Citation Nr: 21007610 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-27 469 DATE: February 10, 2021 ORDER Entitlement to an evaluation in excess of 20 percent prior to June 16, 2014 for the service-connected herniated nucleus pulposus, status post laminotomy and discectomy (hereinafter ‘back condition’) is denied. Entitlement to an evaluation of 20 percent, but no higher, for the back condition from June 16, 2014 to August 23, 2016 is granted. Entitlement to an evaluation in excess of 20 percent from August 24, 2016 to October 25, 2017 for the back condition is denied. Entitlement to an evaluation of 40 percent, but no higher, beginning October 26, 2017 for the back condition is granted. REMANDED Entitlement to an evaluation in excess of 10 percent prior to January 6, 2020 and in excess of 20 percent thereafter for the right shoulder condition is remanded. FINDINGS OF FACT 1. For the time periods on appeal prior to June 16, 2014 and after that date through October 25, 2017, although the Veteran’s back condition resulted in forward flexion varying from 40 degrees (during flare-ups) to 80 degrees, he had consistent, credible complaints of chronic pain requiring prescription medications, multiple rounds of physical therapy, functional loss during flareups, and muscle spasms. 2. Beginning October 26, 2017, the Veteran’s back condition has been productive of limitation of motion, pain, and weakness, more nearly approximating limitation of flexion of the thoracolumbar spine to 30 degrees or less when accounting for additional pain during flare ups and the ameliorative effects of medication. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the back condition prior to June 16, 2014 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an evaluation of 20 percent, but no higher, for the back condition between June 16, 2014 and August 23, 2016 were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for an evaluation in excess of 20 percent for the back condition between August 24, 2016 and October 25, 2017 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. 4. The criteria for an evaluation of 40 percent, but no higher, for the back condition beginning October 26, 2017 were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 through October 2006. In a June 2008 administrative decision, the Agency of Original Jurisdiction (AOJ) found that the Veteran’s active service from January 1991 to March 28, 2004 was honorable for VA purposes (“first period of active service”). However, it also found that his active service from March 29, 2004 through October 2006 was dishonorable for VA purposes (“second period of active service”). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a June 2018 hearing, and a transcript is of record. During the pendency of this appeal, the AOJ reduced the evaluation for the service-connected back condition from 20 percent to 10 percent, effective June 16, 2014. The RO then increased the rating to 20 percent effective August 24, 2016 and to 40 percent effective January 6, 2020. As such, the Board has characterized the claim on appeal to reflect these staged ratings. As discussed more below, the Board does not find the rating should have been reduced to 10 percent and also finds the 40 percent rating was warranted from an earlier date. The Board notes that this case also involved a jurisdictional question. The increased rating claims for the back and right shoulder conditions are currently on appeal and in front of the Board in what is known as the legacy appeals stream. In April 2019, the Board remanded these higher rating claims to the AOJ for further evidentiary development. Following the remand, in an April 2020 rating decision, the AOJ assigned a higher, 40 percent rating for the back condition and assigned a higher, 20 percent rating for the right shoulder condition, both effective January 6, 2020. As these ratings do not constitute a full grant, both of these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Following the April 2020 rating decision, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in July 2020, attempting to opt in to the Appeals Modernization Act (AMA) system, appealing claims pertaining to his neck condition, right shoulder condition, right elbow condition, and back condition. However, the Board is not able to honor the Veteran’s attempt to opt-in to the AMA for consideration as to the claims for his back condition and right shoulder condition. The April 2020 rating decision with respect to the back and right shoulder was issued in response to a Board remand, so those issues could not be appealed under the AMA, and the Board should not have accepted the July 2020 VA Form 10182. As the Board cannot take jurisdiction over the appeal as to higher evaluations for the back condition and right shoulder condition in the modernized review system, the appeal was docketed under the AMA system in error; but the Board is proceeding with adjudication in the legacy system. The Board