Citation Nr: 21014837 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-30 839 DATE: March 15, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for lumbosacral spine degenerative joint disease is denied. REMANDED Entitlement to a separate rating for radiculopathy in bilateral lower extremities is remanded. FINDING OF FACT Throughout the period on appeal, the degenerative joint disease of the lumbosacral spine did not result in restriction of forward flexion greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees nor did it manifest in muscle spasms or guarding. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for lumbosacral spine degenerative joint disease are not met. 38 C.F.R. § 4.71a Diagnostic Codes (DC) 5242-5243 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to August 1990 and from January 1991 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. In November 2019, the undersigned Veterans Law Judge held a hearing with the Veteran and the transcript is a part of the record. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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 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.”). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, 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 diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a , Code 5003. The lumbar spine disability has been rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. When rating under the former formula, VA is directed to evaluate orthopedic disability separately with any associated objective neurologic abnormalities under an appropriate diagnostic code, and then combine the separate ratings under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (1). A rating under the latter formula is warranted where incapacitating episodes are present due to intervertebral disc syndrome (IVDS). 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, Diagnostic Code 5243, Note (1). VA should then select whichever formula results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, disability ratings of 10, 20, 40, 50, 60, and 100 percent are authorized for thoracolumbar disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or 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 for 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 of 30 degrees or less. In addition, 40, 50, and 100 percent ratings are warranted for disorders manifested by ankylosis. Ankylosis is defined as “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint[.]” Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for IVDS with 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 is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. 1. Entitlement to an initial disability rating higher than 10 percent for lumbosacral spine degenerative joint disease is denied. In December 2016, the RO granted service connection for degenerative joint disease of the lumbosacral spine and assigned a 10 percent rating effective from September 29, 2015. The Veteran has perfected an appeal with the initial disability rating assigned. The Veteran’s representative argues that the April 2018 VA examination confirms a 20 percent rating is warranted for limited range of motion of more than 30 degrees but less than 60 degrees. In addition, the representative argues the Veteran’s back issues are recorded in the medical records, including social security records, as being severe including consideration of surgery for the back. In May 2016, the Veteran reported back pain radiating down both legs. The clinician noted paravertebral lumbar area tenderness and stiffness. In June 2016, it was noted the Veteran had low back pain but no radicular symptoms. In July 2016, the Veteran reported acute worsening of low back pain. He denied loss of bowel or bladder control or focal muscle weakness. In August 2016, the Veteran reported increasing back pain with posterior thigh paresthesia. The lower extremity symptoms had developed within the last six months. Prior to that, his complaints were limited to the lumbar spine. He was working as a contractor. He reported back pain as 7-8/10 with flares to 10. Pain was increased with certain tasks and movement. He was still able to play golf. There was no weakness or impaired sensation. Gait mechanics were limited secondary to pain. A September 2016 VA clinical record reveals the Veteran started a new job which required him to be physically active. He reported sharp unrelenting back pain which made it difficult to get through the days. The clinician noted the Veteran was not having radicular symptoms and no bowel or bladder trouble. In the October 2016 medical treatment records, the Veteran complained of back pain. Upon range of motion testing for flexion the Veteran was able to bend until his fingertips were 8 inches to floor. Extension was 40 percent and within normal limits. The clinician noted pain. Left rotation ended at 45 degrees. Right rotation ended at 33 degrees with pain noted. Right side bending was to 3 inches from fingertip to tibial plateau. Left