Citation Nr: 21006159 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-09 450 DATE: February 3, 2021 ORDER Entitlement to an effective date earlier than August 23, 2013 for service connection for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity with involvement of the sciatic nerve, is granted. Entitlement to a disability rating in excess of 10 percent prior to August 23, 2013 and in excess of 40 percent thereafter for status post lumbar fusion with intervertebral disc syndrome and degenerative arthritis (referred herein as lumbar spine disability) is denied. REMANDED Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to August 23, 2013 and 50 percent disabling thereafter, is remanded. FINDINGS OF FACT 1. The Veteran’s increased rating claim for his service-connected lumbar spine disability was received on August 23, 2013; service connection for radiculopathy of the left lower extremity was granted as secondary to the Veteran’s lumbar spine disability; there was no pending claim for service connection for radiculopathy of the left lower extremity nor pending increased rating claim for the lumbar spine disability; and entitlement to service connection did not arise prior to August 23, 2013. 2. Since August 23, 2013, the Veteran experienced no more than moderate symptoms of radiculopathy in the left lower extremity involving the sciatic nerve. 3. Prior to August 23, 2013, it is not factually ascertainable that the Veteran’s lumbar spine disability underwent an increase in severity and since August 23, 2013, the Veteran’s lumbar spine disability has been manifested by no more than forward flexion of the thoracolumbar spine to 30 degrees or less; unfavorable ankylosis of the thoracolumbar spine has not been shown. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 23, 2013 for the award of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.156, 3.400. 2. Since August 23, 2013, the criteria for entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.71a, DC 8520. 3. The criteria for entitlement to a rating in excess of 10 percent prior to August 23, 2013 and in excess of 40 percent thereafter for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1987 to June 1987 and from October 2005 to November 2007. The Veteran had service in the Army National Guard, including active duty for training from May 1993 to July 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issues; there has been substantial compliance with the October 2018 Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an effective date earlier than August 23, 2013 for service connection for radiculopathy of the left lower extremity The Veteran seeks an effective date earlier than August 23, 2013 for the grant of service connection for radiculopathy of the left lower extremity, which is secondary to his service-connected lumbar spine disability. Generally, and except as otherwise provided, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r). In regard to entitlement to benefits, a decision by VA is deemed final unless a notice of disagreement is filed within one year of receipt of the notification of the decision. 38 U.S.C. § 7105 (b), (c). A notice of disagreement is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201. Prior to March 24, 2015, VA regulations provided that any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. An intent to file a claim may be submitted via an oral communication to designated VA personnel and recorded in writing. See 38 C.F.R. § 3.155 (b)(1)(iii). Effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014). However, the amended regulations apply only to claims filed on or after March 24, 2015. As the claim on appeal was initiated prior to March 24, 2015, the prior VA regulations apply. After review of the record, the Board finds that an effective date earlier than August 23, 2013 for the grant of service connection for radiculopathy of the left lower extremity is not warranted. Initially, because service connection for radiculopathy of the left lower extremity was granted secondary to the Veteran’s service-connected lumbar spine disability as part of an increased rating claim, the Board must address what time period is available for appellate review. The Veteran first filed a claim for service connection for a lumbar spine disability, as well as neuropathy of the right lower extremity, in August 2009. In a January 2010 rating decision, the RO, in part, granted service connection for a lumbar spine disability and assigned a 10 percent disability rating, effective August 25, 2009. Service connection for neuropathy of the right lower extremity was also granted and assigned a 10 percent disability rating, effective August 25, 2009. The Veteran was notified of that decision on January 19, 2010. As the Veteran did not timely appeal the rating decision and because no new and material evidence was received within one year of that decision, the January 2010 rating decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. In April 2011, the Veteran submitted a Notice of Disagreement, disagreeing with the assigned disability rating for his service-connected lumbar spine disability. However, as such correspondence was more than a year after the Veteran was notified of the January 2010 rating decision, the RO took the April 2011 correspondence as a claim for an increased rating. In a July 2011 rating decision, the RO, in relevant