sent the Veteran a letter clarifying this error in a January 2021 letter, while also advising the Veteran that his right elbow condition claim would remain on appeal under the AMA system. Since the April 2020 rating decision granted service connection for the right elbow, that issue could be appealed under the AMA. This has been separately docketed and will be the subject of a future Board decision. As noted, in an April 2019 decision, the Board, in part, remanded the claims for higher evaluations for the back and right shoulder conditions for further development. While the Board finds there was substantial compliance as to the back condition, another remand is necessary for the right shoulder claim. This is discussed more below. The Board acknowledges that the record contains additional medical evidence that was associated with the claims file after the October 2020 supplemental statement of the case. However, the evidence is not pertinent to the claims on appeal; rather the evidence is related to the Veteran’s separate claims. Because that evidence is not pertinent to this appeal, the Board may proceed to the merits of the claims before it. See 38 C.F.R. § 20.1304(c). The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. 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 active service. 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. see 38 C.F.R. § § 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence obtained during, or leading up to the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal. In such circumstances, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to each claim. By way of history, the Veteran submitted a claim for a higher rating for his service-connected back condition in July 2011, and in an August 2013 rating decision, the 20 percent rating was continued. In a May 2015 rating decision, his rating was reduced to 10 percent disabling, effective June 16, 2014. Thereafter, a 20 percent rating effective August 24, 2016 was granted in a June 2017 rating decision. Finally, subsequent to the Board’s April 2019 remand, following an examination, the Veteran was granted a 40 percent evaluation effective January 6, 2020 in an April 2020 rating decision. The Veteran has requested a higher evaluation for the entire period on appeal and asserts, generally, that his back disorder is worse than has been evaluated. As such, he argues higher evaluations are warranted. The Veteran’s service-connected back condition is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under DC 5242, for degenerative arthritis of the spine. The pertinent regulations for rating a back condition were provided to the Veteran in the June 2017 Statement of the Case and will not be repeated. Upon review of the evidence of record, the Board finds the following: • Prior to June 16, 2014, the Veteran’s back condition was not more than 20 percent disabling; • Resolving all doubt in his favor, the medical evidence still showed that the back condition approximated a 20 percent rating between June 16, 2014 and August 23, 2016, and the rating should not have been reduced; • From August 24, 2016 to October 26, 2017, the Veteran’s back condition was not more than 20 percent disabling; and • From October 26, 2017 to present, the Veteran’s back condition warranted a 40 percent disability rating. The reasons for each of these determinations is discussed below. Prior to June 16, 2014 The Veteran’s back condition did not warrant a higher rating than 20 percent for the period on appeal prior to June 2014. VA outpatient treatment records as well as other evidence within the file demonstrated ongoing treatment and complaints of a back disorder. However, there were no range of motion findings showing his back was limited by worse than 60 degrees nor was there evidence of ankylosis of the spine. Additionally, there was no evidence documenting any incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. For example, in the September 2011 VA examination, it was noted his forward flexion was limited to 80 degrees, 30 degrees of extension, 25 degrees of left and right lateral flexion, and 25 degrees of left and right lateral rotation with objective evidence of pain on motion with no additional loss of motion following repetitive testing, though less movement and pain on movement was noted. Muscle strength, reflex, and sensory testing were all noted as normal, and although the examiner opined he had IVDS, there were no incapacitating episodes requiring bed rest. Based on this examination the Veteran’s 20 percent evaluation was continued as the RO stated that “although recent evidence shows some improvement in the condition, sustained improvement has not been definitively established.” Further, his VA medical treatment records indicated that a 20 percent during this time period was warranted. For instance, in June 2011 rehab notes, it was noted he had flexion limited to 60 degrees with pain. It was recommended he take time off work beginning in