Citation Nr: 21009187 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-01 564 DATE: February 19, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) and joint disease (DJD) of the lumbar spine (low back) is denied. FINDING OF FACT The evidence fails to show flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1990 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s back disability was initially assigned a 10 percent rating per a June 2008 rating decision which granted service connection for the disability. He initiated an appeal of the initial rating in an August 2008 notice of disagreement (NOD), with statement of the case (SOC) issued in May 2009. At the same time, a May 2009 rating decision assigned a 20 percent rating for the back, effective August 16, 2007 date of initial entitlement. Although an increased rating was granted, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) A June 2009 rating decision continued the 20 percent rating for the back disability. In March 2010, VA received a Form 9, indicating the Veteran’s disagreement with the assigned rating. As the March 2010 Form 9 was received within one year of the June 2009 rating decision, the Board construed the Form 9 as a notice of disagreement (NOD) to the June 2009 rating decision. See Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (discussing what constitutes a notice of disagreement). Thus, Board characterized the issue of entitlement to an increased rating for the back as one for an increased initial rating. See Fenderson v. West, 12 Vet. App. 119, 128-29 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996A June 2009 rating decision continued the 20 percent rating for the back disability In March 2015, the Veteran testified before the undersigned at a Board hearing in Washington, D.C.A transcript of that hearing has been associated with the virtual file and reviewed. These matters were remanded by the Board in July 2015, April 2018, and February 2020. The Board also disposed of other issues on appeal in prior adjudications accompanying the remands. The remaining issue of increased rating for the lumbar spine disorder is now returned to the Board of Veterans’ Appeals (Board) for further consideration. 1. DEGENERATIVE JOINT DISEASE, THORACOLUMBAR SPINE The Veteran contends that her back disability is more severe than currently evaluated. At her March 2015 hearing she described being only able to walk for 10-15 minutes; always trying to find ways to sit to alleviate her back pain; and having to take frequent breaks. She reported that cannot do basic household chores; some days she could not get out of bed. Her symptoms were aggravated by prolonged sitting, standing, and walking. She reported that her back pain medications made her drowsy. She wore a back brace. Her back pain was 9/10 daily; and 10 during flare ups. She also reported that her legs have been tingling and sometimes go numb and sometimes her feet go numb. Medications did not alleviate the leg symptoms. She reported having almost fallen due to her legs given out; and was constantly moving legs to try and stop the tingling. She also reported a burning sensation primarily in the lower legs to feet. She also reported muscle spasms in upper legs and one instance of falling. She reported having lost 12 days of work in past year. She had no prescribed episodes of bed rest. In a statement received October 22, 2019 she claimed that wearing a back brace made of hard plastic to a VA examination made documented ROM “impossible.” See Medical Treatment Records 11 pg. received 10/22/19. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27 ; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 ; 38 C.F.R. § 4.14. The Veteran is competent to report symptoms observable by his senses. See Jandreau, 492 F.3d at 1377. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Disabilities of the low back are rated under section 4.71a for the musculoskeletal system. The Veteran’s back is rated 20 percent disabling under Diagnostic Code 5242, which applies the General Rating Formula for the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for the Spine, a 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a 20 percent evaluation requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires treatment and bed rest prescribed by a physician. 38 C.F.R. § 4.71a , DC 5243, Note (1). Moreover, per revisions to the rating schedule made effective February 7, 2021, Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Diagnostic Code 5242 for all other disc diagnoses. The revisions did not alter the General Rating Formula for diseases and injuries of the spine and have no material consequence on the facts of this case. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board has reviewed the record and finds that the criteria for a rating in excess of 20 percent for the low back disability have also not been met under the general rating formula. 