Citation Nr: 21025493 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 11-06 775 DATE: April 28, 2021 ORDER Entitlement to an initial disability evaluation in excess of 20 percent for service-connected L5-S1 lumbosacral spine fusion, from March 31, 2006, is denied. REMANDED Entitlement to an initial disability evaluation in excess of 30 percent for service-connected arthroplasty of the left hip, from March 31, 2006, is remanded. Entitlement to an initial disability evaluation in excess of 10 percent from March 31, 2006, and to an initial compensable rating from September 2, 2016, for limitation of extension of the right hip, associated with a core decompression and grafting surgical procedure, is remanded. Entitlement to an initial compensable evaluation for limitation of flexion of the right hip, associated with a core decompression and grafting surgical procedure, from March 31, 2006, is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for limitation of adduction of the right hip, associated with a core decompression and grafting surgical procedure, from March 31, 2006, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s lumbosacral spine fusion has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, and scoliosis. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral spine fusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5241. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from September 1995 to March 2006. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2007 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO): (1) granted service connection for lumbosacral spine fusion, assigning an initial noncompensable (zero percent) rating and an effective date of March 31, 2006 (the day following the date of the Veteran’s separation from active service); (2) granted service connection for total arthroplasty of the left hip, assigning an initial rating of 30 percent and an effective date of March 31, 2006; and (3) granted service connection for core decompression with grafting of the right hip, assigning an initial noncompensable rating and an effective date of March 31, 2006. In January 2008, the Veteran filed a notice of disagreement (NOD) with these assigned initial ratings. In February 2011, the RO partially granted the Veteran’s claims for a higher initial rating for his service-connected right lower extremity disability (awarding an initial 20 percent rating, effective March 31, 2006) and for his service-connected lumbar spine disability (awarding an initial 10 percent rating, effective March 31, 2006). However, inasmuch as higher ratings for the Veteran’s right lower extremity disability and lumbar spine disability remained available, presuming that the Veteran seeks the maximum available benefit for a disability, these claims for higher initial ratings remained viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). A statement of the case (SOC) was issued in February 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in March 2011. In February 2014, the Board remanded the claims for higher initial ratings for service-connected lumbar spine disability, right hip disability, and left hip disability to the RO for additional development. After the development was completed, in a February 2017 rating decision, the RO partially granted the Veteran’s claim for a higher initial rating for his lumbar spine disability, awarding an initial 20 percent rating from March 31, 2006. The RO also granted service connection for right hip core decompression with grafting (adduction), awarding a separate 10 percent rating from March 31, 2006, and service connection for right hip core decompression with grafting (extension), awarding a separate 10 percent rating from March 31, 2006, and a noncompensable rating from September 12, 2016. Because the grant of these separate ratings arose from the initial rating issue of the right hip already on appeal (rated based on limitation of flexion) and were accordingly considered as part of such appeal by the RO (as indicated in a concurrent SSOC mentioned below), the Board has characterized the appeal as to this matter to encompass both separate ratings assigned (to include the staged ratings assigned). Additionally, in a February 2017 supplemental SOC (SSOC), the RO continued to deny the claims for higher initial ratings, remaining on appeal, and returned the matters to the Board for further appellate consideration. The Board, thereafter, again remanded the matters in November 2017, for new examinations and to associate outstanding VA and private treatment records with the Veteran’s claims file. That development has since been completed, and the matters return to the Board for further adjudication. The Board recognizes that the Veteran testified at a video-conference hearing in May 2011 before a Veterans Law Judge who has since retired. A transcript of that hearing has been associated with the claims file. The Veteran was provided an opportunity to testify again before another Veterans Law Judge, and given thirty days to respond. As VA has not received a timely response, VA presumes that the Veteran has elected not to testify at a new hearing. Increased Ratings – Spine Conditions Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. Disability evaluations are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath, 1 Vet. App. at 593. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability. See 38 C.F.R. § 4.1, 4.2; Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran’s disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. It is essential that the examination upon which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. 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 veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See id. The factors involved in evaluating and rating disabilities of the joints include the following: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; or pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. An evaluation based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. Consequently, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Where the veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination (expressed in terms of the degree of additional range-of-motion loss). See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). However, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board’s responsibility to evaluate and consider all lay and medical evidence of record, to analyze the credibility and probative value of the evidence, and to provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104 (a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail; the preponderance of the evidence must weigh against the Veteran’s claim in order for it to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). For the period on appeal from March 31, 2006, the Veteran has been assigned a disability evaluation of 20 percent under Diagnostic Code 5241, for lumbosacral spine fusion. The Veteran contends generally that he is entitled to a higher rating for his lumbosacral spine disability on account of severe pain, limited range of motion, limited function, among other various symptoms. See July 2020 Appellant’s Brief; May 2011 Board Hearing Transcript. The Veteran’s lumbosacral spine fusion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5241, for spine fusion. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In connection with his claim, the Veteran was examined in February 2008. The February 2008 examiner took a history from the Veteran regarding his spinal disability, incurred following a 70-foot fall in 2002, in which the Veteran fractured his L5 vertebra, requiring multiple surgical procedures. She noted the Veteran’s complaint of experiencing “chronic constant burning pain of his lumbosacral area with flare-up radiculopathy pain and numbness.” The examiner noted the Veteran’s report of experiencing constant pain, rating it a 6/10 on the pain scale with daily flare-ups of intensity of pain and radiculopathy numbness. She noted there are no specific precipitating factors (“it could be several per day with associated lumbar spinal muscle spasms and cramps”); alleviating factors included lying down, massages, and hot baths. The Veteran experienced several flare-ups per day with associated lumbar spasms and cramps; these flare-ups resulted in a functional impact, interrupting his duties and requiring him to rest at work, including one occasion, on which the Veteran “had to be sent home due to the severe pain.” The examiner noted that the Veteran had been using a cane for the past three months and would be limited to lifting anything greater than 20 lbs. She noted that the Veteran is able to walk 50 yards, but must stop and sit and rest. She noted that the Veteran is unsteady on his feet when flare-ups occur, and has fallen 1-2 times per week, as his knees buckle due to pain. The examiner noted that the Veteran had last fallen a week ago, while ambulating upstairs, but otherwise denied any significant injury or trauma from falls. The Veteran was not seen by a physician or emergency room visit for any falls. The examiner noted that the Veteran experiences interference with activities of daily living, including dressing. The Veteran reported living a sedentary lifestyle without recreational activities, on account of his spinal condition, being able to perform tasks in only short durations. The examiner noted that the Veteran had been prescribed bedrest by a physician for up to 72 hours and had last been prescribed bedrest six months ago. The February 2008 examiner documented the following ranges of motion: forward flexion (0 to 60 degrees; pain begins at 60 degrees); extension (0 to 10 degrees; pain begins at 10 degrees); left lateral flexion (0 to 10 degrees; pain begins at 10 degrees); right lateral flexion (0 to 20 degrees; pain begins at 10 degrees); left lateral rotation (0 to 25 degrees; pain begins at 25 degrees); right lateral rotation (0 to 15 degrees; pain begins at 10 degrees). She indicated that the Veteran’s ranges of motion would not change following repetitive motion or during flare-ups. The examiner reported that the Veteran would not experience additional pain, incoordination, increased weakness, or excess fatigability following