June 2011 so he could go through physical therapy for acute low back pain, among other conditions; this was following a motor vehicle incident. In April 2013, he reported his pain was well controlled with Gabapentin and rated the severity a 2/10, but in a follow up in July 2013, he reported the pain was rated a 9/10. In June 2014, he reported acute lower back pain after squatting at the gym and he had pain on flexion and extension, though degrees were not reported. As such, the Board finds the medical evidence supports the assignment of a 20 percent evaluation for his disability prior to June 2014. Although the Veteran’s limitation of flexion was no worse than 80 degrees during this period on appeal, the medical evidence showed that he takes pain medication for his back disability. The Board 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). Thus, the Board finds that the Veteran’s back condition more nearly approximates the criteria for a 20 percent rating when considering these reports of worsening pain with activity, the frequency and length of his flare-ups, and his use of pain medication. Moreover, there is no dispute that the Veteran has required treatment including prescribed medications and physical therapy for his back condition. The records have clearly shown he has undergone several rounds of physical therapy, and his VA and private medical records all revealed he was taking pain medications. Given the demonstrated complaints of and treatment for back pain, coupled with the painful motion, the physical therapy, and the prescribed medication, the Board finds the Veteran’s service-connected back condition warrants the 20 percent evaluation, even though his demonstrated flexion has been greater than 60 degrees. See 38 C.F.R. §§ 4. 40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The Board has considered whether an evaluation in excess of 20 percent for the back condition is warranted for any period prior to June 2014. However, the Board finds there was no medical evidence reflecting the Veteran’s back condition manifested with symptoms comparable to forward flexion of 30 degrees or less, or unfavorable or favorable ankylosis of the lumbar spine. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran’s evaluation was already increased to 20 percent based on his subjective reports of pain, stiffness, and functional loss, as well as his diagnosis of lordosis. There is no indication in the claims file that any subjective factors resulted in ankylosis of any kind or forward flexion of 30 degrees or less, as needed for an increased rating under the General Formula. As such, an evaluation in excess of 20 percent is not warranted during this period on appeal. In order to receive a rating for IVDS Based on Incapacitating Episodes, the back disability would have to result in incapacitating episodes having a duration of at least 4 but less than 6 weeks during a 12-month period. However, there is simply no evidence documenting physician-prescribed bedrest. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician. However, with no medical evidence of record documenting physician-prescribed bedrest, an evaluation is not warranted for IVDS Based on Incapacitating Episodes. Further, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. However, the Veteran is already receiving a separate evaluation to compensate him for his right lower radiculopathy as secondary to his back condition. There is no evidence of other neurological abnormalities such as bowel or bladder impairment. In summary, the Board concludes the preponderance of the evidence is against assignment of a rating in excess of 20 percent prior to June 16, 2014 for the service-connected back condition. June 16, 2014 through August 23, 2016 As noted above, in the May 2015 rating decision, the RO reduced the assigned 10 percent rating effective June 16, 2014, on the basis that the Veteran’s condition showed sustained improvement. However, the Board notes there are several discrepancies as to the effective date. First, although the date of June 16, 2014 was listed on the title page of the 2015 rating decision, in the reasons for the decision, it was stated that the 10 percent evaluation was assigned from July 6, 2014. Thereafter, in the June 2017 Statement of the Case, the RO stated that the “evaluation was decreased to 10 percent disabling based on the VA examination conducted on May 4, 2015 showing improvement in [the Veteran’s] disability.” Regardless, the Board finds that the medical evidence between June 2014 and August 2016 continued to show a 20 percent rating was warranted. In the May 2015 VA examination, he reported he has pain rated as 4/10 and that he has flareups one time per year and when he has flareups, the pain is rated a 10/10. However, his description of the pain referred to his radiculopathy pain of being sharp in his toes with numbness. His flexion was limited to 80 degrees with pain, with a combined limitation of 190 degrees. The examiner opined