Citation Nr: 21026994 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-14 103 DATE: May 4, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for thoracolumbar spine degenerative arthritis prior to March 15, 2019 is denied. Entitlement to an evaluation in excess of 20 percent for thoracolumbar spine degenerative arthritis prior to December 17, 2020 is denied. Entitlement to an evaluation in excess of 40 percent for thoracolumbar spine degenerative arthritis from December 17, 2020 is denied. Entitlement to an initial evaluation in excess of 10 percent for left elbow degenerative arthritis (limitation of flexion) prior to March 15, 2019 is denied. Entitlement to an evaluation in excess of 20 percent for left elbow degenerative arthritis (limitation of flexion) from March 15, 2019 is denied. Entitlement to an initial rating of 10 percent for radiculopathy of the left lower extremity is granted effective February 27, 2017. Entitlement to an initial rating of 10 percent for radiculopathy of the right lower extremity is granted effective February 27, 2017. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 10 percent for thoracolumbar spine degenerative arthritis prior to March 15, 2019. 2. The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 20 percent for thoracolumbar spine degenerative arthritis prior to December 17, 2020. 3. The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 40 percent for thoracolumbar spine degenerative arthritis from December 17, 2020. 4. The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 10 percent for left elbow degenerative arthritis (limitation of flexion) prior to March 15, 2019. 5. The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 20 percent for left elbow degenerative arthritis (limitation of flexion) from March 15, 2019. 6. The Veteran's radiculopathy of the left lower extremity is manifest by moderate incomplete paralysis. 7. The Veteran's radiculopathy of the right lower extremity is manifest by mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating for thoracolumbar spine degenerative arthritis in excess of 10 percent prior to March 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to a disability rating for thoracolumbar spine degenerative arthritis in excess of 20 percent prior to December 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for entitlement to a disability rating for thoracolumbar spine degenerative arthritis in excess of 40 percent from December 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 4. The criteria for entitlement to an initial evaluation in excess of 10 percent for left elbow degenerative arthritis (limitation of flexion) prior to March 15, 2019 have not been met. 38 U.S.C. §§ 1155, 3107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59. 4.71a, Diagnostic Codes 5003 and 5206. 5. The criteria for entitlement to an evaluation in excess of 20 percent for left elbow degenerative arthritis (limitation of flexion) from March 15, 2019 have not been met. 38 U.S.C. §§ 1155, 3107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5003 and 5206. 6. The criteria for an initial 10 percent disability rating for radiculopathy of the left lower extremity were met beginning February 27, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for an initial 10 percent disability rating for radiculopathy of the right lower extremity were met beginning February 27, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on activity duty in the United States Air Force from February 1985 to February 2005. This matter is on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board of Veterans' Appeals (Board) in November 2019 when it was remanded so that the Veteran could be afforded a new VA examination. The November 2019 remand directed the examiner to provide all information required for rating purposes, to include both active and passive range of motion (ROM) testing, as well as weight-bearing and non-weight bearing ROM assessments. The examiner was also directed to consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare ups. The Veteran was afforded new VA examinations for his thoracolumbar spine and left elbow degenerative arthritis in December 2020. For the Veteran's thoracolumbar spine degenerative arthritis, the examiner stated that the back passive ROM testing was not performed as it is not medically appropriate because risk of injury is too high. The examiner also noted that there is objective evidence of pain on non-weight bearing testing of the back. Regarding the Veteran's flare ups, the examiner provided information regarding the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare ups. The examiner found that during a flare up, additional factors such as pain, fatigue, weakness, lack of endurance, or incoordination would not significantly limit functional ability. For the Veteran's left elbow degenerative arthritis, the examiner did not perform passive ROM testing as it is not medically appropriate because risk of injury is too high. The examiner noted that there is objective evidence of pain on non-weight bearing testing of the left elbow. Regarding flare ups of the Veteran's left elbow, the examiner provided information regarding the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare ups. The examiner was able to estimate the Veteran's left elbow ROM during a flare up. There was therefore substantial compliance with the remand directives with regard to these issues. See Stegall v. West, 11 Vet. App. 268 (1998). As a procedural matter, in an August 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted a separate rating for limitation of supination and pronation of the left elbow that has not been appealed and is therefore not before the Board. The Veteran's thoracolumbar spine degenerative arthritis is rated under Diagnostic Code 5242. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (November 30, 2020). The regulations now clarify that Diagnostic Code 5242 is specifically for conditions that are not intervertebral disc syndrome (IVDS), and that Diagnostic Code 5243 only applies if there is actual IVDS. Therefore, while the regulations have changed, it does not impact the outcome of the case. These new regulations do not impact the rating criteria for elbow conditions other than to state which types of arthritis can be rated under Diagnostic Codes 5003 and 5010 and does not impact the rating criteria. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 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. DeLuca v. Brown, 8 Vet. App. 2020 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or § 4.45 itself relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, under 38 C.F.R. § 4.71a; a separate or higher rating under 38 C.F.R. § 4.40 or § 4.45 itself is not appropriate. 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."). 1. Entitlement to an evaluation in excess of 10 percent for thoracolumbar spine degenerative arthritis prior to March 15, 2019 The Veteran contends that his thoracolumbar spine degenerative arthritis warrants a higher initial rating prior to March 15, 2019. The Veteran reports that he injured his back from the wear and tear of training, and now has back pain with standing, sitting in certain positions, walking, and lying flat. The Veteran also states that his pain is sharp and radiates down the back of his left leg. The Veteran reports that his thoracolumbar spine degenerative arthritis impacts his work and ordinary activities because he cannot lift more than 10 pounds with his right arm, cannot walk or stand more than 50 yards without rest because of the pain, and cannot bend over to pick up objects without squatting. The Veteran was initially assigned a 0 percent rating for his thoracolumbar spine degenerative arthritis effective January 4, 2010 in a September 2011 rating decision. In a January 2021 rating decision, the AOJ determined that entitlement to an earlier effective date for thoracolumbar spine degenerative arthritis was warranted because a clear and unmistakable error was made, and the Veteran was awarded an initial 10 percent rating effective December 18, 2009. The Veteran's thoracolumbar spine degenerative arthritis is currently rated under Diagnostic Code 5242, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Formula, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined ROM 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and right and left lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. Id. The Veteran was afforded a VA examination in May 2011 for his thoracolumbar spine degenerative arthritis. At this time, the examination revealed that there was no evidence of radiating pain on movement, no muscle spasm, no tenderness, no guarding, and no weakness. The Veteran's ROM was within normal limits, and was recorded as such, for flexion: 0-90 degrees, for extension: 0-30 degrees, for right lateral flexion: 0-30 degrees, for left lateral flexion: 0-30 degrees, for right rotation: 0-30 degrees, for left rotation: 0-30 degrees. The examiner also determined that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. While the May 2011 exam did not show evidence of objective pain on motion, the examiner noted subjective pain on motion. Specifically, the examiner noted that the Veteran reported having chronic back pain since 2000. The examiner also observed that the Veteran reported having stiffness as well as decreased motion and numbness. The Veteran also stated that he had flare ups where he experienced limitation of motion of the joint characterized by not being able to bend over, sit up, or lay down. In October 2011, the Veteran's spouse stated that the Veteran had back pain when bending over and sitting down. The Veteran's VA and private treatment records show that he has consistently had low back pain in his problem list. In June 2014, he reported back pain. In July 2014, the Veteran reported back pain with no tenderness but with paraspinal muscle spasm. In a September 2014 VA treatment record, his lumbar spine forward flexion was 90 degrees. In December 2015 and June 2015, he reported chronic back pain. In April 2017, he reported "worsening low back pain," and upon examination he had tenderness to palpation, painful motion, and no spasm. He had full range of motion of his lumbar spine. In June 2017, he reported that his pain "had gotten progressively worse," and when tested, he had full ROM in flexion, extension, lateral bending, and lateral rotation, with pain in his low back. Therefore, the Veteran's 10 percent rating for his thoracolumbar spine degenerative arthritis prior to March 15, 2019 is appropriate as 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Although he reported worsening pain in 2017, after each report of worsening his ROM was tested and found to be normal, albeit with pain. The Veteran is not entitled to a higher rating during this period because his combined range of motion of the thoracolumbar spine was within normal range, his forward flexion of the thoracolumbar spine was within normal range, and there was no muscle spasm or guarding. 