Citation Nr: 21076310 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-35 791 DATE: December 23, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, from April 14, 2014, for spinal stenosis with spondylolisthesis is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial 20 percent rating, but no higher, from April 14, 2014 through July 31, 2020, for left lower extremity radiculopathy, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 40 percent, from August 1, 2020, for left lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, secondary to service-connected spinal stenosis with spondylolisthesis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. Since the April 14, 2014 effective date of service connection, the Veteran's spinal stenosis with spondylolisthesis was manifested by limitation of flexion to at most 73 degrees with repeated use over time and during flare ups, and to the extent that medication has ameliorated these symptoms, such amelioration cannot be considered; there is no evidence of incapacitating episodes of intervertebral disc syndrome (IVDS), spinal ankylosis, functional equivalent of spinal ankylosis, or bowel or bladder impairment. 2. From April 14, 2014 through July 31, 2020, the competent and credible evidence shows that the Veteran experienced at most moderate incomplete paralysis of the sciatic nerve. 3. Since August 1, 2020, the competent and credible evidence shows the Veteran's radiculopathy of the left lower extremity has been manifested by at most moderately severe incomplete paralysis of the sciatic nerve, without marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating, but no higher, from April 14, 2014 for spinal stenosis with spondylolisthesis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5009-5237. 2. The criteria for an initial 20 percent rating, but no higher, from April 14, 2014 through July 31, 2020, for left lower extremity radiculopathy, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8620. 3. The criteria for an initial rating in excess of 40 percent, from August 1, 2020, for left lower extremity radiculopathy, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from June 1980 to December 1980. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in October 2018 and June 2021, and were remanded for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, obtain any outstanding relevant treatment records and afford the Veteran a VA examination to assess the severity of her service-connected back disability. Pursuant to the Board's remands, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of a July 2021 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Also, the Veteran was afforded an examination to assess the severity of her service-connected back disability in August 2019. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that, while pending on appeal, a Decision Review Officer (DRO) assigned an initial rating of 40 percent for left lower extremity radiculopathy as secondary to the service-connected spinal stenosis with spondylolisthesis, effective from August 1, 2020. The Board has included the separate issue of entitlement to a higher initial rating for left lower extremity radiculopathy because this issue is being considered as part of the appeal for a higher initial rating for the service-connected back disability. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). Since the claim period for the back issue dates back to the April 14, 2014 effective date of service connection, the Board will consider the rating assigned for the service-connected left lower extremity radiculopathy during the entire period since that date. Increased Rating The Veteran is seeking higher initial ratings for spinal stenosis with spondylolisthesis and left lower extremity radiculopathy. Specifically, the Veteran contends that she has been found disabled and receives disability from the Social Security Administration (SSA). She further contends that her SSA disability is based on her inability to perform activities of daily living and the medications prescribed for her service-connected back conditions. See September 2015 Notice of Disagreement (NOD); July 2016 VA Form 9; March 2018 Veteran Lay Statement. Applicable Laws and Regulations Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2020); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the claim period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that the regulations pertaining to rating arthritis have been amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5002, 5009). These amendments provide that the diagnostic criteria for chronic residuals be rated under Diagnostic Code 5003. The Board notes that these amendments are not applicable any earlier than their effective date. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the 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 rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The United States Court of Appeals for Veterans Claims (Court) has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if she experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021). Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself, but rather added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under DC 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula, and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Spondylolisthesis is rated under Diagnostic Code 5009 for other types arthritis. The former criteria instructed that evaluation of the types of arthritis listed under Diagnostic Codes 5004 through 5009 are rated as rheumatoid arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5009. Under Diagnostic Code 5002 for rheumatoid arthritis, a 20 percent rating is warranted for one or two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a, Diagnostic Code 5002. A 40 percent rating is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. A 60 percent rating is warranted for less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. A 100 percent rating is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating. Id. For chronic residuals, such as limitation of motion or ankylosis, favorable or unfavorable, the evaluator is to rate under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the 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 