Citation Nr: A21020377 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 200522-88792 DATE: December 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for multilevel degenerative disc disease of the cervical spine effective January 2, 2018 is denied. Entitlement to a separate rating for right upper extremity radiculopathy associated with cervical spine disability, is denied. Entitlement to an increased rating of 20 percent, but no higher, effective January 24, 2017 to December 10, 2019, for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx, is granted. Entitlement to an increased rating in excess of 20 percent from December 11, 2019 for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx, is denied. Entitlement to a separate rating for right lower extremity radiculopathy associated with chronic strain of the thoracic and lumbosacral spine, is denied. FINDINGS OF FACT 1. At no point during the appeal period did the Veteran's cervical spine disability result in forward flexion limited to less than 30 degrees, either on clinical examination or during flare-ups or with repeated use over time; ankylosis or the functional limitation equivalence of ankylosis; or intervertebral disc syndrome (IVDS) with incapacitating episodes. 2. The preponderance of the evidence of record is against finding that the Veteran has had right upper extremity radiculopathy at any time during or approximate to the pendency of the claim. 3. For the appeal period beginning January 24, 2017, the Veteran's chronic strain of the thoracic and lumbosacral spine was manifested by symptoms as limited and painful range of motion which most closely approximate forward flexion greater than 30 degrees but not greater than 60 degrees during flare ups, but it was not manifested by forward flexion to 30 degrees or less, ankylosis, incapacitating episodes, or muscle spasms and guarding resulting in abnormal gait. 4. For the appeal period beginning, December 11, 2019, the Veteran's low back disability was manifested by such symptoms as limited and painful range of motion and flare-ups, which most closely approximate forward flexion greater than 30 degrees but not greater than 60 degrees, but it was not manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes. 5. The preponderance of the evidence of record is against finding that the Veteran has had right lower extremity radiculopathy at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for multilevel degenerative disc disease of the cervical spine effective January 2, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to a separate rating for right for right upper extremity radiculopathy associated with a cervical spine disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for entitlement to an increased rating of 20 percent, but no higher, effective January 24, 2017 to December 10, 2019, for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for entitlement to an increased rating in excess of 20 percent from December 11, 2019, for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. The criteria for entitlement to a separate rating for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1988 to April 1989, from January 1996 to March 1996 and from January 1999 to August 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a VA Regional Office (RO). The April 2018 rating decision was issued under the legacy system and the Veteran submitted a timely notice of disagreement. In May 2020 the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The Veteran opted the above claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a May 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the May 2020 SSOC. Therefore, the May 2020 SSOC is the decision on appeal. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2020 SSOC. 38 C.F.R. § 20.301. By way of background, the Veteran's claims were previously before the Board in August 2019 at which time the Board remanded the claims for additional development to include affording the Veteran updated VA examinations for her various spine disabilities. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the Board's remand, the Veteran's claim for an increased rating in excess of 10 percent for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx (lumbar strain) was granted in a May 2020 rating decision and assigned a 20 percent rating effective December 11, 2019. This increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The remaining claims for service connection for right upper and lower extremity radiculopathy as well as an increase disability rating for her cervical spine disability were denied in the May 2020 SSOC. Preliminarily, the Board notes that although previously characterized as service connection claims, under the general rating criteria of the spine, separate ratings for neurology manifestations must be considered and if the evidence is supportive, a separate rating is to be assigned. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, the Board has recharacterized the claims of service connection for right upper and lower extremity radiculopathy as noted above to best reflect the intended claims of the Veteran and the mandates of VA's diagnostic code. The Board also notes that it has considered, pursuant to Chavis, whether the current ratings of the Veteran's upper and lower left extremity radiculopathy are properly before the Board as part and parcel of the increased rating cervical and lumbar spine claims. Cf. Chavis v. McDonough, Vet. App. 1, 29, FN 17 (2021). Therein, the Court held that increased rating claims for spinal disabilities could include the evaluation of separate neurological manifestations but declined to state that it always would. The circumstances in the Chavis case, however, are distinct to the fact pattern here. In Chavis, the claimant was granted service connection for radiculopathy of an extremity associated with the spine