Citation Nr: 21020790 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-41 430A DATE: April 8, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, from July 26, 2010 to April 5, 2012, for intervertebral disc syndrome (IVDS) (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) is granted. Entitlement to a disability rating of 20 percent, but no higher, from July 1, 2012 to October 1, 2013 for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) is granted. Entitlement to a disability rating in excess of 40 percent from October 1, 2013 to August 15, 2018, for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) is denied. Entitlement to a disability rating in excess of 40 percent from October 1, 2018, for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 14, 2012 is denied. REMAND Entitlement to a separate disability rating for neurologic abnormalities of bowel and bladder impairment, secondary to IVDS is remanded. FINDINGS OF FACT 1. For the period from July 26, 2010 to April 5, 2012, the Veteran's thoracolumbar spine disability has been manifested by pain and limitation of motion, but not by incapacitating episodes due to IVDS. 2. For the period from July 1, 2012 to October 1, 2013, the Veteran's thoracolumbar spine disability has been manifested by pain and limitation of motion, but not by incapacitating episodes due to IVDS. 3. For the period from October 1, 2013 to August 15, 2018, the Veteran’s thoracolumbar spine disability was manifested by arthritis with pain and limitation of motion, but not by incapacitating episodes due to IVDS that required bed rest prescribed by a physician or unfavorable ankylosis of the entire thoracolumbar spine. 4. For the period from October 1, 2018, the Veteran’s thoracolumbar spine disability was manifested by arthritis with pain and limitation of motion, but not by incapacitating episodes due to IVDS that required bed rest prescribed by a physician or unfavorable ankylosis of the entire thoracolumbar spine. 5. Prior to March 14, 2012, the Veteran was not precluded from securing or following all forms of substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period July 26, 2010 to April 5, 2012, the criteria for an initial disability evaluation of 20 percent, but no higher, for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. For the period July 26, 2010 to April 5, 2012, the criteria for an increased disability evaluation of 20 percent, but no higher, for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 3. For the period October 1, 2013 to August 15, 2018, the criteria for an increased disability evaluation of 20 percent, but no higher, for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 4. From October 1, 2018, the criteria for an increased disability evaluation in excess of 40 percent for IVDS (previously diagnosed as status post anterior and posterior L4-L5 fusions with surgical scars) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 5. Prior to March 14, 2012, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to May 1989 and from November 1990 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. In May 2020, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The AOJ received life insurance documents, updated VA treatment records and obtained a VA examination. The requested development for the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In an October 2020 rating decision, the AOJ assigned an earlier effective date for the Veteran’s previously established 40 percent disability rating of the thoracolumbar spine disability. A review of prior decisions revealed that an October 1, 2013 VA examination was never considered and illustrated the Veteran’s thoracolumbar spine disability warranted a 40 percent disability evaluation. Thus, based upon the examination findings, the AOJ assigned a 40 percent disability rating, effective October 1, 2013, the date of examination. The Board notes that the assignment of an earlier effective date of the Veteran’s 40 percent thoracolumbar spine disability did not constitute a full grant of the benefits sought. Accordingly, the issue of an entitlement to initial increased disability ratings in excess of 10 percent and an increased rating in excess of 40 percent has been recharacterized, as indicated in the ORDER above, and remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Of note, the 100 percent disability evaluations that were assigned effective April 6, 2012 to October 1, 2013 and August 16, 2018 to October 1, 2018, based on surgical or other treatment necessitating convalescence, represent a full grant of benefits for those periods. See VA Rating Decisions, dated September 25, 2013 and February 11, 2019. The Veteran was granted service connection at 40 percent for right and left lower extremity radiculopathy, associated to IVDS, during the course of the appeal. See VA Rating Decision, dated September 25, 2015. Pursuant to his