Citation Nr: 21024984 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-50 511 DATE: April 27, 2021 ISSUES 1. Entitlement to a disability rating in excess of 20 percent for the period from August 27, 2007 to July 22, 2013, and in excess of 40 percent thereafter, for service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) (a spine disability). 2. Entitlement to a disability rating in excess of 40 percent for service-connected polyradiculopathy, to include groin, buttock, and left leg pain (polyradiculopathy). ORDER Entitlement to a disability rating in excess of 20 percent for the period from August 27, 2007 to July 22, 2013, for service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) (a spine disability) is denied. Entitlement to a disability rating of 50 percent, but no higher, for the period from July 22, 2013, for service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) (a spine disability) is granted. REMANDED Entitlement to a disability rating in excess of 40 percent for service-connected polyradiculopathy, to include groin, buttock, and left leg pain (polyradiculopathy) is remanded. FINDINGS OF FACT 1. For the period from August 27, 2007 to July 22, 2013, the Veteran’s spine disability was manifested by, at worst, thoracolumbar forward flexion to 40 degrees, with pain beginning at 30 degrees, and spinal guarding and painful motion, but no atrophy, tenderness, or weakness. The Veteran experienced incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. 2. For the period from July 22, 2013, the Veteran’s spine disability was manifested by, at worst, painful flare ups which cause the spine to lock up completely, cause the Veteran to lay down for several hours due to a total limitation of motion, which creates the functional equivalent to unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. For the period from August 27, 2007 to July 22, 2013, the criteria for a disability rating in excess of 20 percent for service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) (a spine disability) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. 2. For the period from July 22, 2013, the criteria for a disability rating of 50 percent, but no higher, for service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) (a spine disability) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 1990 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a September 2005 rating decision granted the Veteran entitlement to service connection for spine degenerative disc disease (DDD) and assigned an initial 10 percent rating, effective June 3, 2004. A rating decision from June 2008 then increased the Veteran’s DDD rating to 20 percent, effective August 27, 2007, the date of the Veteran’s claim for an increased rating. That same rating decision granted entitlement to service connection for polyradiculopathy of the L3-5, and assigned a 40 percent disability rating, also effective August 27, 2007. Following that, a September 2013 rating decision increased the Veteran’s disability rating for his service-connected spine disability to 40 percent, effective July 23, 2013. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. A May 2015 rating decision then denied entitlement to service connection for bilateral hearing loss. The Veteran’s claims were then appealed to the Board, and in a Decision from October 2015, each of the above-identified issues was remanded. Following additional development by the RO, they were returned to the Board again. In that Decision from February 2018, entitlement to service connection for bilateral hearing loss was denied, in addition to entitlement to increased ratings for the service-connected spine disability at both stages. Entitlement to a disability rating in excess of 40 percent for service-connected polyradiculopathy was recharacterized to include groin, buttock and left leg pain, and was subsequently remanded for additional development. Following that Board Decision, the Veteran appealed his claims to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR) from February 2019, the portion of the February 2018 Board Decision that denied entitlement to service connection for bilateral hearing loss, and entitlement to increased ratings for the service-connected spine disability was vacated and remanded back to the Board for additional development. As the issue of entitlement to a disability rating of 40 percent for polyradiculopathy was remanded, the Court lacked jurisdiction over the claim. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004). The Veteran’s claims then returned to the Board, and in a Decision from August 2019, entitlement to a disability rating in excess of 40 percent for service-connected polyradiculopathy was denied. The issues of entitlement to service-connection for bilateral hearing loss, and increased disability ratings for the service-connected spine disability at both stages were remanded for additional development and adjudication. In that Decision, the Board also recharacterized the spine disability claim to include intervertebral disc syndrome, which has been reflected in the preceding Issues section. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran then appealed his denied polyradiculopathy claim to the Court. In a JMPR from August 2020, the Court vacated the portion of the Board’s August 2019 Decision that denied entitlement to a disability rating in excess of 40 percent for service-connected polyradiculopathy. Again, the claims that were remanded in August 2019 by the Board were not final, so the Court had no jurisdiction over them. See Breeden, Id. Following the Board’s August 2019 remand, in a decision from July 2020, the RO granted the Veteran entitlement to service connection for bilateral hearing loss with a noncompensable disability rating. As that issue has been granted, it no longer remains on appeal before the Board. Having said that, both of the Veteran’s claims as identified in the Issues section above have since been returned to the Board. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 20 percent for the period from August 27, 2007 to July 22, 2013 for service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) (a spine disability). The Veteran has claimed that his service-connected spine disability is worse than currently rated for each period on appeal. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). A recent Court decision also addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The Veteran’s spine disability is currently rated under Diagnostic Code 5242. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a spine disability is rated as follows: A 10 percent evaluation is warranted where forward flexion of the cervical spine is greater than 30 degrees but not greater than 45 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 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 evaluation is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 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 30 percent evaluation is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are 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. Id. Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with 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. As noted above, the Veteran’s service-connected spine disability is rated at 20 percent from August 27, 2007 to July 23, 2013 and is rated at 40 percent disabling thereafter. a) The Period from August 27, 2007 to July 22, 2013 The Veteran submitted a lay statement in August 2007, where he wrote that his lumbar pain was severe, and “to the point that I am almost unable to function at the end of the day.” He also submitted a statement in July 2010, describing the back injury that occurred in service, and how that “would leave a very severe trauma to the body.” The Veteran is competent to report the symptoms he experiences, such as those associated with his spine disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the medical evidence, the Board initially notes that the Veteran’s claims file contains a VA examination and addendum opinion from January 2020. While this opinion was given outside of the current period on appeal, pursuant to prior Board remand directives, the examiner was to conduct a review of the Veteran’s past medical evidence, and provide additional estimates of functional limitations experienced by the Veteran during each of the VA examinations. See August 2019 Board Remand. The Veteran was given a VA examination in May 2008. During the exam, the Veteran reported having an increase in his back problems over the last year, stating that he was having pain in a band-like pattern across his low back. Although not prescribed, he used a back brace which had not provided noticeable relief. He was not unsteady and did not report flare ups of the spine. The Veteran reported that working as a mail carrier he usually called in sick once a month for 2 or 3 days to rest his back but he had not had periods of incapacity in the past year. On clinical examination the Veteran walked with a slightly antalgic gait. Visually, his low back appeared normal and without spasms. Thoracolumbar flexion was to 40 degrees, with pain beginning at 30 degrees. Extension was to only 5 degrees due to guarding from pain. Lateral bending was to 10 degrees to the left and 12 degrees to the right, and rotation was to 10 degrees to the left and 15 degrees to the right, all with guarding due to back pain. There was no further limitation of motion due to pain, weakness, fatigability or incoordination after repetitive use. The diagnosis was lumbar DDD with moderate functional loss. Another VA examination occurred in November 2009, and the Veteran’s records were reviewed. He complained of low back pain which went down his leg to his groin, with numbness and tingling in the back and left leg. He reported that the condition had progressively worsened and he used a back brace daily. He related having fatigue, decreased motion, stiffness, weakness, and spasm. His low back pain was “severe and constant.” In the past twelve months he was noted to have had eight episodes of incapacitating spinal disease lasting two-to-three days each (for a maximum of 24 days). It was reported that he had no limitation as to walking. During clinical testing, the Veteran’s gait was antalgic, and he had lumbar flattening but no other spinal contour abnormality. He had painful spinal motion but no spasm, atrophy, guarding tenderness or weakness of the thoracic spinal muscles. Muscle strength was normal in the lower extremities and there was no muscle atrophy or abnormal muscle tone. On range of motion testing, thoracolumbar flexion was to 80 degrees, extension was to 10 