disability already on appeal before the Board. Thus, the Court found in that case, the claimant had a reasonable expectation that the initial rating of that neurological manifestation was part and parcel of the spine rating being appealed. Here, the Veteran was granted service connection for her upper and lower left extremity radiculopathy in the same May 2020 rating decision as a partial grant for an increased rating for her lumbar spine disability and continued denial for an increase for her cervical spine disability. Subsequently, the Veteran filed her May 2020 VA Form 10182 asserting only the desire for an increased rating for her spine disabilities as well as service connection for upper and lower right extremity radiculopathy. Therefore, the Board finds that the Veteran had no expectation that the initial rating granted in May 2020 for her upper and lower left extremity radiculopathy was part and parcel to the current spine ratings being appealed. As such, the initial ratings for the Veterans upper and lower left extremity radiculopathy will not be further discussed in this decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the Veteran is service connected for severe and moderate multilevel degenerative disc disease of the cervical spine at 10 percent from January 2, 2018 under DC 5237. She is also service connected for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of the coccyx rated at 10 percent from January 24, 2017 to December 10, 2019 and at 20 percent thereafter, from December 11, 2019, under DC 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). 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. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V (2017). 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, 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 warranted 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 is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Regarding the cervical spine, a 10 percent rating is warranted for forward flexion greater than 30 degrees but not greater than 40 degrees; or combined range of motion greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or favorable ankylosis of the entire cervical spine. Lastly, a 50 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board notes, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). 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. Amended DC 5242 now provides: "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." Under the pre-amended DC 5003, degenerative and/or traumatic arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DCs 5003, 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Effective February 7, 2021, DC 5003 is amended to provide that 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 DC 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 assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints, with occasional incapacitating exacerbations. Pre-amended DC 5010 provides arthritis due to trauma and substantiated by x-ray findings will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, DC 5010. DC 5010 instructs to rate under DC 5003 (degenerative arthritis). Amended DC 5010 provides for post-traumatic arthritis to be rated as limitation of motion, dislocation, or other specific instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. See 38 C.F.R. § 4.71a, DC 5010. At the outset, the Board notes, the entirety of the evidence on appeal predates the February 7, 2021 revised criteria for musculoskeletal disorders. Therefore, the Board will only apply the pre amended diagnostic codes and rating criteria to the claims now before it on appeal. The Board further notes, VA received a claim for benefits on January 2, 2018. In an April 2018 rating decision, the RO granted initial service connection for the Veteran's cervical spine disability and denied entitlement to separate ratings for right upper and lower extremity radiculopathy. The Veteran timely appealed this decision and since has remained active as indicated in the above procedural history. Thus, the Board will consider the period on appeal for Veteran's claim for an increase rating for her cervical spine beginning January 2, 2018, the date of receipt of the Veteran's claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Regarding the Veteran's claim for an increased rating for her lumbar spine disability, the Veteran was initially granted service connection with a non-compensable rating effective August 2, 2004 in an August 2004 rating decision. No new evidence, appeal, or claim was ever received within a year therefore, the rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.201, 20.202, 20.302. On January 24, 2017, the Veteran filed an intent to file for VA benefits with a subsequent official filing on September 7, 2017 requesting an increase rating for her lumbar spine disability. An October 2017 rating decision granted an increased rating of 10 percent effective January 24, 2017. As noted above, the Veteran once again filed a claim seeking an increased rating for her lumbar spine disability on January 2, 2018 thus disagreeing with the prior 10 percent evaluation. The Veteran timely appealed the resulting April 2018 rating decision and since has remained active as indicated in the above procedural history. To that effect, the Veteran's January 24, 2017 intent to file begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Turning to the relevant evidence of record, the Veteran was afforded a VA lumbar spine examination in September 2017. The examiner noted a diagnosis of degenerative arthritis of the lumbar spine with chronic lumbar and thoracic strain. During the examination, the Veteran reported experiencing flare ups that cause sharp pain that results in her ability to walk is impaired. Initial range of motion tests showed forward flexion from 0 to 80 degrees; extension from 0 to 20 degrees; right and