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A note to DC 5002 indicates that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. The evaluator is to assign the higher evaluation. Id. The February 7, 2021 amended criteria provides that the acute phase of rheumatoid arthritis is rated under Diagnostic Code 5002, and chronic residuals are rated under Diagnostic Code 5003, arthritis, other than post-traumatic. Degenerative arthritis 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) indicates that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) indicates that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran's left lower extremity radiculopathy is rated pursuant to Diagnostic Code 8620 as paralysis of the sciatic nerve. Under Diagnostic Code 8620, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy warrants a 60 percent rating. An 80 percent rating requires complete paralysis of the sciatic nerve, which is characterized by foot dangle and drop, no active movement possible of muscle below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8620. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Court in Chavis held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis, 34 Vet. App. at 1 ("Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011))). In this case, the Board considers "mild" to correspond to slight symptoms sufficient to support the diagnosis, generally characterized by less persistent sensory deficits, or those affecting a small area, and or very minimal reflex or motor abnormalities. The Board considers "moderate" to correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered significantly disabling medically, and/or involving a larger area in nerve distribution. Additionally, moderate can correspond to combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes with or without sensory impairment, graded as medically moderate. "Moderately severe" is only applicable for involvement of the sciatic nerve, and is the maximum rating available for sciatic nerve neuritis not characterized by organic changes specified in 38 C.F.R. § 4.123. It is expected at this level there would be motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. Finally, "severe" is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve, marked muscular atrophy is expected. Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve. Factual Background By way of history, the Veteran was granted a 10 percent rating for her spinal stenosis with spondylolisthesis, effective from April 14, 2014, in the July 2015 rating decision. In a June 2020 decision during the pendency of this appeal, the DRO granted service connection for left lower extremity radiculopathy as secondary to spinal stenosis with spondylolisthesis, and assigned an initial 40 percent rating, effective from August 1, 2020. In late July 2014, the Veteran underwent an L3/4 L4/5 spinal fusion. See July 2014 Non-Government Medical Records at 16-17. Prior to this surgery, she was experiencing back pain which radiated to the left lower extremity. At a three-month post-op followup examination it was noted that the Veteran reported that she was still experiencing left leg pain. Id. at 1. However, it was noted that she experienced 95 percent improvement in neck/back pain, as well as 100 percent improvement in the leg/arm. Id. at 2. In June 2015, the Veteran presented to a VA back (thoracolumbar spine) examination where she was diagnosed with spinal stenosis and spondylolisthesis. See June VA Thoracolumbar Spine Examination. The examiner noted that the Veteran had been taking narcotic pain medications for her back disability since the 1990s, that she reported flare-ups of sharp/stabbing lower back pain during which she unable to lift anything or do any type of twisting movement, and that the examination was not performed during a flare-up or following repeated use over time. However, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups and with repeated use over time. The examiner noted that the Veteran's spinal flexion was to 90 degrees, with pain associated with forward flexion, extension, and left lateral rotation that caused functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or range of motion after three repetitions. The examiner noted that back pain could significantly limit functional ability with repeated use over time or during flare ups, but that the degree of additional range of motion loss could not be determined without resort to speculation. There were additional factors contributing to disability in terms of less movement than normal, weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. Moreover, there was normal (5/5) muscle strength in the lower extremities bilaterally, without muscle atrophy. However, it was noted that the Veteran experienced decreased sensation to touch in the left foot/toes. It was further noted that she occasionally used a cane to assist with ambulation. However, the examiner noted that the Veteran did not have symptoms of radiculopathy. The examiner reviewed the Veteran's file and noted that her diagnostic imaging showed arthritis without thoracic vertebral fracture and without loss of 50 percent or more of height. Id. Emergency department (ED) records dated in October 2015 note that the Veteran reported to the ED for treatment of back pain, as she was running out of pain medication. It was noted at that time that the Veteran's spinal flexion was to 90 degrees. See October 2015 Buffalo VA HCS at 55. VA treatment records from Buffalo New York dated in November 2015 note that the Veteran reported lower back pain and that she was treated with fentanyl. See November 2015 Buffalo VA HCS at 3. In August 2019, the Veteran presented to a VA back (thoracolumbar spine) examination. See August 2019 VA Thoracolumbar Spine Examination. The examiner noted the Veteran reported daily flare-ups of back pain and left lower extremity radiculopathy, which impacted her activities of daily living. The examiner noted that the Veteran experienced pain with weight bearing. The examination was noted as being performed during a flare-up and after repetitive use over time, and forward flexion of the spine was recorded as being to 73 degrees. The examiner noted that forward flexion would be to 73 degrees during flare ups and