side bending was an inch fingertip to the tibial plateau with pain noted. The Veteran underwent a VA examination in November 2016. He was diagnosed as having degenerative arthritis of the spine. He states he has had lower back pain which increased for the past 2 years. He reports flare-ups of the thoracolumbar spine symptoms that caused him to miss work for 2 to 3 days. He reports having functional loss of the thoracolumbar spine as he is not able to do contractor work, hike, or play golf. Range of motion testing was interpreted as being normal motion. Forward flexion ended at 90 degrees. Extension ended at 0 degrees. Right and left lateral flexion ended at 30 degrees. Right and left lateral rotation ended at 30 degrees. Pain was noted on examination, but the examiner determined that the pain does not result in/cause functional loss. Pain was noted in forward flexion, right lateral flexion, and right lateral rotation. There is no evidence of pain with weight bearing. There was objective evidence of localized pain on palpation of the right paravertebral muscles. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after repetitive use testing. The exam was not conducted during a flare-up. The examiner found he was unable to provide an estimate of additional loss of motion of the Veteran's spine with repeated use without resort to speculation. The examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements regarding functional loss during a flare up. There was no guarding or muscle spasm of the thoracolumbar spine. No radiculopathy pain was noted. No ankylosis of the spine or intervertebral disc syndrome were noted as well. The Veteran uses a brace for assistive devices. The examiner found the Veteran did not have any bowel or bladder impairment or other neurological abnormalities associated with the spine disability. The examiner opined the Veteran’s thoracolumbar spine condition may negatively impact his ability to perform heavy lifting, repetitive bending and prolonged walking or standing. In January 2017, the Veteran reported back pain which was aggravated by work demands. He was beginning to feel pain in the pelvic girdle. In the March 2017 medical treatment records, the Veteran reported low back pain. Upon physical examination, the chiropractor stated that the Veteran’s gait is normal, and there was diminished/decreased range of motion secondary to discomfort. The range of motion testing revealed forward flexion “5/90 degrees” degrees. Extension was “0/30” degrees. Right and left lateral flexion was “0/35 degrees.” Right and lateral rotation was “0/30 degrees.” Severe pain with radiation was noted on exam. In another March 2017 clinical record, the Veteran reported lumbar pain. The Veteran was diagnosed with radiculopathy, low back pain, other intervertebral disc displacement, lumbar region, and other intervertebral disc degeneration. The records document numerous complaints made by the Veteran during this month of low back pain. In the April 2017 medical treatment records, the Veteran reported low back pain. The range of motion testing revealed forward flexion ended at 65 degrees. Extension ended at 15 degrees. Right and left lateral flexion ended at 20 degrees. Right and lateral rotation ended at 20 degrees. Pain was noted on exam. In the May 2017 medical treatment records, the Veteran reported low back pain. Upon physical examination, the clinician stated that the Veteran’s gait is antalgic, tenderness was present in the lumbar spine, and mild pain for range of motion. In range of motion testing, flexion ended at 90 degrees, extension ended at 15 degrees, left and right lateral flexion ended at 35 degrees, and left and right rotation ended at 30 degrees. A private clinical record dated in May 2017 indicates the Veteran sought treatment for low back pain with sudden onset due to injury. The pain is in the low back and radiates to the thighs. It was noted the Veteran presented for management of low back pain with moderate leg radiation. In the June 2017 private treatment records, the Veteran reported low back pain which was moderate to severe and fluctuating. The pain was in the lower back and radiated to the thighs. In October 2017, the Veteran reported dragging his right leg but denied having and lower back pain. A September 2017 clinical record shows the Veteran reporting sciatic pain and lower back myalgias/arthralgias. The clinician noted the Veteran having normal strength to upper and lower extremities, good mobility, and a normal lordotic curve. The November 2017 clinical records include a diagnosis of low back pain. The Veteran complained of midline pain at the lumbar spine. The Veteran reported that he felt good again for at least a couple days after treatment but that the bed he’s sleeping on makes him wake up stiff in the morning. The clinician noted the Veteran wearing a low back brace. The January 2018 clinical records show the Veteran complaining of low back pain. The Veteran’s complaints have been low back pain associated with SI joint subluxations and the