degrees, left and right lateral bending were to 15 degrees, and left and right rotation were to 20 degrees (for a total of 160 degrees). He had painful motion, including after repetitive motion but no additional loss of motion after repetitive motion testing. The January 2020 VA addendum opinion noted that during the November 2009 VA examination, the Veteran was “indicating a continued likely additional 50 percent functional limitation during flare ups.” There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the severity of the Veteran’s spinal disability for the period from August 27, 2007, to July 22, 2013 more nearly approximates the 20 percent disability rating. The Veteran has described severe symptoms, whereby he is “almost unable to function at the end of the day.” Medical evidence from May 2008 indicated that the Veteran had a range of motion of thoracolumbar forward flexion to 40 degrees, with pain beginning at 30 degrees. That exam also indicated that he displayed guarding due to his back pain. During the November 2009 VA examination, he was noted to have painful spinal motion but no spasm, atrophy, guarding tenderness or weakness of the thoracic spinal. His range of motion indicted forward flexion to 80 degrees. All of these factors more nearly approximately the description of the 20 percent disability rating under the General Spine Formula. Even considering the January 2020 VA examiner’s note that the Veteran likely experienced an additional “50 percent functional limitation during flare ups,” the evidence still demonstrates that his forward flexion would be greater than 30 degrees, but not greater than 60 degrees. As it relates to IVDS, the Veteran was described as having a total of 24 days of incapacitating episodes over the past year, something that his lay statements give further credence to. These 24 days however, also more nearly approximate the 20 percent disability rating. To be sure, the Court JMPR from February 2019 vacated the previous Board Decision as it had not considered evidence that was favorable to the Veteran’s claims. The JMPR specifically pointed to August 2007 statement from the Veteran, which the Board has discussed above. The JMPR also however noted an “October 2006 VA opinion, noting that during flare ups, [Veteran’s] motion is limited by 50 percent.” The Board has considered the October 2006 VA opinion, and notes it to be related to a different service-connected disability, namely his right knee. At no point during this period on appeal has the Veteran been found to have forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine, which are required for the 30 percent disability rating. As it relates to IVDS, while the Veteran does have incapacitating episodes, they were not found to have a total duration of at least four weeks but less than six weeks during the past twelve months. As such, under both the General Spine Formula and the IVDS Formula, the preponderance of the evidence is against an increased rating. Therefore, affording the Veteran the benefit of the doubt, the severity of his spinal disability more nearly approximates the current 20 percent disability rating for this period on appeal. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. b) The Period from July 22, 2013 forward The Veteran was given a VA examination in July 2013, where the examiner confirmed that his records were reviewed. The Veteran reported that he received epidural injections about every three months which relieved his pain for about 2 weeks, and then the back pain would lock up and return. On physical examination thoracolumbar flexion was to 30 degrees, with pain beginning at 15 degrees. Extension was painless to 5 degrees. Right and left lateral bending were each to 20 degrees, with pain beginning on the right at 10 degrees and at 5 degrees to the left. Right and left rotation were each to 10 degrees with pain beginning in each instance at 5 degree, for a total of 95 degrees. He could perform two attempts at repetitive motion but refused a third attempt due to increased pain. He had functional loss due to painful motion. He had tenderness/pain on palpation of the back. He had guarding or spasm of the thoracolumbar spine but not such as to cause an abnormal gait or abnormal spinal contour. Strength and sensations were normal throughout both lower extremities and there was no muscle atrophy. Deep tendon reflexes were normal at the knees and ankles. The examiner reported that the Veteran did not have IVDS. He used a brace but did not have a vertebral fracture. The Veteran was given a VA examination in February 2016, and his claims file was reviewed. During the exam, he complained of daily back pain with left sided groin pain, with radiation to his toes, with locking or spasms intermittently. As a mail carrier he wore a back brace every day. He reported that in the past 6 months he had missed 20 days of work due to his back (which would equate to 40 days in a 12-month period). He reported that lifting anything over 40 pounds aggravated his back. During clinical testing, the Veteran displayed thoracolumbar flexion to 65 degrees, and extension as well as lateral bending in each direction and rotation in each direction were to 20 degrees (for a total of 165 degrees). It was reported that there was pain on flexion and extension, but it did not result in or cause functional