Citation Nr: 21013907 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 11-07 415 DATE: March 10, 2021 ORDER For the entire period on appeal, a disability rating of 40 percent, but no higher, for the service-connected degenerative arthritis of the back, is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s degenerative arthritis of the back manifested in symptoms more nearly approximating constant back pain, discomfort, limitation of motion, flare ups, and forward flexion to 30 degrees. There is no evidence of ankylosis or incapacitating episodes throughout the period on appeal. CONCLUSION OF LAW The criteria for a disability rating of 40 percent, but no higher for the service-connected degenerative arthritis of the back have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1974 to November 1978 and from August 1979 to March 1997. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a July 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision was issued in response to a February 18, 2010 claim for an increased rating for the service-connected back disability; however, the RO reduced the disability rating for the service-connected degenerative arthritis of the back (formerly rated as low back pain and hereinafter referred to as back disability) from 20 percent to 10 percent effective October 1, 2010. The Veteran’s Notice of Disagreement (NOD) was received in August 2010. The Statement of the Case was issued in December 2010, and the Veteran’s VA Form 9, substantive appeal to the Board was received in February 2011. A July 2014 Board decision found that the reduction from 20 percent to 10 percent for the service-connected back disability was proper. The Board remanded the issue of entitlement to a rating in excess of 10 percent for the back disability (finding that the Veteran’s February 2010 correspondence was a claim for an increased rating). A September 2017 rating decision granted a disability rating of 20 percent but no higher, for the service-connected back disability from August 23, 2017. A January 2018 Board decision granted a disability rating of 20 percent but no higher, for the service-connected back disability from February 18, 2010 to August 23, 2017 and denied a disability rating higher than 20 percent thereafter. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated March 2019, the Court vacated the January 2018 Board decision, but only insofar as it denied a disability rating greater than 20 percent for the service-connected back disability, and remanded that matter to the Board for development consistent with the paries’ Joint Motion for Remand (JMR). The case was returned to the Board. In October 2020, the claim was remanded to the RO for additional development directed by the March 2019 JMR. Entitlement to a disability rating in excess of 20 percent for the service-connected back disability. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.   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 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 v. West, 12 Vet. App. 119, 126 (1999).   In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14.   In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.   Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).   Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).   The amputation rule, at 38 C.F.R. § 4.68 states that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.  For example, the combined evaluation for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165.  This 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level.  Painful neuroma of a stump after amputation shall be assigned the evaluation for the elective site of reamputation.   The Veteran’s back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5242. The regulations of the musculoskeletal system were recently amended, effective February 7, 2021. Where a law or regulation changes during the pendency of a claim for increased rating, the amendments cannot be construed to have retroactive effect unless the language requires such a result. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). There is no such language in the amendments to the regulations at issue in this case. Consequently, the Board has considered whether an increased evaluation may be warranted under either the old or new version of the schedule for rating disabilities of the spine; but application of the newer regulations can be no earlier than the effective date of the change. Disabilities rated under DC 5235 to 5242 are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). Prior to February 7, 2021, Diagnostic Code 5243 directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Effective February 7, 2021, Diagnostic Code 5243 directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and, to assign diagnostic code 5242, which evaluated degenerative arthritis and degenerative disc disease other than IVDS, for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The criteria used under the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for IVDS Based on Incapacitating Episodes were not amended. 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 joints or joint involved; in this case Diagnostic Code 5242. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. If a compensable degree of limitation of motion is not shown under the relevant rating criteria for the joint involved (Diagnostic Code 5242), then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. Although traumatic arthritis, under the new regulatory amendments, is not directed to rate pursuant to degenerative arthritis under DC 5003 as it was prior to the change, it is nevertheless re-directed to the specific joint, which in this case is the lumbar spine. Thus, this change is not substantive with respect to this appeal. In this case, the Veteran’s limitation of motion of the thoracolumbar spine is compensable under Diagnostic Code 5242 pursuant to the General Rating Formula. Accordingly, the assignment of a 10 percent rating for arthritis under Diagnostic Code 5003 is not applicable in this case. The General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides the following: A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The current spine rating criteria provides specific values for range of motion of the thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, normal forward flexion is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). When rating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A February 2009 VA treatment note indicates that the Veteran was fitted for a back brace to help treat his back pain. In March 2009, the Veteran underwent a VA examination for his claim. For range of motion, forward flexion was to 80 degrees, extension was to 20 degrees, left lateral flexion was to 30 degrees, right lateral flexion was to 30 degrees, and left lateral rotation to 30 degrees. There was no objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion with additional loss of range of motion. The Veteran’s forward flexion was to 60 degrees, his extension to 15 degrees, left lateral flexion to 30 degrees, right lateral flexion to 20 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. February 2009 imaging study was cited, showing degenerative disc disease (DDD) above and below the L4 with very mild degenerative spondylolisthesis. The VA examiner noted that the Veteran has decreased mobility, problems with lifting and carrying, weakness, fatigue, and pain due to his back disability. The VA examiner also concluded that the Veteran’s back disability had severe effects on his ability to exercise, play sports, drive, and participate in recreational activities. The VA examiner also concluded that the Veteran’s back disability had moderate effects on his ability to do chores, shop, travel, and dress himself. Finally, the VA examiner noted that the Veteran’s back disability did not have any effects on his ability to eat, bathe, and groom. A September 2009 private treatment note from Dr. D.M. indicates that the Veteran was treated for low back pain. Dr. D.M. reviewed the Veteran’s August 2009 MRI and noted clumping of descending nerve roots, especially at L4-5. Dr. D.M. noted narrowing at L4-5 which appeared secondary to congenital stenosis and not arachnoiditis. There was also facet and ligamentous hypertrophy as well as broad-based disc bulge resulting in moderate stenosis. The impression was moderate stenosis at L4-5 with a hint of anterolisthesis. The Veteran was recommended to treat his pain with epidural injections. A March 2010 private treatment note from Dr. S.W. indicates that the Veteran was seen for low back pain. The Veteran reported having back pain for 20 years which has gradually gotten worse. The Veteran’s aggravating factors were listed as bathing, bending, lying down, sitting, standing, walking, rotation in a seated position. The Veteran reported being unable to walk, bend, or squat normally. He reported his back pain being 3 out of 10 at rest and 9 out of 10 at worst. His forward flexion was to 70 degrees and his extension was to 25 degrees. Under assessment, the Veteran was noted to have pain which limits function, range of motion deficit, decreased functional activity, poor postural awareness, and poor body mechanics. He was recommended exercises to improve his range of motion. In April 2010, the Veteran underwent a VA examination for his claim. He reported back pain getting progressively worse. The VA examiner indicated that the Veteran takes pain medication, receives injections, and undergoes physical therapy as treatment, with fair results. The Veteran was noted to have fatigue, decreased motion, stiffness, moderate constant pain in the center of his lumbar spine, and radiating pain across both sides of his lower back. The Veteran was noted to have severe weekly flare ups which lasted hours. The flare ups were noted to be brought on by increased activity or prolonged sitting. The flare ups caused the Veteran to have to rest for several hours in order for pain to go back to normal level. The Veteran was noted to use a brace and be able to walk 1 to 3 miles. The Veteran’s gait was noted to be normal. He was not noted to have gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis, or ankylosis. There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness. The Veteran’s forward flexion was to 70 degrees, extension to 20 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 20 degrees. There was no objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion without additional limitation in range of motion after three repetitions. February 2009 imaging studies were cited. The VA examiner noted significant effects on the Veteran’s occupational activities, including decreased mobility, problems with lifting and carrying, pain. It was noted that the Veteran worked as a postman. He was noted to work slower than he should. It was noted that the Veteran’s back disability had severe effects on completing chores, playing sports, bathing, dressing, and toileting. It was also noted that the