left lateral rotation from 0 to25 degrees; and right and left lateral flexion from 0 to 25 degrees. The examiner stated there was no additional loss of motion following repetitive use testing. It was further noted that the Veteran did not show guarding or muscle spasms of the lumbar spine nor did she have radicular pain or other signs or symptoms due to radiculopathy. The examiner also reported that the Veteran did not have Intervertebral Disc Syndrome (IVDS). In January 2018, the Veteran was afforded a VA peripheral nerves examination which revealed that the Veteran has intermittent mild sharp pain with numbness down her left leg. The examiner noted that there was only a subjective history for radiculopathy, and there are no symptoms on the day of examination and no objective findings to support a diagnosis as all examinations were normal. Also, in January 2018 the Veteran was afforded another lumbar spine examination. At which time the examiner noted a current diagnosis of degenerative arthritis of the spine. During the examination, the Veteran reported current symptoms of low back pain with left leg radiculopathy along with flare ups. The flare ups were reported as occurring every other week, were moderate in severity with a duration of one to two days. Initial range of motion testing revealed forward flexion of 0 to 85 degrees, extension of 0 to 30 degrees, right and left lateral flexion of 0 to 30 degrees, and right and left rotation of 0 to 30 degrees. No additional loss of function or range of motion was noted after repeated use. Regarding flare ups, the examiner was "unable to say without speculation' whether increased symptoms during repeated use over time and with flare ups would result in additional functional loss. The examiner further declined to provide estimated ranges of motion resulting from flare ups or with repeated use over time "without directly observing function under these conditions". Muscle strength, reflex, and sensory tests performed during the examination all were normal. No ankylosis, muscle atrophy, or other neurologic abnormalities were noted. Straight leg testing for radiculopathy was negative and the examiner further noted that the Veteran presented no signs or symptoms of radiculopathy. Lastly, the examiner noted that the Veteran would lose approximately one to two weeks of work over the course of a year due to her lumbar condition. In March 2018, the Veteran was afforded a VA cervical spine examination. At which time, the Veteran was diagnosed with severe and moderate multilevel cervical degenerative disc disease (DDD). The Veteran denied experiencing any flare ups. Initial range of motion testing revealed forward flexion from 0 to 35 degrees; left lateral flexion from 0 to 35 degrees; right lateral rotation from 0 to 60 degrees; and left lateral rotation from 0 to 60 degrees. The examiner reported that the Veteran experienced pain during testing, but it did not cause functional loss. No additional functional loss was noted following repetitive use testing. No guarding or muscle spasms of the cervical spine were noted. Additionally, the examiner reported that the Veteran had no radicular pain or any other signs or symptoms of radiculopathy or other neurologic disabilities. Subsequent to the Board's August 2019 remand, the Veteran was afforded another VA lumbar spine examination in December 2019. At which time, the Veteran was diagnosed with lumbosacral strain, degenerative arthritis, and IVDS with a coccygeal deformity. The Veteran reported her low back pain began in service with worsening beginning in 2002. The Veteran reported experiencing flare ups with pain radiating to her left leg and foot. The flare ups were reported as occurring and lasting variably and are moderate to severe in nature. Flare ups were reported as precipitated by use and lifting/weight bearing and are alleviated by rest and pain medications. Initial range of motion testing revealed forward flexion to be normal representing forward flexion of 0 to 90 degrees and extension of 0 to 30 degrees. Pain was noted on examination, however, the examiner noted that this did not result in or cause functional loss. There was pain noted with weight bearing with no objective evidence of localized tenderness or swelling. Upon observed repeated use, the examiner noted no additional loss of function or range of motion would result. The examiner reported that the Veteran was observed immediately after repeated use over time with no noted symptoms that would significantly limit functional ability. With flare ups, the examiner noted that the Veteran was not examined during a flare up however, he was able to provide estimated ranges of motion noting pain negatively impacted her functional ability. Range of motion during a flare up was estimated to reflect forward flexion of 0 to 60 degrees, extension of 0 to 5 degrees; right and left lateral flexion of 0 to 15 degrees and left and right lateral rotation of 0 to 10 degrees. The examiner noted no guarding or muscle spasms. Muscle strength, reflex, and sensory examinations were all normal. Straight leg tests were negative for radiculopathy however, the examiner noted mild pain, numbness and paresthesias radiculopathy symptoms on the Veteran's left side with none on the right side. No other signs or symptoms of radiculopathy were reported. It was noted that the Veteran did have IVDS however, there were no acute signs or symptoms that required prescribed bed rest in past twelve months. No use of assistive devices was reported. Diagnostic testing in 2016 confirmed the presence of a deformity of the Veteran's coccyx. Functionally, the examiner noted that the Veteran would have limited ability to stand or walk for long periods or lift between 10 to 20 pounds during flare ups. The examiner remarked that there was objective evidence of pain with passive range of motion testing and with non-weight