38 C.F.R. § 4.71a , DC 5242. The evidence shows that the Veteran did not have flexion of the thoracolumbar spine limited to 30 degrees or less or ankylosis at any time during the rating period on appeal. This includes VA treatment records from 2007 to 2020. In October 2007 the Veteran was seen for back symptoms without vertebral or CVA tenderness but with discomfort in the lumbar area greater on the left than right, increasing in pain with flexion, extension, and side to side movement. She was able to walk on heels and toes but had positive straight leg raising at 80 degrees on the right and 20 degrees on the left. However, the joints were within the full range of motion without pain or contractures and there was no muscle atrophy or weakness. The assessment was low back pain. However, a record in December 2007 disclosed no back pain or stiffness and no neurological issues such as numbness, weakness or tingling. In March 2008 the Veteran had a pain rating of 6/10 intensity located in the bilateral leg and back. The pain was worse with walking and interferes with walking and activities of daily living. In June 2008 she was seen for back pain with bilateral leg pain. An MRI was ordered pending fee approval. Private treatment records from June 2008 noted complaints of chronic back pain, with a history of treatment including therapy, medication, and injections which may have been epidurals. She had modified her activity but continued to have discomfort at flanks and crests bilaterally. she does note some discomfort in buttocks but denies extremity pain, numbness, dysesthesia, or weakness. Examination of the spine showed no spasm or tenderness and lumbar flexion to 60 degrees. Neurological examination was negative, and strength was 5/5 bilateral lower extremities on hip flexion, abduction, adduction, knee flexion and extension and dorsiflexion. Reflexes were 2/2 Achilles and patella. She had full 5/5 muscle strength bilateral lower extremity. MRI was noted to be essentially normal. The impression was chronic myofascial lumbar pain with underlying spondylosis and facet arthropathy. She had undergone rehabilitation for her lumbar symptoms through July and August 2008. On follow up in September 2008 for chronic back pain she was noted to have been attending therapy, which provided temporary relief but not lasting improvement. Range of motion and the rest of the findings were the same as in June 2008. See 15 pg. Medical treatment records non-government received 10/27/2008 pg. 2, 3, 5, 13. VA records dated in 2009 showed ongoing issues with low back and leg pain with tingling on activities and rest reported in October 2009. In November 2009 she underwent a neurology consult for tingling and numbness in both legs and feet for the past 8 months. A history of “degenerative disk disease” was obtained from the Veteran, however records confirming this were not available. MRI showed some mild arthritic changes, but no neuroforaminal or central canal stenosis was appreciated. Multilevel facet arthropathy was shown. Motor system examination was notable for normal muscle bulk and tone and normal upper extremity strength. She had spasm and some altered and decreased effort in the lower extremities, but with encouragement strength was normal. Toes were downgoing and reflexes, including ankle jerks, patella, triceps, biceps, and brachioradialis, were normal. Sensory exam was notable for subjective decrease in lower extremity sensation, and she had diminished proprioception by her report during the examination. Romberg examination, however, disclosed normal stance with eyes closed. Cerebellar examination was normal. However, she had an antalgic gait. The diagnoses were lower extremity numbness and arthropathy. B12, RPR, TSH, diabetes screens were all normal, and so there was no obvious source for a neuropathy. In December 2009 the Veteran underwent electrodiagnostic consult for an 8-month history of numbness/tingling in the bilateral legs involving the entire/circumferential leg from knee to entire foot/all toes bilaterally. She noted no inciting injury or activity and stated symptoms were there constantly. They seemed to worsen when she is at rest (sitting, lying down). She admitted to a history of chronic low back pain which may radiate posteriorly to but not below bilateral hips. She was currently taking codeine/acetaminophen with fairly good relief of low back pain. Results of the testing disclosed no electrophysiologic evidence consistent with focal or diffuse large fiber neuropathy or acute lumbar or sacral radiculopathy involving either lower extremity. Records from November and December 2010 disclosed ongoing complaints of low back pain and subjective complaints of leg symptoms of tingling, but without objective evidence of ankylosis, flexion less than 30 degrees or intervertebral disc syndrome without incapacitating episodes or radicular symptoms attributable to the lumbar spine. In November 2010 she had back pain with a diagnosis of L3-4 bulging disc. She had tingling of leg and was on medications for restless leg syndrome. However, on physical examination her gait was coordinated and smooth, no misalignment, defects or deformities of joints, bones or muscles. Joints had full range of motion with no pain or contractures, no muscle atrophy or weakness. Neuro cranial nerves were fully intact, DTRs 2+ bilateral, superficial touch and pain sensation intact. The