Citation Nr: 21025458 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-00 496 DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbosacral spine prior to December 17, 2019 is denied, including on an extraschedular basis. Entitlement to a 20 percent rating, but no higher, for DJD and DDD of the lumbosacral spine, is granted from December 17, 2019 to October 27, 2020, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for DJD and DDD of the lumbosacral spine from October 28, 2020 forward is denied, including on an extraschedular basis. FINDINGS OF FACT 1. Prior to December 17, 2019, the Veteran does not have forward flexion of the thoracolumbar spine greater than 30 degrees, but no greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees. 2. From December 17, 2019 to October 27, 2020, the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees, but no greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees. 3. From December 17, 2019 to October 27, 2020, the Veteran does not have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 4. From October 28, 2020, the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for DJD and DDD of the thoracolumbar spine prior to December 17, 2019 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a 20 percent rating, but no higher, for DJD and DDD of the thoracolumbar spine from December 17, 2019 to October 27, 2020 are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.71a, DC 5242. 3. From October 28, 2020 forward, the criteria for a rating in excess of 40 percent for DJD and DDD of the thoracolumbar spine are not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1990 to June 1994 and from March 2003 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). These issues were remanded to the AOJ most recently in September 2020 for additional development. The Board finds that the AOJ substantially complied with remand directives, making another remand unnecessary. The case is ready for adjudication. Stegall v. West, 11 Vet. App. (1998). 1. Entitlement to a rating in excess of 10 percent for DJD and DDD of the lumbosacral spine prior to October 28, 2020, and in excess of 40 percent thereafter Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint "for pain on both active and passive motion and in weight bearing and nonweight-bearing. . . ." Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Moreover, VA examiners have the duty to elicit information from the Veteran describing the condition of the relevant joints during flare-ups or episodes when the relevant symptoms are at their most severe. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board finds that the most recent VA examination of the thoracolumbar spine in November 2020 is responsive to the guidance provided in Correia and Sharp, and thus adequate for rating purposes. In this case, the examiner documented pain with weight-bearing and non-weight bearing. In addition, the examiner noted that passive movement of the spine was not performed as it was not medically appropriate, and there is no opposing joint for the spine. Accordingly, the Board finds that a remand for a new examination under Correia would serve no useful purpose. The Board similarly finds Sharp compliance. In the November 2020 VA examination, the Veteran reported flare-ups of his thoracolumbar spine. The examiner documented that the examination was consistent with the Veteran’s statements documenting functional loss during a flare-up and estimated range of motion during a flare-up. As the November 2020 VA examination adequately addressed flares, weight bearing, nonweight-bearing, range of motion of the opposing joint, and active and passive motion, a remand is unnecessary. The Veteran’s spinal disability is rated under Diagnostic Code 5010-5242. When a rating is hyphenated, it means it is rated by analogy. The additional code used to identify the specific basis for the evaluation is shown after a hyphen. 38 C.F.R. § 4.27. DC 5010 indicates that traumatic arthritis should be rated as degenerative arthritis under DC 5003. DC 5242 applies to arthritis of the spine, and requires rating under the General Rating Formula for Diseases and Injuries of the Spine (“General Rating Formula”) unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome (IVDS) is to be rated under whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. While an October 2011 VA examination indicated that the Veteran had IVDS, the Board notes that subsequent VA examinations in October 2018, December 2019, and October 2020 do not indicate an IVDS diagnosis. Moreover, the Board finds that applying the rating for IVDS for the appellate period indicating possible IVDS would not result in a higher rating. A 10 percent rating would be warranted for incapacitating episodes having a total duration of at least one week. The October 2011 examiner indicated that the Veteran’s episodes had a duration of less than one week, meaning he would not meet the criteria for a 10 percent rating. As the IVDS criteria are not favorable to the Veteran, the Board will apply the General Rating Formula. The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the thoracolumbar spine: a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 height. 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 spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, DC 5242. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28TH Ed. 1994). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: (See also Plate V.) For VA compensation purposes, normal flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Normal combined range of motion of the thoracolumbar spine is 240 degrees. The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the “new” schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). The substance of the applicable diagnostic codes did not change. DC 5003 still applies to degenerative arthritis, and the phrase “other than post-traumatic [arthritis]” was added to the title of the code. DC 5010 was amended such that post-traumatic arthritis is no longer rated as degenerative arthritis. It now reads, “rate as limitation of motion, dislocation, or other specified instability under the affected joint.” DC 5242 was revised to “degenerative arthritis, degenerative disc disease other than [IVDS.]” Turning to the evidence, the Veteran was afforded a VA examination in September 2008. The Veteran reported that his back had gotten progressively worse since onset. His diagnosis was chronic low back muscle strain with mild diffuse disc bulge without canal stenosis or nerve root impingement. The Veteran was limited in his ability to sit for extended periods, but no limitations in walking. The Veteran reported tightness, and moderate daily pain. Posture was normal. There were no flares reported. The examiner indicated that there were no objective spasms, atrophy, guarding, pain with motion, tenderness, or weakness. He had normal muscle strength, sensation, and reflexes. Active ranges of motion of the spine were as follows: flexion to 90 degrees; extension to 30 degrees; left and right lateral flexion each to 30 degrees; left and right lateral rotation each to 30 degrees. There was no objective evidence of pain on active range of motion. There were no additional limitations after three repetitions. The examiner concluded that the Veteran had no significant effects on work and no functional impairments. The Veteran had another VA examination in October 2009. The Veteran reported that he had more pain at work since the last examination, that his medications had increased, and that he went to the emergency room 2 months prior for low back pain and received an injection. The veteran reported that prolonged sitting, standing, and lifting caused pain. He described the pain as throbbing, tightness, and occasionally sharp. The Veteran had normal gait and posture. No flare-ups were documented. He had the most limited range of motion after repetitive testing. The ranges of motion were as follows: flexion to 90 degrees; extension to 10 degrees; left lateral flexion to 15 degrees; right lateral flexion to 10 degrees; left lateral rotation to 22 degrees; and right lateral rotation to 30 degrees. The examiner indicated that the Veteran’s lack of stamina, weakness, fatigue, and pain resulted in moderate impact on chores, shopping, exercise, recreation, and traveling. The Veteran reported that he had to do chores in short periods of time, had to take breaks to complete shopping, reduced the amount of running at one time, had reduced endurance for bowling, and reduced traveling long distances. The Veteran’s VA outpatient records show that he had active ranges of motion checked in December 2010. Flexion was to 60 degrees. The Veteran testified before a decision review officer in April 2011. He reported that three or four times a year he had to miss work because of his back, and that it would get so stiff he could hardly get up. The Veteran also testified that he got a special ergonomic chair, but even then he could not stay seated for an extended time, and needed to get up and stretch. He also could not stand for an extended time. The Veteran reported that being upright was painful, and manual labor caused his back to flare up. The Veteran testified that treatment for his back included pain medications, stretching, and a TENS unit. The Veteran’s physician wrote a letter in September 2011. It indicates that the Veteran had a new disc herniation. The Veteran underwent a VA examination for his spine in October 2011. He was diagnosed with degenerative disc disease (DDD) of the spine with radicular symptoms. The Veteran reported that since his last VA examination his back had gotten worse. He stated that his back pain limited yard work, the amount of time that he could hold his daughter, his abilities to lift, exercise, and run, and how long he could stand or sit. The Veteran’s back pain was constant, throbbing, and sharp. Sitting or standing longer than half hour or lifting more than 20 pounds or doing yard work caused his back to flare up, and flares made it difficult for him to concentrate at work. Pain limited the Veteran’s range of motion. Forward flexion was 70 degrees with pain. Extension, left lateral flexion, and left lateral rotation were each 20 degrees with pain. Right lateral flexion and right lateral rotation were each 30 degrees or greater with pain. The examiner indicated that functional limitations included less movement than normal and pain. The Veteran had IVDS, but he did not have any incapacitating episodes having total duration of at least one week. The Veteran submitted a written statement in November 2011. He reported that his back pain made it difficult for him to concentrate at work. He also stated that he had to get up and walk around to try to relieve the pain, and took several pain relievers. Finally, the Veteran indicated