the abnormal range of motion does not contribute to functional loss and the pain did not result in additional loss of motion, nor did repetitive use testing reveal additional loss of motion. He had no muscle spasms or guarding, and no ankylosis of the spine or IVDS of the spine that required bed rest. He reported having mild pain when walking and has pain with prolonged sitting for over an hour or with prolonged standing. Further, the examiner noted that while the condition impacted his ability to work, that any time missed from work is related to acute flare ups of his radiculopathy. The Veteran’s medical records showed continued complaints of and treatment for back pain. In July 2014, he reported the pain is more constant resulting in pain in his groin which causes difficulty walking. The pain was described as sharp and aching with the pain level rated as 4/10 at best and 10/10 at worst with the current rated 6/10. The range of motion testing revealed flexion limited to 80 degrees with a combined limitation greater than 120 degrees. His gait was normal. In April 2015, he reported using a back brace, heating pads, and a TENS unit and takes Gabapentin at night, Flexeril as needed, as well as lidocaine gel, Tramadol and Naproxen as needed. 2015 physical therapy records showed treatment for low back pain, and that the Veteran complained of right radicular pain; it was noted he had limited range of motion in flexion and extension. In December 2015, after moving and establishing care at a new VAMC, it was noted that he had radiculopathy and was scheduled to undergo removal of a spur and have decompression of his nerves. He stated that his symptoms for both his neck and back were well controlled with taking Gabapentin at night. Although the Veteran’s limitation of flexion continued to be no worse than 80 degrees during the 2015 VA examination, the medical evidence continued to show that he took pain medication for his back disability, stating it provided good control of his symptoms. Again, the Board 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). Thus, the Board finds that the Veteran’s back condition more nearly approximates the criteria for a 20 percent rating when considering these reports of worsening pain with activity, the frequency and length of his flare-ups, and his use of pain medication. Moreover, there is no dispute that the Veteran has required treatment including prescribed medications and physical therapy for his back condition. As such, the Board finds the rating should not have been reduced and the 20 percent evaluation remained appropriate for the Veteran’s back condition between June 16, 2014 and August 23, 2016, as the VA examination and treatment records showed chronic residual back pain with some limitation of motion and continued functional limitations. However, at no time during this time period was a rating higher than 20 percent warranted. There was no medical evidence reflecting the Veteran’s back condition manifested with symptoms comparable to forward flexion of 30 degrees or less, or unfavorable or favorable ankylosis of the lumbar spine. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran’s evaluation was already increased to 20 percent based on his subjective reports of pain, stiffness, and functional loss. There is no indication in the claims file that any subjective factors resulted in ankylosis of any kind or forward flexion of 30 degrees or less, as needed for an increased rating under the General Formula. As such, an evaluation in excess of 20 percent is not warranted during this period on appeal. There also remained no evidence documenting physician-prescribed bedrest or of other neurological abnormalities not already separately rated such as bowel or bladder impairment. In summary, the Board concludes the preponderance of the evidence is against assignment of a rating in excess of 20 percent between June 16, 2014 and August 23, 2016 for the service-connected back condition. August 24, 2016 through October 25, 2017 While this appeal was pending, the Veteran submitted another request in 2016 for a higher rating for his back condition, claiming worsening. As noted above, he was granted the 20 percent rating in a June 2017 rating decision, effective August 24, 2016 based on the VA examination findings. After a review of the evidence, the Board finds that the Veteran’s back condition did not warrant a higher rating than 20 percent for the period on appeal between August 2016 and October 2017. VA outpatient treatment records as well as other evidence within the file demonstrated ongoing treatment and complaints of a back disorder. However, there were no range of motion findings showing his back was limited by no worse than 50 degrees (40 after repeated use over time) nor was there evidence of ankylosis of the spine. Additionally, there was no evidence documenting any incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. In the August 2016 VA examination, he reported flare-ups