part, continued the 10 percent disability rating for the service-connected lumbar spine disability. The Veteran was notified of that decision on July 25, 2011. As the Veteran did not appeal the rating decision and because no new and material evidence was received within one year of that decision, the July 2011 rating decision also became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Thereafter, in August 2013, the Veteran filed an informal claim for benefits. In December 2013, the Veteran specified his intent to file increased rating claim, in relevant part, for his service-connected lumbar spine disability. In relevant part, a March 2014 rating decision increased the disability rating for the lumbar spine disability to 40 percent, effective August 23, 2013, and granted service connection for radiculopathy of the left lower extremity, secondary to the service-connected lumbar spine disability, at 10 percent disabling effective August 23, 2013. Based on review of the record, the Board finds that the earliest communication from the Veteran that can be construed as a petition to file an increased rating claim for the service-connected lumbar spine disability was not received until August 23, 2013. Accordingly, August 23, 2013 is the earliest possible effective date for the grant of service connection for radiculopathy of the left lower extremity as secondary to the Veteran’s service-connected lumbar spine disability and the claim for an earlier effective date must be denied. Additionally, to the extent that it was raised, the Veteran’s contention of a clear and unmistakable error (CUE) has also been considered. In this regard, the Board notes that a claim that has been previously finally denied cannot preserve an effective date for a later grant of benefits based on a new application. See 38 C.F.R. § 3.400 (q)(2); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) (“The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application.”). “The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” Sears v. Principi, 16 Vet. App. 244, 248 (2002). Instead, if the Veteran wishes to be awarded an effective date based on the earlier claim that became final and binding, he is required to collaterally attack the prior decision and show there was CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). In this case, the Veteran has not alleged CUE in an earlier rating decision. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim and the doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (CAVC) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on ROM measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve As noted above, in the March 2014 rating decision, the Veteran was awarded a separate 10 percent disability rating for radiculopathy of the left lower extremity associated with his lumbar spine disability, effective August 23, 2013, under 38 C.F.R. § 4.124a, DC 8520. DC 8520 rates neurologic manifestations of the lower extremities associated with the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. Finally, the maximum 80 percent rating requires evidence of complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, they should be combined with application of the bilateral factor. See 38 C.F.R. § 4.124a. The words “slight,” “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. During a February 2014 VA examination, the Veteran reported experiencing numbness in both legs. The examiner reported normal muscle strength testing, as well as no muscle atrophy. Deep tendon reflexes were 1+, or hypoactive, in the bilateral lower extremities. There was decreased sensation to light touch in the foot/toes of both lower extremities. The straight leg raising test was positive bilaterally, which suggests radiculopathy. The examiner also noted moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity. In addition, the examiner diagnosed the Veteran with moderate radiculopathy of the left lower extremity, with sciatic nerve involvement. During a September 2019 VA examination, the Veteran reported numbness and tingling down the back of his leg, as well as numbness in the front thigh area. The examiner noted normal muscle strength, normal reflex testing, and no muscle atrophy. The Veteran was found to have decreased sensation to light touch in the thigh/knee and foot/toes of the left lower extremity. The straight leg raising test was negative bilaterally. The examiner also noted mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. In addition, the examiner diagnosed the Veteran with mild radiculopathy of the left lower extremity, with sciatic nerve and femoral nerve involvement. The Board notes that following the September 2019 VA examination, in a June 2020 rating decision, the Veteran was awarded an additional separate 10 percent disability rating for mild radiculopathy of the left lower extremity, involvement of the femoral nerve, under 38 C.F.R. § 4.124a, DC 8526. However, the June 2020 rating decision is not on appeal before the Board. The Veteran has not expressed disagreement with the assigned rating, nor has the time period expired within which to appeal. Based on the foregoing and when resolving doubt in the Veteran’s favor, the Board finds that the evidence of record supports a finding that the Veteran experienced moderate symptoms of radiculopathy in the left lower extremity with involvement of the sciatic nerve. Specifically, the