assessment was primary low back pain. In December 2010 she was examined and the findings included lumbar flexion to 45 degrees, muscle strength was 5/5 throughout the bilateral lower extremities and sensory intact to pinprick (PP) and light touch (LT) all dermatomes. Results were grossly normal. Waddell testing was positive for overreaction, paravertebral phonation and active resistance to provocative PE maneuvers. The Veteran was diagnosed with non-dermatomal bilateral lower extremity pain. The diagnoses included early C5/6 central cord syndrome d/t DDD and somatoform disorder with secondary/tertiary gain issues (3/5 Waddell Signs). Motor system examination showed normal muscle bulk and tone and normal upper extremity strength. She had some spasm and altered and decreased effort in the lower extremity but with encouragement strength was normal. Toes were downgoing and reflexes including ankle jerks, patella, triceps, biceps and brachioradiales are normal. Sensory exam was notable for subjective decrease in LE sensation and she had diminished proprioception per her report during exam. However, Romberg testing disclosed normal stance with eyes closed. The diagnoses were lower extremity numbness and arthropathy. B12, RPR, TSH and diabetes screen were all normal so there was no obvious source for a neuropathy. Also diagnosed was chronic back pain (CLBP) with chronic myofascitis, rule out bilateral lower lumbar facet syndrome. Records from May 2011 showed complaints of low back pain of 6/10 severity, which radiated to the lower extremities with a tingling sensation in the legs more in a laying and sitting position. In March 2012 she underwent electrodiagnostic testing with no evidence of peripheral neuropathy, but with bilateral diffuse mild instability on EMG of the lower extremities and LS paraspinals. Among the possible etiology of this EMG picture were lumbar spinal stenosis, arachnoiditis, metabolic disorders, metastatic disease. Clinical correlation was requested. In May 2012 she was noted to request a pain clinic consult for chronic pain that included back pain. Records from 2013 disclosed that the Veteran was seen for a new clinical evaluation in January 2013 with complaints of back injury with tingling down the bilateral lower extremities. She reported that her back pain was aggravated by being in a sitting position at work. In June 2013 she described having back pain that had increased in intensity, averaging a 6/10 in pain and described as a constant ache and tension, with spasms exacerbated by activities such as sitting for a prolonged period, and stress. Her back pain was similar to a constant nagging ache made worse with activity such as walking, bending. In bed she tossed and turns at night with an inability to get comfortable. In July 2013 she was prescribed a Universal back brace. She also presented for a comprehensive patient education program to determine options available for the management of Low Back Pain (LBP). In October 2013, she was diagnosed with facetogenic left sided back, with examination findings of her sensory intact, motor 5/5 in the lower extremities. She was tender to palpation of the left sided paraspinal musculature without overt tender points and no overt S1 joint pain to palpation. In November 2013, she reported a history of back pain without radiation to the lower extremities with history of restless leg syndrome treated with ropinirole with reported on apparent improvement. She reported parasthesia to lower extremities and has been taking gabapentin for years. In December 2013 she was noted to have back pain with an MRI impression of mild broad based no scoliosis of the spine. Otherwise unremarkable study. Records dated in 2014 documented continued low back pain with pain of greater intensity reported than in earlier records. In March 2015, her pain was reported as 8/10 and 9/10 with one of the records noting low back pain located in the left low back above hip bone. The pain was achy, and it radiated down the back of the legs and was chronic, getting worse in the last few months. Alleviating factors included heat, massage. Exacerbating factors included walking, sitting for prolonged duration. Associated symptoms included non-dermatomal tingling bilateral feet. The Veteran denied weakness, numbness, bowel/bladder symptoms. She continued to be wearing a back brace with the brace reported to be a rigid brace in September 2014. Records from March 2015 showed continued back pain of 8/10 intensity with palpable tenderness, normal alignment, and limited range of motion, secondary to pain. In January 2016 she continued to have chronic back pain of 9/10 intensity, constant stiffness and aching pain; pain was radiated throughout all the spine, headache and left upper extremity and both legs. In July 2016 the pain including the back was 7-8/10, with constant stiffness and aching pain; pain again radiated down to legs and left shoulder, headache; associated with numbness or tingling of left upper and occasionally lower extremities. She was wearing a back brace for support. She is following pain management by an outside provider and was receiving epidural nerve block therapy every 6 