Citation Nr: 21008864 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 09-39 943 DATE: February 18, 2021 ORDER From November 1, 2008, to April 30, 2009, entitlement to a rating of 50 percent for low back pain status post surgery with magnetic resonance imaging (MRI) findings of extrusion and free fragment, L5 and S1, (hereinafter referred to as a “low back disability”) is granted pursuant to 38 C.F.R. § 4.28. From May 1, 2009, to July 11, 2017, entitlement to a rating in excess of 10 percent for a low back disability is denied. From July 12, 2017, to December 10, 2019, entitlement to a rating of 20 percent, but no higher, for a low back disability is granted. The 10 percent rating already assigned for right lower extremity (RLE) radiculopathy is granted from April 26, 2008. The 10 percent rating already assigned for left lower extremity (LLE) radiculopathy is not granted prior to December 11, 2019. REMANDED For the rating period beginning December 11, 2019, entitlement to a rating in excess of 20 percent for a low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for LLE radiculopathy is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a bowel disorder, to include irritable bowel syndrome (IBS), is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to an effective date prior to April 8, 2013, for the award of service connection for other specified trauma- and stressor-related disorder and anxiety disorder (hereinafter referred to as a “psychiatric disability”) is remanded. Entitlement to an effective date prior to April 23, 2013, for the award of service connection for tension headaches is remanded. Entitlement to an initial rating in excess of 30 percent for a psychiatric disability is remanded. Entitlement to a compensable initial rating for tension headaches is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The RO assigned a 50 percent prestabilization rating for a low back disability, effective from the day following the date of discharge in April 2008. 2. The evidence does not demonstrate that a regular schedular total rating or a rating higher than 50 percent was warranted at any point during the 12 months following discharge from service. 3. From May 1, 2009, to July 11, 2017, the Veteran’s low back disability was manifested by forward flexion to 80 degrees, extension ranging from 10 degrees to 30 degrees, right lateral flexion ranging from 25 to 30 degrees, left lateral flexion ranging from 15 to 30 degrees, right lateral rotation ranging from 20 to 30 degrees, and left lateral rotation ranging from 20 to 30 degrees with no additional functional loss due to pain, guarding, or muscle spasm; intervertebral disc syndrome (IVDS) with incapacitating episodes was not demonstrated. 4. From July 12, 2017, to December 10, 2019, after resolving reasonable doubt in favor of the Veteran, the Veteran’s low back disability was manifested by guarding severe enough to result in an abnormal gait. 5. The evidence demonstrates that the Veteran had symptoms of RLE radiculopathy throughout the entire initial rating period on appeal. 6. The evidence does not demonstrate that the Veteran had symptoms of LLE radiculopathy prior to December 11, 2019. CONCLUSIONS OF LAW 1. Termination of a 50 percent prestabilization rating prior to the end of the 12-month period following discharge from service was not proper. 38 C.F.R. § 4.28. 2. From May 1, 2009, to July 11, 2017, the criteria for a rating in excess of 10 percent for a low back disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 3. From July 12, 2017, to December 10, 2019, the criteria for a 20 percent rating, but no higher, for a low back disability were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 4. The criteria for an initial rating of 10 percent for RLE radiculopathy are met since April 26, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8620. 5. The criteria for an initial rating of 10 percent for LLE radiculopathy are not met prior to December 11, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to April 2008 with service in the Southwest Asia theater from April 2003 to April 2004. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from December 2008, March 2014, and February 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were last before the Board in September 2019, at which time the Board, in part, remanded the higher rating claim for a low back disability, and reopened and remanded the service connection claim for OSA. The RO then increased the rating for the low back disability to 20 percent, effective December 11, 2019. The low back disability and OSA claims were subsequently readjudicated in May 2020 and July 2020 Supplemental Statements of the Case (SSOCs). The Board also denied the service connection claims for IBS, fibromyalgia, and CFS. The Veteran then appealed the September 2019 Board denial of these service connection claims to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand, and vacated the September 2019 Board decision to the extent that it denied service connection for IBS, fibromyalgia, and CFS. The issues were returned to the Board. The Board notes that service connection for RLE radiculopathy was granted by the RO in a June 2016 rating decision, at which time a 10 percent rating was assigned, effective October 28, 2015. Service connection for LLE radiculopathy was granted in a May 2020 rating decision, at which time a 10 percent rating was assigned, effective December 11, 2019. Although service connection for RLE and LLE radiculopathy was not awarded until October 28, 2015, and December 11, 2019, respectively, radiculopathy is part and parcel of the underlying higher rating claim for a lower back disability. Therefore, the awards are not for the entire period on appeal, specifically as of April 26, 2008. Therefore, the claims remain on appeal before the Board. See Fenderson v. West, 12 Vet. App. 11, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the issue of entitlement to a TDIU is raised by the record and has been accordingly added to the present appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Akles v. Derwinski, 1 Vet. App. 118 (1991). Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Higher Ratings Claims 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. 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. 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 (ROM) 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, supra. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Issues 1-3: Entitlement to a rating in excess of 10 percent prior to December 11, 2019, for a low back disability (excluding prestabilization rating period from April 26, 2008, to October 31, 2008) The Veteran requested that the prestabilization rating of 50 percent be reestablished (see January 2009 VA Form 9), and contended that a rating in excess of 10 percent was warranted for his low back disability (see September 2009 VA Form 9). He specifically stated in the July 2016 Notice of Disagreement (NOD) that his back was “pretty bad” such that a 40 percent rating was warranted. The Veteran’s low back disability is currently evaluated as 50 percent disabling under 38 C.F.R. § 4.28 as of April 26, 2008, before being assigned a 10 percent rating as of November 1, 2008; and then a 20 percent rating as of December 11, 2019, under 38 C.F.R. § 4.71a, DC 5242. Pursuant to 38 C.F.R. § 4.28, a 50 percent rating may be assigned, in lieu of ratings prescribed elsewhere, for disability from any disease or injury where there are unhealed or incompletely healed wounds or injuries, or where material impairment of employability is likely. A 100 percent rating may be assigned, in lieu of ratings prescribed elsewhere, for disability from any disease or injury where there is an unstabilized condition with severe disability, or substantially gainful employment is not feasible or advisable. Prestabilization ratings are for assignment in the immediate post-discharge period, and a VA examination is not required prior to assigning a prestabilization rating. However, prestabilization ratings may be changed to a regular schedular total rating or one authorizing a greater benefit at any time, so long as a VA examination is requested to be accomplished no earlier than six months following, nor more than 12 months following discharge from service. 38 C.F.R. § 4.28, Note 1. After the period of the prestabilization rating, the Veteran’s low back disability is rated under the General Rating Formula, which encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasms, and tenderness. See 38 C.F.R. § 4.71a, DCs 5235-5243. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5242, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, degenerative arthritis of the spine under DC 5242 was rated under the General Rating Formula for Diseases and Injuries of the Spine with an instruction to also see DC 5003. DC 5003 for degenerative arthritis (hypertrophic or osteoarthritis) states 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. However, when 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 this case, the low back disability warrants a compensable rating for the entire appeal period. As a result, DC 5003 is not applied in rating the low back disability. As of February 7, 2021, DC 5242 states to consider DC 5003 or 5010 for degenerative arthritis and degenerative disc disease (DDD) other than IVDS. DC 5003 is not changed. However, DC 5010 for post-traumatic arthritis instructs to rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The General Rating Formula provides for a 10 percent rating where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined ROM of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; 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 where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined ROM 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 where there is forward flexion of the thoracolumbar spine at 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated 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, DC 5243. As of February 7, 2021, DC 5243 clarifies that this diagnostic code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. DC 5242 will be assigned for all other disc diagnoses. Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). In May 2008, the Veteran stated that his “back bothered [him] sometimes when he [bent] over and stiffen[ed] up.” The Veteran was scheduled for a VA examination in August 2008, but failed to report. In his January 2009 VA Form 9, the Veteran reported that he was no longer able to fully bend or stand for a long period of time or do much lifting. He stated that he missed his August 2008 VA examination due to an employment opportunity, which he ultimately lost. A February 2010 VA treatment record reflects a complaint of chronic back pain, specifically intermittent pain when bending or getting out of bed, or if he twisted his back. The pain was worse at night. A February 2013 VA examination report reflects that no records were reviewed and diagnoses of DDD of the L5-S1 and degenerative spondylosis of the lumbar spine. The Veteran had back surgery in 2008 for DDD. He reported intermittent but daily low back pain with physical activity and weather changes. He reported that flare-ups impacted the function of the thoracolumbar spine. He had forward flexion to 80 degrees, extension to 30 degrees or greater, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. There was no objective evidence of painful motion in any direction. After repetitive-use testing, the Veteran did not have additional limitation in ROM. He had mild tenderness over the lower lumbar spine with no spasm or guarding. He did not have IVDS of the thoracolumbar spine. X-rays documented arthritis. In a September 2013 statement received October 2013, the Veteran reported that his back “really bother[ed him] when [he] got out of bed” or when the weather got cold. A February 2014 VA treatment record reflects a “labored gait,” although an August 2014 record reflects a steady gait An April 2015 VA treatment record reflects the Veteran’s complaint of increased back pain. An October 2015 VA examination report reflects review of the Veteran’s claims file and diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran did not report flare-ups, but reported a constant dull low back pain. He had forward flexion to 80 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on examination with forward flexion and extension, but did not result in or cause functional loss. There was no evidence of pain with weight-bearing or localized tenderness or pain on palpation. After repetitive-use testing, there was no additional loss of function or ROM. The Veteran was not being examined immediately after repetitive use over time, and the examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time. The examiner explained that the Veteran may experience some degree of loss of motion with repetitive use over time as pain was the limiting factor. However, a description of limitation of motion in terms of degrees could not be rendered without resorting to mere speculation. The Veteran had no guarding or muscle spasm of the thoracolumbar spine, or ankylosis of the spine. He had no other neurologic abnormalities related to a thoracolumbar spine condition, such as bowel or bladder problems or pathologic reflexes. He had IVDS of the thoracolumbar spine with no episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. X-rays documented arthritis. A July 12, 2017, VA treatment record reflects constant chronic low back pain that was worse when performing activities of daily living. He had guarded posture and ambulation. From November 1, 2008, to April 30, 2009 As noted above, the Veteran’s low back disability was immediately assigned a 50 percent rating as of April 26, 2008, pursuant to 38 C.F.R. § 4.28. In other words, a 50 percent prestabilization rating was assigned for a low back disability as of April 26, 2008, the date after separation from service. The RO scheduled an evaluation in April 2008. Unfortunately, the Veteran failed to report to this VA examination, and the RO terminated the prestabilization rating after the sixth month and assigned a 10 percent rating as of November 1, 2008. However, the Board finds that the termination of the 50 percent prestabilization rating was improper. Prestabilization ratings are assigned immediately after discharge from service and continue for a 12-month period following discharge from service. Prestabilization ratings may be changed to a regular schedular total rating or one that authorized a greater benefit at any time as long as an examination is scheduled not earlier than six months nor more than 12 months following discharge. In this case, the prestabilization rating of 50 percent was not changed for a total rating or a rating that was higher than 50 percent. Therefore, the 50 percent rating should remain in place for 12 months after separation from service, which would be until April 30, 2009. From May 1, 2009, to July 11, 2017 During this period of time, the Veteran had forward flexion of the thoracolumbar spine to 80 degrees. Although the October 2015 VA examination report reflects pain with forward flexion and extension, the examiner found that they did not result in or cause functional loss. Additionally, combined ROM was 190 degrees in February 2013 and 210 degrees in October 2015. The Board notes that a February 2014 VA treatment record notes a “labored gait.” However, it does not show that the Veteran had guarding or muscle spasm that caused any abnormal gait. As the evidence does not demonstrate that any guarding or muscle spasm of the thoracolumbar spine that caused abnormal gait or spinal contour, flexion so limited that it was limited to 30 degrees or less, or any ankylosis of the thoracolumbar spine, a 10 percent rating is appropriate. The Board acknowledges that the Veteran’s service-connected low back disability causes pain. The presence of pain, as described by the