with repeated use over time. Moreover, there was normal (5/5) muscle strength in the lower extremities bilaterally and there was no muscle atrophy. Lower extremity reflexes and sensation was all normal bilaterally and straight leg raise testing was negative bilaterally. However, the examiner noted that the Veteran experienced left lower extremity radiculopathy with associated symptoms of severe intermittent pain (usually dull). Overall, there was severe incomplete paralysis of the left sciatic nerve. The examiner noted that the Veteran experienced IVDS, however, she had not required bed rest as prescribed by a physician in the last 12 months. Also, the examiner noted that the Veteran's back condition impacted her ability to work, specifically, her daily back pain and left lower extremity radiculopathy impacted her activities of daily living. Id. Lastly, the examiner noted that there was evidence of pain on passive range of motion testing and when the joint was used in non weight-bearing. Legal Analysis 1. Spinal stenosis with spondylolisthesis: Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested thoracolumbar spine symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant a 20 percent rating, but no higher, during the entire claim period since the April 14, 2014 effective date of service connection, under the criteria in effect both prior to and since the regulatory change. Specifically, the Board acknowledges the Veteran's complaints of back pain, which the record clearly documents. Forward flexion of the spine was to 90 degrees during the June 2015 examination and was limited to 73 degrees during the August 2019 examination. These findings, by themselves and without consideration of functional impairment, warrant no more than a 10 percent rating on the basis of limitation of spinal flexion. However, the Veteran reported during the June 2015 examination that she experienced flare ups of sharp and stabbing back pain, during which she was unable to lift anything or do any type of twisting movement. The June 2015 examiner noted that pain could significantly limit functional ability during flare ups or when the joint is used repeatedly over time, but the examiner was unable to express the degree of additional range of motion loss during flare ups and with repeated use over time without resorting to mere speculation. Also, the Veteran occasionally used a cane to assist with ambulation. The June 2015 examiner further noted normal (5/5) muscle strength in the bilateral lower extremities without muscle atrophy. However, it was noted that the Veteran experienced decreased sensation to touch in the left foot/toes. See July 2015 VA Thoracolumbar Spine Examination. During the August 2019 VA examination it was noted the Veteran experienced daily flare ups of back pain and occasional left lower extremity radiculopathy which impacted her activities of daily living. The August 2019 examination was being conducted during a flare up and following repeated use over time, and the examiner noted that forward flexion was limited to at most 73 degrees during flare ups and with repeated use over time. There was normal (5/5) muscle strength in the bilateral lower extremities without muscle atrophy. However, the August 2019 examiner noted that the Veteran experienced left lower extremity radiculopathy with associated symptoms of severe intermittent pain (usually dull). The examiner noted that the Veteran experienced IVDS, however, she had not required bed rest as prescribed by a physician in the last 12 months. Id. The August 2019 VA examiner noted that the Veteran had pain associated with weight bearing, and her condition impacted her ability to work. Specifically, her daily back pain and lower left extremity radiculopathy impacted her activities of daily living. The Board acknowledges that forward flexion of the spine was limited to at most 73 degrees during the claim period, and that the August 2019 examiner indicated that flexion would be to 73 degrees during flare ups and with repeated use over time. However, the Board also notes that the Veteran has used various prescription pain medications during the claim period to treat her back symptoms (including narcotics) and that she has reported that her ability to function is significantly limited without the use of such medications. The Board points out that it "may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code. That is precisely the situation in this case. The Veteran's medication has ameliorated the effects of her back disability. In light of the significant functional limitations caused by the Veteran's back disability, the fact that the June 2015 examination did not provide adequate information as to the extent of additional functional loss following repeated use over time and during flare ups, and not taking into account the ameliorative effects of the Veteran's medication, the Board finds that the symptoms of the Veteran's service-connected back disability have most closely approximated the criteria for a 20 percent rating under the General Rating Formula (which contemplates limitation of flexion of the thoracolumbar spine to greater than 30 degrees, but not greater than 60 degrees) during the entire claim period since the April 14, 2014 effective date of service connection. The Board also finds that a rating higher than 20 percent is not warranted at any time during the claim period. The Veteran is competent to report the symptoms associated with her service-connected back disability and the extent of her impairment following repetitive use and during flare ups, and the Board has no reason to challenge the credibility of her contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, despite the fact that painful motion has been documented, and not taking into account the ameliorative effect of medications, the preponderance of the evidence nonetheless supports the conclusion that the Veteran's back symptoms have most closely approximated the criteria for at most a 20 percent rating under the General Rating Formula during the entire claim period. Specifically, the above evidence reflects that the flare ups and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent rating at any time during the claim period. A preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's back