months, diclofenac cream, Lyrica and muscle relaxant prescriptions. Records from 2017 showed continued chronic low back pain with a July 2017 reporting pain at a 7/10 level across the back, moving to her hips, down both sides of legs, sometimes tingling of toes. She was wearing back brace and was noted to have bulging discs L3-to S1. On examination she had normal gait and station; her spine was without deformity, with good muscle tone and strength, no swelling, tenderness, or limitation of any joint. She had positive spinal and paraspinal tenderness and preserved hip flexions. An October 2017 record noted pain of 8/10 in her back, neck, shoulder and legs. Records from July 2018 disclosed reports of back pain at a 6-10/10 depending on her activities, with pain that radiated down to both legs, tingling sensation on the lower extremities sometimes, and she persisted in wearing a back brace. Physical examination was the same as shown in July 2017. Records from July 2019 noted chronic low back pain, constant, using heat pad. She was following local pain management every 6 months, receiving pain injection and status post Physical therapy. Review of systems disclosed no focal weakness/numbness or tingling. Once again physical examination disclosed positive spinal and paraspinal tenderness and preserved hip flexions. She had normal gait and station; spine without deformity, good muscle tone and strength, no swelling, tenderness, or limitation of any joint. Private treatment records from 2019 include an October 2019 MRI Lumbar spine diagnosing L4-5 disc bulging with moderate left neural foraminal stenosis. See 8 pg. Medical Treatment Records Non-Government received 11/12/19 at pg. 5. In November 2019 the Veteran underwent lumbar spine injections for lumbar spondylosis and lumbar neuritis. Private chiropractic records from 2019 through 2020 reflect treatment for ongoing issues with upper, middle and low back pain. Treatment included injections and chiropractic treatment. A record from October 2019 noted a prescription for a lumbar sacral orthosis with rigid anterior and posterior panels extending from sacrococcygeal junction to T-9 vertebra, which produced intracavity pressure to reduce load on intervertebral discs. The primary indication for use was to reduce pain by restricting mobility of the trunk and/or to facilitate healing following an injury to spine or related soft tissue In November 2019, the Veteran reported chronic lower back pain with bilateral lower extremity radiculopathy complaints and paresthesias to both feet. Back pain (and neck) was present since the 1990s. She had constant left sided lower back discomfort categorized as a 7/10 level on average. She had bilateral lower extremity radiculopathy starting with the bilateral buttock region matter, intermittent as well as pain in bilateral posterior calf that comes and goes on daily basis left greater than right. There was paresthesias to her bilateral feet including dorsum. She also had bilateral thigh paresthesias that include tingling sensation that is intermittent and occurs twice weekly. She stated that with prolonged walking approximately 1 and a half blocks her left leg is unable to hold her up and is able to continue walking with rest. She described leg pain to be equal to back pain. There was no bowel or bladder incontinence. For treatment she has done multiple rounds of physical therapy (PT) for neck and lower back as well as steroid injections in lumbar spine. On examination, her muscle strength was 5/5 throughout bilateral lower extremities. Neurologically, there was decreased sensation to feet bilaterally, otherwise bilateral lower extremities were neurovascularly intact to light touch. Reflexes were 1+ bilateral patellar reflexes, otherwise physiologically throughout. Her lumbar range of motion was noted to be decreased in all planes although a numerical measurement was not taken. Her S1 joint was tender with greater than right S1 joint tenderness. Straight leg raises were positive at 30 in the bilateral lower extremities. On examination she was able to heel and toe walk, gait steady without assistive device. She was assessed with lumbago with sciatica right and left sides. Sacroiliac joint dysfunction both sides was also assessed. In February 2020 she had complaints of upper, middle and low back pain moderate pain at level 4-6 and objective vertebral tenderness throughout the thoracolumbar spine from T2, T5-6 and L4-5 right and left sides. On examination, her thoracolumbar flexion showed her pain increased and flexion was 50 degrees. Thoracolumbar tests were positive Fabere-Patrick which indicated hip/low back lesion. He was assessed with C5, T5, L5-S1 dysfunction. Another February 2020 record a few days later again noted the same level of moderate pain as shown in the earlier record with objective findings of range of motion and palpation revealing tenderness and fixation at C2, T2, T3, T5, T6, L4, L5 on the right and left sides. Other record later the same month and in early March 2020, again disclosed the same level of pain (4-6) in same areas. In May 2020 the Veteran’s subjective complaints were of upper back pain, mid back pain, low