Veteran, is certainly a component of his disability and is contemplated in the rating criteria. The Board finds that the rating assigned adequately portrays any functional impairment, pain, fatigue, weakness, and any flare-ups that the Veteran experienced as a consequence of his low back disability. Accordingly, a 10 percent rating from May 1, 2009, to July 11, 2017, is appropriate as it already encompasses the provisions of 38 C.F.R. §§ 4.40, 4.45, and the DeLuca considerations. Moreover, although the February 2013 VA examiner found that the Veteran did not have IVDS of the thoracolumbar spine, the October 2015 VA examiner found that he did. It does not appear that there was disc herniation with compression and/or irritation of the adjacent nerve root as needed under the new regulations. Therefore, application of DC 5242 appears to be appropriate, which ultimately would rate the Veteran’s low back disability based on limitation of motion. However, the Board considers both the old and new versions to determine which would be more beneficial for the Veteran and thus also considers the Formula for Rating IVDS as well. However, the examiner found that the Veteran’s IVDS did not involve any incapacitating episodes. Therefore, a rating in excess of 10 percent based on the Formula for Rating IVDS is not warranted under the old version of the regulations. As such, the evidence does not demonstrate that a rating in excess of 10 percent is warranted from May 1, 2009, to July 11, 2017. From July 12, 2017, to December 10, 2019 Based on the evidence, the Board finds that a 20 percent rating, but no higher, is warranted from July 12, 2017, to December 10, 2019. The Board notes that the Veteran’s rating for a low back disability was increased to 20 percent based on the December 11, 2019, VA examination, which demonstrated forward flexion to 60 degrees, as well as guarding resulting in abnormal gait or abnormal spinal contour. However, a July 12, 2017, VA treatment record reflects guarded posture and ambulation. Therefore, the Board finds that guarding severe enough to result in an abnormal gait was first indicated by the evidence dated July 12, 2017. The Board acknowledges that impairment severe enough to warrant a 20 percent rating may not have occurred exactly on July 12, 2017. However, this is the first evidence indicating this level of severity. Additionally, the Board notes that the evidence does not reflect forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Therefore, a 20 percent rating is warranted as of July 12, 2017. The Board acknowledges that the Veteran’s service-connected low back disability causes pain. The presence of pain, as described by the Veteran, is certainly a component of his disability and is contemplated in the rating criteria. The Board finds that the rating assigned adequately portrays any functional impairment, pain, fatigue, weakness, and any flare-ups that the Veteran experienced as a consequence of his low back disability. Accordingly, a 20 percent rating from July 12, 2017, to December 10, 2019, is appropriate as it already encompasses the provisions of 38 C.F.R. §§ 4.40, 4.45, and the DeLuca considerations. Additionally, as discussed above, the Board considers the Formula for Rating IVDS under the old version of DC 5243, and finds no evidence of IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Therefore, a rating in excess of 20 percent is not warranted under the Formula for Rating IVDS. As such, a rating of 20 percent, but no higher, is warranted from July 12, 2017, to December 10, 2019. Other Issues In addition to consideration of the orthopedic manifestations of the low back disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The evidence reflects RLE and LLE radiculopathy, which is separately addressed below. Additionally, the Veteran does not have any other neurologic impairment associated with his low back disability. Furthermore, the February 2013, October 2015, and December 2019 VA examination reports reflect that the Veteran had a scar related to his low back disability. However, the evidence does not demonstrate that the scar is painful; unstable; or of a total area equaling or greater than 39 square (sq.) centimeters (6 sq. inches). Therefore, a separate compensable rating for the scar is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Issues 4-5: Entitlement to earlier effective dates for the award of service connection for RLE and LLE radiculopathy As stated above, in addition to consideration of the orthopedic manifestations of the low back disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In this case, the RO evaluated the Veteran’s RLE radiculopathy and LLE radiculopathy as both 10 percent disabling under 38 C.F.R. § 4.124a, DCs 8620 and 8520, respectively. DC 8620 is for neuritis of the sciatic nerve. Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. 38 C.F.R. § 4.123. Under DC 8520 for disability of the sciatic nerve and under DC 8620, a 10 percent rating is assigned for mild incomplete paralysis. For moderate incomplete paralysis, a 20 percent rating is assigned. For moderately severe incomplete paralysis, a 40 percent rating is assigned. For severe incomplete paralysis with marked muscular atrophy, a 60 percent rating is assigned. Complete paralysis of the sciatic nerve with foot dangling and dropping is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild or, at most, the moderate degree. Id. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Sellers v. Wilkie, 30 Vet. App. 157 (2018) (“DC 8520 does not define ‘mild,’ ‘moderate,’ ‘moderately severe,’ or ‘severe,’ or generally associate those terms with specific symptoms”). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. STRs reflect low back pain with tingling in the upper right thigh for one week in October 2006; and occasional throbbing pain in the posterior right thigh, not past the knee, in November 2006, December 2006, and January 2007. In November 2006, the Veteran had a positive sitting straight leg raising test bilaterally for increased back pain, with the left greater than the right. In January 2007, the Veteran had lower back pain for three days with radiating pain and numbness down the RLE. A January 2007 MRI of the lumbar spine revealed central right paracentral disc extrusion and probable free disc fragment at L5-S1, which largely obscured the S1 nerve root on the right and caused mass effect on the thecal sac. There was bilateral neural canal narrowing at this level. In February 2007, the Veteran was assessed with acute lumbar radiculopathy at the S1 more than L5 level on the right side. In April 2007, he had a right-sided L5-S1 micro hemilaminotomy, diskectomy, and foraminotomy due to a history of severe RLE radicular pain and an MRI showing a lark disk herniation for which he failed conservative therapy. Subsequently, STRs reflect that the Veteran did not have any radicular symptoms. See 9/13/07, 10/17/07 STRs. However, Social Security Administration (SSA) records reflect that the Veteran had occasional lower extremity tingling with no pain in June 2007. An April 2008 Physical Residual Functional Capacity Assessment also reflects that he was occasionally limited in climbing, balancing, stooping, kneeling, crouching, and crawling due to pain from acute radiculopathy. In February 2014, he reported sharp and stabling localized pain to the lumbosacral spine, which occasionally may radiate to either side of the spine. A February 2013 VA examination report reflects that no records were reviewed and diagnoses of DDD of the L5-S1 and degenerative spondylosis of the lumbar spine. The Veteran reported no radicular symptoms. All muscle strength testing results were normal. Reflex examination results were hyperactive without clonus at the bilateral knees and normal at the bilateral ankles. Sensory examination results were normal bilaterally, and straight leg raising test results were negative bilaterally. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. An October 2015 VA examination report reflects review of the Veteran’s claims file and diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. He had normal muscle strength bilaterally with no muscle atrophy. He had hypoactive deep tendon reflexes at the knees and ankles. Sensation to light touch testing was normal bilaterally, and straight leg raising test results were negative bilaterally. The Veteran had mild constant pain in the RLE and mild paresthesias and/or dysesthesias in the RLE. Although the examiner stated that the Veteran did have radicular pain or symptoms due to radiculopathy involving the right sciatic nerve, the examiner then stated that the bilateral lower extremities were not affected. The examiner then noted clinical findings consistent with right-sided radiculopathy status post percutaneous microdiscectomy. An October 2015 VA peripheral nerves examination report reflects review of the Veteran’s claims file and a diagnosis of radiculopathy as of August 2007. He had symptoms attributable to a peripheral nerve condition, specifically mild constant pain in the RLE and mild paresthesias and/or dysesthesias in the RLE. He had normal muscle strength bilaterally, and had hypoactive deep tendon reflexes in the knees and ankles. He had normal sensation testing for light touch results, and had no trophic changes attributable to peripheral neuropathy. The examiner found that the Veteran had mild incomplete paralysis of the right sciatic nerve, mild incomplete paralysis of the right external popliteal (common peroneal) nerve, mild incomplete paralysis of the right musculocutaneous (superficial peroneal) nerve, mild incomplete paralysis of the right anterior tibial (deep peroneal) nerve, mild incomplete paralysis of the right internal popliteal (tibial) nerve, and mild incomplete paralysis of the right posterior tibial nerve. The examiner noted that clinical findings were consistent with right-sided radiculopathy. A December 11, 2019, VA examination report reflects review of the Veteran’s claims file and diagnosis of bilateral lower extremity radiculopathy. The Veteran complained of increased pain and paresthesia in the thighs with the right being greater than the left. He had normal strength bilaterally with no muscle atrophy, and normal deep tendon reflexes bilaterally at the knees and ankles. He had decreased sensation to light touch at the feet/toes (L5) bilaterally with occasional numbness in the bottom of the feet. Straight leg raising test results were negative. He had radiculopathy with mild intermittent pain (usually dull) in the RLE, mild paresthesias and/or dysesthesias bilaterally, and mild numbness in the RLE. The examiner found that the Veteran had