Citation Nr: 21075835 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 11-09 908 DATE: December 21, 2021 ORDER An initial disability rating higher than 20 percent prior to May 11, 2021 and in excess of 40 percent thereafter for thoracolumbar strain with disc bulging ("low back disability") is denied. An initial disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity is granted. An initial disability rating higher than 20 percent, but no higher, for radiculopathy of the left lower extremity is granted. FINDINGS OF FACT 1. Prior to May 11, 2021, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and not manifested by incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 2. From May 11, 2021, the Veteran's low back disability has been manifested by forward flexion of the thoracolumbar spine at 30 degrees or less, without favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 3. Throughout the appeal period, the Veteran's radiculopathy of the right lower extremity has more nearly approximated moderate incomplete paralysis of the sciatic nerve, but not moderately severe impairment. 4. Throughout the appeal period, the Veteran's radiculopathy of the left lower extremity has more nearly approximated moderate incomplete paralysis of the sciatic nerve, but not moderately severe impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent at any time during the appeal period, prior to May 11, 2021, for low back disability, have not been met; the criteria for a disability rating in excess of 40 percent at any time during the appeal period from May 11, 2021 for low back disability, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b), 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8520. 3. The criteria for a disability rating of 20 percent, but no higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b), 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in a February 2018 Travel Board hearing. A transcript of that hearing has been associated with the file. The Board remanded the increased rating claim for low back disability twice, in March 2021 and September 2021, for compliance with the terms of the Joint Motion for Partial Remand (JMPR). The increased rating claims for radiculopathy of the right lower extremity and radiculopathy of left lower extremity were also remanded, in November 2019, March 2021 and September 2021. The Board finds substantial compliance with the remand directives. As such, the matters will be adjudicated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Evidence The Veteran has been treated by VA since at least 2009. Seven separate VA Disability Benefits Questionnaires (DBQ)/examinations have been performed in relation to his claims. The pertinent medical information is summarized below. A March VA 2009 physical therapy consultation illustrates that ROM testing was performed and it showed pain with flexion. The assessment was "LBP consistent with SIJ dysfunction compounded by overweight, tight hip musculature and weak core muscles." VA treatment records dated between February 2009 and February 2020 show complaints of and treatment for low back pain, as well as several diagnoses of chronic back pain. A January 2017 VA record shows that the back pain caused hurt when the Veteran breathed, moved, or engaged in sex with his wife. VA records dated February 2018 show that the Veteran's primary care physician ordered an MRI for his chronic back pain and that he went to the ER because of his back pain. During a November 2019 VA follow up visit he was diagnosed with chronic back pain with sciatica. A February 2010 VA examination revealed lumbosacral strain superimposed on L4-5, L5-S1 disc bulge. The Veteran reported daily low back pain, with significant sciatica on the right side, greater than the left and occurring about once a week or once a month. When he has these flare-ups, the pain is stated to be severe, 10/10, lasting up to three days. He can walk half a mile comfortably. He has not used any assistive devices. He has missed up to six days of work per year because of his back. No incapacitating episodes were reported. He denied bowel or bladder dysfunction. No history of neoplasms was involved. Upon physical examination, the examiner noted the Veteran's lumbar range of motion as follows: forward flexion at 0 to 45 degrees, extension at 0 to 20 degrees, lateral flexion 0 to 20 degrees, left rotation 0 to 20 degrees to both directions. Pain occurs at maximum range of motion testing in each direction. Repetitive range of motion testing increased the pain with decreasing the range of motion further. Range of motion was limited by pain. There was no evidence of fatigue, weakness, or lack of endurance following repetitive range of motion testing. Reflexes are "1+ at patella and Achilles bilaterally." Motor and sensory exam was abnormal in that pinprick sensation is decreased in the L5-S1 distribution only on the right. Gait was normal. He could walk on his heel and toes without difficulty. In the December 2016 VA Disability Benefits Questionnaire (DBQ), the diagnosis of thoracolumbar strain with