back disability had moderate effects on shopping, exercise, recreation, and traveling. The Veteran’s back disability was not noted to have effects on feeding. A November 2010 VA treatment note indicates that the Veteran called to report excruciating back pain and stiffness lasting for 3 weeks. The Veteran reported his pain being 9 out of 10 and pain medication not helping. The Veteran was advised to go to the emergency room. In October 2014, the Veteran underwent a VA examination for his claim. He was diagnosed with degenerative arthritis of the back. It was noted that the Veteran had chronic stiffness of the lower back with no radiation or muscle weakness. The Veteran was noted to move and lift at least 25 pounds and occasionally use a cane for general support. He was also noted to take medication for pain as needed. The Veteran reported flare ups and indicated that during a flare up, the back pain is so unbearable that he is unable to move. For range of motion, the Veteran’s forward flexion was to 90 degrees or greater, with objective evidence of painful motion at 45 degrees, his extension was to 30 or greater with painful motion at 20, right lateral flexion to 30 degrees with pain at 25, left lateral flexion to 30 degrees or greater, with pain at 25 degrees, right lateral rotation to 30 degrees, with pain to 20 degrees, and left lateral rotation to 30 degrees, with pain at 20. The Veteran performed repetitive use testing without additional limitation in range of motion. Under functional loss, the Veteran was noted to have functional impairment after repetitive use due to pain on movement. The Veteran was not noted to have localized tenderness or pain to palpation and no guarding or muscle spasm. Muscle strength testing was normal with no muscle atrophy. The Veteran was not noted to have radicular pain or other radicular symptoms. There were no other neurologic abnormalities. The Veteran was not noted to have IVDS. The Veteran was noted to occasionally use a cane if standing for prolonged periods of time, due to his foot, knee, and back pain. Under functional impairment, the Veteran’s back disability was noted to have a mild impairment on standing and lifting. The Veteran’s posture and gait were noted to be normal. The VA examiner noted that there are contributing factors of pain, weakness, fatigability, and/or incoordination, but that there was no additional limitation of functional ability during flare ups or with repeated use over time. A September 2015 private treatment note from Dr. W.R. indicates that the Veteran was seen for low back pain and underwent a spine evaluation. The Veteran’s aggravating factors were noted to be walking, bending, and squatting. His alleviating factors were noted to be sitting. The Veteran was noted to have a moderate loss of flexion in active range of motion and severe loss of extension. He was noted to have tenderness on palpation. The Veteran was recommended physical therapy to improve his symptoms. The Veteran underwent two VA examinations for his back in August 2017. The first one took place on August 8 and the second August 23. The VA medical opinions associated with both examinations were deemed incomplete pursuant to the March 2019 Court Order. Because the results of the two examinations were similar, only the August 23, or the second August 2017 VA examination is discussed next. Pursuant to the August 23, 2017 VA examination, the Veteran was diagnosed with lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran reported his condition worsening with increased pain. He reported flare ups in the form of pain in crease with standing and movement. The Veteran also reported having a limited range of motion and being unable to lift heavy objects as a result. His forward flexion was to 60 degrees, his extension to 5, right lateral flexion to 10, left lateral flexion to 10, right lateral rotation to 15, and left lateral rotation to 15. Pain was noted on all planes and with weight bearing and was noted to cause functional loss. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The VA examiner noted that the Veteran was examined immediately after repetitive use over time but concluded that the examination is medically consistent with the Veteran’s statement’s describing functional loss with repetitive use over time. Pain, fatigue, and lack of endurance were noted to significantly contribute to functional loss with repetitive use over time. The VA examiner estimated the Veteran’s range of motion would not have additional limitation with repeated use over time. The VA examiner noted that the Veteran was not being examined during a flare up but that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare up. Pain, fatigue, and lack of endurance were noted to significantly limit functional ability during flare ups. The VA examiner estimated that the Veteran’s range of motion during a flare up was forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The Veteran did not have guarding or muscle spasm. Disturbance of locomotion and less movement than normal due to ankylosis, limitation or blocking, or adhesions were listed as additional contributing factors of the disability. Muscle strength testing was normal and without muscle atrophy. The Veteran was noted to have radicular pain with sciatic nerve involvement on the left side only. There was no ankylosis of the spine and no other neurologic abnormalities. The Veteran was not noted to have incapacitating episodes due to IVDS. The Veteran was noted to occasionally use a back