mild radiculopathy involving the sciatic nerves bilaterally. RLE Radiculopathy In July 2017, the Veteran reported that he had had RLE radiculopathy since 2007. Therefore, he contended that an earlier effective date was warranted. The claim for RLE radiculopathy was awarded service connection as of October 28, 2015. The effective date was based on the date RLE radiculopathy was first shown, specifically the October 2015 VA examination. However, as stated above, the issue of RLE radiculopathy is part and parcel of the underlying service-connected low back disability, which was awarded service connection on April 26, 2008. As noted in the evidence, the Veteran reported tingling and throbbing and radiating pain in his RLE during service. Although it appears to have subsided after the April 2007 low back procedure, he again reported occasional tingling in June 2007, and the April 2008 SSA assessment reflects limitations in activity due to pain from acute radiculopathy. The Board notes that the evidence is conflicting regarding the Veteran’s RLE symptoms. Specifically, despite the SSA records reflecting RLE symptoms during service after the low back procedure, the February 2013 VA examiner found that the Veteran did not have any symptoms due to radiculopathy. Subsequently, the October 2015 VA examiner noted a diagnosis of RLE radiculopathy as of August 2007. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board grants the previously assigned rating for RLE radiculopathy from April 26, 2008, the date of claim of the underlying low back disability. Entitlement to a higher rating is remanded below. LLE Radiculopathy The claim for LLE radiculopathy was awarded service connection as of December 11, 2019. The effective date was based on the date LLE radiculopathy was first shown, specifically the December 2019 VA examination. However, as discussed above, the issue of LLE radiculopathy is part and parcel of the underlying service-connected low back disability, which was awarded service connection on April 26, 2008. In this case, although the STRs noted a positive sitting straight leg raising test in the LLE, the evidence does not demonstrate a diagnosis of LLE radiculopathy before December 11, 2019, or any symptoms after the April 2007 back procedure. In fact, despite the continuous reports of symptoms in the RLE, the Veteran did not complain of any LLE symptoms. It was not until the December 11, 2019, VA examination that the evidence reflects a diagnosis of radiculopathy in the LLE. The December 2019 VA examination report first reflects a diagnosis of LLE radiculopathy. Although his radiculopathy may not have emerged on the date of this VA examination, it first reflects a definitive diagnosis of LLE radiculopathy. Therefore, the evidence does not demonstrate that the Veteran had LLE radiculopathy prior to December 11, 2019. Entitlement to a higher rating is remanded below. REASONS FOR REMAND 1. As of December 11, 2019, entitlement to a rating in excess of 20 percent for a low back disability is remanded. The claim for a higher rating for a low back disability as of December 11, 2019, is being remanded for a new VA examination. The Veteran’s most recent VA examination was in December 2019, at which time the examiner noted pain with forward flexion that caused functional loss. Unfortunately, the examiner did not specify at which point pain started. As this examiner did not address all the requirements pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), a new VA examination is required in order to adequately evaluate the current severity of the Veteran’s low back disability. Issues 2-3: Entitlement to initial ratings in excess of 10 percent for RLE and LLE radiculopathy is remanded. In regard to the Veteran’s service-connected RLE radiculopathy, the evidence is conflicting regarding which nerves are affected. While the October 2015 and December 2019 VA spine examiners only found that the sciatic nerve was affected, the October 2015 VA peripheral nerves examination report reflected that the Veteran had mild incomplete paralysis of the right sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. Therefore, a VA examination is required on remand in order to evaluate the Veteran’s RLE radiculopathy and confirm which nerves are affected. The LLE radiculopathy claim is also remanded as the VA examination for RLE radiculopathy may provide new evidence regarding the severity of the LLE radiculopathy. 4. Entitlement to service connection for OSA is remanded. In September 2019, the Board reopened the service connection claim and remanded it for a VA addendum opinion in order to clarify the etiology of the Veteran’s OSA. The examiner was specifically instructed to provide an opinion regarding the etiology of the Veteran’s OSA, including whether it is related to service and/or a service-connected disability. Although a December 2019 addendum opinion was obtained, the examiner only opined that there was “no link” to service or a service-connected disability as the etiology was an upper airway anatomic variation. However, the examiner did not address whether the Veteran’s OSA was aggravated by any service-connected disability. Therefore, the service connection claim for OSA is being remanded for a VA addendum opinion in order to specifically address aggravation by a service-connected disability. Issues 