that his back pain had dramatically increased in the last two years. In another written statement in December 2011, the Veteran reported that his back pain affected his job performance. The Veteran argued that his last MRI revealed a new disc herniation, which was a worsening of his back disability. The outpatient records show that the Veteran underwent physical therapy in 2015. The records show that the Veteran had decreased range of motion, strength, and flexibility. The Veteran saw a chiropractor for his back in 2016. The records indicate that the Veteran’s range of motion was “restricted.” The Veteran experienced shooting pains, which caused “serious diminution” in his abilities to carry out various activities. The Veteran testified at a Board hearing in March 2017. He reported that he got injections in his back. The Veteran testified that he experienced excruciating pain, and could not sit in a chair all day at work. He also testified that he could not drive long distances, pick up his daughter, do any manual labor, or run. The Veteran submitted a written statement in April 2018. He indicated that he believed a higher rating was warranted because his pain was chronic, and he experienced pain since service. The Veteran argued that his condition was static, would not improve, and a new Federal Court case warranted at least a 40 percent rating. The Veteran attached an article entitled, “Court ruling could extend disability benefits to thousands of injured veterans.” The article indicates that the case involved a veteran, and overturned a case which held that pain alone is not a disability for the purpose of VA disability compensation. The Veteran had a VA examination in October 2018. He reported flare-ups of his back and explained it tightened up and made it hard for him to move. The Veteran reported missing 7 days of work in the previous three months due to his back. There was pain on palpation of the lumbar spine. Range of motion testing was completed, and the Veteran’s ranges of motion were all normal. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s reports describing functional loss during a flare-up. The examiner was unable to estimate the ranges of motion during a flare up without speculation. The Veteran did not have IVDS. The examiner opined that the Veteran’s back disability impacted his ability to work because he had to limit repetitive bending and lifting. The examiner estimated that the level of severity of the Veteran’s spine was “moderate.” In November 2019, the Veteran submitted additional physical therapy records. The Veteran also submitted another written statement in November 2019. He argued that his military occupational specialty (MOS) warranted an increased rating, partly because he was airborne and a truck driver, and he could not reenlist in the National Guard due to being medically unfit. The Veteran also argued that a higher rating was warranted because he was “constantly” getting injections for his chronic back pain, which radiated down his hips and legs. Finally, the Veteran reported that the last VA examiner made him push beyond his pain and that he was in pain the whole time. The Veteran underwent a VA examination and December 2019. His back symptoms included pain, stiffness, and numbness and tingling in his legs. The Veteran reported that his pain was sharp, dull, throbbing, and radiating. His treatment included chiropractic care, physical therapy, and injections. The Veteran reported flare-ups of the back, and said it tightened up, making it hard to move. He reported that sometimes he did not go to work, and flare-ups occurred three times per week. The Veteran was able to run 100 yards and stand for one or two hours. He was unable to tolerate prolonged standing, walking, or car rides without stopping. The Veteran’s ranges of motion were as follows: flexion to 65 degrees; extension to 20 degrees; left lateral flexion to 20 degrees; right lateral flexion to 15 degrees; left lateral rotation to 20 degrees; and right lateral rotation to 15 degrees. The Veteran completed repetitive use testing, but there was no additional loss of range of motion. The examiner indicated that the examination was medically consistent with the Veteran’s description of functional loss during a flare up, but was unable to estimate loss in terms of ranges of motion. The Veteran did not have IVDS. The Veteran submitted additional argument in March 2020. He argued that referral for an extraschedular rating was warranted because of marked interference with employment due to his back. The Veteran reported missing several days of work, including attending appointments for injections, chiropractic care, and physical therapy. The Veteran indicated that his back pain radiated down his feet, and had worsened since onset. The Veteran reported that he was skeptical of the ranges of motion recorded at the December 2019 VA examination because he believed his movement to be more limited. He argued that a rating of at least 50 percent was warranted, and an increase should go back to at least 2003. The AOJ obtained a supplemental opinion in June 2020. The examiner indicated the opinions provided were based on a review of the claims file, including the VA examinations dated in October 2018 and December 2019. The Veteran experienced flare-ups of “moderate severity” at least 2-3 times weekly which limited his movement and hindered his ability to perform job-related activities. Back