loss. As it relates to flare ups, the examiner declined to opine on whether or not flare-ups further limited functional ability, and the examiner stated that they could not say without resorting to mere speculation. The Veteran could perform repetitive motion and there was no additional limitation of motion thereafter. There was no pain on weight-bearing, but there was paraspinous tenderness. There was no guarding or spasm of the thoracolumbar spine. Strength in the lower extremities was normal throughout and there was no muscle atrophy. He had IVDS but this had not required bed rest prescribed by a physician in the past 12 months. He regularly used a brace. As noted above, the Veteran’s claim was previously before the Board in August 2019, whereby the Board remanded the Veteran’s claim for a more recent VA examination. That examination occurred in January 2020. The Veteran was seen in person, and his claims file was reviewed. During the exam, the Veteran reported flare ups that occur twice per month, that last an “average of ‘several hours’,” which occur as a result of lifting and standing too long. The Veteran reported that he “can’t move,” so that he must “lay down for a few hours.” On clinical testing, the Veteran exhibited ROM measurements of forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. Pain was noted on the exam, however that did not cause further functional loss. The Veteran was able to perform repetitive use testing, with no additional functional loss. The Veteran was not examined during a flare up, and he did not have additional guarding and/or muscle spasm. The Veteran did not have ankylosis of the spine. The Veteran was noted to have IVDS, however the examiner denied that the Veteran had been prescribed bed rest by a physician in the past twelve months. The Veteran uses a back brace regularly. As it relates to flare ups, the examiner stated that the Veteran “is noted with reported additional limitations of motion of 100% for several hours.” Later in the report, the examiner stated that, following February 2016, “he experienced intermittent locking with intermittent 100 [percent] additional loss of motion for several hours but [less than] 1 day occurring approximately [twice] per month.” They also noted that there was “no evidence of incapacitating episodes of lumbar spine pain that is reflected in bed rest prescribed by a medical professional.” There is no evidence that the July 2013 and January 2020 VA examiners were not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As it relates to the February 2016 VA examination, the Board notes that the Veteran reported flare ups, causing him to miss work over the prior six months. Despite that, the examiner did not discuss whether the flare-ups limited the Veteran’s functional ability, and only noted that they were unable to say without mere speculation. As such, the Board finds the February 2016 VA examination inadequate for determining the severity of the Veteran’s service-connected spine disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the evidence more nearly approximates a 50 percent disability rating for the Veteran’s service-connected spine disability. Importantly, as per the rating criteria under the General Spinal Formula, the disability rating higher than 40 percent – the 50 percent rating – requires unfavorable ankylosis of the entire thoracolumbar spine. Both the July 2013 and January 2020 VA examinations denied that the Veteran had ankylosis of the spine. Having said that, the Veteran has consistently reported that he has flare ups of the spine, which cause his spine to “lock up.” He described being unable to move, and that he must “lay down for a few hours.” The final notes of the January 2020 VA examiner’s report are important, where they describe the Veteran having “additional limitations of motion of 100 percent for several hours,” and that this was also true from the February 2016 VA examination. Importantly, a recent Court panel Decision found that application of 38 C.F.R. §§ 4.40 and 4.45, may entitle a Veteran to a higher rating than would otherwise be supported by mechanical application of a diagnostic code, where a disability causes additional functional loss with use or during flare-ups. Moreover, the Court noted that ankylosis is defined as immobility of a joint – in essence, complete limitation of motion. VA does not consider ankylosis to be a diagnosis – rather, it considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness. Thus, application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spine Formula of a rating based on ankylosis, if a Veteran’s functional loss is the functional equivalent of ankylosis. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). To apply that holding to the present case, the Board notes that, even though the recent VA examinations denied that the Veteran experienced clinical ankylosis, the January 2020 VA examiner indicated the Veteran has “additional limitations of motion of 100 percent for several hours,” due to his spine. The Board finds that this description of the Veteran’s flare ups are therefore the functional equivalent of ankylosis of the entire thoracolumbar spine, which more nearly approximates the 50 percent rating. Having said that, the Board finds that the preponderance of the evidence is against a rating higher than 50 percent. The next highest rating under the General Spinal Formula is a total rating, and the Veteran has not been described as having unfavorable ankylosis of the entire spine. Importantly, the Veteran has repeatedly discussed flare ups and pain to his lower back, and the total disability rating under the General Formula requires unfavorable ankylosis of the entire spine. The Board has also examined the ratings criteria under the IVDS Formula. While the Veteran’s diagnosis of IVDS has generally been confirmed by VA examinations during this period, he has not been found to have incapacitating episodes that require bed rest as prescribed by a physician, much less the four to six weeks incapacitation that is required for the next highest disability rating of 60 percent. The most VA recent examination from January 2020 indicated that, while the Veteran experiences periods of incapacitation, the bed rest has not been prescribed by a physician, which is required under the IVDS Formula. Thus, the Board finds that the severity of the Veteran’s spinal disability for the period from July 22, 2013 more nearly approximates the 50 percent disability rating, but no higher. The preponderance of the evidence however is against a rating in excess of 50 percent. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to a disability rating in excess of 40 percent for service-connected polyradiculopathy, to include groin, buttock, and left leg pain (polyradiculopathy) is remanded. The Veteran has claimed that his service-connected polyradiculopathy is worse than currently rated. As noted above, the Veteran’s claim was remanded twice by the Board, in October 2015 and again in February 2018. As indicated by the August 2020 Court JMPR, the October 2015 Board remand instructed that the Veteran be given a VA examination with an orthopedist and/or a neurologist, who were to specifically “comment on the functional limitations, if any, caused by the Veteran’s service-connected disability.” The JMPR noted that the subsequent February 2016 VA examination was conducted by a nurse practitioner, rather than an orthopedist and/or a neurologist, and the examiner did not discuss the functional limitations caused by the service-connected polyradiculopathy. As further indicated in the August 2020 Court JMPR, the February 2018 Board remand Decision called for a VA addendum opinion, given by “a physician (M.D.)” that reviews, “the October 2006, May 2008, November 2009, July 2013, and February 2016 VA nerve examination reports,” and then responds to a series of questions regarding the severity of the service-connected polyradiculopathy. The subsequent August 2018 VA addendum opinion was rendered by a nurse practitioner. The August 2020 Court JMPR noted that the Board had not found that substantial compliance took place following the October 2015 and February 2018 remands. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran’s claims file must be forward to an orthopedist, a neurologist and/or any other appropriate physician (M.D.) for a VA addendum opinion that answers the questions highlighted below in the Remand Directives, as they relate to the current severity of the Veteran’s service-connected polyradiculopathy. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran’s claims file to an orthopedist, a neurologist and/or any other appropriate physician (M.D.) for a VA addendum opinion regarding the Veteran’s service-connected polyradiculopathy. The claims folder must be provided to and reviewed by the examiner in conjunction with the opinion. Based on a review of the file, including but not limited to, the October 2006, May 2008, November 2009, July 2013, February 2016, and August 2018 VA nerve examination reports, the physician should render an opinion as to the following: (a.) Does the lumbar polyradiculopathy affect the sciatic nerve? If yes, to what degree (mild, moderate, moderately severe, or severe)? (b.) Does the lumbar polyradiculopathy affect the external popliteal nerve (common peroneal)? If yes, to what degree (mild, moderate, or severe)? (c.) Does the lumbar polyradiculopathy affect the musculocutaneous nerve (superficial peroneal)? If yes, to what degree (mild, moderate, or severe)? (d.) Does the lumbar polyradiculopathy affect the anterior tibial nerve (deep peroneal)? If yes, to what degree (mild, moderate, or severe)? (e.) Does the lumbar polyradiculopathy affect the internal popliteal nerve (tibial)? If yes, to what degree (mild, moderate, or severe)? (f.) Does the lumbar polyradiculopathy affect the posterior tibial nerve? If yes, to what degree (mild, moderate, or severe)? (g.) Does the lumbar polyradiculopathy affect the anterior crural nerve (femoral)? If yes, to what degree (mild, moderate, or severe)? (h.) Does the lumbar polyradiculopathy affect the internal saphenous nerve? If yes, to what degree (mild, moderate, or severe)? (i.) Does the lumbar polyradiculopathy affect the obturator nerve? If yes, to what degree (mild, moderate, or severe)? (j.) Does the lumbar polyradiculopathy affect the external cutaneous nerve of thigh? If yes, to what degree (mild, moderate, or severe)? (k.) Does the lumbar polyradiculopathy affect the ilio-inguinal nerve? If yes, to what degree (mild, moderate, or severe)? If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his Representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.