5-7: Entitlement to service connection for a bowel disorder, to include IBS; fibromyalgia; and CFS is remanded. The Court remanded the service connection claim for a bowel disorder to the Board after determining that the Board erred in relying upon an inadequate April 2016 VA opinion. Specifically, the VA examiner based the negative opinion on general statements without analyzing the risk and etiology for this particular Veteran based on the specific evidence of this case. The April 2016 VA opinion is the only one documented. Additionally, there is no other evidence submitted which addresses the etiology of the Veteran’s bowel disorder. Although the Veteran submitted Disability Benefit Questionnaires (DBQs) in October 2013, they did not address etiology of his claimed bowel disorder. Additionally, a March 2014 VA examination was scheduled, but no opinion as to etiology was provided as the examiner found that the Veteran did not have a diagnosis of IBS or any other intestinal condition. As the April 2016 VA opinion is inadequate and as there is no other evidence regarding etiology, a new VA examination is required in order to confirm whether the Veteran has a diagnosis of a bowel disorder and, if so, the nature and etiology of such. Moreover, while symptoms such as fatigue, headaches, sleep disturbance, depression, and anxiety appear to be attributable to other diagnosed disorders, the Veteran indicates that his reported symptoms for a bowel disorder, fibromyalgia, and CFS, including widespread musculoskeletal pain, stiffness, muscle weakness, constipation, and voiding symptoms, are attributable to an undiagnosed illness, which were not addressed by a VA examiner. See 38 C.F.R. § 3.317(a)(2)(i)(A). As such, his service connection claims for fibromyalgia and CFS are inextricably intertwined with the claim remanded herein as the evidence indicates that they may be related to other disorders, specifically a bowel disorder. Therefore, adjudication of these claims may depend on the outcome of the other remanded claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 8. Entitlement to a TDIU is remanded. The Veteran’s TDIU claim is inextricably intertwined with the claims remanded herein. Therefore, adjudication of this claim may depend on the outcome of the other remanded claims. See Parker, supra; Harris, supra. Issues 9-12: Entitlement to earlier effective dates for a psychiatric disability and tension headaches, to an initial rating in excess of 30 percent for a psychiatric disability, and to a compensable initial rating for tension headaches is remanded. The earlier effective date and higher rating claims for a psychiatric disability and tension headaches are being remanded for the issuance of a Statement of the Case (SOC). In an October 2017 rating decision, the RO granted service connection for a psychiatric disability, assigning a 30 percent rating, effective April 8, 2013; and for tension headaches, assigning a noncompensable rating, effective April 23, 2013. Although the Veteran submitted a NOD in December 2017, the RO informed him in a January 2018 letter that the NOD was premature as the October 2017 rating decision had not yet been processed. In March 2018, the Veteran was sent a notification letter regarding the October 2017 rating decision. Subsequently, he submitted a NOD, disagreeing with both the effective dates and ratings assigned for a psychiatric disability and tension headaches. Although a March 2018 NOD was submitted, the Agency of Original Jurisdiction (AOJ) has yet to issue an SOC subsequent to the NOD. The issuance of subsequent rating decisions does not abrogate the AOJ’s duty to render an SOC, and failure to provide the Veteran with an SOC would be prejudicial. Therefore, these issues must be remanded for the issuance of an SOC. See 38 C.F.R. § 19.9(c). The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940 and request that he complete and submit it after updating his employment history. 2. Provide a VA examination by an appropriate examiner to determine the current severity of the Veteran’s service-connected low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to and reviewed by the examiner. *IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to a VA orthopedic spine surgeon for a thorough review of the record and medical opinion. In evaluating the disability, the examiner is reminded to: a) Clearly indicate all orthopedic and any neurological manifestations of the Veteran’s service-connected low back disability. b) Test the ROM of the thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, clearly explain why that is so. c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. d) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to lumbar spine degenerative disc disease and lower extremity radiculopathy alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. d) Comment on whether any functional impairment is present in the Veteran’s ability to perform work or work-like tasks due to the service-connected low back disability. The examiner should provide an explanation for any conclusions reached. 