brace. Imaging studies with evidence of arthritis were cited. It was noted that there was no thoracolumbar fracture, but there were degenerative changes of the lower lumbar spine. Under functional impact, it was noted that the Veteran was unable to perform extended sitting, standing, or lifting. The VA examiner indicated that the Veteran’s IVDS and lumbar strain are progression of his degenerative arthritis. In December 2019, the Veteran underwent a VA examination for his claim. He was diagnosed with degenerative arthritis of the spine and spinal stenosis. The Veteran reported constant throbbing pain mostly in the lower back area but worse on the left side. He also reported left side locking up and not being able to move for a while. The Veteran reported intermittent shooting pain that goes down the left leg into the foot. He denied numbness or tingling. It was noted that the Veteran’s back was aggravated with prolonged standing and walking, with relieving factors being medication, laying down, and wearing a brace. The VA examiner noted pain on passive range of motion testing and there being no opposing joint abnormalities. With respect to flare ups, the Veteran reported having flare ups once or twice per week. The Veteran reported not being able to get comfortable and the flare ups lasting approximately one hour. He also reported having to use a heating pad and bengay during flare ups. The VA examiner noted the Veteran having functional loss due to his back disability caused by prolonged walking and standing. For range of motion, the Veteran’s forward flexion was to 40 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The Veteran’s limited range of motion was noted to prevent him from picking up item from the floor. Pain causing functional loss was noted on exam during all planes. There was evidence of pain with weigh bearing and evidence of localized tenderness or pain on palpation in the lower back. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. With respect to repetitive use over time, the VA examiner noted that the Veteran was not being examined immediately after repetitive use over time, but that the examination is medically consistent with the Veteran’s statements describing functional loss. The VA examiner also noted that pain, fatigue, and lack of endurance significantly limit functional ability with repeated use over time, but do not cause additional loss of range of motion. The VA examiner noted that the examination did not take place during a flare up, but that the examination is medically consistent with the Veteran’s statements describing functional loss. The VA examiner noted that pain, fatigue, and lack of endurance significantly limit functional ability during flare ups, but do not cause additional los of range of motion. Muscle strength testing was normal with no muscle atrophy. The Veteran was noted to have moderate intermitted left lower extremity radicular pain with no other signs or symptoms or radiculopathy. The VA examiner noted left sciatic nerve involvement and no right side involvement. There was no ankylosis of the spine. There were no other neurologic abnormalities and the Veteran was not noted to have IVDS. He was not noted to use assistive devices for locomotion. Imaging studies confirming arthritis were noted. Under functional impact, the VA examiner noted that the Veteran was limited in standing, walking, and bending. The VA examiner also noted that the Veteran has left lumbar radiculopathy, spinal stenosis, and spondylolisthesis, that are all a progression of his degenerative arthritis. In December 2020, the VA obtained an addendum medical opinion. The VA examiner indicated that he reviewed the 2009, 2010, 2014, 2017, and 2019 VA examination reports, as well as the Veteran’s treatment records. The VA examiner noted that the opinion is addressing the severity of the Veteran’s service-connected spinal disability since 2009. The VA examiner noted that in 2009 range of motion was to 80 degrees forward flexion, to 20 degrees extension, and to 30 degrees for the remaining planes of motion. The VA examiner also noted that the Veteran’s range of motion was similar in 2010, except forward flexion was to 70 degrees and left rotation was to 20 degrees. The VA examiner indicated that in 2014 the Veteran’s range of motion reading were all normal. Then, the VA examiner noted that in 2017 the Veteran’s range of motion was to 60 degrees forward flexion, to 5 degrees for extension, to 10 degrees for left and right later flexion each, and to 15 degrees each for rotation. The VA examiner noted that in 2019, the Veteran’s forward flexion was to 40 degrees, extension to 15 degrees, and all other planes of motion to 10 degrees. The VA examiner concluded that from 2009 to 2010, the severity of the Veteran’s back disability was mild to moderate, and that there is no objective information from 2010 to 2014. With respect to the period from 2010 to 2014, the VA examiner noted that there was no worsening because in 2014 range of motion was normal, suggestive of some amelioration during that time period. The VA examiner concluded that in 2017, the Veteran’s range of motion was closer to what it was in 2009, with the severity being moderate. The VA examiner noted that there has been some exacerbation or worsening of the Veteran’s disability from 2014 to 2017 and therefore it is currently moderately severe. The VA examiner noted that the Veteran reports flare ups but no apparent loss of range of motion with repetitive use. With flare ups, the