pain and tightness limited his abilities to stand or walk for periods of time, and caused him to miss work. In August 2020, the Veteran’s physician, Dr. V. N., wrote a letter on the Veteran’s behalf. Dr. N. explained that he reviewed the Veteran’s medical history, including MRIs and X-rays. The Veteran was under Dr. N.’s care since August 2020, and was diagnosed with lumbar radiculopathy, which is a chronic degenerative condition. The Veteran submitted a written statement in August 2020. He argued that a higher rating was warranted because his MOS caused wear-and-tear on his spine. The Veteran was seeking at least a 50 percent rating for his back because of his history of doctors’ visits and his condition has worsened. The Veteran reported that he worked a desk job, and his back created problems with posture because he was in a hunched position. He also reported having to sit down instead of standing in a line to wait for food. The Veteran indicated he had had several incapacitating episodes causing him to miss work, and he was unable to do housework and lift things like he used to. Finally, the Veteran reported that he was a candidate for back surgery. The AOJ obtained an addendum opinion on September 2020. The examiner reviewed the June 2020 opinion and opined that the Veteran “loses at least 25 degrees” of range of motion (including flexion, extension, rotations) after repetitive use over time, and “at least 50 degrees” of range of motion due to flares. The Veteran was limited in his abilities to stand, walk, sit, and lift heavy objects. Pain and stiffness caused functional loss. The Veteran was afforded a VA examination in October 2020. The Veteran was diagnosed with DDD of the lumbosacral spine and radiculopathy of the bilateral lower extremities. The Veteran reported flare-ups twice a week, lasting a week each. Flares were precipitated by bending, lifting, getting out of bed, climbing stairs, walking over a quarter-mile, sitting over two hours, and standing over fifteen minutes. When describing functional loss, the examiner explained that the Veteran had unfavorable ankylosis “of the lower spine,” but he did not have ankylosis of the “thoracolumbar spine.” Range of motion testing was completed, and the examiner indicated that the Veteran’s movement was most limited during a flare-up. Each movement was estimated to be 0 degrees. The Veteran had muscle spasms, but they did not result in abnormal gait or spinal contour. There was decreased strength, positive straight leg testing, and decreased ankle reflexes, but no muscle atrophy. After reviewing the evidence, the Board concludes that: 1) a rating in excess of 10 percent prior to December 17, 2019 for the Veteran’s back disability is not warranted; 2) a 20 percent rating, but no higher, is warranted from December 17, 2019 to October 27, 2020; and 3) a rating in excess of 40 percent from October 28, 2020 is not warranted. First, regarding the rating prior to December 17, 2019, the Board notes that, as of the date of the September 2008 VA examination, the Veteran’s rating was based on symptoms causing functional loss of the back, without meeting the objective criteria for the minimal compensable rating. See 38 C.F.R. § 4.59 (“…actually painful…joints due to healed injury [are] entitled to at least the minimum compensable rating for the joint.”). As mentioned above, a 10 percent rating is warranted for forward flexion limited to at least 85 degrees or combined range of motion limited to at least 235 degrees. The September 2008 VA examination showed forward flexion of 90 degrees and combined range of motion of 240, meaning the criteria for a 10 percent rating was not met. However, the Veteran had functional loss caused by pain, so the minimum compensable rating, or 10 percent, was assigned. In order to warrant a 20 percent rating, forward flexion greater than 30 degrees but not greater than 60 degrees must be shown; or, the combined range of motion not greater than 120 degrees must be shown; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis must be shown. The results of the September 2008 VA examination show that a rating in excess of 10 percent is not warranted at that time. Similarly, the VA examinations dated in October 2009, October 2011, and October 2018 do not show the findings required for a rating higher than 10 percent. At all three examinations, the Veteran had forward flexion greater than 60 degrees, combined range of motion greater than 120 degrees, and no spasms or guarding resulting in abnormal gait or abnormal spinal contour. The Veteran’s gait was always normal, and he did not have lordosis, scoliosis, or abnormal kyphosis. Second, the Board finds that a 20 percent rating, but no higher, is warranted from the date of the December 2019 VA examination, or December 17, 2019. The Veteran’s forward flexion at the time of the examination was 65 degrees, and combined range of motion of the spine was 155 degrees. The examiner indicated that the Veteran’s physical examination was consistent with his description of limitations during flare-ups. While the examiner did not estimate range of motion during a flare-up, the Board interprets this to mean that his forward flexion was less than 65 degrees during a flare, or, potentially 60 degrees. Moreover, while the June 2020 VA examiner reviewed the December 2019 examination and was to estimate ranges of motion during a flare-up, but did not, the August 2020 