disc bulging was confirmed. The Veteran reported that his back pain has been progressively getting worse and he feels that he has anterior rib pain that is aggravating. He reported flare-up and functional loss. He also described that the bony cyst feels that it is bigger with increasing pinching pain. Sudden movements or sneezing aggravates it. He described the pain as fire-like pain with a hot rod, occurring several times a month, taking anywhere from one to five days to subside back down to baseline levels. During the flare-ups it was hard for him to walk any distance because he felt like he could not take a deep breath. He had difficulty sleeping as his pain continually woke him up and he must move slowly when doing anything. He endorsed occasional pain in the low back approximately once a month. It flares up and takes two days to subside back down to baseline levels. He was concerned about his back going out and must be very careful with his movements. He was still able to care for his activities of daily living independently but performed them slowly. When his back goes out, he described his low back swelled up. He did not utilize any braces or assistive devices. Upon physical examination, the examiner noted the Veteran's lumbar range of motion as follows: forward flexion at 65 degrees with 90 degrees being normal; extension at 30 degrees with 30 degrees being normal; right lateral flexion at 25 degrees with 30 degrees being normal; left lateral flexion at 30 degrees with 30 degrees being normal; right lateral rotation at 30 degrees with 30 degrees being normal; and left lateral rotation at 30 degrees with 30 degrees being normal. The initial range of motion is abnormal, and contributes to functional loss, described as pain and stiffness with decreased range of motion. Pain was noted on the examination. The ROM that exhibited pain was on extension, left lateral flexion, and right lateral rotation. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. It was described as tender to palpation over the right midthoracic paravertebral muscles along the lower scapula border, and left quadratus lumborum. With repeated performance of range of motion examination, there was no additional limitation in ROM. Pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. The factors that caused this functional loss were stated as pain, fatigue, and incoordination. These were described in terms of ROM. Forward flexion was at 65 degrees with 90 degrees being normal; extension at 25 degrees with 30 degrees being normal; right lateral flexion at 20 degrees with 30 degrees being normal; left lateral flexion at 25 degrees with 30 degrees being normal; right lateral rotation at 30 degrees with 30 degrees being normal; and left lateral rotation at 30 degrees with 30 degrees being normal. There was no guarding and/ or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal, both in flexion and extension. There was no evidence of muscle atrophy, ankylosis of the spine, or IVDS. Radicular pain and other signs or symptoms due to radiculopathy were not indicated. He did not use assistive devices as a normal mode of locomotion. Other pertinent physical findings, complications, conditions, signs, or symptoms related to the back disability were indicated. He had a positive right-sided pelvic rock test. Results of imaging studies showed arthritis. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The February 2016 diagnostic test findings were compared to the August 2012 findings. There was mild lower lumbar spine facet arthrosis at L5-S1, unchanged, and disc spaces were maintained. The impression was described as mild lower lumbar spine facet arthrosis, but otherwise normal lumbosacral spine. The examiner indicated the Veteran's low back disability impacted his ability to work, and found he was not well suited for labor-intensive employment requiring repetitive bending, twisting, lifting, and carrying-type activities. He would be able to perform light, sedentary employment. Under the remarks section, the examiner stated that he could not answer whether there was evidence of pain on passive ROM testing or when the joint is used in non-weight bearing. He explained that the testing could not be performed or is not medically appropriate. In the July 2018 VA examination, the diagnosis of thoracolumbar strain with disc bulging was again confirmed. The Veteran reported flare-ups, describing the functional loss or functional impairment as progressively worsening pain with dull aching pain that he experienced 24 hours a day, 7 days a week, including episodes of sharp stabbing pain. Pain was aggravated with prolonged sitting, repetitive lifting, or stationary standing. He described rib pain that radiated to the front of his chest. His low back pain would also cause lower extremity radicular symptoms bilaterally and lately it had been greater on the right than on the left. During flare-ups he was still independently able to care for his activities of daily living. He would "switch techniques" on how he did things. He found it hard to take care of his feet and his