symptoms have not been shown to be so disabling to actually or effectively result in limitation of flexion of the spine more nearly approximating 30 degrees or less, which is the requirement for a 40 percent rating under the General Rating Formula on the basis of limitation of spinal flexion. Moreover, no spinal ankylosis was noted during any of the examinations conducted during the claim period. Also, despite the limited ranges of spinal motion during the claim period, the Board finds that even considering back pain, flare ups, and other functional factors, and without considering the ameliorative effects of medication, the Veteran has not experienced the functional equivalent of spinal ankylosis (as defined above) at any time during the claim period. In other words, a preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's back symptoms have not been shown to be so disabling to actually or effectively result in fixation of the entire thoracolumbar spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula. Also, the Board acknowledges that the Veteran has been diagnosed as having IVDS during the claim period. However, she has not experienced incapacitating episodes of IVDS as defined above (i.e., bed rest prescribed by a physician and treatment by a physician) at any time during the claim period. In addition, there is no evidence of any active rheumatoid arthritis during the claim period so as to warrant a higher rating under DC 5002. Therefore, a higher rating is not warranted on the basis of IVDS or rheumatoid arthritis at any time during the claim period. In addition to considering the orthopedic manifestations of spinal stenosis with spondylolisthesis disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, as the Veteran is also service-connected for radiculopathy of the left lower extremity, which is also currently on appeal, the Board will address this claim below. Regarding any other neurological manifestations, the Veteran has specifically denied the neurological symptoms of weakness or loss of bowel or bladder control. See July 2015 VA Thoracolumbar Spine Examination; See August 2019 VA Thoracolumbar Spine Examination. 2. Left lower extremity radiculopathy: Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran manifested left lower extremity neurological symptoms of the type and extent, frequency, and/or severity, as appropriate to warrant an initial 20 percent rating, but no higher, during the entire claim period from April 14, 2014 through July 31, 2020. A rating higher than 40 percent, since August 1, 2020, is not warranted. As noted above, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. For the sake of brevity, the Board will refer to the findings contained in the treatment records and VA examinations, as discussed in detail above. Here, the Veteran is in receipt of a 40 percent rating for moderately severe radiculopathy of the lower left extremity involving the sciatic nerve, pursuant to Diagnostic Code 8520, effective from August 1, 2020. "Moderately severe" is only applicable for involvement of the sciatic nerve and is the maximum rating available for sciatic nerve neuritis not characterized by organic changes specified in 38 C.F.R. § 4.123. It is expected at this level there would be motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. See Chavis v. McDonough, 34 Vet. App. 1 (U.S. 2021). The Board takes notice of treatment records dated prior to the Veteran's June 2015 VA back examination. Specifically, in late July 2014, the Veteran underwent an L3/4 L4/5 spinal fusion. See July 2014 Non-Government Medical Records at 16-17. Prior to this surgery, she was experiencing back pain which radiated to the left lower extremity. At a three-month post-op followup examination it was noted that the Veteran reported that she was still experiencing left leg pain. Id. at 1. However, it was noted that she experienced 95 percent improvement in neck/back pain as well as 100 percent improvement in the leg/arm. Id. at 2. The Veteran was initially examined in June 2015 in connection with her claim of entitlement to service connection for spinal stenosis with spondylolisthesis. At that examination the examiner noted that the Veteran reported flare-ups with functional loss. However, it was also noted that the Veteran's spinal flexion was to 90 degrees with normal (5/5) muscle strength in the lower extremities bilaterally, without muscle atrophy. The examiner did note the Veteran experienced decreased sensation to touch in the left foot/toes and that she occasionally used a cane to assist with ambulation, but all other neurological findings were normal and the examiner noted that the Veteran did not have symptoms of radiculopathy. See July 2015 VA Thoracolumbar Spine Examination. The Veteran was again examined in August 2019 where the examination was performed during a flare-up. The examiner noted that the Veteran had normal (5/5) muscle strength in the lower extremities bilaterally, without muscle atrophy. However, the examiner noted that the Veteran experienced left lower extremity radiculopathy with associated symptoms of severe intermittent pain (usually dull). See August 2019 VA Thoracolumbar Spine Examination. Additionally, the VA treatment records dated throughout the claim period support the findings included in the VA examinations as discussed. The above evidence reflects that during the claim period from April 14, 2014 through July 31, 2020, the Veteran experienced back pain which occasionally radiated down the left lower extremity. Also, decreased sensation in the left foot/toes was documented during the June 2015 VA examination. The Veteran did not report any other lower extremity neurological symptoms during this period and the June 2015 and August 2019 examinations revealed normal lower extremity muscle strength and reflexes. The Board acknowledges that the August 2019 examiner reported that the Veteran experienced severe left lower extremity intermittent pain and that the Veteran had severe incomplete paralysis of the left sciatic nerve. However, health care professionals' findings as to degree of disability under the Rating Schedule are not binding on the Board. See 38 C.F.R. § 3.100 (a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). Overall, in light of the evidence of radiating back pain