which he described as causing him difficulty straightening up, increased pain, numbness down right side of lower back to right leg and toes. He also had loss of motion in forward flexion to 50 degrees, further declined to 40 percent, extension to 20 degrees, further declined to 10 degrees right and left lateral flexion both to 30 degrees, further declined to 20 degrees each, and right and left rotation both to 30 degrees, further declined to 20 degrees, with pain, tenderness, and fatigue. The examiner noted he had less movement than normal; instability of station; disturbance of locomotion; and interference with standing. He did not have ankylosis of the spine, and although he had IVDS, he had no episodes that required best rest prescribed by a physician. The Board has considered whether an evaluation in excess of 20 percent for the back condition is warranted for any period between August 2016 and October 2017. However, the Board finds there was no medical evidence reflecting the Veteran’s back condition manifested with symptoms comparable to forward flexion of 30 degrees or less, or unfavorable or favorable ankylosis of the lumbar spine. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran’s evaluation was already increased to 20 percent based on his subjective reports of pain, stiffness, and functional loss. There is no indication in the claims file that any subjective factors resulted in ankylosis of any kind or forward flexion of 30 degrees or less, as needed for an increased rating under the General Formula. Further, as noted below, his evaluation of 40 percent will be granted earlier to October 2017 rather than the current January 2020 effective date based on the evidence and Veteran’s contentions. As such, an evaluation in excess of 20 percent is not warranted during this period on appeal. There was still no evidence documenting physician-prescribed bedrest or of other neurological abnormalities such as bowel or bladder impairment that are not already separately rated. In summary, the Board concludes the preponderance of the evidence is against assignment of a rating in excess of 20 percent between August 24, 2016 and October 26, 2017 for the service-connected back condition. Since October 26, 2017 The Veteran argued in the August 2017 Form 9 that the VA examinations give an “incomplete picture” of his disability compared to when his condition deteriorates and flares. The Board has considered the Veteran’s VA and private medical records, and, beginning October 26, 2017, the Board finds, in giving benefit of the doubt in favor of the Veteran, a 40 percent evaluation, but no higher, is warranted. For example, in an October 26, 2017 physical therapy session, the Veteran was tested using an inclinometer, and his forward flexion was noted to be limited to 31 degrees (per recent studies, “inclinometers are more accurate, precise, and reproducible than measurements made using goniometers. According to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, the inclinometer has been adopted to measure spinal ROM.”). This was following an August 2017 report from the Veteran that he had to go to the Emergency Department with lower back pain flare ups and that he was unable to go to work due to the pain. He also began having acute back spasms. The August 2017 emergency room record did not, however, provide any range of motion findings, which is why the Board is using the October 2017 date for the increase. The October 2017 report also indicated that the Veteran had left scoliosis with increased right lower extremity and decreased lumbar lordosis around L4/5 and increased tone of paraspinal muscles L1-L3. The examiner also stated that upon observation, there was a lack of paraspinal and multifidi activation and the Veteran had pain with palpation to bilateral lumbar paraspinals. The Veteran also had aberrant movement patterns with poor lumbopelvic activation. The physical therapist also noted the Veteran had decreased strength, postural deviations, decreased flexibility, impaired joint mobility, decreased ROM, soft-tissue restriction, ADL limitations, and mechanical dysfunction. In a follow up appointment the next day, it was noted he had chronic spinal pain that had increased, and that he takes high dose acetaminophen up to 2000 g. a day, Ibuprofen of 800 mg three times a day; Gabapentin 600 mg twice a day, and also takes muscle relaxers and Flexeril. In November 2017, it was noted he had lesions of the lumbar spine and that he had had to cancel prior appointments due to pain from flareups. In January 2018, a lumbar spine imaging report was ordered due to a one-year history of worsening back pain. In February 2018, it was noted he had had no improvement with physical therapy. He underwent a VA examination in February 2018, which showed the X-ray results revealed “multilevel degenerative changes at levels L1 through S1; with facet arthropathy, disc protrusion at L3-4; causing narrowing of the spinal canal and bilateral neuroforamina