Veteran’s pain, paresthesias and/or dysesthesias, numbness, and sensation indicate moderate severity. Furthermore, the February 2014 VA examiner concluded that the Veteran’s radiculopathy of the left lower extremity, with sciatic nerve involvement was moderate. While the September 2019 VA examiner concluded that the Veteran’s radiculopathy of the left lower extremity, with sciatic nerve involvement was mild, after resolving reasonable doubt in favor of the Veteran, his radiculopathy of the left lower extremity with sciatic nerve involvement warrants a 20 percent disability rating. However, there is no indication that the Veteran’s radiculopathy of the left lower extremity with sciatic nerve involvement manifested in moderately severe symptoms to warrant a 40 percent rating. Accordingly, an initial rating of 20 percent, but no higher, is warranted for radiculopathy of the left lower extremity with involvement of the sciatic nerve, associated with the Veteran’s lumbar spine disability. Entitlement to a disability rating in excess of 10 percent prior to August 23, 2013 and in excess of 40 percent thereafter for a lumbar spine disability The Veteran seeks a disability rating in excess 10 percent prior to August 23, 2013 and in excess of 40 percent thereafter for his lumbar spine disability. By way of background, the Veteran was granted service connection for the lumbar spine disability, evaluated at 10 percent disabling effective August 25, 2009, in a January 2010 rating decision. In regard to the claim on appeal, the Veteran filed a claim for an increased disability rating in August 2013. In a March 2014 rating decision, the Veteran was awarded a 40 percent rating for his lumbar spine disability, effective August 23, 2013. Accordingly, the Board will review evidence from August 23, 2012, one year prior to the date of claim, in conjunction with the Veteran’s increased rating claim on appeal. Initially, the Board will address the Veteran’s contentions that an effective date earlier than August 23, 2013 is warranted for the increased rating award of 40 percent disabling for the lumbar spine disability. In general, the effective date of an award of disability compensation shall be the date of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to this rule is in the case of non-initial increased rating claims when it is factually ascertainable that an increase in disability occurred within the one-year period prior to the filing date of the claim. 38 C.F.R. § 3.400 (o)(2). While the increased rating claim for the lumbar spine disability is a non-initial increased rating claim, the Board finds that it is not factually ascertainable that an increase in disability occurred prior to the filing date of the claim. VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Here, the Veteran filed a claim for an increased rating for his lumbar spine disability on August 23, 2013. A March 2014 rating decision granted a 40 percent disability rating for the lumbar spine disability, effective date of August 23, 2013. While the Veteran’s VA treatment records show continued complaints of back pain, there is no evidence of record that demonstrates an increase in disability at any time within the one-year period prior to August 23, 2013. Moreover, a prior July 2011 rating decision, in which the disability rating for the lumbar spine disability was continued at 10 percent disabling, became final as the Veteran did not did not appeal the rating decision and because no new and material evidence was received within one year of that decision. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Additionally, the evidence does not show, nor does the Veteran contend, that he submitted any communication that could be construed as a formal or informal claim for an increased rating for his lumbar spine disability any time from August 2012 to August 2013. See Brannon, 12 Vet. App. at 35. The Board finds that the preponderance of the evidence is against the assignment of an earlier effective date for the award of an increased rating for the lumbar spine disability. The Veteran submitted his claim for an increased rating on August 23, 2013 and it is not factually ascertainable that an increase in disability occurred prior to that date. Accordingly, the appropriate effective date is August 23, 2013. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2). Thus, the claim for an earlier effective date for the award of a 40 percent disability rating for the lumbar spine disability is not warranted. Turning to the increased rating aspect of the Veteran’s claim, the Veteran’s lumbar spine disability is rated at 40 percent disabling under Diagnostic Code (DC) 5243. DCs 5235 through 5243 pertain to various diseases and injuries of the spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. All measured ranges of motion are to be rounded to the nearest five degrees. Under the Formula for Rating Invertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 60 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For the purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). IVDS (DC 5243) is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). Furthermore, under the General Rating Formula for the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate DC. Id. at Note (1). Turning to the evidence of record, the Veteran underwent a VA examination in February 2014. The Veteran