subsequent ramifications. He also has occasional right thigh pain that can be shooting. The clinician noted that he has range of motion limitation in the left rotation. In February 2018 private treatment records, the Veteran reported low back pain which was moderate to severe and worsening. The pain was in the lower back and radiated to the right thigh. In the February 2018 medical treatment records, the Veteran reported low back pain. Upon physical examination lumbar spine was tender and mild pain was present for range of motion testing. The Veteran was diagnosed with low back pain. The March 2018 clinical records show the Veteran complaining of severe pain from his left lower back to his left hip down his left hamstring after being involved in a motor vehicle accident. On presentation, he complained of pain in the left lower back that came up his left side to his left shoulder and now also complains of left lateral neck pain. There is no frank paresis nor dyspnea. The Veteran was diagnosed with low back pain and was measured and fitted for an XL lumbar support. On impression, the Veteran had a normal lumbar spine. The Veteran underwent another VA examination for compensation and pension purposes in March 2018 where he was diagnosed with degenerative arthritis of the spine and muscle spasm of lumbar region. The examiner found that the degenerative disc disease of the lumbar spine is a separate diagnosis from the back spasm. The Veteran reports chronic back pain in the tailbone and across the lower back. The pain varies from throbbing to electrical impulses and sharp pain and runs down both legs. The pain is also constant. The Veteran reported good days and bad days, but overall, he has difficulty doing any manual labor. The Veteran also reports flare-ups of the thoracolumbar spine symptoms and stated that he has increased pain after something like a sneeze. He reports having functional loss of the thoracolumbar spine as he has pain that sometimes necessitates bed rest. Range of motion testing revealed flexion ended at 40 degrees and extension ended at 10 degrees. Right and left lateral flexion ended at 20 degrees and right and left lateral rotation ended at 30 degrees. The examiner observed that the Veteran made were very poor efforts on the formal range of motion testing during the examination which were inconsistent with the Veteran’s movements observed while he was sitting, dressing, or undressing. There was functional loss which resulted in a limited range of motion. There is no evidence of pain with weight bearing. The examiner found objective evidence of localized tender pain on palpation over coccyx of the joints. The Veteran was able to perform repetitive use testing with at least three repetitions however no additional loss of function or range of motion was present after testing. The Veteran was not examined immediately after repetitive use over time. The exam was not conducted during a flare-up. The examiner noted muscle spasm of the thoracolumbar spine, but this did not result in abnormal gait or abnormal spinal contour. No guarding of the thoracolumbar spine was noted. The Veteran has radicular pain. The examiner noted the presence of moderate constant pain in the right and left lower extremity, moderate intermittent pain in the right and left lower extremity, moderate paresthesias and/or dysesthesias in the right and left lower extremity, and mild numbness in the right and left lower extremity. The examiner noted moderate as the severity of the Veteran’s radiculopathy. No ankylosis of the spine and intervertebral disc syndrome (IDVS) were noted. The Veteran uses a brace and cane for assistive devices. The examiner opined that the thoracolumbar spine condition impacts the Veteran's ability to work as he describes that when he is sedentary, he has more pain after sitting in the same place for more than 30 minutes. He also states that he is comfortable laying down, but pain will keep him awake. When he is active, the back pain is worse with standing or walking for 15 minutes or more. He has trouble lifting more than 15 pounds and he has difficulty bending forward to put on his shoes. In an addendum opinion to the March 2018 VA examination, the examiner wrote that the Veteran’s symptoms of lower extremity radiculopathy are a subjective measure indicating where his pain is and reported severity of the pain. As the examination did not show any abnormality on testing, and given the Veteran's poor effort on testing, the examiner was unable to provide an accurate diagnosis of moderate radiculopathy based on symptoms alone. The May 2018 clinical records include a diagnosis of back pain. The Veteran’s current pain level was a 9 out of 10. His symptoms were severe tightness in lumbar region, and right sided LS pain. The pain disturbs his sleep. The clinician noted severed guarding and pain in all planes with pain in right sided LS region and glutes. The clinician also noted that the Veteran has a decreased range of motion, pain, and decreased functional ability. In June 2018, the Veteran