pain impacted his sleep and concentration. He did not utilize any braces or other assistive devices. For the last year and a half, he was a student, pursing a degree in organic farming. Upon physical examination, the examiner noted the Veteran's lumbar range of motion as follows: forward flexion at 55 degrees with 90 degrees being normal; extension at 25 degrees with 30 degrees being normal; right lateral flexion at 25 degrees with 30 degrees being normal; left lateral flexion at 25 degrees with 30 degrees being normal; right lateral rotation at 30 degrees with 30 degrees being normal; and left lateral rotation at 30 degrees with 30 degrees being normal. The initial range of motion was abnormal, and contributed to functional loss, described as pain. The ROM that exhibited pain was forward flexion, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. It was described as thoracolumbar paravertebral muscles, L5 through S1 spinous processes, bilateral quadratus lumborum. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM. Pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. The factors that caused this functional loss were stated as pain, fatigue, and incoordination. These were described in terms of ROM. Forward flexion was at 50 degrees with 90 degrees being normal; extension at 20 degrees with 30 degrees being normal; right lateral flexion at 20 degrees with 30 degrees being normal; left lateral flexion at 20 degrees with 30 degrees being normal; right lateral rotation at 30 degrees with 30 degrees being normal; and left lateral rotation at 30 degrees with 30 degrees being normal. There was no guarding and/ or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal, in flexion and extension. There was no evidence of muscle atrophy, ankylosis of the spine, or IVDS. He did not use assistive devices as a normal mode of locomotion. Radicular pain or any other signs or symptoms due to radiculopathy was noted on both the right and left lower extremities. Constant pain was not indicated. Intermittent pain, paresthesias and or dysesthesias, and numbness were labeled as moderate on both lower extremities. The nerve roots affecting the right and left lower extremities were L4, L5, S1, S2, and S3. The severity of the radiculopathy affecting both the right and left side was labeled as mild. Other pertinent physical findings, complications, conditions, signs, or symptoms related to the low back disability were not indicated. Results of imaging studies revealed arthritis. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner checked off the box indicating that there were other significant diagnostic test findings and or results but did not provide any detail. The Veteran's low back disability impacted his ability to work, described as repetitive bending and lifting. Under the remarks section, the examiner stated that he could not answer whether there was evidence of pain on passive ROM testing or when the joint was used in non-weight bearing. He explained that the testing could not be performed or is not medically appropriate. The examiner concluded that the Veteran's low back disability is mild to moderate in severity. During the May 2021 VA examination, the following diagnoses were listed: 2005 diagnosis of degenerative arthritis, 2005 diagnosis of degenerative disc disease, 2005 diagnosis of lumbosacral strain, and a 2021 diagnosis of Intervertebral Disc Syndrome (IVDS). The Veteran described his current symptoms as constant low back pain, intermittently severe, intermittent weakness of the lower extremities, constant numbness, and reported that sometimes his legs go out, causing him to fall. He reported flare-ups, describing them as occurring twice a month, lasting three to five days, and the severity as moderate. The functional impairment during a flare up was described as being less able to do activities requiring full forward flexion, extension, or lateral bending without further aggravating his back pain. The functional loss or functional impairment was described as being unable to do activities requiring full forward flexion/extension due to limited range of motion, and without significantly aggravating his back pain. He was also unable to remain seated for prolonged periods, stand for prolonged periods, or do repetitive bending without significantly aggravating his back pain. He would be expected to have difficulty with any employment, which could not accommodate for this. Upon physical examination, the examiner noted the Veteran's lumbar range of motion as follows: forward flexion at 30 degrees with 90 degrees being normal; extension at 30 degrees with 30 degrees being normal; right lateral flexion at 30 degrees with 30 degrees being normal; left lateral flexion at 20 degrees with 30 degrees being normal; right lateral rotation at 30 degrees with 30 degrees being normal; and left lateral rotation at 30 degrees with 30 degrees being normal. The ROM that exhibited pain was forward flexion, extension, right lateral flexion, and left lateral flexion. Passive ROM testing was not performed, as the examiner concluded that the mechanics of the back exam were not amenable to passive ROM testing. There was evidence of pain on active motion, that causes functional loss. The examiner opined the Veteran was unable to do activities requiring full forward flexion/extension without significantly aggravating his back pain. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The location was described as lumbosacral spine, and the severity noted as mild. With repeated performance of range of motion examination, there was no additional limitation in ROM. The Veteran was not being examined immediately after repeated use over time or during a flare-up, and the examiner did not provide estimated ROM. There was no guarding and/or muscle spasm of the thoracolumbar spine. The localized tenderness did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal, in flexion and extension. There was no evidence of muscle atrophy or ankylosis of the spine. IVDS was shown, but it did not result in any episodes or acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use assistive devices as a normal mode of locomotion. Radicular pain or any other signs or symptoms due to radiculopathy was noted on both the right and left lower extremities. Constant pain was labeled as mild, and intermittent pain as moderate in both lower extremities. Paresthesias and or dysesthesias was not indicated. Numbness was not indicated on the right lower extremity, and it was noted as moderate in the left lower extremity. The examiner did not describe the nerve roots affecting the right lower extremity. The nerve roots affecting the left lower extremity were stated as L4, L5, S1, S2, and S3. Other pertinent physical findings, complications, conditions, signs, or symptoms related to the low back disability were not indicated. Imaging studies have not been performed in conjunction with this examination. The examiner did note a February 2016 MRI of the lumbar spine and 2005 MRI lumbar spine, showing evidence of thoracic vertebral fracture with loss of 50 percent or more of height, facet arthrosis consistent with degenerative arthritis and degenerative disc disease with resultant disc bulging as well as degenerative arthritis. The examiner concluded that the Veteran's low back disability impacted his ability to perform occupational tasks. The description of the functional loss or functional impairment was the same as noted earlier in the examination report. Under the remarks section, the examiner stated that the Veteran did not have "objective findings of right leg radiculopathy or IVDS at this time, however he is already service connected for right leg radiculopathy (essentially synonymous with IVDS), findings can be intermittent, and this diagnosis was therefore maintained. If this is not allowed despite prior service connection, please remove right leg radiculopathy and IVDS. Nerve complaints assessed in this DBQ. PN DBQ not to be sent." In response to whether the Veteran has IVDS of the lumbar spine at any time during the period on appeal, the examiner stated, "veteran has IVDS." During the September 2021 VA back examination, the following diagnoses were listed: September 2021 diagnosis of degenerative arthritis, September 2021 diagnosis of degenerative disc disease, September 2021 Intervertebral Disc Syndrome (IVDS), September 2021 bilateral lumbar radiculopathy, September 2021 diagnosis of scoliosis, and a September 2021 diagnosis of lumbosacral strain. The Veteran described his current symptoms as tenderness in the muscles that will not relax. Functional impact was described as repetitive bending, kneeling sparks flare ups, difficult to walk, legs go limp, frequent falls, sitting and standing difficult. Flare ups were reported, described as occurring four to five times a month, lasting four to seven days, and severity was severe. Upon physical examination, the examiner noted the Veteran's lumbar range of motion, as follows: forward flexion at 40 degrees with 90 degrees being normal; extension at 20 degrees with 30 degrees being normal; right lateral flexion at 20 degrees with 30 degrees being normal; left lateral flexion at 20 degrees with 30 degrees being normal; right lateral rotation at 30 degrees with 30 degrees being normal; and left lateral rotation at 30 degrees with 30 degrees being normal. The ROM that exhibited pain was forward flexion, extension, right lateral flexion, and left lateral flexion, right lateral rotation, and left lateral rotation. Passive ROM testing was performed, and the ROM was the same as the initial ROM. There was evidence of pain on active and passive motion, causing functional loss. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. It was described as low back area, severity moderate. There was no objective evidence of crepitus. With repeated performance of range of motion examination, there was no additional limitation in ROM. The Veteran was not being examined immediately after repeated use over time or during a flare-up, but the examiner did provide estimated ROM. The estimated ROM for both after repeated use and during a flare-up are the same. The Veteran's lumbar range of motion was as follows: forward flexion at 20 degrees; extension at 10 degrees; right lateral flexion at 10 degrees; left lateral flexion at 10 degrees; right lateral rotation at 15 degrees; and left lateral rotation at 15 degrees. There was no guarding and/ or muscle spasm of the thoracolumbar spine. The localized tenderness did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal, in both flexion and extension. There was no evidence of muscle atrophy or ankylosis of the spine. IVDS was shown, but it did not result in any episodes or acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use assistive devices as a normal mode of locomotion. Radicular pain or any other signs or symptoms due to radiculopathy was noted on both the right and left lower extremities. Constant pain and paresthesias and or dysesthesias were labeled as mild, intermittent pain and numbness were labeled as moderate on both lower extremities. The nerve roots affecting the right and left lower extremities were stated as L4, L5, S1, S2, and S3. Other pertinent physical findings, complications, conditions, signs, or symptoms related to the low back disability were not indicated. Imaging studies were performed in conjunction with this examination. The examiner did note the February 2016 MRI x-ray showing mild lower lumbar spine facet arthrosis, the 2014 x ray showing degenerative disc disease with osteophytes, dextroscoliosis, and the 2010 MRI showing mild degenerative changes and disc bulges in the lumbar spine. The examiner concluded that the Veteran's low back disability impacts his ability to perform occupational tasks. The functional loss or functional impairment was described as repetitive bending kneeling sparks flare ups, difficult to walk, legs go limp, frequent falls, sitting and standing difficult. Under the remarks section, the examiner stated that the VA established diagnosis of thoracolumbar strain with disc bulging is changed and it is a progression of the previous diagnosis. The examiner also stated that the Veteran has degenerative arthritis, DDD, IVDS, lumbar radiculopathy bilateral, scoliosis, and thoracolumbar strain. The functional impairment/disability makes it difficult to do any physical activity due to the limitation of his back and pain. Sedentary activities are also limited in that sitting for prolonged periods of time would also aggravate his back. "There would need to be accommodation for sedentary work, things like frequent breaks, standing desks, etc., radiculopathy is based on exam." The September 2021 VA Peripheral Nerves examination illustrates a diagnosis of bilateral lumbar radiculopathy. The Veteran described his current symptoms as pain in the buttock area, numbness, tingling in the feet. Functional impact was described as repetitive bending, kneeling, sparks flare ups, difficult to walk, leg goes limp, frequent falls, sitting and standing difficult. Symptoms attributable to a peripheral nerve conditions due to radiculopathy was noted on both the right and left lower extremities. Constant pain and paresthesias and or dysesthesias were labeled as mild, intermittent pain and numbness were labeled as moderate in both lower extremities. The nerve root affecting the right and left lower extremities was stated as the sciatic nerve, with mild incomplete paralysis. EMG studies were performed, with the results stated as abnormal, radiculopathy of the right and lower extremities and the date listed as 2007. The examiner concluded that the Veteran's peripheral neuropathy impacts his ability to perform occupational. The functional impact was described repetitive bending and kneeling sparks flare ups, difficulty walking, leg goes limp, frequent falls, and it was difficult for him to sit or stand. In the September 2021 Medical Opinion DBQ the examiner stated the Veteran has the following diagnoses: thoracolumbar strain, degenerative disc disease, degenerative arthritis, IVDS, scoliosis, and bilateral lumbar radiculopathy likely due to S1 nerve root bilaterally. The examiner also concluded that the arthritis is likely degenerative arthritis rather than post-traumatic arthritis. Low back disability Legal Criteria When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of 'the normal working movements of the body such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine, on the basis of limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran's low back disability is rated under Diagnostic Code 5237. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Among other rating criteria, VA's rating schedule includes diagnostic codes related to arthritis of the musculoskeletal system. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5003. During the pendency of the appeal, the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242, and 5243. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria as of February 7, 2021. With respect to the applicable Diagnostic Codes to the Veteran's low back disability, the Diagnostic Codes 5003, 5010, 5243, and 5242 were revised, not materially, and will be discussed below. The substantive criteria under the General Rating Formula for Diseases and Injuries of the Spine were not revised and will be listed immediately below. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. Note (1): to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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 a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Criteria effective prior to the February 7, 2021 revision Diagnostic Codes 5003 and 5010 pertains to arthritis. Under Diagnostic Code 5003, the low disability may be rated under provisions for evaluating arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. Diagnostic Code 5010 refers to arthritis due to trauma, substantiated by x-ray findings. The code directs that traumatic arthritis be rated as degenerative arthritis (Diagnostic Code 5003). Id. Diagnostic Code 5242 refers to degenerative arthritis of the spine and states "see also diagnostic code 5003". Diagnostic Code 5243 refers to Intervertebral disc syndrome (IVDS). IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Criteria effective from February 7, 2021 Diagnostic Code 5003 was revised to make clear that this code only applies to degenerative arthritis and not to post-traumatic arthritis. The 10 percent rating for non-compensable limitation of motion has now been removed. Diagnostic Code 5010 was revised to refer to post-traumatic arthritis and the instruction to rate as degenerative arthritis under 5003 was removed. Traumatic arthritis is now rated as "limitation of motion, dislocation, or other specified instability under the affected joint." Diagnostic Code 5242 added the description of degenerative disc disease and specifically stated that it did not apply to IVDS. In addition to the reference to Diagnostic Code 5003 it now states see Diagnostic Code 5010. Diagnostic Code 5243 was revised to specifically state that this diagnostic code should be assigned only when there is disc herniation with compression and or irritation of the adjacent nerve root and that for all other disc diagnoses Diagnostic Code 5242 should be assigned. Analysis After review of the evidence, the Board finds that the currently assigned ratings of 20 percent prior to May 11, 2021 and 40 percent rating thereafter are warranted. The evidence does not show symptoms consistent with a rating in excess of 20 percent prior to May 11, 2021. Specifically, the examinations and treatment records of evidence do not show forward flexion of the thoracolumbar spine 30 degrees or lesseven considering the Veteran's reports of functional impairment during flare-ups or after repetitive use. There was no muscle spasm or guarding. In addition, there was no indication of favorable ankylosis of the entire thoracolumbar spine. Therefore, a 40 percent disability rating could not be assigned prior to May 11, 2021. Prior to May 11, 2021, the evidence of record shows forward flexion of the thoracolumbar spine, at its most severe, at 45 degrees. Again, a higher rating is not warranted even when considering the evidence of flare-ups, painful motion, and functional loss, as the evidence does not show forward flexion of the thoracolumbar spine at 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The Veteran reported flare-ups and functional loss was noted. The functional loss was due to pain on movement, fatigue, and incoordination. Pain was aggravated with prolonged sitting, repetitive lifting, or stationary standing. He described the pain on movement during flare-ups as severe, fire-like pain with a hot rod and sharp stabbing pain. The pain interferes with his sleep, ability to walk, engage fully in activities of daily living, work, and even has impacted his ability to engage in relations with his wife. The 20 percent disability rating currently assigned accounts for these symptoms, and there is no evidence to indicate favorable ankylosis of the entire thoracolumbar spine. During appeal period the Veteran's flexion at times appeared improved. However, the February 2010 VA examination and the January 2018 VA examination show flexion at 45 degrees and 55 degrees, and accounting for the functional loss, flare-ups and in the light most favorable to the Veteran, the Board finds that a 20 percent disability rating is warranted for the entire period on appeal, prior to May 11, 2021. The Board acknowledges the JMPR wherein the parties agreed the Board did not adequately discuss whether the VA examination reports of record were adequate for rating purposes and that the February 2010, December 2016 and January 2018 VA examination reports appear to be in noncompliance with Correia and Sharp. The Board also acknowledges that these reports may not be in strict compliance with both Correia and Sharp, however when looking at the record as a whole the evidence supports a rating of 20 percent prior to May 11, 2021. Notwithstanding the compliance or lack thereof of the February 2010, December 2016 and January 2018 VA examination reports, the record does not support a rating higher than 20 percent prior to May 11, 2021. There is no treatment record or examination report dated