back pain at level 4-6, except for severe low back pain (7-9). VA examinations throughout the pendency of the appeal likewise show no evidence of lumbar symptoms such as flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine, even with consideration of functional loss due to weakened movement, excess fatigability, incoordination, or pain including on repetitive use or flareups. The report of an April 2008 VA examination noted her symptoms and indicated that current medications and treatment were helpful but not totally effective. She performed stretching exercises daily, took 50 mg Tramadol daily, and used heat pads, hot tub soaks, and frequent rest. She had no issues with urinary or bowel issues, no numbness or paresthesias, leg or foot weakness, no falls, no unsteadiness or visual dysfunction or dizziness. Current symptoms were of decreased motion, stiffness, weakness, spasms, and pain. Distribution of pain was in the lower lumbar back, constant worsening with bending, twisting, lifting, walking, prolonged, standing and sitting. Pain was daily, moderate and lasted for hours. There was radiation of pain from lower back down both hips, down lateral and posterior thighs down to both posterior calves. The radiating pain was aching and tingling. There was no flare-ups of the spinal condition. Exam for IVDS disclosed zero incapacitating episodes for the thoracolumbar region during the past 12-month period. She used no devices or aides. She was able to walk 1/4 mile. Objective findings of thoracic sacrospinalis were negative for atrophy or spasm. She did have guarding, pain with motion, and tenderness both left and right. There was not muscle spasm, tenderness or guarding severe enough to result in abnormal spinal contour. Her posture was normal, head position and gait were normal. There were no abnormal spinal curvatures. Muscle strength was 5/5 bilateral lower extremities with normal muscle tone and no atrophy. Sensory examination was 2/2 including bilateral lower extremities with no evidence of abnormal sensation. Reflexes were 2+ knee and ankle jerks bilaterally and plantar flexion was normal. On examination of range of motion for lumbosacral spine, her flexion was 65 degrees (with pain at 55 degrees); no additional loss of motion after repetitive use was noted. The October 2007 X ray for reports of low back pain getting worse with radicular pain down anterior aspect of thigh upon prolonged standing or sitting yielded an impression of essentially normal lumbosacral spine. The diagnosis was lumbosacral strain, no clinical evidence of lumbosacral radiculopathy. The back symptoms had significant effects on her occupation, with resulting work problems including being assigned different duties and having increased absenteeism. The impact of her lumbar spine disability on occupational activities included decreased mobility, problems with lifting and carrying, lack of stamina, and pain. Effects on activities of daily living were moderate on chores, recreation, bathing, dressing, toileting, and grooming. There were severe impacts on shopping and travel and the back disability prevented sports and exercise. Regarding neurological manifestations, she had a normal neurological examination with subjective complaints at lower extremities that are not consistent with L4, L5 and S1 nerve root distribution. An X-ray dated the same day as the April 2008 VA examination showed an impression of slight levoconvex curvature of lumbar spine, otherwise no abnormality was identified on X ray. A June 2008 VA examination, which included an MRI of the lumbar spine from the same month contained an opinion stating that the Veteran’s current residuals of lumbar spine disc disease as evidenced by posterior disc bulge at L4-5 level as confirmed by MRI is at least as likely as not caused by active duty. The report of a June 2011 VA examination of the low back disclosed flare ups every 2-4 months, lasting 3-7 days. It was too painful to walk during flares. Other symptoms included low back pain towards the left ankle. The Veteran reported constant pain, aching throbbing pain, severe and daily. There was no radiation of pain. No incapacitating episodes. Is able to walk 1/4 mile. Posture was normal. Further findings were of no ankylosis and no abnormal curvature of the thoracolumbar spine. No atrophy or guarding was noted. The Veteran did have pain with motion for the left side only. There was tenderness on the left, but not right side. No weakness was noted. She did have spasm of the left and right sides of the lumbar spine. There was muscle spasm, tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion in pertinent part showed lumbar spine flexion to 40 degrees with objective evidence of pain after repetitive motion. There was no additional limitation of motion after 3 repetitions. Other significant findings were of normal reflex exam; normal sensory exam; and normal motor exam. Muscle strength was normal. For motion of spine there was pain on all motions active and passive from 30 to 40 degrees for forward flexion. Unless otherwise noted, no pain, fatigue, incoordination or weakness was reported. There were no incapacitating episodes