submitted a form 9 statement. The Veteran provided a statement in response to the March 2018 VA examination. He states that he questions the VA examiner’s credibility for failure to follow simple instructions and her motives for doing so. The Veteran challenged that he gave poor effort. In comparison of formal testing of the back to its functional limits is not appropriate for sitting or dressing. Sitting is a question of endurance, not effort. Secondly, the Veteran argues that the testing is at least consistent with the medical evidence. The Veteran also challenges the addendum opinion as the testing was clearly not objectively normal as claimed. The Veteran writes that significant neural foramen narrowing is exactly consistent with sciatic nerve-based radiculopathy. The examiner fails to address at all the ameliorating effects of medication/injection. In the June 2018 medical treatment records, it was reported the Veteran underwent range of motion testing. The testing was interpreted as being normal. Forward flexion ended at 90 degrees. Extension ended at 25 degrees. Right and left lateral flexion ended at 25 degrees. Right and lateral rotation ended at 30 degrees. The Veteran was also tender over the lower back. The September 2018 clinical records revealed the Veteran complaining of back pain and lower extremity pain. The Veteran explained that since his motor vehicle accident, he has since continued with functionally impairing pain. He describes sharp positionally mediated pain particularly within the right sacral and parasacral region. The lower extremity symptoms on the right are of ache nature and appear to relate more to the neuromuscular structures as there is tenderness and increased pain with stretch versus neuropathic or radicular pain. No distal weakness or impaired sensation. The pertinent notation was L4 radicular pain cannot be ruled out. A November 2018 letter to the Veteran indicates an MRI conducted the same month revealed some mild degenerative changes throughout the lumbar spine. At the level of L3 to L4, there is disc degeneration which is more significant and causing some impingement on the nerves exiting at this level which is the likely cause of the pain. In December 2018, the Veteran reported low back and left lower extremity pain. He indicated the left sided symptoms were new versus the former symptoms being more dominant contralaterally. The clinician noted that, although the Veteran exhibited deliberate sit to stand transition and antalgic gait with gestural utterances he was able to maintain a calm poised manner throughout the course of the visit and treatment. Straight leg testing was negative for radicular pain. Straight leg raises elicited pain in the left buttock and sacroiliac joint region. In April 2019, the Veteran sought treatment at an emergency room after his knee went out and he fell. He reported he had some chronic back pain which has flared up the preceding fall. He does not have problems with bowel or bladder control. He reported pain radiating down his back to the front of this thigh. The diagnosis was back spasm. X-rays were interpreted as being normal. The May 2019 thru June 2019 clinical records reveal the Veteran complaining of radicular symptoms down the left lower extremity and low back pain. In July 2019, the Veteran was found to be disabled by the Social Security Administration beginning in February 2017. The primary diagnosis was discogenic and degenerative disorders of the back. The secondary diagnosis was affective/mood disorders. In August 2019, the Veteran submitted social security administration records. The physicians with Carolina Spine and Neurosurgery Center have treated the Veteran for his back and leg pain since December 2018. They have diagnosed degenerative disc disease, herniated disc L-3-4, and lumbar radiculopathy. They referred the Veteran for injections and physical therapy. Dr. B.A. saw the Veteran for a consultative examination in June 2018. He noted that the Veteran had antalgic gait and that he used a cane. He indicated that the Veteran had moderate limitations in sitting, standing, walking, lifting, carrying, bending, and squatting. The October 2019 clinical records show the Veteran complaining of low back pain. He states that the pain usually radiates down to his left buttock and around his left lateral thigh. Now it radiates down to his right buttock and down to his right knee. In November 2019, the Veteran testified before the undersigned Veteran’s Law Judge. The Veteran affirms radiculopathy symptoms in both legs as he states that it does switch from one leg to the other, right now, it’s in the left leg. The Veteran’s representative again argues that the Veteran should have at least a 20 percent rating based on range of motion testing at the March 2018 VA examination. He also contends that the Veteran should have at least 40 percent rating based on his repetitive use testimony. The Veteran testifies that his range of motion worsens throughout the day with repetitive use. He also testifies his back condition is