claim for an increase, the 40 percent rating was continued in a November 2018 rating decision. The Veteran was notified of the decisions and his appellate rights, and he has not filed a notice of disagreement with regard to the rating. Thus, the matter is not for consideration by the Board. The matter of entitlement to a separate rating for neurologic abnormalities of bowel and bladder, associated to the thoracolumbar spine disability, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. Now the matters before the Board. Increased Ratings Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Thoracolumbar Spine Disability The Veteran asserts entitlement to an increased rating for his thoracolumbar spine disability because of hardware removal surgery with worsening back pain and lower extremities weakness. See Appeal to Board of Veterans’ Appeals, VA Form 9, received December 11, 2014. As previously noted, the Veteran received temporary 100 percent evaluations for the thoracolumbar spine disabilities, and therefore, those periods are not under appellate review. Therefore, the Board will consider whether the Veteran’s thoracolumbar spine disability warrants entitlement to an initial increased disability rating in excess of 10 percent July 26, 2010 to April 5, 2012 and July 1, 2012 to October 1, 2013; in excess of 40 percent from October 1, 2013 to August 15, 2018; and in excess of 40 percent from October 1, 2018. The evidentiary record shows the Veteran was service-connected at 10 percent, effective July 26, 2010 under Diagnostic Code 5243 for status post anterior and posterior L4-L5 fusions with surgical scars in a June 2011 rating decision. In a March 2017 rating decision, the Veteran’s diagnosis was listed as IVDS, and the condition was increased to 40 percent under Diagnostic Code 5243, effective December 16, 2014. An October 2020 rating decision assigns an effective date of October 1, 2013 for the 40 percent IVDS rating. Notably, the Veteran underwent a September 2020 VA examination, which listed the diagnosis of lumbar arthritis and lumbar IVDS, but the diagnostic code remained the same. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Disabilities of the spine are rated under the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating. See 38 C.F.R. § 4.71 (a). In relevant part, the General Formula provides that a rating of 10 percent is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85. A 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60, or a combined range of motion 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 assigned where 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 for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Note (2). Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Under the Formula for Rating IVDS based on Incapacitating Episodes, a 20 percent rating is warranted for 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 at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Under Note (1) of the General Formula, objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. During the time frame of this appeal, effective February 7, 2020, VA revised the criteria for evaluating arthritis of the spine and IVDS. The United States Court of Appeals for Veterans Claims (Court) has held that the law "precludes an effective date earlier than the effective date of the liberalizing...regulation," but the Board must, nonetheless, still adjudicate whether a claimant "would receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Diagnostic Code 5242 provides that degenerative arthritis that is post-traumatic will now be rated under Diagnostic Code 5010, while degenerative arthritis will remain under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Under both, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion, only when the limitation of motion is noncompensable under the appropriate Diagnostic Codes. See 38 C.F.R. § 4.45. Moreover, Diagnostic Code 5243 limits the scope of disabilities evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes to only diagnoses of disc herniation with compression and/or irritation of the adjacent nerve root, otherwise disc diagnoses should be evaluated under Diagnostic Code 5242. Here, the evaluation of the Veteran’s thoracolumbar spine disability remains the same because, as indicated below, his diagnosis meets the new criteria, under Diagnostic Code 5243 for IVDS with disc herniation and compression. Facts and Analysis In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his thoracolumbar spine disability. Layno v. Brown, 6 Vet. App. 465, 469-71. It is not disputed underwent surgical fusion in 1998 for severe degeneration of the L4-L5 disc with follow-on surgeries through 2018, to include fusion revision, hardware removal, bilateral laminectomies, and additional fusion. The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence and are probative for resolving the matters on appeal. 