narrowing; posterior disc protrusion at L5-S1 affecting the right S1 root.” The Veteran complained of pain in the lower back that was chronic, constant, radiating down to the right leg all the way down to the right foot with numbness of the 4th and 5th toes of the right foot, causing difficulty with prolonged standing and exercising. The Veteran reported flare-ups once a month, lasting for 3-4 days, and stated that he “usually go[es] to ER and get a shot of Toradol and Lidocaine pads.” He also said that he usually goes to the hospital in Jacksonville and takes Gabapentin, Flexeril and NSAIDs, uses a brace, and recently completed physical therapy. Testing revealed forward flexion limited to 50 degrees with pain on examination with a combined limitation to 170 with pain on motion that further contributed to functional loss. He had objective evidence of paravertebral tenderness in the lumbar spine area. It was noted that he has spasms and guarding but not resulting in abnormal gait or spinal contour, and he does not have ankylosis of the spine, and his IVDS had episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. However, the examiner noted the examination was not performed during a flareup or after repeated use and stated it would be mere speculation to opine as to additional functional loss. The examiner opined the Veteran’s condition impacted his ability to work, such that the Veteran's ability to perform heavy physical activities, heavy lifting, prolonged walking and/or standing, squatting, climbing stairs was all affected. A private record dated in March 2018 showed his complaint of constant stabbing pain, aggravated by prolonged standing or sitting or bending/squatting. He reported physical therapy in November-December 2017 had helped a little. The physician assessed displacement of lumbar intervertebral disc with a fragment sitting on the S1 nerve root. It was recommended he try epidural injections. Following this examination, the Veteran’s representative agued in the March 2018 brief “that the functional impairment is simply not confined to demonstration during an examination. [The Veteran] indicated that relying only on what can be seen at his VA examination does not show the whole picture; but an ‘incomplete picture.’” The representative further requested careful consideration of the functional impairment caused by the back. He also submitted a June 2018 private examination which found his back caused functional limitations and that he had chronic pain with abnormal range of motion, but as this examination was inconsistent and did not include range of motion degrees or test, and as such, it was concluded that it cannot be considered for rating purposes. In June 2018, the Veteran also provided sworn testimony that is consistent with his medical records and arguments as to his flareups. He stated that his doctors were recommending another back surgery as they had found another herniated disc and the changes from previous MRI's showed he was having more flare ups, and stated that he was having to be seen by providers and go to the ER. He also stated that his pain level was rated at a 9/10 and that he has to wear a brace; has worsened ADL’s; constant pain; takes Gabapentin; has frequent flare-ups; and that “when it [is] really bad I’d be out of work for a minimum of two weeks.” Private medical records further showed that in August 2019, he was given epidural shots to his back to help with the pain. The Board therefore requested an updated VA examination in the April 2019 Board remand. Following this remand, the Veteran underwent a VA examination in January 2020, where he stated his condition has gotten worse and reported that his neurosurgeon in 2016 found another Herniated disk and recommended surgery, and the examiner opined the condition since onset had gotten worse. It was noted that he has pain daily that is constant, and the pain level varies average was rated as a 7/10 that is worse in the morning time and his wife has to push him up and assist him getting up in the morning. It was noted that he had the steroid injection on his lower back August 2019, goes to the ER once a month for flares where he receives Toradol injections, and reported that it is hard to stand up straight with flares. He takes pain medication, rests and lays in bed until it subsides. Testing revealed that forward flexion is limited to 40 degrees, extension and right lateral and left lateral flexion and right and left lateral rotation all limited to 15 degrees. After repeated use over time, the examiner marked the forward flexion was limited to 35 degrees and extension limited to 10 degrees with pain significantly limiting functional ability during flareups that his forward flexion was further limited to 30 degrees during flareups. He also has guarding and was slow in doing his range of motion testing with disturbance of locomotion, interference with sitting and with standing, and pain impacts his ability to go on long walks or to sit