Veteran’s range of motion is greater than or equal to 50 percent across all planes. The VA examiner also concluded that functional limitations from 2009 through present are the same, but the degree of severity at which the Veteran is impacted is worse. The VA examiner noted that for 2009 to 2014, the Veteran would at least as likely as not have been able to perform medium or moderate level work. For 2017, the VA examiner noted that the Veteran would have been able to perform medium or moderate level of work. For 2019, the VA examiner indicated that the Veteran would be able to work at a light to a medium level. Based on a review of the entire record, the Veteran’s service-connected back disability manifested in symptoms more nearly approximating the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, DC 5242. The evidence reflects pain, weakness, flare ups, and limitation of motion. Specifically, the March 2009 VA examination report indicates that the Veteran’s back disability had severe to moderate effects on the Veteran’s ability to exercise, play sports, drive, participate in recreational activities, do chores, shop, travel, and dress himself. The March 2010 private treatment note from Dr. S.W. indicates trouble with bathing, bending, laying down, sitting, standing, walking, and rotation in a seated position. April 2010 VA examination report illustrates constant pain with severe weekly flare ups lasting hours. A November 2010 VA treatment note indicates that the Veteran had excruciating pain rated as 9 out of 10 lasting for three weeks. The December 2019 VA examination report illustrates forward flexion to 40 degrees, a combined range of motion of 95 degrees, with limitation in range of motion preventing the Veteran from picking up items off the floor. The December 2019 VA examination report also indicates that the Veteran had trouble with standing, walking, and bending. The December 2020 VA addendum opinion indicates that the Veteran’s back disability may have undergone periods of some improvement but was generally estimated to have moderate severity. While the VA examination reports do not indicate that the Veteran’s thoracolumbar forward flexion was to 30 degrees or that there was presence of ankylosis, the probative medical evidence of record suggests that the Veteran’s symptoms more nearly approximate the criteria for a 40 percent disability. Namely, the VA examination reports indicate that pain, discomfort, fatigue, and lack of endurance significantly limit functional ability during flare ups and with repetitive use over time. The second August 2017 VA examination report indicated forward flexion to 40 degrees. The Veteran’s VA treatment records also showed that the Veteran’s pain can be so severe and last for so many weeks at a 9 out of 10 level, as to warrant him to go to the emergency room. There was objective evidence of pain and additional functional limitation due to pain and weakness throughout the period on appeal. Moreover, the Veteran has described his flare ups to be so severe, as to not be able to move at all. In other words, given the medical record in this matter, which corroborates the Veteran’s competent reports of constant pain and discomfort, it is likely that his range of motion of the thoracolumbar spine more nearly approximates forward flexion to 30 degrees, when considering additional functional limitations and motion loss with overactivity and during flare ups. Overall, the record indicates that the Veteran’s symptoms are of such severity and frequency as to warrant a 40 percent disability rating throughout the period on appeal. In order to warrant an evaluation in excess of 40 percent for the Veteran’s back disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Here, throughout the entire period on appeal, neither VA treatment notes, private treatment records, nor VA examination reports indicate that there was unfavorable ankylosis of the entire thoracolumbar spine for the appeal period. There is no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The medical findings contain specific notations which indicated that there was no ankylosis. Thus, a rating in excess of 40 percent throughout the period on appeal must be denied under the old, and the amended criteria. With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Accordingly, 38 C.F.R. §§ 4.40 and 4.45 are not for consideration for the appeal period. Staged ratings are not warranted for the Veteran’s back disability as his symptoms remained largely the same throughout the period on appeal.  The medical evidence of record did not show bladder or bowel impairment related to the service-connected back disability. With respect to neurological manifestations pursuant to Note (1) of the General Rating Formula, a September 2017 rating decision granted service connection for left lower extremity radiculopathy, effective September 28, 2017. The Veteran has not indicated any dissatisfaction with the rating assigned. There is no other provision under which an additional separate disability rating may be assigned for the Veteran during this period. In sum, the preponderance of the evidence shows that that the Veteran’s symptoms are of the severity and frequency contemplated in the criteria for the assignment of a 40 percent disability rating under the pre- and post-regulatory changes. As such, a disability rating of 40 percent, but no higher, for the service-connected back disability is warranted for the entire period on appeal. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.