noted. The report of a February 2016 VA examination noted complaints of persistent pain in the lower back 9/10. She reported being under the care of Physical Therapy for stretching once a week only when pain is 7/10. She also reported having multiple epidural injections, last given within the last 2 months, which helped temporarily. She stated that pain radiates to both hips down to both lateral ankle and entire foot and all the mid toes with “pain numbness and tingling of both lower extremities all the time.” The course since onset was progressively worse. She used lumbar brace at work for back support and this alleviated some of the pain at work. She did not report flare ups or any functional impairment or loss. The examiner was unable to test range of motion. The Veteran barely moved her spine during range of motion (ROM) testing but was noted to get into the car with ease with lumbar flexion greater than 60 degrees. There was no objective evidence of pain with weight bearing. The examiner was unable to say without mere speculation whether pain, fatigue, incoordination or weakness significantly limit functional ability with repeated use over time. The examiner stated that it would only be speculative to report additional ROM loss and whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. Other significant findings included normal muscle strength; no atrophy. There were hypoactive reflexes of bilateral knees and ankles. On examination of the right leg there was normal sensation to light touch in upper anterior thigh and lower leg/ankle; and decreased sensation in thigh/knee and foot/toes. On examination of the right leg there was normal sensation to light touch in thigh/knee; and decreased sensation in upper anterior thigh, lower leg/ankle; and foot/toes. However, the examiner determined there was no radicular pain or signs or symptom due to radiculopathy. There was also no ankylosis or evidence of intervertebral disc syndrome (IVDS). There was a back brace used. The diagnosis rendered in this examination were 1) degenerative joint disease of lumbar spine with no radiculopathy. 2) Unreliable ROM testing. The veteran was noted to display poor effort during the examination in this examiner’s opinion. The Veteran was observed to get in the car with fluid movement and at ease with lumbar flexion at least 60 degrees. A June 2016 DBQ for fibromyalgia provided by the Veteran is noted to have included a diagnosis of lumbar radiculopathy, diagnosed in February 2007. The rest of the DBQ is noted to have addressed fibromyalgia without providing significant information regarding lumbar symptoms or radiculopathy. A May 2018 VA examination diagnosed degenerative joint disease (DJD), lumbar spine. At that time, the Veteran reported chronic pain of the lower back with no report of recent change/progression of symptoms since 2010-2011. The pain is a constant aching sensation, with severity on a scale of 1-10: 3-10. The Veteran reported having intermittent pain, tingling and numbness of the lower legs from the knees to the ankles on both sides; associated with the unpleasant/uncomfortable urge to move the legs and the examiner addressed the additional symptoms of restless leg syndrome described in detail in a separately completed DBQ CNS that addressed the separately service connected restless leg symptoms of the bilateral legs. Functional limitations regarding pain in the lower back were described by the Veteran who reported “ I am limited in my ability to lift over 2 pounds, house cleaning, doing yard work, bending the back, twisting the back, walking more than 15 minutes, standing more than 30 minutes, and sitting more than 15 to 20 minutes. The pain interfered with sexual intimacy and sleep.” The Veteran used a back brace regularly which gave her moderate improvement of the lower back pain. Occupationally the Veteran worked full time as a claims examiner. On physical examination the range of motion in pertinent part showed a forward flexion of 75 degrees with pain noted and resulting in functional loss. There was also evidence of pain with weight bearing. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined after repetitive use over time. The examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. As the Veteran was not being evaluated after repetitive use over time, it would only be speculative to report additional ROM loss. There was no guarding or muscle spasm of the thoracolumbar spine. Other findings included 5/5 muscle strength bilateral lower extremities with no muscle atrophy. Reflexes were 1+ bilateral knees and ankles. Sensory exam was normal from upper anterior thigh, thigh/knee, lower leg ankle, foot/toes. There was no ankylosis. There also was no radicular pain or other signs/symptoms of radiculopathy. There was no intervertebral disc syndrome (IVDS) requiring bed rest. No other neurological abnormalities such as bowel/bladder related to thoracolumbar spine were shown. The Veteran was noted to use a back brace regularly. There was arthritis documented but no thoracic vertebral fracture with loss of 50 percent or more of height. Results of nerve conduction/EMG studies of the lower extremities were