3. Provide a VA examination by an appropriate examiner to determine the current severity of the Veteran’s service-connected RLE radiculopathy and LLE radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to and reviewed by the examiner. *IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to a VA neurologist for a thorough review of the record and medical opinion. In evaluating the disability, the examiner is reminded to: a) Evaluate the current severity of the Veteran’s service-connected RLE radiculopathy, specifically confirming which nerves are affected. If there is incomplete paralysis, describe whether it is mild, moderate, moderately severe, or severe with marked muscular atrophy for each nerve affected. *The examiner should specifically review and address: i) The October 2015 VA back examination report reflecting radicular pain involving the right sciatic nerve; ii) The October 2015 VA peripheral nerves examination report reflecting mild incomplete paralysis of the right sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves; and iii) The December 2019 VA examination report reflecting mild radiculopathy involving the sciatic nerve. b) Evaluate the current severity of the Veteran’s service-connected LLE radiculopathy. If there is incomplete paralysis, describe whether it is mild, moderate, moderately severe, or severe with marked muscular atrophy for each nerve affected. A complete rationale should be provided for all opinions provided. 4. Obtain an addendum by a VA examiner to address the nature and etiology of the Veteran’s OSA. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After reviewing the claims file in its entirety, the examiner is asked to address the following with complete rationale: Provide an opinion as to whether the Veteran’s claimed OSA at least as likely as not (50 percent or greater probability) is aggravated by any service-connected disabilities, including a psychiatric disability, tension headaches, a low back disability, a lower back scar, RLE radiculopathy, and LLE radiculopathy. A complete rationale should be provided for any opinion provided. 5. Provide a VA examination, if possible, by an appropriate examiner to determine the nature and etiology of the Veteran’s claimed bowel disorder, to include IBS. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to and reviewed by the examiner. *IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to a VA gastroenterologist for a thorough review of the record and medical opinion. Although a complete review of the record is imperative, attention is called to the following: *A February 2008 STR reflecting the Veteran’s denial of constipation, diarrhea, or any gastrointestinal symptom except nausea and vomiting, which were found to be side effects of medication. *A January 2009 VA Form 9 reflecting a spastic colon. *An October 2013 Male Reproductive Organ Conditions DBQ completed and submitted by the Veteran reflecting a diagnosis of constipation and voiding dysfunction. *An October 2013 Intestinal Conditions DBQ completed and submitted by the Veteran reflecting a diagnosis of IBS. *A March 2014 VA examination report reflecting that the Veteran did not now have or had ever been diagnosed with an intestinal condition despite his complaints of chronic constipation that occurred approximately twice a month and which began in April 2013. *An April 2016 VA examination report reflecting a diagnosis of constipation and the examiner’s opinion that it was less likely than not caused by environmental exposures while serving in Southwest Asia. After reviewing the claims file in its entirety and examining the Veteran, if possible, the examiner is asked to address the following with complete rationale: a) Confirm whether the Veteran has a current bowel diagnosis, to include IBS, and, if possible, the onset of such. b) For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) related to the service, including the environmental exposures while serving in Southwest Asia and Persian Gulf service, and/or due to an undiagnosed illness or a functional gastrointestinal disorder as defined in 38 C.F.R. § 3.317(a)(2)(i)(B)(3), Note. *The examiner should be sure to address this specific Veteran and the facts and evidence of this particular claim.* A complete rationale should be provided for any opinion provided. 6. Obtain an addendum by a VA rheumatologist to address the nature and etiology of the Veteran’s claimed fibromyalgia and CFS. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After reviewing the claims file in its entirety, the examiner is asked to address the following with complete rationale: Provide an opinion as to whether the Veteran’s symptoms at least as likely as not (50 percent or greater probability) result from an undiagnosed illness. The examiner should consider: i) The reported symptoms attributable to his claimed fibromyalgia and CFS, such as generalized muscle aches and weakness, fatigue, and stiffness and ii) The Veteran’s service in Southwest Asia. A complete rationale should be provided for any opinion provided. 7. Thereafter, readjudicate the remanded claims on appeal. 8. Also provide the Veteran with an SOC with regard to the issues of earlier effective dates and higher ratings for a psychiatric disability and tension headaches. Clearly advise the Veteran and his representative of the need to file a substantive appeal following the issuance of the SOC if he wishes to perfect an appeal of these issues to the Board. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee, 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.