1. Period from July 26, 2010 to April 5, 2012 2. Period from July 1, 2012 to October 1, 2013 First, the Board finds an initial 20 percent disability rating is warranted for the Veteran's thoracolumbar spine disability from July 26, 2010 to April 5, 2012 and July 1, 2012 to October 1, 2013. The Veteran was service-connected for his thoracolumbar spine disability, effective July 26, 2010. The Veteran’s VA and private treatment records, as well as his competent statements and reports of record, all indicate he has experienced chronic lower back pain with a baseline of 6 out of 10, with exacerbations to 10 out of 10, muscle spasms, stiffness, limited movement, and leg weakness and numbness. At the January 2011 VA back examination, the Veteran reported stiffness, fatigue, spasms, decreased motion, paresthesia and numbness. He indicated experiencing severe, constant back pain that was exacerbated by physical activity. He reported the pain was severe. During flare-ups he described the functional impairment as pain and weakness. Treatment with Nabumetone 750 mg, Tizanidine 2 mg, and Amitriptyline 10 mg allowed him to function, but rendered him unable to perform physical activities. The Veteran did not report any incapacitation. During the January 2011 VA back examination, the Veteran’s range of motion testing indicated flexion limited to 80 degrees with pain beginning at 60 degrees. The Veteran performed repetitions with no additional flexion limitation. Ankylosis of the thoracolumbar spine was not shown, and there was no atrophy present in the limbs. The Veteran was observed to have posture and gait within the normal limits. The examiner described his ambulation as a steady walk, without the need for any assistive device. The examiner found no signs of IVDS with permanent nerve root impingement. The examiner found that the Veteran’s occupation was not affected by his thoracolumbar spine disability, but it did impact the daily ability to perform physical activities. The Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. See 38 C.F.R. § 4.45. Considering the Veteran’s well documented surgical history for his thoracolumbar spine disability, chronic pain, muscle spasm and stiffness, with his competent statements of flare-ups, the Board accepts that the Veteran has functional impairment and pain. See DeLuca. In addition, the January 2011 examiner observed pain beginning at 60 degrees forward flexion and noted that the thoracolumbar spine disability had a daily impact on the Veteran’s ability to perform physical activities. Thus, despite a forward flexion of 80 degrees at the January 2011examination, the Board finds the totality of the evidence of record indicates the Veteran's thoracolumbar spine disability was manifested by functional loss that more nearly approximated the functional equivalent of forward flexion greater than 30 degrees but not greater than 60. Accordingly, the Board resolves any reasonable doubt in favor of the Veteran and finds an initial 20 percent disability rating from July 26, 2010 to April 5, 2012 and July 1, 2012 to October 1, 2013 is warranted for limitation of motion of the spine under Diagnostic Code 5242. See also 38 C.F.R. §§ 4.45, 4.59. However, the Board finds the preponderance of the competent and credible evidence of record is against finding that the criteria for an initial disability rating in excess of 20 percent for the thoracolumbar spine disability have been met. The January 2011 VA back examination report does not illustrate the Veteran’s forward flexion of the thoracolumbar spine was 30 degrees or less, or that he had ankylosis. Further, the Veteran reported there were no incapacitating episodes, and the examiner did not find the condition effected his ability to work. The Veteran's medical treatment records, including prior to the Veteran’s April 2012 thoracolumbar spine surgery and after the convalescent period ended in June 2012, do not contain objective testing regarding the Veteran's thoracolumbar spine disability but do illustrate his continued reports of chronic back pain. Even accounting for the Board’s acknowledgment that the Veteran's back pain caused additional functional impairment, the totality of the evidence of record does not indicate that limited trunk motion would manifest functional loss that more nearly approximated forward flexion limited to at least 30 degrees or less, or ankylosis of the entire thoracolumbar spine. Accordingly, the criteria under the General Rating Formula for an initial disability rating in excess of 20 percent have not been met. Moreover, because the evidence of record does not indicate the Veteran had any incapacitating episodes due to IVDS, an initial disability rating in excess of 20 percent from July 26, 2010 to April 5, 2012 and July 1, 2012 to October 1, 2013 is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. See VA Examination, dated January 28, 2011. 