attached in the remarks section with the findings of the December 2009 EMG showing normal findings of no electrophysiologic evidence consistent with neuropathy or acute lumbar or sacral radiculopathy involving either lower extremity. An October 2020 VA examination diagnosed spinal stenosis with additional diagnoses of posterior disc bulge at L4-5, degenerative joint disease, thoracolumbar spine and lumbar radiculopathy-sciatic. The Veteran reported current symptoms of lower back pain, dull that is sharp at times; constant pain 5/10, intermittent pain 7/10; muscle spasms; pain, numbness and tingling radiating down both legs. She reported that her condition interferes with standing, walking sitting longer than 30 mins, bending over, weightlifting, performing physical activity. She was currently taking Methocarbamol 750 mg X2, Lyrica 16 mg., Tens unit, and back brace constantly. Her last EMG was 5 years ago, and her last MRI was in 2019. Flare-ups of the back occurred twice a month. The back flare-ups were moderate to severe and lasted from a few to up to 3 days. The back flare-ups were precipitated by overuse and alleviated by heating pad, hot baths, meds and rest. Regarding functional loss or impairment, she reported that her condition interferes with exercising, walking longer than 15 mins, sitting longer than 10 mins, being unable to lift any weight over 2lbs, and avoiding bending/twisting. On examination of range of motion, in pertinent part she had 65 degrees flexion, with abnormal motion affecting bending and twisting. Pain was noted on examination and caused functional loss, with pain on all ranges. Pain was noted on weightbearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine with the location is lumbar paraspinal. Severity was mild and the relationship to the condition(s) was DJD, disc bulge. There was no additional loss of motion after a minimum of 3 repetitions. Examination was not being conducted immediately after repetitive use over time. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Functional loss with repeated use over time and with flareups and all factors that caused this functional loss was as follows: Pain, lack of endurance, (functional loss in terms of ROM---same as ROM above). The examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up (exam is not conducted during flareup). There was no guarding or muscle spasm of the thoracolumbar spine and no additional factors contributing to disability. Muscle strength testing was 5/5 bilateral lower extremities from hip thru toes, with no atrophy. Deep tendon reflexes were 2+. Sensory exam was fully normal bilateral lower extremities from upper anterior thigh, thigh/knee, lower leg/ankle, foot/toes. There was positive straight leg raising. Regarding radicular signs and symptoms there was mild intermittent pain which was usually dull, paresthesias and/or dysesthesias, numbness bilateral lower extremities. There were no other signs or symptoms of radiculopathy. Regarding radiculopathy there was involvement of L4/L5/S1/S2/S3 nerve roots, specifically sciatic nerve bilateral lower extremities of mild severity. There was no ankylosis of the spine and no other neurologic abnormalities or findings related to a thoracolumbar spine disability. There was no fracture. There was also no evidence of intervertebral disc syndrome (IVDS). The X-ray documented arthritis and an October 2019 MRI of the lumbar spine yielded an impression of L4-5 disc bulging with moderate left neural foraminal stenosis. The functional impact was that it interferes with standing/walking over 30 mins, repetitive bending/twisting, weightlifting over 30lbs. The examiner remarked that there is objective evidence of pain on passive range of motion testing of the back. There is objective evidence of pain on non-weight bearing testing of the back. A goniometer was used for all joint range of motion measurements. For the VA established diagnosis of degenerative joint disease, thoracolumbar spine the diagnosis is changed, and it is a progression of the previous diagnosis. Recent MRI shows L4-5 disc bulge, objective evidence of radiculopathy both a common progression of DJD in a 10/18/19 MRI lumbar spine. The impression was L4-5 disc bulging with moderate left neural foraminal stenosis. Additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. There was no change in ROM, however, the Veteran reported an increase in pain and lack of endurance. The Veteran was wearing a back brace on the day of examination which was removed during exam in order to evaluate back and perform ROM. Regarding repeated use over time for the back, although the Veteran’s range of motion was unchanged, functional ability was limited due to increased pain, lack of endurance. Regarding flare ups for the back, although the Veteran’s range of motion was unchanged, functional ability was limited due to increased pain, lack of endurance. Having reviewed the evidence, the Board finds that throughout the pendency of the appeal from 2007 through 2020, the Veteran had actual motion beyond the 30 degrees required for a 40 percent rating, even with consideration of additional loss of motion due to pain, repetitive motion or flareups. See Mitchell, 25 Vet. App. at 37 ; 38 C.F.R. § 4.71a , DC 5242. Spasms, guarding, and altered gait are specifically contemplated by the criteria for a 20 percent rating. 