Citation Nr: 21072783 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-33 288 DATE: December 6, 2021 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for asthma is denied. Entitlement to an initial rating of 20 percent, but no higher, for a lumbar strain with degenerative disc disease (lumbar spine disability) prior to October 30, 2019 is granted. Entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to April 19, 2021 is denied. Entitlement to a rating of 40 percent, but no higher, for a lumbar spine disability from April 19, 2021 is granted. REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for hypertensive cardiovascular disease is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and major depressive disorder, is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran's left foot disorder first manifested years after service and is not etiologically related to a disease or injury in service. 2. The Veteran's asthma clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. 3. Prior to October 30, 2019, when considering pain, flare-ups, and corresponding functional impairment, the Veteran's lumbar spine disability has more nearly approximated forward flexion to 40 degrees. 4. The Veteran's lumbar spine disability has not been manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) prior to April 19, 2021. 5. From April 19, 2021, when considering functional limitations during flare-ups, the Veteran's lumbar spine disability has more nearly approximated forward flexion to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left foot disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to a 20 percent rating, but no higher, for a lumbar disability are met prior to October 30, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242. 4. The criteria for entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to April 19, 2021 are not met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5242. 5. From April 19, 2021, the criteria for a 40 percent rating, but no higher, for thoracolumbar spine DJD are met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.1 , 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to October 1984. He also had subsequent service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of September 2016 and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In November 2018 the Board granted entitlement to service connection for tinnitus; denied entitlement to service connection for a bilateral hearing loss disability, left ankle disability, right hip disability, left hip disability, right knee disability, left knee disability, hepatitis C, an initial rating in excess of 10 percent for right ankle collateral ligament sprain; and remanded the above titled claims, which are now back at the Board. In September 2021, the Veteran waived his right to have the agency of original jurisdiction (AOJ) review additional evidence obtained after the issuance of the most recent supplemental statement of the case. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a left foot disability is denied. The Veteran filed a claim for his right and left foot conditions, although, interestingly enough, he also stated that he did not have right and left foot conditions or right and left foot pain. See March 2016 VA Form 21-526EZ; August 2016 VA examination; October 2016 VA Form 21-526b; March 2017 Notice of Disagreement (NOD). Here, the Veteran has a current left foot diagnoses of plantar fasciitis, spur formation at ankle (calcaneal) areas, and degenerative arthritis. See October 2019 VA examination. Thus, element one of service connection is met. For the second element, there is a 1982 service treatment record (STR) notation in the records that the Veteran twisted his right foot and there was a notation that he sprained his right ankle. The Board notes that the Veteran is already service connected for a right ankle sprain. There is also an April 1983 STR notation of foot complaints for two weeks due to tinea pedis, a skin condition, where he was given cream. Resolving all reasonable doubt in favor of the Veteran, the Board finds that he sustained an in-service injury/disease to his left foot. For the third element, nexus, the only competent opinions are against the claim. Initially, the Board notes that the Veteran's doctor submitted a letter in November 2015 noting a diagnosis of left heel spur formation and opining that it was related to service. However, the letter from Dr. C.Q. is inadequate as he did not provide any rationale in support of his opinion and therefore, it is not given any probative value. The Veteran presented for a VA examination in August 2016. The examiner opined that the Veteran did not have a current diagnosis for his left foot. The examiner commented that the Veteran denied having injured his left foot and denied current foot pain or a foot condition, emphasizing he had ankle complaints. The examiner noted that the left foot evaluations were unremarkable, no foot condition was found, nor pathology, and thus the examiner did not render an opinion. The Veteran presented for another VA examination in October 2019. The examiner diagnosed the Veteran with plantar fasciitis, spur formation at calcaneal areas, and degenerative arthritis. The examiner noted that the Veteran stated that he had been suffering from foot pain since 2018 and that he was previously evaluated in 2016 (presumably referring to the August 2016 VA examination) and was not suffering from any foot pain and that the only reason why he was being evaluated now is because he is having foot pain from the above-diagnosed