bearing. It was further noted that the original diagnosis of chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of the coccyx was changed due to the progression of the previous diagnosis. Also, in December 2019, the Veteran was afforded another peripheral nerve condition VA examination. At which time the examiner diagnosed the Veteran with upper and lower left extremity radiculopathy. The Veteran reported that her radiculopathy pain radiates from her neck into her left arm and from his lower back to his left leg. Symptoms of radiculopathy including moderate intermittent pain, numbness, and paresthesias and/or dysesthesias were noted for only the Veteran's left extremities. Muscle strength and reflex testing was normal with no muscle atrophy. Sensory examination revealed left shoulder and left foot decreased sensation. However, the right side of the Veteran's body was normal. No trophic changes were noted, and the Veteran had a normal gait. Median nerve tests were normal, no assistive devices were reported, and the examiner noted no functional impact. Lastly, the examiner remarked that "there is no diagnosis [of right upper and lower extremity radiculopathy] because the Veteran denies right arm, hand, leg, foot involvement". The Veteran was afforded a final VA examination in December 2019 for her cervical spine. At which time, the examiner confirmed the Veteran's diagnosis of degenerative arthritis of the cervical spine. During the examination, the Veteran reported experiencing weekly moderate flare ups with variable duration. These flare ups were reported as alleviated with rest and resulted in limited range of motion of the head. Initial range of motion testing revealed the Veteran had normal ranges of motion with pain. No additional loss of function or range of motion was noted with observed repeated use nor with repeated use over time. Regarding flare ups, the examiner noted that the Veteran was not being examined during a flare up however, it was noted that the examination was neither medically inconsistent nor consistent with the Veteran's statements. Pain was noted as limiting the Veteran's functional ability during a flare and the examiner estimated her resulting range of motion to reflect forward flexion of 0 to 35 degrees, extension of 0 to 35 degrees, right and left lateral flexion of 0 to 35 degrees with right and left rotation of 0 to 60 degrees. Muscle spasms and guarding were noted however, neither were reported as resulting in an abnormal gait or an abnormal spinal contour. Muscle strength testing was normal with no muscle atrophy. Reflexes were also normal with normal senses on the Veteran's right side. Decreased sensation was noted on the Veteran's left side including the shoulder and foot. No ankylosis or other neurologic abnormalities were noted along with no IVDS and no use of assistive devices. Diagnostic testing was noted as confirming the presence of degenerative joint disease of the cervical spine. Functionally, the examiner noted that the Veteran would have limited range of motion during flare ups. Lastly, the examiner remarked that there was objective evidence of pain on passive range of motion testing and with non-weight bearing. VA treatment records throughout the periods on appeal indicate that the Veteran reported neck and low back pain to primary care providers. At the outset, the Board finds the VA examinations of record are sufficient to determine the current nature, extent, and severity of the Veteran's spine conditions when considered together with the Veteran's lay statements of symptoms and medical treatment records. The requirements of DeLuca, Correia, and Sharp were all addressed by the December 2019 examiners and the Veteran's own descriptions of her limitations were considered in determining functional impact and additional loss in terms of range of motion (ROM). It is worth noting that the September 2017 and January 2018 VA examinations were previously found to be inadequate in a prior Board remand insofar that the examiners did not provide estimated lost ROM during the Veteran's reported flare ups. The examinations, however, are not otherwise inadequate in the reported initial ROM findings and the Board finds no basis to discount the entirety of the reports. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight). 1. Entitlement to an initial rating in excess of 10 percent for multilevel degenerative disc disease of the cervical spine effective January 2, 2018, is denied. 2. Entitlement to a separate disability rating for right upper extremity radiculopathy as associated with cervical spine disability, is denied. The Veteran contends that her cervical spine disability symptoms warrant a higher initial disability rating, to include a separate rating for upper right extremity radiculopathy. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted at any point during the appeal period. At no point was forward flexion limited to 30 degrees. Although guarding and muscle spasms were reported by the December 2019 examination, the examiner determined that it did not result in an abnormal gait or an abnormal spinal contour. Further, there is no evidence of IVDS. As such, a rating in excess of 10 percent is not warranted. The Board has also determined an increased rating for ankylosis of the cervical spine is not warranted. While the record during this period lacks any mention of or reference to ankylosis, consideration must still be given to whether the Veteran's limitations are the functional equivalent to unfavorable ankylosis. Compare Chavis, 34 Vet. App. at 20 (holding that consideration must still be given to whether a claimant's functional loss "is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."). As noted above, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). For VA purposes, "unfavorable ankylosis" is a condition in which 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 