38 C.F.R. § 4.71a. There is no evidence of ankylosis of the thoracolumbar spine shown in any of the VA examinations or treatment records. Although there is a chiropractic record in February 2020 describing “fixation” at C2, T2, T3, T5, T6, L4, L5, this record failed to clearly articulate whether this was a true ankylosis. Furthermore, the VA examination from October 2020 clearly articulated that there was no ankylosis. In addition, the Board notes that although the Veteran has been shown to wear a rigid back brace throughout much of this appeal from at least July 2013, this brace, which was shown to be used to aid stability and alleviate pain, was able to be removed for examination in October 2020 where her flexion was shown to be 65 degrees and unchanged by pain or repetitive motion. Thus, even with consideration of the use of a brace, her ranges of motion are not shown to be less than 30 degrees flexion, nor does her situation more closely resemble ankylosis of the thoracolumbar spine. With respect to the question of whether the Veteran has intervertebral disc syndrome (IVDS) with incapacitating episodes, the Board notes that VA examinations from April 2008 and June 2011 did not find any incapacitating episodes, while examinations of February 2016, May 2018, October 2020 did not find that her back disability met the criteria for a diagnosis of IVDS (or in the case of the May 2018 examination did not find IVDS requiring bed rest). Likewise, the VA and private treatment records addressing the Veteran’s lumbar spine symptoms throughout the pendency of this appeal are not noted to show any evidence of IVDS with any incapacitating episodes requiring bedrest. Thus, there is no evidence of intervertebral disc syndrome with incapacitating episodes of at least four weeks within a 12-month period to warrant a 40 percent rating or higher under 38 C.F.R. § 4.71a , DC 5243. With flexion beyond 30 degrees, no ankylosis, and no incapacitating episodes, a rating in excess of 20 percent for the low back is not warranted. See 38 C.F.R. § 4.71a. Note (1) to the General Rating Formula for the Spine directs that associated neurologic abnormalities be rated separately. 38 C.F.R. § 4.71a. Service connection for restless leg syndrome has been in effect for the bilateral legs with a 10 percent rating assigned for the right leg and a 10 percent rating assigned for the left leg under the criteria for sciatic nerve paralysis (Diagnostic Code 8520) in effect since March 31, 2011. Prior to this date, although the Veteran has had some subjective complaints of symptoms impacting the bilateral lower extremities, there was no objective evidence of radiculopathy. Indeed, the EMG findings in December 2009 specifically ruled out radiculopathy or neuropathy. Likewise, the Veteran’s objective sensory findings and muscular strength of the bilateral lower extremities were shown to be within normal limits in the records and examination reports prior to March 31, 2011, although some subjective reports of sensory issues were reported, as in December 2010 when it was thought she might possibly have a somatoform disorder; there was no evidence of lumbar radiculopathy or neuropathy. Thus, the Board does not find the evidence prior to March 31, 2011 reflect sufficient findings of neurological manifestations of radiculopathy of the left and/or right lower extremities or other neurological manifestations warranting a separate compensable evaluation. Regarding the period as of March 31, 2011, the Veteran’s neurological manifestations of the bilateral lower extremities are presently receiving separate compensable evaluations under 38 C.F.R. § 4.124a Diagnostic Code 8520 of 10 percent disabling for the right leg and 10 percent disabling for the left leg. A 10 percent rating contemplates mild incomplete paralysis of the sciatic nerve. A higher 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. The evidence shown in the records and VA examination reports discussed at length above show the neurological manifestations impacting the sciatic nerve to be no more than mild in severity. Because the Veteran is already in receipt of these evaluations for restless leg syndrome, it would be inappropriate to assign a separate evaluation for neurological manifestations from the lumbar spine impacting the same nerves of the bilateral lower extremities. Note 1 of the General Rating Formula for Diseases and Injuries of the Spine, provides that associated objective neurologic abnormalities are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. The evaluation of the same disability under various diagnoses (“pyramiding”) is to be avoided. 38 C.F.R. § 4.14. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for DDD and DJD of the lumbar spine. The Board acknowledges the lay reports of symptoms and recognizes functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his descriptions of pain impacting his movements and function would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.