opinion did, and it provided that the Veteran lost “at least 50 degrees” of range of motion due to flares. The examiner specified that the range of motion included flexion, extension, and rotations. The Board interprets this to mean that, based on the 155 degree combined range of motion measured in December 2019, during a flare-up, the Veteran’s combined range of motion would have been 105 degrees. Therefore, the Board concludes that a 20 percent rating is warranted. For a 40 percent rating to be assigned, 30 degrees flexion or favorable ankylosis must be shown. The Board finds that neither the December 2019 VA examination, nor the supplemental opinions, supports a rating in excess of 20 percent. None of the records from this time show favorable ankylosis. Moreover, as the August 2020 VA opinion, which reviewed the December 2019 VA examination, did not indicate that the Veteran’s forward flexion would have been limited to 30 degrees, the claim for a higher rating must be denied. Since the examiner specified that the motion lost would have been in flexion, extension, and rotations, the Board must rely on this information in concluding that the motion would have been lost in combined range of motion, and not just in flexion. Therefore, the claim for a rating in excess of 20 percent is denied for this time period. Finally, the Board concludes that a rating in excess of 40 percent from October 28, 2020 is not warranted. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, DC 5242. While the October 2020 VA examiner wrote, “[h]as unfavorable ankylosis of the lower spine,” the Board finds that this statement, alone, does not warrant a higher rating. First, the Board notes that the examiner specified the “lower” spine, which the Board interprets to mean the lumbar spine only, and not the entire thoracolumbar spine, meaning the examiner did not find unfavorable ankylosis of the thoracic spine. This is supported by the fact that, when the examiner was asked if the Veteran had unfavorable ankylosis of “the entire spine,” “the entire thoracolumbar spine,” or favorable ankylosis of the “entire thoracolumbar spine,” the examiner indicated that none was present. Second, the Veteran completed range of motion testing during the physical examination, and was shown to have initial measurements higher than 0 degrees in all movements. As noted above, ankylosis is defined as “immobility,” and exists when the spine is fixed in one position. Given that the Veteran could move his spine to participate in range of motion testing, the Board finds that his entire thoracolumbar spine is not ankylosed. Third, for the purposes of applying VA criteria, the ankylosis must result in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. There is no evidence in the claims file that the Veteran has any of the mentioned effects or symptoms. Therefore, the claim for a rating in excess of 40 percent must be denied. While the September 2008, October 2009, October 2011, and October 2018 VA examinations did not fully comply with Sharp or Correia, the Board notes that the examinations are still relevant and did provide sufficient detail to estimate whether the Veteran’s back disability more nearly approximated a higher disability rating. See 38 C.F.R. § 4.1 (ratings are based on the average impairment of earning capacity) (emphasis added); and 38 C.F.R. § 4.3, 4.7 (an evaluation is assigned if the disability more closely approximates the criteria required for that rating). The examinations cannot be revised. However, they provide the pertinent findings. In this regard, the Veteran reported symptoms such as pain, and stiffness, but the examiners opined that these factors did not additionally limit the Veteran’s range of motion beyond what was measured and documented. Moreover, in September 2008, the Veteran’s range of motion did not meet the criteria for a 10 percent rating based on limited flexion, or combined range of motion, and his rating was assigned based on painful motion and functional loss without meeting the criteria for a minimal compensable rating. See DCs 5206, 5207, 5213; VAOPGCPREC 9-98; Mitchell, supra; 38 C.F.R. § 4.59. Thus, the Veteran’s documented subjective reports of symptoms and limitations in walking, lifting, sitting, and standing, have been considered and can be interpreted such that the limitations do not more nearly approximate flexion less than 60 degrees or combined range of motion less than 120 degrees. Therefore, the Board finds that there is not sufficient evidence to warrant a higher rating prior to December 17, 2019. The Board also acknowledges that the Veteran submitted private records and Dr. N.’s letter, and argued for a higher rating based on medication, appointments, impact on work, and treatment. However, the Board finds that this evidence does not warrant an increased rating for the Veteran’s spine disability. Similarly, the Veteran’s reports of limitations in running, being a candidate for surgery, and worsening of the spine on MRIs and X-rays do not more nearly approximate an average limitation of earning capacity attributable to the limited motions of a higher rating. These documents and reports have been considered, but are not adequate for granting a 20 percent rating prior to December 17, 2019, a 40 percent rating from December 17, 2019 to October 27, 2020, or a 50 percent rating from October 28, 2020. The evidence the Veteran submitted is not responsive to the rating criteria. Moreover, the private treatment records, doctor’s letters, and physical therapy notes do not comply with Sharp or Correia, as discussed above, nor do they indicate that any ranges of motion were measured with a goniometer. 