reported that his lumbar spine disability has gotten worse with two surgeries and complained of numbness in his legs. He also reported flare-ups of his lumbar spine disability that limit prolonged sitting, standing, bending and lifting. The Veteran did not report using an assistive device as a normal mode of locomotion. Upon physical examination, initial range of motion measurements were as follows: forward flexion to 20 degrees, with pain at 10 degrees; extension to 10 degrees, with pain at 5 degrees; right and left lateral flexion to 15 degrees, with pain at 10 degrees; and right and left rotation to 10 degrees, with pain at 5 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. The examiner noted functional loss and/or functional impairment of the thoracolumbar spine due to less movement than normal, weakened movement, pain on movement, and interference with sitting, standing and/or weight-bearing. The examiner also noted localized tenderness or pain to palpation of the joints and/or soft tissue of the lower lumbar spine. The Veteran did not have guarding or muscle spasm. Additionally, muscle strength testing was normal and there was no muscle atrophy present. The examiner diagnosed the Veteran with IVDS and noted that the Veteran had at least one week, but less than 2 weeks of incapacitating episodes over the past 12 months. Additionally, the examiner found that the Veteran’s lumbar spine disability impacts his ability to work, as prolonged sitting, standing, bending, and lifting is limited. In September 2019, the Veteran underwent another VA examination. The Veteran reported constant sharp, aching back pain, as well as pain, weakness and numbness in his legs that has been getting worse. The Veteran also reported difficulty tying his shoes or bending, as well as an inability to stand longer than 30 minutes or walk half a mile. He reported that every five to six months, he will have a flare-up, consisting of sharp, instant pain when he turns his lower back. The Veteran did not report using an assistive device as a normal mode of locomotion. Upon physical examination, initial range of motion measurements were as follows: forward flexion to 40 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 25 degrees; and right and left rotation to 25 degrees, and pain was noted on examination that causes functional loss. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. While the Veteran was not examined immediately after repetitive use over time or during a flare-up, the examiner noted that pain, weakness, fatigability and lack of endurance would significantly limit the Veteran’s functional ability. The examiner described this functional limitation in the following range of motions: forward flexion to 30 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left rotation to 20 degrees. The Board is aware of the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, there is no opposite joint to the lumbar spine. As such, the holding in Correia does not apply to the circumstances of this case. Further, while the examiner noted evidence of pain on passive range of motion testing, he could not perform passive range of motion testing as it increases the Veteran’s risk of further injury. However, the evidence does not suggest that his back range of motion would be further limited in such capacity. Moreover, as a general matter of course, active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011). Furthermore, during the September 2019 VA examination, the Veteran was not found to have guarding or muscle spasm. Additionally, muscle strength testing was normal and there was no muscle atrophy present. Besides radiculopathy of the bilateral lower extremities, which will be addressed below, no other neurologic abnormalities were noted. There was also no ankylosis of the spine. While the examiner did note that the Veteran has IVDS, he noted that the Veteran did not have any physician prescribed bed rest in the past 12 months. The Veteran’s VA and private treatment records were also reviewed. While they note a history of treatment for lower back pain and injuries, they do not contain findings relevant to a current evaluation or current symptomatology of the Veteran’s lumbar spine disability. Overall, the evidence of record indicates that the Veteran’s lumbar spine disability manifested with pain and forward flexion of the thoracolumbar spine limited to 30 degrees of less. At worst, forward flexion of the thoracolumbar spine was 10 degrees with pain during the February 2014 VA examination. However, the Veteran has not shown ankylosis during the any of the VA examinations. While x-ray findings from November 2013 show fusion at some levels, they still do not indicate favorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis. See private treatment records. Furthermore, the September 2019 VA examiner made specific findings that there was no ankylosis of the spine. Accordingly, a disability rating in excess of 40 percent is not warranted. Additionally, the Board concludes that the assignment of a higher rating is not warranted under DC 5243 based on incapacitating episodes. While the February 2014 and September 2019 VA examination reports note that the Veteran has IVDS, at worse, the Veteran reported having at least one week, but less than 2 weeks of incapacitating episodes over the past 12 months during the February 2014 VA examination. Accordingly, a rating under DC 5243 would not result in a higher disability evaluation. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran’s disability picture. The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported functional impairment of limited capacity to bend and lift and limited tolerance for standing and walking. However, both the February 2014 and September 2019 VA examination reports indicate that the Veteran was able to perform repetitive motion testing with three repetitions with no additional loss of range of motion even with pain following repetitive motion. Additionally, while the September 2019 VA examiner predicted the Veteran to have some additional loss of function or range of motion after repetitive use over time and during flare-ups, such impairments do not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine, as considered by a 50 percent disability rating. To the extent that the Veteran has asserted that he has limited capacity to bend and lift and limited tolerance for standing and walking because of the pain that he experienced, the Board finds that the VA examiners have fully considered these factors as discussed above, and the respective evaluations contemplate pain and how it affects the Veteran. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After considering the effects of pain and functional loss, unfavorable ankylosis of the entire thoracolumbar spine was not shown thereafter to warrant an increased 50 percent rating. Thus, a higher rating under 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not warranted for the Veteran’s lumbar spine disability. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). In this case, service-connection is already in effect for obstipation, radiculopathy of the right lower extremity with involvement of the sciatic nerve, radiculopathy of the right lower extremity with involvement of the femoral nerve, radiculopathy of the left lower extremity with involvement of the sciatic nerve, and radiculopathy of the left lower extremity with involvement of the femoral nerve, associated with his lumbar spine disability. As explained above, an increased rating for radiculopathy of the left lower extremity with involvement of the sciatic nerve is granted herein and the other service-connected issues are not on appeal before the Board. Additionally, the Board has considered whether separate ratings for any additional neurological abnormalities associated with the Veteran’s lumbar spine disability were warranted; however, the evidence of record, including both of the VA examination reports, does not indicate that the Veteran experiences any additional neurological abnormalities, aside from those for which he is already service-connected. In sum, the evidence of record does not support finding that a disability rating in excess of 40 percent for a lumbar spine disability is warranted and the claim must be denied. Finally, while the September 2019 VA examiner found that the Veteran’s lumbar spine disability causes some occupational limitations, the evidence of record shows that the Veteran has worked in a supervisory capacity throughout the pendency of the appeal. Accordingly, entitlement to a total disability rating due to individual unemployability is not indicated. REASONS FOR REMAND Entitlement to an increased rating for PTSD, rated as 30 percent disabling prior to August 23, 2013 and 50 percent disabling thereafter Although the Board regrets additional delay, another remand is necessary before adjudication of the Veteran’s increased rating claim for his service-connected PTSD. VA treatment records from August 2012, as well as the February 2014 VA examination report, indicate that the Veteran is treated by a private psychiatrist for his PTSD. To date, no private treatment records relating to the Veteran’s PTSD have been associated with the Veteran’s claims file. Furthermore, the Veteran was last examined for his PTSD in February 2014. While the mere passage of time is not a basis for requiring a new examination, the Veteran has indicated that his PTSD has increased in severity during the past six years. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). As such, a new VA examination is necessary in order to assess the current nature and severity of the Veteran’s PTSD. Additionally, as private treatment records may be associated with the claims file, the VA examiner will be able to address any additional evidence associated with the record. Accordingly, the Board finds that an additional remand is necessary to afford the Veteran an opportunity to identify or submit any additional evidence in support of his claim, to include private treatment records, and to schedule the Veteran for a new VA examination. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA PTSD treatment records. 2. Request any necessary authorization from the Veteran to obtain outstanding private treatment records associated with his PTSDS. At least two attempts to obtain records from any identified sources should be made. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After the above records development has been completed, schedule the Veteran for a VA examination with an appropriate examiner in order to assess the current nature and severity of the Veteran’s PTSD. A complete rationale should be given for all opinions and conclusions expressed. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.