prior to May 11, 2021 that shows forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Although the record illustrates degenerative arthritis a rating higher than 20 percent is not an option under Diagnostic Code 5003 and a separate rating would constitute pyramiding. Additionally, there is no probative evidence of record to indicate IVDS prior to May 11, 2021, so the Veteran would not warrant a higher rating under the criteria for IVDS. In arriving at this conclusion, the Board has carefully considered the Veteran's lay assertions. However, the Board finds that the VA examinations outweigh any contentions by the Veteran that a disability rating higher than 20 percent, prior to May 11, 2021 is warranted. The examiners considered the Veteran's lay reports coupled with the physical examination to determine their conclusion. Notably, although the Veteran reported flare-ups, it is observed that even when pain that causes functional loss was noted during the examinations, he could forward flex to 50 degrees. Thus, it is considered that the rating assigned prior to May 11, 2021 reasonably contemplates any flare-ups as may occur and is consistent with the spirit of Mitchell. Even after repetitive testing, the examinations reports of record did not show reduced ROM and there was no evidence of favorable ankylosis of the entire thoracolumbar spine. In a May 2021 rating decision, the RO assigned a 40 percent rating for the Veteran's low back disability, as the May 2021 VA examination showed forward flexion of the thoracolumbar spine at 30 degrees or less. The most probative evidence of record does not show symptoms to warrant a rating in excess of 40 percent at any time during the appeal period. Specifically, the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine, nor does the Veteran experience symptoms analogous to ankylosis of the entire thoracolumbar spine. After review of the evidence, the Board finds as of May 2021 a 40 percent rating is warranted because the evidence of record shows forward flexion of the thoracolumbar spine at 30 degrees or less. Despite the most recent VA examination showing slight improvement in forward flexion, 40 percent is warranted when considering the evidence of flare-ups, painful motion, and functional loss. The preponderance of the evidence is against a finding supporting a higher rating under applicable diagnostic criteria under the General Rating Formula and Diagnostic Codes 5237 and 5242. The Veteran presented with objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine and flexion at 30 degrees. There was no guarding or muscle spasm. There was no indication of muscle atrophy. At no time during the appeal period did he have unfavorable ankylosis of the entire thoracolumbar spine. Therefore, a 50 percent disability rating could not be assigned even considering his reports of flare-ups. Additionally, despite the record illustrating IVDS, a compensable rating under Diagnostic Code 5243 is not warranted as there is no indication of incapacitating episodes. Of note, the Veteran is separately rated for radiculopathy of the bilateral lower extremities, which is most advantageous to the Veteran as he is in receipt of compensable ratings. Again, a higher disability rating requires unfavorable ankylosis of the entire thoracolumbar spine. In arriving at this conclusion, the Board carefully considered the lay assertions of the Veteran. The Board understands his belief that his symptoms warrant a disability rating in excess of 40 percent. Although he is competent to report symptoms and describe the severity of such, he is not competent to determine whether he is entitled to the next higher evaluation. The Veteran reported flare-ups, describing them as occurring four to five times a month, lasting four to seven days, and the severity as severe. However, the currently assigned rating accounts for these flare-ups and the most recent VA examination showed some improvement in the ROM of flexion. The Board recognizes that the May 2021 VA examiner did not perform passive ROM testing as the examiner concluded that the mechanics of the back exam are not amenable to passive ROM testing. The examiner also did not provide an estimated ROM during flare-ups. Nonetheless, the Board finds that the record as a whole provides information sufficient for rating purposes, and despite the shortcomings of the May 2021 VA examination report, there is nothing to warrant the higher rating of 50 percent as the examiner did not find and the Veteran has not contended unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. Additionally, the Board finds that the September 2021 VA examination report is adequate, and that report illustrates some improvement in the ROM of flexion. In sum, the most probative evidence of record does not support a rating higher than 40 percent for the Veteran's low back disability at any time during the appeal period. Radiculopathy of the bilateral lower extremities The Veteran's radiculopathy of the left lower extremity and of the right lower extremity are rated under Diagnostic Code 8520, which governs