conditions. The examiner opined that there is no evidence of record of plantar fasciitis, degenerative joint disease, or calcaneal spur formations during service or within a year after service, noting that the conditions began years after service. And finally, the examiner noted his agreeance with the October 2016 VA examiner. An October 2020 VA addendum opinion was submitted by a third examiner to ensure compliance with the Board remand directives. The examiner opined that the Veteran's posterior and plantar calcaneal spurs less likely than not had their onset during service or were otherwise related to service, including in-service foot symptomatology and that the medical evidence supports the fact that the Veteran's foot condition is considered part of the normal aging process. For support, the examiner relied on the previous VA examinations noting the VA examination in 2016 was unremarkable; the Veteran himself denied any complaint of foot pain in the left foot; and medical treatment records are silent for the conditions claimed during service and at least 10 years after the Veteran's discharge from service. The Board affords the August 2016, October 2019, and October 2020 medical opinions, when considered together, high probative value, as they are based on the Veteran's relevant history and statements during the examination and are supported by a robust rationale. Additionally, there is no evidence that the Veteran's foot conditions, including arthritis, manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease, nor is the Veteran asserting the same. Instead, as noted above, the first evidence of arthritis is approximately, affording the benefit of the doubt, a decade after service. Nor is there any competent evidence of an in-service manifestation of arthritis to allow for service connection based on continuity of symptomatology. See Walker, supra. Accordingly, the claim for service connection for the left foot is denied. 2. Entitlement to service connection for asthma is denied. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time, or where clear and unmistakable evidence or medical judgment establishes that an injury or disease preexisted service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The record does not contain evidence of asthma being noted upon entry; accordingly, the Veteran is presumed sound in this regard. Under the current law, if the presumption of soundness attaches, the burden then falls on the government to rebut the presumption by clear and unmistakable evidence that a disability was both pre-existing and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. With regards to whether the disability clearly and unmistakably existed prior to service, in an April 1986 U.S. Army Reserves Report of Medical History, the Veteran admitted that he had asthma as a child. It was noted in the April 1986 U.S. Army Reserves Medical Examination that the Veteran had asthma as a child. Finally, the Veteran acknowledged in his July 2016 VA examination that he had asthma prior to service. With regards to whether or not the Veteran's pre-existing disability was aggravated by service, the Veteran indicates that he had asthma during service, which he is competent to report symptoms. See July 2016 VA examination. However, the Board notes that the STRs are silent for any complaints, symptoms, or diagnoses of asthma during his service. Initially, the Board notes that the Veteran's doctor submitted a letter in November 2015 noting a diagnosis of bronchial asthma and opining that it was related to service. However, the letter from Dr. C.Q. is inadequate as he did not provide any rationale in support of his opinion or discuss his pre-existing disability or aggravation during service, and therefore, it is not given any probative value. The Veteran presented for a VA examination in July 2016. He was diagnosed as having asthma with its diagnosis given during childhood. During the examination, the Veteran reported that he had onset of asthma during childhood with frequent exacerbations between ages 8-12, which then stabilized and has continued with intermittent exacerbations the rest of his life; denied a history of frequent exacerbations, visits to sick call, or hospital admissions related to asthma during active service; and stated that his asthma has remained with about the same characteristics during the course of his life. The examiner opined that it is less likely than not that the Veteran's asthma is related to service. The examiner reasoned that the STRs show evidence of asthma's pre-existence to service, which was confirmed during the examination, and that they did not show any evidence of diagnosis or treatments for asthma exacerbations during active military service or within a year after separation from service. The examiner also opined that the Veteran's asthma was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that the STRs do not show any evidence to support aggravation of asthma beyond its natural progression. The STR's do not show evidence of signs, symptoms, frequent exacerbations, or hospital admissions during active military service or within a year of separation from service. The examiner also relied on the Veteran's own statements that his asthma condition remained with the same characteristics before and after service, without significant exacerbations or changes during active period of service for support, noting he is a smoker since age 12. However, the Board found this examination inadequate as it did not address the 1981 report of medical examination at active-duty enlistment (which did not indicate that he had asthma, and that it pre-existed active service) noting that it must be shown by clear and unmistakable evidence that the Veteran's asthma both pre-existed service and was not aggravated by his active service. 