spine disabilty has been caused or aggravated by service-connected disabilities. The Veteran did have some inservice treatment for low back problems and testified to recurrent symptoms since service. However, his current recollections of recurrent/persistent lumbar pain since service is not consistent with his denial of recurrent back pain and neuritis symptoms at separation. The evidentiary record now appears complete for the Board to make its own factual findings regarding the conflict of evidence for continuity of symptomatology. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the "chicken-or-egg" dilemma faced by VA when requesting opinions and making credibility determinations with an undeveloped record, and recognizing that fact-finding is a responsibility that is ultimately committed to the Board and not a medical examiner). Given the low back injury in service, the Board finds that the low threshold for obtaining medical opinion on a direct basis have been met. 3. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for a lumbar disability and a lower extremity nerve disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination for his lumbar spine disability and associated bilateral lower radiculopathy. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the current lumbar spine disability began during active service, or is causally related to injury during service? Provide a rationale to support the opinion(s). In providing the requested opinion, the examiner may consider the Board's factual determination that the Veteran's denial of recurrent back pain and neuritis symptoms at separation is more credible than the current recollections of continuity of symptomatology. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is also requested to provide a rationale as to why or why not the Veteran's service-connected ankle disabilities have caused a medically discernible increased severity of current lumbar spine disability with radiculopathy, even if temporary. The examiner should explain whether or not a gait abnormality due to service-connected disability has caused additional symptomatology of the lumbar spine and/or radiculopathy of the lower extremities. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.