and decreased lower extremity sensation, the otherwise normal neurological findings, and the fact that the neurological impairment was wholly sensory, the Board finds that the "at most moderate" finding it is consistent with the above evidence. Therefore, an initial 20 percent rating, but no higher, for left lower extremity radiculopathy under DC 8620 (which contemplates moderate incomplete paralysis) is warranted during the entire period from April 14, 2014 through July 31, 2020. As for the claim period since August 1, 2020, the Board finds that the radiculopathy of the left lower extremity is at most moderately severe, and that a higher rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8620. In fact, there is no evidence of record to suggest that the Veteran's left lower extremity radiculopathy is severe with marked muscular atrophy, as is required for the next higher 60 percent rating, and the absence of lower extremity muscle atrophy has specifically been noted. In addressing the Veteran's left lower extremity and why she is not entitled to the next higher rating of 60 percent, the Board notes that, at no time during the claim period, did the Veteran present symptoms approaching this level of severity. Specifically, during each of the VA examinations, the Veteran had normal muscle strength (5/5) and no muscle atrophy. Additionally, there is no evidence of foot paralysis at any point during the claim period. See July 2015 VA Thoracolumbar Spine Examination; August 2019 VA Thoracolumbar Spine Examination. 3. Additional Considerations: As a final matter, the Board finds that, in conjunction with the higher rating matters discussed herein, other than the issues of entitlement to service connection for psychiatric disability and entitlement to a TDIU which are discussed below, no other related issues have been raised by the Veteran or her representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, secondary to service-connected spinal stenosis with spondylolisthesis disability, is remanded. The Veteran contends that she takes antidepressants for her depression that is a result of constant pain associated with her service-connected spinal stenosis with spondylolisthesis disability. See July 2016 VA Form 9; March 2018 Veteran Lay Statement. VA treatment records from Buffalo New York dated in November 2015 note a diagnosis of depressive disorder, NOS. See November 2015 Buffalo VA Treatment Records at 43. VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim for the primary disability. See 38 C.F.R. § 3.160; Bailey v. Wilkie, 33 Vet. App. 188 (2021); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). Here, the evidence indicates that the Veteran has been diagnosed with a psychiatric disability and has a current service-connected spinal stenosis with spondylolisthesis disability. As such, the Board finds that the issue of entitlement to service connection for an acquired psychiatric disability, secondary to service-connected spinal stenosis with spondylolisthesis, has been raised by the evidence of record during the adjudication of a higher rating claim for such spinal stenosis with spondylolisthesis. Therefore, the issue of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected back disability, is properly before the Board. See 38 C.F.R. § 3.160; Bailey v. Wilkie, supra; Kisor v. Wilkie, supra. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran has a current diagnosis of depressive disorder, NOS. See November 2015 Buffalo VA Treatment Records at 43. The Veteran has also submitted lay statements asserting that she experiences depression associated with her chronic pain. See July 2016 VA Form 9; March 2018 Veteran Lay Statement. However, there is no examination or opinion regarding the nature and etiology of the Veteran's claimed acquired psychiatric disability. As such, the Board finds that the McLendon requirements are met, and the Veteran should be provided a VA examination to determine the nature of any current psychiatric disability and whether any such disability is associated with her service-connected back disability. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Western New York Healthcare System and are dated to October 2016. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to a TDIU as a result of service-connected disabilities is remanded. As for the TDIU claim, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the remanded claim of service connection for an acquired psychiatric disability, and the Board will defer adjudication of the TDIU claim until the development directed on that claim has been completed. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Also, all outstanding VA treatment records should be secured upon remand the Veteran should be given another opportunity to submit a formal claim for a TDIU (VA Form 21-8940). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 and to report her education and complete employment history and earnings, especially for the period since April 2014. 2. With the Veteran's assistance as appropriate, obtain and associate with the claims file any pertinent medical records, to include any records of treatment for psychiatric disability. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 3. Obtain the Veteran's outstanding VA treatment records from the VA Western New York Healthcare System for the period since October 2016; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current psychiatric disability and whether any such disability is associated with service-connected disability. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated studies or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For any psychiatric disability experienced by the Veteran since approximately April 2014, provide the following opinions: i. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability is caused by service-connected spinal stenosis with spondylolisthesis and/or left lower extremity radiculopathy. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability is aggravated (underwent an incremental increase, regardless of permanence) by service-connected spinal stenosis with spondylolisthesis and/or left lower extremity radiculopathy. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HER REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.