severe enough now to require surgery, but his other health conditions have prevented it. In response to the March 2018 VA examiner stating he didn’t show good effort, the Veteran states that it was in the morning and he needs to have movement throughout the day. The January 2020 clinical records show that Veteran complaining of a low back flare. He also continues to state pain in the anterior and posterior thigh. The Veteran states that the pain has increased. Upon physical examination, he displays a deliberate sit to stand transition with gestural utterances of pain. Straight leg raising is negative for lancinating pain. There is no distal or proximal weakness. There is proximal pain inhibition weakness. Femoral nerve stretch is also negative excluding non-radicular pain localizing to the pelvis and SI joint. Ankle dorsiflexion is 5/5. The kinematic range of motion chain remains intact. In the upright posture however, the patient exhibits an overt pelvic distortion characterized by an elevated left hemipelvis. The left posterior SI joint line is remarkably tender. The pain increases with passive ranging particularly and SI joint extension which is limited. No spasticity. Light touch sensation is intact. Femoral nerve stretch did not elicit lancinating anterior extremity pain. No distal edema. The Veteran underwent another VA examination for compensation and pension purposes in August 2020. The Veteran was diagnosed with degenerative joint disease of the lumbosacral spine with a date of diagnosis in September 2015. The Veteran states that he has constant back pain that is worse in rainy weather and with "running errands." He also states that medications like gabapentin "take the edge off" his back pain. He reports that he has "almost continual sciatica" on the left side. He describes pain from the left hip to the medial left lower leg. He also has left sided groin pain. He does not intend to pursue operative intervention at this time and reports that the manipulation done at the VA Integrative Health clinic are very helpful. The Veteran reports no flare-ups of the thoracolumbar spine. He does report having functional loss of the thoracolumbar spine as he is not really able to do anything in life besides run errands for about an hour or two. The Veteran’s range of motion testing showed forward flexion ended at 70 degrees. Extension ended at 10 degrees. Right and left lateral flexion ended at 20 degrees. Right and lateral rotation ended at 30 degrees. Pain was noted on exam but does not result in/cause functional loss in extension range of motion testing. There is evidence of pain with weight bearing. The examiner reports no objective evidence of localized pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions, however, no additional loss of function or range of motion after testing. The Veteran was not examined immediately after repetitive use over time. The exam was not conducted during a flare-up. The examiner noted pain significantly limiting functional ability with repeated use over a period of time, but no loss of range of motion. The examiner reports no guarding or muscle spasm of the thoracolumbar spine. Also, no additional factors are contributing to the disability. No muscle atrophy was present. No radiculopathy pain was noted. No ankylosis of the spine or intervertebral disc syndrome were noted as well. The Veteran uses a brace and cane for assistive devices. Lastly, the Veteran’s thoracolumbar spine condition impacts his ability to work as the examiner describes that after considering all procurable and relevant information, to include medical treatment records and/or lay testimony and relying on my medical experience in treating conditions of this type the functional impairment is limitation in prolonged or repetitive bending. Entitlement to the next higher rating for the Veteran’s back disability requires that 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. Upon review of all of the probative evidence of record, the Board finds the range of motion for forward flexion was limited to 70 degrees with a combined range of motion greater than 120 degrees. The Veteran did not have any evidence of evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In March 2017, a chiropractor recorded a range of motion for flexion of 5/90. It is not apparent to the Board if this indicates that flexion was limited to 5 degrees at this time. The Board notes that the VA examination dated in November 2016 included range of motion which indicated a greater range of motion. Clinical records dated subsequent to the March 2017 in April 2017 and May 2017 also show a greater range of motion which does not warrant a 20 percent rating. The clinical records dated in March 2017 indicates the Veteran presented to an emergency room with acute on chronic back pain which was atraumatic and present for one week. The Board finds the extreme restriction in the range of motion reported in March 2017 chiropractic note, to the extent that it indicates the range of motion of the spine was limited to forward