to pressure of the costal margin of abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of spinal segment in neutral position (zero degrees) always represent favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In this case, no such functional equivalence is shown. While the Veteran competently and credibly reported experiencing pain and conveyed her limited ROM, she never reported, nor does the record reflect, she is unable to move her neck. None of the medical evidence, moreover, has ever indicated her neck is frozen or causes limitations such as those outlined in Note (5), such as difficulty walking because of a limited line of vision or restricted opening of the mouth and chewing, or restricting breathing or interference with gastrointestinal functioning, and so forth. The Board also considered whether a separate rating is warranted for any neurologic abnormalities during this period but finds such a rating is not warranted. Aside from the left upper extremity radiculopathy addressed in the introduction above, the record lacks any reference to or statements regarding other neurologic abnormalities. Indeed, the December 2019 VA examiner noted the Veteran did not experience neurologic abnormalities other than left lower and upper extremity radiculopathy nor did the Veteran report symptoms of such on her right side. These findings were further supported by earlier VA examinations of record. Thus, the Board finds the Veteran's degenerative disc disease of the cervical spine is appropriately rated as 10 percent disabling from January 2, 2018 to the present. The Board further finds that the Veteran's disability is fully capable of evaluation under the rating schedule during this period. The Board recognizes the Veteran's belief that her cervical spine disability merits a higher rating. However, an application of the relevant diagnostic codes and consideration of the DeLuca factors indicates that a higher evaluation is not warranted based on the evidence of record nor is a separate rating for right upper radiculopathy warranted. In denying an increased rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased rating of 20 percent, but no higher, effective January 24, 2017 to December 10, 2019, for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx is granted. 4. Entitlement to an increased rating in excess of 20 percent from December 11, 2019 for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx, is denied. 5. Entitlement to a separate disability rating for right lower extremity radiculopathy associated with a lumbar spine disability, is denied. The Veteran contends that her lumbar spine disability symptoms warrant a higher disability rating, to include a separate rating for lower right extremity radiculopathy. January 24, 2017 to December 10, 2019 The Board finds, based on the evidence of record and affording the Veteran the benefit of the doubt, from January 24, 2017 to December 10, 2019, the Veteran's lumbar spine disability more closely approximates the disability picture contemplated by the 20 percent rating under DC 5242. The first ROM assessment of record for the Veteran's lumbar spine during the period on appeal occurred in September 2017 where the Veteran's forward flexion was initially limited to 80 degrees. The second ROM assessment occurred in January 2018 where the Veteran's forward flexion was initially limited to 85 degrees. Both examiners noted the Veteran's reports of flare ups with increased pain and additional loss of ROM. However, both examiners failed to address Sharp as noted above with regards to flare ups. Neither provided an estimated ROM nor adequate rationales as to why none were provided. Therefore, the probative weight of these examinations in regard to flare ups and additional loss of ROM has been discounted accordingly. As such, while the Veteran's medical records do not contain another VA or private ROM examination until December 2019 to determine the severity of her lumbar spine disability, treatment records reflect the Veteran complained of chronic lower back pain with flare ups that was worsened with all prolonged positions and weightlifting. These records support the December 2019 examiner's findings of additional ROM loss during flare ups reflecting forward flexion of 60 degrees. Therefore, when resolving all reasonable doubt in the Veteran's favor, the Board finds the December 2019 examiner's findings indicative of the ROM lost during a flare up throughout the entire period on appeal. Therefore, the Board finds the Veteran's lay statements coupled with consistent reports of flare ups causing additional pain with loss of range of motion to reflect a disability picture that warrants a rating of 20 percent, but no higher, under DC 5242. A rating in excess of 20 percent is not warranted as the Veteran's thoracolumbar spine disability was noted by the September 2017 and January 2018 examiners as causing no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Furthermore, no evidence of muscle atrophy, sensory or reflex loss, IVDS, radiculopathy, nor any other neurological conditions were noted. The evidence of record, including the Veteran's competent lay statements, reflects that flare-ups, limitation of motion, and functional impairment due to pain and interference with sitting, standing, and weight-bearing cause the Veteran significant functional impairment. Even considering the Veteran's complaints of low back pain, with episodes of flare-ups of increased pain with physical activities and the objective findings of painful and limited range of motion, the Board finds that the severity of her lumbar spine symptomatology would not warrant a rating greater than the 20 percent. Rather her range of motion more closely approximates forward flexion greater than 30 but not greater than 60 degrees during flare ups. See 38 C.F.R.