paralysis of the sciatic nerve. The Board acknowledges that a review of the code sheets in the file shows that the Veteran's radiculopathy of the right lower extremity is rated under Diagnostic Code 8521. However, as it is not less advantageous to the Veteran and the record, to include the most recent VA examination, illustrates that the nerve impacted on the right lower extremity is the sciatic nerve the Board will assess whether higher ratings are warranted under Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted if the incomplete paralysis is severe with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis evidenced by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. An introductory note to the rating schedule for diseases of the peripheral nerves indicates that where the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. 38 C.F.R. § 4.124a. The Board notes that words such as mild, moderate, and severe as used in the various diagnostic codes are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The RO assigned 10 percent disability ratings for his radiculopathy of each lower extremity, for the entire period on appeal. The question before the Board is whether disability ratings in excess of 10 percent is warranted at any time during the appeal period. Affording reasonable doubt for the Veteran, the Board finds that a 20 percent rating in each lower extremity, but no higher, is warranted. The most probative evidence of record, to include the Veteran's consistent reporting, illustrates symptomatology more nearly approximating moderate incomplete paralysis of the sciatic nerve. The most probative evidence of record does not show severe incomplete paralysis of the sciatic nerve, and a rating in excess of 20 percent is not warranted at any time during the appeal period. First, the Board acknowledges that the December 2016 VA examiner concluded that there was no radicular pain and no other signs or symptoms due to radiculopathy, and the May 2021 VA examiner stated that the Veteran did not have objective findings of right leg radiculopathy. Despite that, the record shows current diagnoses of radiculopathy of the bilateral lower extremities, as early as 2007. See September 2021 VA Peripheral Neuropathy DBQ. Second, the Board recognizes the inadequacies of the May 2021 VA examination report, as expressed in the September 2021 remand. However, the Board remanded the matters, and a new VA examination was afforded to the Veteran and the Board is charged with reviewing the totality of the evidence and viewing it in the light most favorable to the Veteran. The Board finds that a 20 percent rating is warranted because the evidence of record shows moderate incomplete paralysis of the sciatic nerve of both the right and left lower extremities. However, the most probative evidence of record does not show moderately severe incomplete paralysis of the sciatic nerve, and a rating in excess of 20 percent is not warranted. Throughout the appeal period the Veteran's radicular symptoms are no more than moderate in nature. Accordingly, the Board finds that a 20 percent rating, but no higher, is warranted. The preponderance of the evidence is against a finding supporting a higher rating under Diagnostic Code 8520. Through the appeal period the Veteran presented with significant sciatica on the right side, greater than the left, intermittent weakness of the lower extremities, constant numbness, his legs going out, causing him to fall, intermittent pain as moderate on both lower extremities, intermittent pain and numbness as moderate on both lower extremities, numbness, tingling in the feet, his leg going limp, and frequent falls. These symptoms are most consistent with moderate incomplete paralysis of the sciatic nerves. At no time during the appeal period has he had moderately severe incomplete paralysis of the sciatic nerve, and this is consistent with the lay and medical evidence of record. Therefore, a 40 percent disability rating is not warranted. In fact, the July 2018 VA examination report indicates that the Veteran's radiculopathy of the right and left lower extremities was mild, which is more consistent with a 10 percent disability rating. However, viewing the totality of the evidence in the light most favorable to the Veteran, the Board finds that a 20 percent rating for each lower extremity is warranted. The Veteran is not entitled to a higher disability rating because the most probative evidence of record does not show that he has moderately severe, incomplete paralysis of the sciatic nerves. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran and understands that he may believe that his symptoms warrant disability ratings in excess of 20 percent. Although he is competent to report symptoms and describe the severity of such, he is not competent to determine whether his radiculopathy meets the criteria for the next higher evaluation As such, a rating higher than 20 percent is not warranted for radiculopathy in either lower extremity at any time during the appeal period. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.