38 C.F.R. § 4.71a. The Board finds that the Veteran’s symptoms and limitations are addressed by the ratings assigned herein. The Board has considered the Veteran’s reports of his back interfering with work, including having obtained an ergonomic chair, alternating standing and sitting, and missing work because of appointments and pain. Considering the Veteran’s report of frequency of symptoms, the Board finds that the Veteran’s disability picture does not constitute an average impairment most closely approximating the limitation of motion to warrant a rating higher than what has been assigned herein. See 38 C.F.R. § 4.1 (“the percentage ratings represent…the average impairment[.] …Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations[.]”). The ratings assigned account for the limitations attributable to the Veteran’s DDD of the spine and the impacts on work. Regarding the Veteran’s argument that the Saunders case entitles him to a higher rating, the Board disagrees. Entitlement to service connection for a disability is a separate question from the rating to be assigned after service connection has been granted. Saunders dealt with the first issue, or what constitutes a disability for service connection, and not the second question. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The case did not address with rating a disability after service connection was established. In this case, the Veteran has a diagnosed disability, DDD, for which service connection was granted, effective September 2003. Therefore, Saunders does not apply. The Board also acknowledges the Veteran’s arguments that the wear-and-tear of his MOS and being airborne should be taken into account, and the 40 percent rating should be retroactive to 2003. The Board notes that the Veteran’s back disability has been service connected since September 2003, and he filed a claim for an increased rating in 2008, which is the issue presently before the Board. As the Veteran did not seek an increased rating prior to the 2008 claim, the ratings assigned herein are limited to that timeframe, and cannot extend back prior to the filing of the claim. See 38 U.S.C. § 5110 (a) (generally, effective date of an award for a rating “shall not be earlier than the date of receipt of the application thereof.”). Moreover, the U.S. Court of Appeals for Veterans Claims has held that where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s MOS and injuries while on active duty are too remote in time to warrant a higher rating for the appeal period beginning in 2008. Regarding the Veteran’s argument for an extraschedular rating based on marked interference with his employment, the Board finds that referral for consideration of an extraschedular rating is not warranted. Prior to engaging in an extraschedular analysis, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). For the reasons stated above, the Board has accounted for all the symptoms of the Veteran’s back disability pertaining to limited motion under the schedular alternatives. The most recent code sheet shows that the Veteran has had a combined 100 percent rating since November 2011. The Board further notes that the Veteran is in receipt of separate ratings for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity, both which are associated with DDD of the lumbosacral spine. However, the claim for an increased rating for radiculopathy of the bilateral lower extremities is not on appeal and is not properly before the Board. As the Veteran has ratings for radiculopathy and the symptoms attributable to DDD of the spine under the General Rating Formula, the Board finds that the schedular benefits have been maximized. Additionally, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. The Board finds that the extraschedular claim fails on the first prong. The evidence of record does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, as noted above, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); Deluca v. Brown, 8 Vet. App. 202, 20607 (1995); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011); Sowers v. McDonald, 27 Vet. App. 472 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011). All the symptomatology and functional impairments described above result from the limitation motion of the thoracolumbar spine, to include as due to pain, stiffness, and all the symptoms described by the Veteran are contemplated in the schedular ratings assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion, or indirectly as orthopedic factors that limit motion and function. Therefore, the Board finds that the record does not reflect that the Veteran’s spine disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis. In summary, the Veteran’s claim for an increased rating, in excess of 10 percent, for his spine disability is denied prior to December 17, 2019. The claim for an increased rating in excess of 40 percent from October 28, 2020 is also denied. However, an increase from 10 percent to 20 percent, but no higher, is granted from December 17, 2019 to October 27, 2020. For the claim for a rating in excess of 20 percent, the Board finds that the claim must be denied and the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.