3. From October 1, 2013 to August 15, 2018 4. From October 1, 2018 Next, the Board finds the preponderance of the competent and credible evidence of record is against finding that the criteria for a disability rating in excess of 40 percent from October 1, 2013 to August 15, 2018 and from October 1, 2018 for the thoracolumbar spine disability have not been met. The Veteran's VA treatment records and private treatment records do not contain objective testing regarding the Veteran's thoracolumbar spine disability, but include the Veteran's continued reports of chronic back pain. At the December 2014 VA back examination, the Veteran was diagnosed with IVDS. Arthritis of the lumbar spine was not indicated as a diagnosis, but an April 2014 MRI was noted in the examination report and illustrated the Veteran had multilevel degenerative changes of the lower lumbar spine. During the December 2014 VA back examination, the Veteran reported chronic lumbar pain despite the April 2012 revision surgery and regular epidural steroid injection treatments. He indicated that pain prevented him from sitting for very long without moving around or standing up. The Veteran asserted he had occasional incapacitating flare-ups that required bed rest, and he reported he was permanently disabled secondary to his back. The examiner found the Veteran’s reports of moderate to severe flare-ups, lasting a few weeks, a few times a year to be consistent with the examination. The Veteran’s range of motion testing indicated flexion limited to 15 degrees. The examiner found that pain contributed to the functional loss and prevented the performance of normal physical activities. The Veteran was not found to have incapacitating episodes of bed rest that were prescribed by a physician and required physician treatment. The examiner performed a thorough examination upon review of the record and the Board assigns probative weight to the findings. In March 2020 the Veteran testified at a travel board hearing that his thoracolumbar spine disability had worsened. He believed that at the time of the December 2014 VA examination he experienced incapacitating episodes for more than six weeks and suffered from ankylosis. He described the incapacitating episodes as when he wakes in the morning with pain above his baseline of 6 out of 10, and it continues to rise for the rest of the day until it reached 10. The Veteran further acknowledged that VA requires the episodes to be documented at the emergency room, explaining it wastes the doctor’s time to get a shot when he already has shots routinely scheduled. See March 2018 Board Hearing Transcript at 3, 5. In June 2020, the Veteran submitted treatment records from Brigham and Women’s Hospital. It included MRI findings, taken in November 2017, which showed the Veteran had disc herniation at the L1-L2, L2-L3, L3-L4, and L5-S1, with moderate to severe left neuroforaminal narrowing at L2-L3 and severe left neuroforaminal narrowing at L3-L4. In addition, X-ray findings from June 2018 indicated moderate to severe degenerative changes status post anterior fusion at L4-L5 and posterior fixation from L3-L4. The September 2020 VA back examination the Veteran reported constant back pain and flare-ups of pain with prolonged use of back in activities involving bending, twisting, walking, and standing, which decrease his range of motion and affect ambulation. The forward flexion was limited to 20 degrees, extension 10 degrees, right and left lateral flexion was 20 degrees, and right and left lateral rotation was 30 degrees. The examiner noted pain on movement and with weightbearing. The Veteran was not examined during a flare-up, but the examiner found that pain, fatigue, or incoordination would not significantly impair the Veteran with repeated use over time. Normal muscle strength was noted in all lower extremities and no muscle atrophy. Straight leg test was positive on the left and right and bilateral impingement of the L4/L5/S1/S2/S3 was noted with a severity level of moderate. The Veteran did not have ankylosis. Further, the examiner indicated there were not any episodes of acute signs or symptoms attributed to IVDS that required bed rest prescribed by a physician and treatment by a physician during the last 12 months. The examiner was thorough, providing an examination report based on clinical findings and review of the evidentiary file. Thus, the Board assigns probative weight. Notably, the Veteran underwent a November 2013 VA examination for neurological disorders associated to his thoracolumbar spine disability, for a separate claim he filed regarding bilateral lower extremity radiculopathy. In the foot examination report, the Veteran was noted to have bilateral rigid paraspinal muscle tension that almost completely limited his spinal movements in all directions. The forward flexion was limited to 10 degrees, extension to less than 5, right tilt to 10, left