repetitive use or during flare-ups. She indicated the Veteran was not suffering from muscle atrophy, weakness, paralysis, or contracture. She documented the findings from a January 2008 MRI of the Veteran’s spine, as well. The diagnostic impression from the MRI stated: “Postsurgical changes of posterior fusion and laminectomy L5-S1. Surgical hardware appears in position and alignment. No definite hardware related complication. Remainder of the lumbar spine appears unremarkable. Partially visualized left hip prosthesis. Soft tissues show normal appearance.” Following the February 2008 examination, the matter was remanded by the Board in February 2014, and the Veteran was next examined in September 2016. The September 2016 examiner again noted the Veteran’s spinal fusion in the diagnosis section. He noted the Veteran’s history of experiencing chronic lower back pain dating back to April 2001. He noted the Veteran’s two surgeries, including the November 2001 L5-S1 spinal fusion. He noted the causal relationship between the Veteran’s spine disability and his bilateral hip disabilities (including a left hip total arthroplasty in 2004 and a right hip core decompression in 2005). The examiner noted the Veteran’s reports of awakening each day with back pain that then waxes and wanes in severity from bad to worse. He also noted the Veteran’s reports of only being able to manage activities in short bursts, interspersed with periods of rest, in which the Veteran must lie down to relieve his pain. The examiner noted the Veteran’s reports of medicating on days when his activity level is increased secondary to the tasks that he needs to perform that day. The examiner noted the Veteran’s reports of not being able to lift or carry objects of any significant weight. The examiner reported that the Veteran’s increase in pain during flare-ups result in a functional loss by causing him to have to stop activities and lie down to rest and recover; these flare-ups occur daily and increase in pain over the baseline level throughout the day. The September 2016 examiner documented the following initial ranges of motion: forward flexion (0 to 60 degrees; exhibited pain); extension (0 to 20 degrees; exhibited pain); left lateral flexion (0 to 30 degrees); right lateral flexion (0 to 30 degrees); left lateral rotation (0 to 30 degrees); right lateral rotation (0 to 30 degrees), noting that the Veteran’s range of motion resulted in a functional loss because the Veteran would be limited in bending, stooping, and lifting objects. The examiner noted the presence of tenderness to palpation over the Veteran’s surgical site for his right sacroiliac joint. The examiner tested the Veteran following three repetitions of movement and obtained the following range of motion measurements: forward flexion (0 to 40 degrees); extension (0 to 20 degrees); left lateral flexion (0 to 30 degrees); right lateral flexion (0 to 30 degrees); left lateral rotation (0 to 30 degrees); right lateral rotation (0 to 30 degrees). The examiner indicated that the Veteran was not being tested following repetitive use over time, but also indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, noting that pain would reduce the Veteran’s ranges of motion as such: forward flexion (0 to 40 degrees); extension (0 to 20 degrees); left lateral flexion (0 to 30 degrees); right lateral flexion (0 to 30 degrees); left lateral rotation (0 to 30 degrees); right lateral rotation (0 to 30 degrees). The examiner indicated that the examination was not being conducted during a flare-up, but also indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, noting that pain would reduce the Veteran’s ranges of motion. The examiner did not provide an estimate of the Veteran’s range of motion during a flare-up. The examiner indicated that the Veteran had muscle spasms, localized tenderness, and guarding, but also indicated that none of these conditions were serious enough to result in an abnormal gait or an abnormal spinal contour. Muscle strength testing was normal with the exception of right ankle plantar flexion, which exhibited active muscle movement against some resistance. The examiner reported normal reflex, sensory, and straight leg raise test results. The examiner reported that the Veteran did not have ankylosis of his spine or other neurologic abnormalities. The examiner reported that the Veteran regularly uses a single point cane for ambulation and balance as an assistive device. Concerning whether the Veteran had any other pertinent physical findings, complications, conditions, signs or symptoms related to his lumbosacral spine fusion, the examiner wrote that the Veteran “reports a component of back pain with signs and symptoms consistent with muscle spasms.” The examiner also identified the Veteran’s surgical scar at the site of the bone graft harvesting over the right sacroiliac joint, which was painful to the touch. The examiner identified the Veteran’s March 2016 MRI, which noted diagnostic impressions of postsurgical changes at L5-S1, along with moderate L4-L5 neural foraminal stenosis. The examiner also reported the results of a December 2015 Electromyography (EMG) and Nerve Conduction Study (NCS), which showed some degenerative changes. The examiner concluded his examination, by stating that the Veteran would be limited in bending, stooping, and lifting objects of any significant weight, and would need to limit his activities to short periods of activity, interspersed with periods of rest. Following the November 2017 remand, the Veteran was examined in August 2018. The August 2018 examiner noted the Veteran’s diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), spinal fusion, spinal stenosis and vertebral fracture. The examiner commented on the evidence, noting reports of pain in March 2017, June 2017, and November 2017. The examiner took a history from the Veteran as to the progression of his condition, noting that the Veteran’s symptoms began in 2001, when the Veteran underwent a spinal fusion, but that the Veteran’s condition has worsened in severity over time, resulting in increased pain, decreased range of motion, and decreased sleep on account of pain. The examiner noted that the Veteran reported that during flare-ups his back becomes susceptible to injury (“I can injure it as easily as tying my shoes”) and that the pain he experiences associated with his back is “a burning pain, extremely sharp” which travels down his right leg. The August 2018 examiner documented the following initial ranges of motion: forward flexion (0 to 50 degrees; exhibited pain); extension (0 to 15 degrees; exhibited pain); left lateral flexion (0 to 20 degrees); right lateral flexion (0 to 20 degrees); left lateral rotation (0 to 30 degrees); right lateral rotation (0 to 30 degrees), noting that the Veteran’s range of motion resulted in a functional loss because pain and other symptoms of inflammation would result in decreased function. The examiner indicated that pain was noted on examination and caused a functional loss, that all ranges of motion exhibited pain, and that there is evidence of pain with weight bearing. The examiner noted the presence of tenderness to palpation of the bilateral sciatic notches and the thoracolumbar spine. The examiner tested the Veteran following three repetitions of movement and obtained the following range of motion measurements: forward flexion (0 to 50 degrees); extension (0 to 10 degrees); left lateral flexion (0 to 15 degrees); right lateral flexion (0 to 15 degrees); left lateral rotation (0 to 30 degrees); right lateral rotation (0 to 30 degrees), identifying pain and fatigue as factors that contributed to functional loss. The examiner indicated that the Veteran was being tested following repetitive use over time, noting that pain and fatigue reduce the Veteran’s ranges of motion as such: forward flexion (0 to 50 degrees); extension (0 to 10 degrees); left lateral flexion (0 to 15 degrees); right lateral flexion (0 to 15 degrees); left lateral rotation (0 to 25 degrees); right lateral rotation (0 to 25 degrees). The examiner indicated that the examination was being conducted during a flare-up, noting that pain, fatigue, and weakness reduce the Veteran’s ranges of motion as such: forward flexion (0 to 45 degrees); extension (0 to 10 degrees); left lateral flexion (0 to 10 degrees); right lateral flexion (0 to 10 degrees); left lateral rotation (0 to 20 degrees); right lateral rotation (0 to 20 degrees). The examiner indicated that the Veteran had muscle spasms (visible paraspinal muscle spasms, straightening the thoracolumbar spine), and guarding (on palpation of lumbar scars and lumbosacral guarding, located in the midline, and resulting in loss of lordosis and an antalgic gait). The examiner identified as additional factors contributing to disability: less movement than normal due to ankylosis, limitation or blocking, adhesions, etc., disturbance of locomotion, interference with sitting, interference with standing. Muscle strength testing showed decreased muscle strength in regard to right knee extension, right ankle plantar flexion, right ankle dorsiflexion, and left knee extension. The examiner reported decreased deep tendon reflexes in the Veteran’s right and left ankles, as well as decreased sensation to light tough in the Veteran’s right lower leg and ankle, and absent sensation to light tough in the Veteran’s right foot and toes. Straight leg test results were positive. The examiner indicated that the Veteran experienced moderate radiculopathy in his right and left lower extremities. The examiner reported that the Veteran did not have ankylosis of his spine or other neurologic abnormalities. The examiner reported that the Veteran occasionally uses a cane and constantly uses a brace to assist him in managing his disability. The examiner indicated that the Veteran suffered from IVDS, but indicated that it had not resulted in physician required bedrest over the past twelve months. As did the September 2016 examiner, the August 2018 examiner also reported on the March 2016 MRI results. He noted the Veteran’s painful surgical scar. He concluded by remarking that there is objective evidence of pain on passive range of motion testing of the back, that there is objective evidence of pain on non-weight bearing testing of the back, that the Veteran’s condition had progressed in severity, and were consistent with degenerative changes which would be expected following spinal fusion. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbosacral spine fusion. The Board acknowledges the Veteran’s lay reports of symptoms and functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. See May 2011 Board Hearing Testimony. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. At no point has the Veteran’s range of motion been measured or estimated to reflect forward flexion of 30 degrees or less, even during flare-ups or following repeated use. Moreover, the Veteran’s thoracolumbar spine has not exhibited ankylosis, either favorable or unfavorable. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a. The Board notes in passing that the Veteran has already been compensated for other conditions associated with his spine. These conditions are as follows: right lower extremity radiculopathy, under Diagnostic Code 8520, for peroneal and sciatic nerve resection (20 percent, from March 31, 2006; 60 percent, from July 23 2018), and under Diagnostic Code 8526 for the femoral nerve (20 percent, from July 23, 2018); left lower extremity radiculopathy under Diagnostic Code 8520, for the sciatic nerve (10 percent, from July 23, 2018), and under Diagnostic Code 8526 for the femoral nerve (10 percent, from July 23, 2018); and for a painful bone graft scar of the right iliac crest (10 percent, from March 31, 2006). Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for lumbosacral spine fusion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Increased Ratings – Hip Conditions The Veteran’s left hip is rated under 38 C.F.R. § 4.71a, Rating Schedule for Musculoskeletal Disabilities, Diagnostic Code 5054, for hip replacement (or prosthesis), prosthetic replacement of the head of the femur or of the acetabulum. The Veteran’s claims for increased ratings for his bilateral hip disabilities were remanded previously for a medical examination; although an examination was performed, the findings of the examination are not complete. The Board notes that following remand in November 2017, the Veteran was examined in August 2018. Concerning both the Veteran’s left and right hips, in the diagnosis section of the exam report, the examiner indicated that the Veteran had not been diagnosed with ankylosis of either hip. However, in the ankylosis section of the examination report, the examiner indicated that the Veteran was experiencing favorable ankylosis of both hips, in flexion at an angle between 20 and 40 degrees, and slight abduction or adduction. This ambiguity pertaining to the development and diagnoses of ankylosis in the Veteran’s hips raises an open medical question under Diagnostic Code 5250, pertaining to ankylosis of the hips. A remand is necessary to clarify the extent and duration to which the Veteran has experienced this symptom. For the Veteran’s left hip, in particular, the Veteran’s hip disability may be rated under Diagnostic Code 5054, for hip replacements and prostheses. The Board notes that the August 2018 examiner indicated that the Veteran’s surgical residuals, following July 2004 total hip joint replacement surgery, consisted of painful motion or weakness, such as to require the use of crutches. The examiner did not clarify the extent and duration of these surgical residuals, or otherwise indicate how the Veteran’s surgical residuals may have progressed over time, and, in particular, from March 31, 2006, representing the commencement of the rating period on appeal. The matters are remanded for new addendum opinions or examinations to resolve these questions. TDIU The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim being remanded herein, as the outcome of the increased rating claim may impact the outcome of the TDIU claim. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board will defer appellate consideration of the issue of entitlement to a TDIU pending completion of the actions requested below. The matters are REMANDED for the following action: 1. Request an addendum opinion for the Veteran’s right and left hip disabilities. (a.) The examiner is asked to clarify the duration, extent, and development, during the period from March 31, 2006, of any ankylosis affecting the Veteran’s right and left hips. (b.) For the left hip, in particular, the examiner is asked to clarify the duration, extent, and development, during the period from March 31, 2006, the surgical residuals the Veteran experienced, or continues to experience, as a result of his left hip total arthroplasty, which was performed in July 2004. For the purposes of this question, the examiner is asked to consider the duration, extent, and development, of the following categories of surgical residuals: i. painful motion or weakness such as to require the use of crutches. ii. markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. iii. moderately severe residuals of weakness, pain or limitation of motion. 2. Then, readjudicate the remanded issues, to include entitlement to a TDIU. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.