flexion of 5 degrees is not supported by the other evidence of record dated prior to and subsequent to this evidence. This evidence indicates the presence of significantly greater level of movement. The reports in the clinical records prior to and subsequent to this time also do not indicate that the range of motion is so significantly restricted in forward flexion. The Board finds the probative value of the annotation to the extent it suggests limitation of 5 degrees of flexion is outweighed by the probative value other contemporaneous evidence of record which does not indicate such a significant level of impairment. Regarding the argument that forward flexion was restricted to 40 degrees at the time of the March 2018 VA examination and an increased rating should be granted based on this evidence, the Board finds this without merit. While the examiner recorded the range of motion as being 40 degrees, it was also noted that the Veteran's behaviour at the time of the examination indicated a greater level of spinal movement was possible. The Board finds this observation and commentary by a trained health care professional is entitled to probative weight. The examiner had the opportunity to observe the Veteran’s movements prior to and subsequent to the recording of the range of motion testing. Based upon this observation and their medical training, the examiner found that the Veteran was capable of performing a greater level of forward flexion at this time over the recorded range of motion. The records dated prior to and subsequent to the VA examination date also indicate a greater level of movement. The Board places greater probative weight on the observation of the VA examiner over the Veteran's attempts to move during the formal examination. The cumulative weight of the clinical records and the VA examiner’s observations outweigh the single finding that flexion was restricted to 40 degrees at this time. A higher evaluation of 20 percent is not warranted for degenerative arthritis of the spine. The evidence of record does not show any x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. There is also no evidence the Veteran having IVDS of the lumbosacral spine or any incapacitating episodes throughout the entire appeal period. Therefore, evaluation under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes is not warranted for this period. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, there is no indication of any bowel or bladder impairment, so a separate rating for such impairment is not warranted. As such, the Veteran’s symptoms are most closely approximated by the severity contemplated by the 10 percent rating during the entire appeal period. REASONS FOR REMAND 1. Entitlement to a separate rating for radiculopathy in bilateral lower extremities is remanded. The Veteran contends that his radiculopathy in his bilateral extremities are caused by his service-connected back disability. In August 2020, a VA examination for back conditions was conducted. The examiner noted that the Veteran has no radicular pain or other signs or symptoms due to radiculopathy. In addition, the examiner noted that there are no objective neurological findings to suggest bilateral lower extremity radiculopathy. The Board finds this examination inadequate. The examiner failed to address a June 2016 MRI conducted on the Veteran in which the clinician noted radiculopathy in both lower extremities. In addition, there is a November 2018 letter that indicates there is impingement in the nerves of the bilateral lower extremities. The March 2016 VA examination report also finds the presence of radiculopathy but then later quantifies that there is none due to the perception the Veteran was malingering. The examiner must address the June 2016 MRI report, the March 2016 VA examination report, and the consistent reports of the Veteran indicating pain radiating down his bilateral lower extremities. As such, the Board finds that a remand is necessary for an addendum opinion. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Obtain a medical opinion from a suitably qualified health care professional to determine if the Veteran has or had radiculopathy in the bilateral lower extremities as a result of his service connected back disability. An examination of the Veteran should only be scheduled if the examiner determines this is required to obtain the requested opinions. After review of the claims file, including VA treatment records documenting complaints of pain radiating down the bilateral lower extremities, the June 2016 MRI, and November 2018 letter, the examiner should respond to the following question: (a.) Is it at least as likely as not that the Veteran has radiculopathy associated with his service connected back disability? (b.) If radiculopathy is found, what nerves are affected? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history including his reports of pain radiating down his bilateral lower extremities due to his in-service injury. The opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.