§§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995) (in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness). The Board has also determined an increased rating for unfavorable ankylosis of the entire thoracolumbar spine is not warranted. While the record during this period lacks any mention of or reference to ankylosis, consideration must still be given to whether the Veteran's limitations are the functional equivalent to unfavorable ankylosis. Compare Chavis, 34 Vet. App. at 20 (holding that consideration must still be given to whether a claimant's functional loss "is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."). As noted above, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). For VA purposes, "unfavorable ankylosis" is a condition in which 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 to pressure of the costal margin of abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of spinal segment in neutral position (zero degrees) always represent favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In this case, no such functional equivalence is shown. While the Veteran competently and credibly reported experiencing pain and conveyed her limited ROM, she never reported, nor does the record reflect, she is unable to move her back. None of the medical evidence, moreover, has ever indicated her spine is frozen or causes limitations such as those outlined in Note (5), such as difficulty walking because of a limited line of vision or restricted opening of the mouth and chewing, or restricting breathing or interference with gastrointestinal functioning, and so forth. Additionally, the Board has considered whether a separate rating is warranted for any neurologic abnormalities during this period but finds such a rating is not warranted. Aside from the left upper and lower extremity radiculopathy addressed in the introduction above, the record lacks any reference to or statements regarding other neurologic abnormalities. In fact, the medical evidence indicates the Veteran has no radiculopathy on her right side nor did she report any symptoms of such during VA examinations. Thus, the Board finds the Veteran's lumbar spine disability is appropriately rated as 20 percent disabling from January 24, 2017 to December 10, 2019. The Board further finds that the Veteran's disability is fully capable of evaluation under the rating schedule during this period. In summary, the Board finds the evidence is at least in equipoise, which is enough to resolve the claim in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a rating of 20 percent, but no higher, from January 24, 2017 to December 10, 2019, for the Veteran's chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx, is granted. December 11, 2019 to the present The Board finds, based on the evidence of record at the time of the May 2020 SSOC, from December 11, 2019 to the present, the Veteran's lumbar disability does not warrant a rating in excess of 20 percent. During the Veteran's most recent VA examination in December 2019, her forward flexion was limited to 60 degrees during a flare up. Muscle strength testing was normal with no atrophy and even though guarding and muscle spasms were reported by the examiner, it was noted that they would not result in an abnormal gait or spinal contour. In addition, although diagnosed with IVDS, no acute signs or symptoms requiring bed rest as prescribed by a physician within the past twelve months was reported. Thus, based on the evidence of record during this period, the Board finds the Veteran's statements and medical records accurately captured the most severe limits of her disability. Based on the aforementioned, the Board finds a 20 percent evaluation was warranted from December 11, 2019 to the present as assigned by the RO. The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule during this period. The Board has also determined an increased rating for unfavorable ankylosis of the entire thoracolumbar spine is not warranted. While the record during this period lacks any mention of or reference to ankylosis, consideration must still be given to whether the Veteran's limitations amount to the functional equivalent of ankylosis. Chavis, 34 Vet. App. at 20. In this case, no such functional equivalence is shown. While the Veteran competently and credibly reported experiencing pain and conveyed her limited ROM, she never reported, nor does the record reflect, she is unable to move her back. None of the medical evidence, moreover, has ever indicated her spine is frozen or causes limitations such as those outlined in Note (5), such as difficulty walking because of a limited line of vision or restricted opening of the mouth and chewing, or restricting breathing or interference with gastrointestinal functioning, and so forth. The Board also considered whether a separate rating is warranted for any neurologic abnormalities during this period but finds such a rating is not warranted. Aside from the left upper and lower extremity radiculopathy addressed in the introduction above, the record lacks any reference to or statements regarding other neurologic abnormalities. Indeed, the December 2019 VA examiner noted the Veteran did not experience neurologic abnormalities other than left lower and upper extremity radiculopathy nor did the Veteran report symptoms of such on her right side. This was further confirmed during the peripheral nerves examination conducted in December 2019. Thus, the Board finds the Veteran's chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx is appropriately rated as 20 percent disabling from December 11, 2019 to the present. (Continued on the next page) As such, the preponderance of the evidence is against a rating in excess of 20 percent from December 11, 2019, for chronic strain of the thoracic and lumbosacral spine with degenerative arthritis and deformity of coccyx. In denying an increased rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.