tilt to 5 and bilateral rotation to less than 20 degrees. See VA Examination, dated November 14, 2013. In the peripheral nerves examination report, the Veteran was noted to have an antalgic gait to his left when using a cane in the right hand to assist with ambulation, but the gait pattern was symmetric when the Veteran was distracted or without the cane. The examiner further remarked that the Veteran exhibited rigid spasm of both paraspinal muscle groups with very limited motion of the spine in any direction, concluding that total combined motion was about 30 degrees. Id. Similarly, at a November 2018 VA peripheral nerve examination, the Veteran was again noted to have antalgic gait and bilateral rigid spasm in the lower back with limited range of motion. See VA Examination, dated November 6, 2018. Although the November 2013 and November 2018 VA examiners are competent and credible, the findings reported concerning the back are not adequate for rating purposes under the General Formula because the examination report does not document the specific numerical findings for all movement planes tested. However, the objective symptoms of the Veteran’s thoracolumbar spine disability identified in the examination provide evidence of the Veteran’s overall disability picture, and to that extent, the Board assigns probative value. Turning to the criteria for orthopedic manifestations under the General Formula, during the September 2020 VA back examination, range of motion testing indicated flexion limited to 20 degrees. No ankylosis of the thoracolumbar spine has been shown by the lay and medical evidence of record. The Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. See 38 C.F.R. § 4.45. Here, the Veteran has competently reported chronic back pain aggravated by prolonged standing and sitting, and flare-ups of pain and stiffness that impacts physical activity and ambulation. Although, the September 2020 VA back examination was not conducted during a flare-up, the examiner stated that pain, fatigue, or incoordination would not have a significant functional impact and cause additional loss with repeated use over time. Further, while the evidence shows severely limited motion, the Veteran maintains the ability to flex, extend, bend, and rotate. Accordingly, the Board finds the totality of the evidence of record does not indicate the Veteran's thoracolumbar spine disability is manifested by ankylosis of the entire thoracolumbar spine. The criteria under the General Rating Formula for a disability rating in excess of 40 percent have not been met. Further, under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, and the evidence of record does not illustrate the Veteran had any episodes of acute symptoms that required physician prescribed bed rest and treatment. Therefore, a disability evaluation in excess of 40 percent from October 1, 2013 to August 15, 2018 and from October 1, 2018 for the thoracolumbar spine disability is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See VA Examination, dated September 4, 2020; March 2018 Board Hearing Transcript at 3, 5. Lastly, regarding evaluation of the Veteran’s lumbar spine disability under Diagnostic Code 5003 for degenerative arthritis, the disability is already evaluated at a compensable rate based upon limited of range of motion. Therefore, no additional higher or alternative ratings under Diagnostic Code 5003 can be applied. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds an initial 20 percent disability rating is warranted from July 26, 2010 to April 5, 2012 and July 1, 2012 to October 1, 2013, and to September 19, 2016, but finds no provision upon which to assign the Veteran a disability rating in excess of 40 percent from October 1, 2013 to August 15, 2018 and from October 1, 2018 for the thoracolumbar spine disability. Total Disability Based on Individual Unemployability Lastly, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for TDIU where the veteran claims that his service-connected disabilities prevent him from working. The Veteran was awarded TDIU beginning March 14, 2012. The evidence of record illustrates that the Veteran was a State Police Dispatcher until March 13, 2012, which is the last day he was gainfully employed. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received October 21, 2013; and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received October 29, 2013. Also, the evidentiary record shows that prior to March 14, 2012, the Veteran worked a full-time schedule. See Employer Statement from Human Resources Director S.G, received October 5, 2015. Therefore, the preponderance of the evidence is against finding that entitlement to TDIU prior to March 14, 2012 has been met. Neurologic abnormalities of the Bowel and Bladder The Board finds a fully informed decision cannot be rendered regarding the Veteran’s entitlement to a separate rating for neurological abnormalities of the bowel and bladder, associated with his service-connected thoracolumbar spine disability. At the January 2011 VA back examination, the Veteran indicated having bowel problems in relation to the spine condition. He reported fecal leakage that did not require the use of absorbent materials. The Veteran did not report any bladder impairment. However, in March 2014, the Veteran presented at VA Medical Center (MC) Boston Urgent Care with complaints of bowel and bladder dysfunction for three years that were worsening. See Boston VAMC treatment record, dated March 28, 2014. A January 2017 VA physical therapy treatment note also indicates the Veteran has had difficulty emptying his bladder and leakage for years. He again reported that neurology followed him for the issues. See Boston VAMC treatment record, dated January 31, 2017. The Board finds that more development is necessary prior to final adjudication of the issue of entitlement to a separate rating for neurological abnormalities of the bowel and bladder, associated to the Veteran’s thoracolumbar spine disability remaining on appeal. REASONS FOR REMAND Again, the Board notes that the Rating Schedule provides for a separate disability rating for any associated objective neurologic abnormalities, such as bowel or bladder impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Veteran made reports of genitourinary dysfunction at VA examination and in the context of acquiring care for his back and related conditions. Thus, the issue has been raised by the record, and the Veteran has not been afforded a comprehensive VA examination for it. Based upon the medical evidence of record and the Veteran's statements, the Board finds that the Veteran should be afforded a VA examination to assess the nature and etiology of any bowel and bladder impairment. While on remand, the AOJ must obtain all outstanding VA and private medical records that have treated the Veteran for bowel and bladder impairment throughout the entire appeal period. Accordingly, the matters are REMANDED for the following action: 1. The AOJ should request assistance from the Veteran in identifying and obtaining any outstanding relevant treatment records for neurologic abnormalities of bowel and bladder dysfunction, and any other neurologic impairment related to his thoracolumbar spine disability from private or VA sources since July 2010. All record requests and responses must be associated with the Veteran's electronic claims file. 2. Then, the Veteran should be scheduled with an appropriate medical examiner to determine the nature and etiology of the Veteran’s bowel and bladder impairment, as well as any other identified neurologic abnormalities (except the Veteran’s service-connected bilateral lower extremity radiculopathy). The examiner should schedule any tests and/or specialty consultations required to provide the requested opinion. The examiner must review the Veteran's entire claims file and a copy of this REMAND order, ensuring to include a notation that a record review was performed, before rendering any opinions. (a.) The examiner should identify any bladder and bowel diagnoses, as well as any other neurologic abnormalities (except the Veteran’s service-connected bilateral lower extremity radiculopathy) that are currently manifested, or that have been manifested at any time since July 2010. The examiner should specifically address the bowel impairment noted during the January 2011 VA examination, and the bowel and bladder references made in the Boston VAMC physical therapy treatment note, dated January 31, 2017. (b.) The examiner must opine whether each of the neurological diagnoses is at least as likely as not (50 percent probability) proximately due to the Veteran's service-connected thoracolumbar spine disability, to include through the Veteran’s service-connected bilateral lower extremity radiculopathy as an intermediary step. (c.) The examiner must opine whether each of the neurological diagnoses is at least as likely as not (50 percent probability) aggravated/worsened (beyond a natural progression) by the Veteran's service-connected thoracolumbar spine disability, to include through the Veteran’s service-connected bilateral lower extremity radiculopathy as an intermediary step. If the examiner finds aggravation resulting from the Veteran’s thoracolumbar spine disability, to the extent feasible, the degree of worsening should be identified. (d.) The examiner must provide complete written rational for any opinion rendered. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. (e.) If the examiner cannot provide an opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. After completion of the above and any additional development deemed necessary, the AOJ should readjudicate the issues on appeal. If the claims remain denied, the Veteran and his representative must be provided a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.