38 U.S.C. § 1153; 38C.F.R.§3.306; also see Wagner, 370 F. 3d at 1096. In October 2020 an addendum opinion was submitted by, notably, the previous examiner from July 2016. The examiner opined that the Veteran's asthma clearly and unmistakably pre-existed his entry into active service. She reasoned that during enlistment, the Veteran did not report a prior history of asthma; however, the first documentation regarding asthma on the records was dated April 1986, in which the Veteran reported a history of asthma during his U.S. Army Reserves Report of Medical History. Additionally, she reasoned that during the July 2016 VA examination the Veteran confirmed the same information reported on the 1986 document, that he had asthma during childhood. Based on the evidence and the Veteran's own statements, she opined that his asthma clearly and unmistakably preexisted his entrance to active service. She also opined that his asthma clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression as a result of service, nor by an in-service event, injury, or illness. For support, she relied on the available STRs and medical records showing no evidence of recurrent signs or symptoms, frequent exacerbations, asthma attacks, sick call visits or hospital admissions to support aggravation of asthma beyond its natural progression during active duty period or within a year after separation from active duty, for support. She also relied on the Veteran's statements that his asthma condition remained with the same characteristics before and after service, without significant exacerbations or changes during active period of service. Although the Board initially found the July 2016 VA examination inadequate, when taken together, particularly as the latter examination, it serves to clarify the former opinion, and was conducted by the same examiner. The Board affords both the July 2016 and October 2020 medical opinions, when considered together, of high probative value, as they are based on the Veteran's relevant history and statements during the examination and are supported by a robust rationale. The Board finds that the Veteran's asthma clearly and unmistakably existed prior to service and that it clearly and unmistakably was not aggravated by service. Consequently, the presumption of soundness has been rebutted. In the absence of the presumption of soundness, the Veteran can only bring a service connection claim based on aggravation of his pre-existing disability. The only competent medical evidence that addresses the issue of aggravation is against the claim. The examiner found that there is no post-service aggravation of the Veteran's pre-existing disability and indicated that it is may be due to being a long-term tobacco use. To the extent the Veteran believes that his asthma was aggravated by an in-service injury or disease he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the VA examiner. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for asthma must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the rating claim was filed until a final decision is made. Separate ratings can be assigned for separate periods of time based on the facts found. This is a practice known as "staged" ratings. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25. However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes). 38 C.F.R. § 4.14. When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Musculoskeletal System A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the 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-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Veteran asserts that he is entitled to increased ratings, for his service-connected lumbar spine disability. The Veteran is currently rated at 10 percent disabling from March 4, 2016 and 20 percent disabling from October 30, 2019. The period on appeal is from March 4, 2016, the effective date of service connection, as this is an initial increased rating claim. The Veteran's back disability is evaluated pursuant to DC 5242, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. Pursuant to this formula, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness that does not result in abnormal gait or abnormal spinal contour; or, vertebral body fracture is present with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). Unfavorable ankylosis is defined by VA regulation as a condition in which the 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 on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id. at Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. Of note, the rating criteria pertaining to DC 5242 was revised effective February 7, 2021. However, as this DC does not materially change the outcome of the decision, the February 7, 2021 effective revisions do not require further discussion. As a preliminary matter, the Board notes that the Veteran presented for VA examinations in July 2016, October 2019, and April 2021. However, the most recent VA examinations from October 2019 and April 2021 are the only examinations that are compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, only the October 2019 and April 2021 VA examination reports will be utilized for evaluation of the Veteran's lumbar spine disability based on range of motion, as they are the only adequate examinations of record. In this regard, the Board emphasizes that the prior non-compliant VA examinations show range of motion findings the same or less favorable than those in the October 2019 and April 2021. The Board notes that the private examinations are inadequate for rating purposes as the ranges of motion are either incomplete or not present at all, but none warrant a higher rating than the VA examinations for those specific periods on appeal. Thus, there is no prejudice to the Veteran in not considering these examinations to rate his disability based on limitation of motion and DeLuca factors 3. Entitlement to an initial rating of 20 percent, but no higher, for a lumbar strain with degenerative disc disease (lumbar spine disability) prior to October 30, 2019 granted. 4. Entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to April 19, 2021 denied. During the July 2016 VA examination, the Veteran reported daily back pain which fluctuates in intensity depending on the amount of activity he does in any given day; back pain is aching and radiating down to his lower left extremity to the posterior thigh; and that his back pain is mostly aching, but also stiffness and makes movement more difficult for him. He reported flare-ups with increased back pain during certain times of the day, mostly in the morning and functional loss in that he has decreased endurance to standing and walking. The range of motion for forward flexion was to 75 degrees. He did not have intervertebral disc syndrome (IVDS) or ankylosis. The Veteran presented for a VA examination in October 2019. The Veteran was diagnosed with lumbar strain, lumbar degenerative disc disease, and left radiculopathy. The examiner noted radiation pain toward the left leg and foot. Flare-ups were noted as occurring weekly, lasting hours with pain rated 9/10. Functional loss was noted as loss of ambulation and carrying capacity. The range of motion for forward flexion was to 40 degrees, but with flare-ups considered it was estimated to 35 degrees. There was pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least 3 repetitions. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the paravertebral. There was guarding or muscle spasm of the back, but it did not result in abnormal gait or abnormal spinal contour. There was no ankylosis noted. Radiculopathy was noted as mild in the left lower extremities for paresthesias and/or dysesthesias and numbness. No other neurologic abnormalities were noted. IVDS was noted but did not require a prescription for bed rest. Arthritis was documented by imaging. He notes he had to quit being a paramedic weeks ago due to back pain radiation and left leg. Passive ROM is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active ROM because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive ROM and active ROM provide information about the amount of motion permitted by the associated joint structures (passive ROM) relative to the individual's ability to produce motion at a joint (active ROM). Cynthia Norkin & D. Joyce White, Measurement of Joint Motion: A Guide to Goniometry 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating ROM, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran's lumbar spine is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure of the October 2019 VA examiner to test for limitation of motion on passive ROM and in non-weight-bearing is not prejudicial. The Board will evaluate the Veteran's ROM using the available findings of active ROM, enumerated above. Here, when considering the competent and credible reports of limited lumbar spine motion and pain during flare-ups, coupled with the examiner's assessment of significant limitation in functional ability and decrease in mobility due to pain, the Board finds that a 20 percent rating is warranted for the appeal period prior to October 30, 2019. However, a rating in excess of 20 percent is not warranted prior to April 19, 2021, as there is no noted forward flexion of the thoracolumbar spine at 30 degrees or less, or objective evidence of ankylosis of the thoracolumbar spine. See July 2016 and October 2019 VA examination reports. A disability rating in excess of 20 percent based on incapacitating episodes is also not warranted, as there is no evidence of incapacitating episodes requiring bedrest as prescribed by a physician during the past 12 months at any time during the appeal period. Therefore, a higher rating under DC 5243 is not applicable. 5. Entitlement to a rating of 40 percent, but no higher, for a lumbar spine disability from April 19, 2021 is granted. The Veteran presented for another VA examination in April 2021. He was diagnosed with degenerative disc disease other than IVDS, lumbosacral strain, and facet joint hypertrophy. The Veteran reported low back pain, decreased back pain movements, and paresthesia of the legs and numbness of the legs. The Veteran reported flare-ups in his back; that the pain lasts all day if he does not rest; it feels like an electric current and sometimes like a knife; lifting almost anything precipitates those feelings, as well as sitting and standing for prolonged periods; alleviating factors consist of 20 minutes of bed rest, but for more severe pain more time is needed; and that he has functional loss in that he cannot walk well and has to use objects to help him get up. For forward flexion the range of motion was to 67 degrees. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted in the low back at the L4-S1 level with a moderate level of severity. The Veteran was not examined during a flare-up, but the Veteran's statements suggest that pain causes his functional loss. The estimated range of motion in degrees for forward flexion during a flare-up is 30 degrees. The Veteran had localized tenderness, guarding or muscle spasm of the thoracolumbar spine, but it did not result in an abnormal gait or abnormal spinal contour. Additional factors contributing to his disability were noted as interference with sitting, standing, and less movement than normal. It was noted that his back condition affects his job in that he sometimes arrives late because of flare-ups. There was no ankylosis of the spine or any other neurologic abnormalities. There was no IVDS. The Veteran reported a functional impact in that he has to decrease his work capacity due to the inability carry objects, even of low weight, and the inability to sit or stand for long periods of time; difficulty driving; and delays in his work due to his condition. The Board finds that a 40 percent rating for his lumbar spine disability is warranted from April 19, 2021 as the Veteran has exhibited forward flexion to 30 degrees when pain and functional loss during a flare-up is considered. See DeLuca, 8 Vet. App. at 205-206; see also Mitchell, 25 Vet. App. at 38; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As no ankylosis is demonstrated, a rating in excess of 40 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. Thus, the Board concludes that the Veteran met the criteria for a rating of 20 percent, but no higher, for a lumbar spine disability prior to October 30, 2019, and the criteria for a rating of 40 percent, but no higher, from April 19, 2021. REASONS FOR REMAND 6. Entitlement to service connection for a right foot disability is remanded. A February 2020 VA treatment record notes tenderness upon palpation metatarsals 1 thru 5 for the right foot along with diagnoses of metatarsalgia and bursitis. The Veteran noted that these may be related to his back problems. To date, no VA examiner has opined on these diagnoses. Accordingly, the Board cannot make a fully informed decision on the issue because no VA examiner has opined whether the Veteran's right foot metatarsalgia and bursitis are related to his in-service foot pain. As such, a remand to obtain a medical opinion is required. 7. Entitlement to service connection for hypertensive cardiovascular disease is remanded. The Veteran presented for a VA examination for his hypertension in October 2019. The Board finds that the examination rendered is in adequate as it did not address the in-service elevated blood pressure readings as specifically directed in the Board remand. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). Accordingly, this evidence should be addressed on remand. 8. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, and major depressive disorder, is remanded. The Veteran presented for a VA examination in October 2019. The Board finds the examination inadequate as it is confusing in nature. The examiner initially states in the examination that the Veteran has a diagnosis of unspecified depressive disorder, but in the opinion the examiner states that the Veteran is not depressive. Clarity is needed on remand to address this confusion and to provide a clear diagnosis for any psychiatric disorder. Additionally, the record indicates that there are missing treatment records. Moreover, the Veteran has discussed several stressors, which have not been addressed by a VA examiner. These deficiencies should be addressed on remand. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). 9. Entitlement to a rating in excess of 10 percent for radiculopathy is remanded. The Veteran presented for a VA examination in April 2021. The Veteran was determined to not have radiculopathy in the left leg. However, the RO requested an addendum opinion as the Veteran was previously service connected for radiculopathy of the left leg. As a result, the examiner submitted an addendum opinion noting that the Veteran did indeed have radiculopathy of the left leg. Unfortunately, the examiner did not make an assessment as to the severity level of the left leg radiculopathy, warranting another examination due to the same, on remand. See Barr, supra. Additionally, the record is unclear as to whether the Veteran has a diagnosis of right lower extremity radiculopathy, which should be clarified on remand. See November 2015 Private treatment note; August 2019 VA treatment record; February 2020 Private treatment note; February 2020 VA treatment note. 10. Entitlement to a TDIU, to include on an extraschedular basis is remanded. The Veteran does not presently meet the schedular criteria for entitlement to a TDIU. See 38 C.F.R. § 4.16(a). However, it is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). The Veterans Court has held that the initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66-7 (2019). While the Veterans Court has not defined the threshold of evidence sufficient to "substantiate a reasonable possibility" in this context, the Board observes that in other contexts the Veterans Court has found this to be a "low" threshold. See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (noting that Congress intended a low threshold by requiring a claim to be reopened unless there is no reasonable possibility of substantiating a claim). Here, the Veteran is not employed in a substantially gainful occupation. See, e.g., June 2020 VA Form 21-8940. Moreover, there are doctors' notes from 2019 stating when he can return to work. See June 2019 and August 2019 Notes. Additionally, there is a February 2020 note stating the Veteran cannot work due to his back and radicular issues. See February 2020 Note. The Board finds that, on the present record, this meets the low threshold for an initial extraschedular referral. Accordingly, the issue of entitlement to a TDIU, to include on an extraschedular basis, is remanded for referral to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records, to include psychiatric records from Dr. A.H. 3. Obtain an addendum opinion regarding the Veteran's right foot metatarsalgia and bursitis. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right metatarsalgia and bursitis: (a.) had its onset during service or is otherwise related to service; (b.) is proximately due to the service-connected lumbar spine disability; or (c.) has been aggravated (worsened beyond natural progression) by his service-connected lumbar spine disability. 4. Obtain an addendum opinion from a VA examiner other than the October 2019 VA examiner to determine the nature and relationship to service, if any, of his conceded hypertension. The claims file should be made available to and should be reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. For diagnosed hypertension, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during active service or is otherwise related to the Veteran's service, to include elevated blood pressure readings during service, which should be discussed. Please note that it only need be found that the hypertension manifested during service or that there is continuity of symptomatology since service to establish service connection, not that there be a specific etiology for the disability. 5. Schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder(s) present, to include PTSD, generalized anxiety disorder, and major depressive disorder. The claims file should be made available to and should be reviewed by the examiner. A diagnosis of PTSD should be explicitly ruled in or excluded, and if diagnosed, the stressor(s) upon which such diagnosis is based should be identified. If the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner should discuss the basis for this conclusion. Following a review of the claims file, the examiner should address the following: (a.) Please diagnose all current acquired psychiatric disorder(s), to include PTSD, generalized anxiety disorder, and major depressive disorder. If you do not find that the Veteran has these diagnoses, please reconcile your findings with the November 2015 Medical Diagnoses contained in the private treatment note. (b.) For each disorder diagnosed in part (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to the Veteran's active duty service. In addressing part (b), the examiner should discuss the Veteran's asserted stressors in his July 2016 statement that: (1) he attended funerals and when he saw the grieving families it made him sad; (2) he was told of possible attacks and car bombs that were placed in soldiers' cars, which made him worried, nervous, and afraid; (3) there were protests and their yelling caused him to be afraid that he would be attacked; (4) Marines' cars were bombed in Beirut, Lebanon, and after that he was put on maximum alert the entire time, causing him stress, physical and mental exhaustion, and fear; (5) the Veteran's radio stopped working and as it was cold and night and he lost communication which made him very worried, fearful, anxious, physically exhausted, and feared death; (6) there was a loud siren that went off and it was deafening to his ears and startled and scared him, because he heard a soldier had died in a tank when a turret crushed him; (7) in the field you could hear the blasts from the tanks which caused the ground to shake and the soldiers were thrown about and he could not rest, and that made him fearful because he did not have anywhere else to go; (8) a reservist died when he was crushed by a machine, and this brough back memories of the soldier who died in the tank; (9) when the Veteran was in a convoy he was attacked with stones and mangos and thought he could die, as he laid on the floor of the vehicle hearing people yell "don't fire"; and (10) his Sergent had to be immediately hospitalized, but he did not know the reason why, and when he did not return the Veteran decided to retire from the Reserves due to the stress. 6. Schedule the Veteran for a VA peripheral nerves examination, preferably with a neurologist, to assess the current severity of his left lower extremity radiculopathy and whether the Veteran evidences any current right lower extremity radiculopathy and the severity of his service-connected left lower radiculopathy. The claims file should be reviewed by the examiner. Any necessary tests, specifically including EMG testing if the Veteran consents to such testing, should be conducted, and all clinical findings should be reported in detail. The examiner should also determine whether any of the nerves in the Veteran's right lower extremity are affected by radiculopathy stemming from the Veteran's service-connected back disability. 7. If, after taking the above action, the Veteran still does meet the criteria for a schedular TDIU, refer his entitlement to an extraschedular TDIU claim to the Director of Compensation Service for adjudication under 38 C.F.R. § 4.16(b). The Director's attention is invited to the doctor's note stating the Veteran is unable to work and the note stating the Veteran cannot work due to his back and radicular issues. See June 2019 and August 2019 Notes; February 2020 Note. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.) R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, Associate 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.