or stand. His muscle strength testing was all normal and he does not have muscle atrophy. His sensory examination showed decreased sensation in the right thigh/knee and lower leg/ankle but left was all normal, and his right straight leg raising testing was also positive. He did not have ankylosis, and while he did have IVDS he had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. His ability to work was noted to be impacted by the back condition, and that he had limitations to frequent bending and lifting and carrying heavy objects. Following this examination, the Veteran submitted a letter in May 2020 that prior to COVID-19 restrictions, he was also receiving monthly injections on both sides of his lower back. Based on the following, the Board finds the medical evidence supports the assignment of a 40 percent evaluation for his disability beginning October 26, 2017, following physical therapy sessions which revealed a limitation of flexion to 31 degrees and increased pain and need for ER visits due to flareups. Further, his VA examinations exhibited limitation of flexion ranging from 35 to 50 degrees with pain further limiting his motion to at the worst, 30 degrees during flareups, and he reported experiencing daily pain which was made worse with standing, sitting, bending and that he has to wear a back brace constantly. Further, he stated the impact of his condition restricts his functionality due to moderate to severe monthly flare-ups lasting for days and that he has to go to the ER when they are bad. He has difficulty sitting, standing, walking or lifting. Further, the Veteran’s medical evidence shows that he takes multiple high dose pain medications for his back pain. The Board 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, 26 Vet. App. 56, 63. Thus, the Board finds that the Veteran’s back condition more nearly approximates the criteria for a 40 percent rating when considering these reports of worsening pain with activity, the frequency and length of his flare-ups, and his use of pain medication. Moreover, there is no dispute that the Veteran has required treatment including prescribed medications and physical therapy for his back condition. The records have clearly shown he has undergone several rounds of physical therapy, and his VA and private medical records all revealed he was taking pain medications for his conditions. Further, the 2018 and 2020 VA examiners both opined the Veteran would be functionally impacted in that heavy physical activities, heavy lifting, prolonged walking and/or standing, squatting, climbing stairs was to be avoided. Given the demonstrated complaints of and treatment for back pain, coupled with the painful motion, the physical therapy, and the prescribed medication, the Board finds the Veteran’s service-connected chronic back condition warrants a higher 40 percent evaluation, even though prior to January 2020, his demonstrated flexion was at times greater than 30 degrees. See 38 C.F.R. §§ 4. 40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. However, the required manifestations for an evaluation greater than 40 percent are not present. VA treatment records and VA examinations do not show that the Veteran’s spine has been found to be ankylosed, or that he has experienced incapacitating episodes of IVDS having a total duration of at least six weeks with prescribed bed rest from a physician at any time during the period under appeal. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician. Further, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. However, the Veteran is already receiving a separate evaluation to compensate him for his right lower radiculopathy as secondary to his back condition. In summary, the medical evidence supports an evaluation of 40 percent for service-connected chronic back condition since October 26, 2017. However, the preponderance of the evidence is against an evaluation greater than 40 percent. REASONS FOR REMAND As noted above, due to the jurisdictional errors, the only post-remand SSOC issued in October 2020 did not include the issue of entitlement to increased ratings for the right shoulder condition. The 20 percent rating since January 6, 2020 is not a full grant in the benefit sought on appeal. The issue of entitlement to increased ratings for the right shoulder condition is on appeal from a 2011 claim for an increase, and the issue of entitlement to higher ratings for a right shoulder condition throughout the appeal period remains on appeal. Consequently, remand is necessary for the AOJ to readjudicate the claim. The matters are REMANDED for the following action: Issue the Veteran and his representative an SSOC addressing the issue of entitlement to increased ratings for the right shoulder condition. The SSOC should address all staged ratings assigned, including the 10 percent rating assigned prior to January 6, 2020, and the 20 percent rating thereafter. Then, return the case to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.