2. Entitlement to an evaluation in excess of 20 percent for thoracolumbar spine degenerative arthritis prior to December 17, 2020 The Veteran contends that his thoracolumbar spine degenerative arthritis warrants an evaluation in excess of 20 percent prior to December 17, 2020. The Veteran was assigned a 20 percent rating for this condition effective March 15, 2019 in an August 2019 rating decision. The Veteran was afforded a VA examination in February 2017. However, this examination was subject to the Board's January 2018 remand because the Veteran disputed the accuracy of the February 2017 examination, and because there was conflicting medical evidence of record. Therefore is not afforded any probative weight and will not be discussed further. The Veteran was afforded another VA examination in March 2019. The March 2019 VA examination was subject to the Board's November 2019 remand. However, the March 2019 VA examination is valid for rating purposes. The November 2019 remand stated that while the March 2019 examiner indicated that the Veteran did not have objective evidence of pain on passive or non-weight bearing testing, the examiner failed to provide the ROM measurements during these tests. However, this was incorrect. In the March 2019 VA examination, the examiner stated that, "ROM is the same for passive and non-weight-bearing as that of active and weight-bearing." The November 2019 remand also stated that the March 2019 VA examination failed to obtain and discuss the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the Veteran's flare ups. However, the March 2019 examiner was able to estimate the ROM measurements during a flare up. At the March 2019 VA examination, the Veteran's initial active range of motion was noted as being abnormal or outside the normal range. Specifically, the Veteran's ROM measurements were noted as such, for forward flexion: 0 to 60 degrees, for extension: 0 to 20 degrees, for right lateral flexion: 0 to 20 degrees, for left lateral flexion: 0 to 20 degrees, for right lateral rotation: 0 to 20 degrees, for left lateral rotation: 0 to 20 degrees. As noted above, the examiner specifically stated that passive range of motion was the same as active range of motion. The examiner also observed that pain was noted on examination and causes functional loss. The examiner also opined that there was evidence of pain with weight bearing, and that there was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The examiner observed that the Veteran was able to perform repetitive-use testing with at least three repetitions, and that there was an additional loss of function or ROM after three repetitions. The ROM was recorded as such, forward flexion: 0 to 55 degrees, extension: 0 to 15 degrees, right lateral flexion: 0 to 15 degrees, left lateral flexion: 0 to 15 degrees, right lateral rotation: 0 to 15 degrees, and left lateral rotation: 0 to 15 degrees. The examiner reported that pain and lack of endurance caused this functional loss. The examiner noted that this examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Regarding repeated use over time, the examiner opined that pain and lack of endurance cause functional loss and that the Veteran's ROM was recorded as, forward flexion: 0 to 50 degrees, extension: 0 to 10 degrees, right lateral flexion: 0 to 10 degrees, left lateral flexion: 0 to 10 degrees, right lateral rotation: 0 to 10 degrees, left lateral rotation: 0 to 10 degrees. Additionally, the examiner also determined that pain and lack of endurance also significantly limit the Veteran's functional ability during flare ups, and was able to describe this in terms of ROM. The Veteran's ROM was recorded as, forward flexion: 0 to 45 degrees, extension: 0 to 10 degrees, right lateral flexion: 0 to 10 degrees, left lateral flexion: 0 to 10 degrees, right lateral rotation: 0 to 10 degrees, left lateral rotation: 0 to 10 degrees. As the examiner was able to provide ROM measurements for flare ups, this opinion is adequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Muscle spasm and guarding were not reported in the March 2019 exam, and the Veteran did not have ankylosis of the spine at this time. The VA examiner also noted that there was no evidence of pain on passive ROM testing of the back, and no evidence of pain on non-weight bearing testing of the back. The Veteran's treatment records from September 2019, October 2019, April 2020, May 2020, June 2020, July 2020, September 2020, and October 2020 continued to note chronic pain, but a worsening was not reported. Prior to December 17, 2020, the Veteran is entitled to a 20 percent rating for his thoracolumbar spine degenerative arthritis because forward flexion of the thoracolumbar spine at this time was greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and there was painful motion upon examination. A higher evaluation is not appropriate because the Veteran did not have forward flexion of the thoracolumbar spine 30 degrees or left; or, favorable ankylosis of the entire thoracolumbar spine prior to December 17, 2020. 3. Entitlement to an evaluation in excess of 40 percent for thoracolumbar spine degenerative arthritis from December 17, 2020 The Veteran contends that his thoracolumbar spine degenerative arthritis warrants an evaluation in excess of 40 percent from December 17, 2020. After the Board's November 2019 remand, the Veteran was afforded a new VA examination in December 2020. Subsequently, the Veteran was assigned a 40 percent rating from December 17, 2020. At the December 2020 examination, the examiner noted that the Veteran reports having moderate flare ups 3 to 4 times a week which last 2-3 hours. The Veteran also reports that these flare ups are precipitated by sleeping on his back, and that the flare ups are alleviated by ice and rest. The Veteran's initial ROM was noted as being abnormal or outside the normal range and was recorded as forward flexion: 0 to 30 degrees, extension: 0 to 5 degrees, right lateral flexion: 0 to 15 degrees, left lateral flexion: 0 to 15 degrees, right lateral rotation: 0 to 10 degrees, left lateral rotation: 0 to 15 degrees. The examiner noted that the Veteran's ROM contributed functional loss. The examiner also observed that the Veteran was able to perform repetitive-use testing with at least three repetitions, and that there was not additional loss of function or ROM after three repetitions. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner stated that during a flare up, pain, fatigue, weakness, lack of endurance, or incoordination would not significantly limit functional ability. The examiner stated that the Veteran does not have guarding and does have muscle spasm that does not result in abnormal gait or abnormal spinal contour. The examiner reported that the Veteran does not have ankylosis of the spine. The examiner stated that, "[t]he back passive range of motion testing was not performed as it was not medically appropriate because risk of injury is too high." The Veteran had pain on non-weight-bearing testing of the back. There is no medical or lay evidence supporting a finding that the Veteran has unfavorable ankylosis as defined by VA regulations as "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." 38 C.F.R. § 4.71a, General Formula, Note (5). None of these factors are present. Therefore, the 40 percent rating from December 17, 2020 is appropriate. The medical and lay evidence of record does not show that the Veteran has neurological complications of his low back disability, to include bowel or bladder complications that require separate ratings. 4. Radiculopathy of the lower extremities In an August 2019 rating decision, the AOJ granted separate ratings for radiculopathy of each lower extremity under Diagnostic Code 8520 as neurological complications of the Veteran's low back disability. Initial 10 percent ratings were assigned for each lower extremity beginning March 7, 2017. The Veteran's left lower extremity radiculopathy was increased to 20 percent effective March 15, 2019. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Nonsensory impairment can include symptoms such as "a reflex abnormality, [or] weakness or muscle atrophy." Id. at 380. The February 27, 2017 VA examination contains the first diagnosis of radiculopathy of the lower extremities. At this time, the Veteran reported having burning pain down his legs. The examiner noted that the Veteran has radicular pain and other symptoms due to radiculopathy. Specifically, the Veteran had mild intermittent pain of both the left and right extremities and mild numbness of the left lower extremity. The examiner concluded that the Veteran had mild bilateral lower extremity radiculopathy. In February 2017, the Veteran's sensory examination was noted as normal for both the left and right sides. The examiner noted that the examination was "inconsist[e]nt when he was evaluated for vibratory sense and light touch." Muscle strength testing of the Veteran's bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension was characterized as active movement with gravity eliminated. The Veteran did not have muscle atrophy at this time. The Veteran was afforded another VA examination on March 15, 2019. This examination was the basis for the Veteran being entitled to an evaluation of 20 percent for radiculopathy of the left lower extremity. At this time, the examiner concluded that the Veteran has radicular pain and other symptoms of radiculopathy. For the right lower extremity, the Veteran did not have constant or intermittent pain, paresthesias and/or dysesthesias or numbness. For the left lower extremity, the Veteran had moderate constant pain, moderate paresthesias and/or dysesthesias and moderate numbness. Ultimately, the examiner concluded that the Veteran had moderate radiculopathy of the left lower extremity and that his right side was not affected. In March 2019, the Veteran's bilateral deep tendon reflexes were normal (2+). For the Veteran's right upper anterior thigh, thigh/knee, lower leg/ankle and foot/toes, the results of the sensory examination were normal. For the Veteran's left upper anterior thigh and thigh/knee, the results of the sensory examination were normal. However, for the Veteran's left lower leg/ankle and foot/toes, the results of the sensory examination were decreased. Muscle strength testing of the Veteran's bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension was characterized as normal. The Veteran did not have muscle atrophy at this time. The Veteran attended another VA examination on December 17, 2020. At this time, the examiner noted that the Veteran had moderate intermittent pain of the left lower extremity. The examiner also noted that the Veteran had mild bilateral lower extremity paresthesias and/or dysesthesias and mild bilateral lower extremity numbness. The examiner concluded that the Veteran had mild radiculopathy of the right lower extremity and moderate radiculopathy of the left lower extremity. At this time, the Veteran's bilateral deep tendon reflexes were normal (2+). The Veteran's sensory examination also showed that his bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes were all normal. Muscle strength testing of the Veteran's bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension was characterized as normal. The Veteran did not have muscle atrophy at this time. Since the appeal period for the Veteran's increased rating claim for his thoracolumbar spine degenerative arthritis dates back to 2009, so does the period for the radiculopathy of the bilateral lower extremities. However, the February 27, 2017 examination is the first diagnosis of radiculopathy and the information in the examination report does not allow the Board to identify an earlier effective date. Further, prior medical records relating to the Veteran's back condition from August 2015 do not mention radiculopathy or radiculopathy symptoms. Therefore, the Veteran is entitled to an evaluation of 10 percent for radiculopathy of each lower extremity effective February 27, 2017. For the Veteran's radiculopathy of the left lower extremity, the Veteran is not entitled to an evaluation in excess of 20 percent from March 15, 2019 because there is no evidence of record indicating that there were nonsensory manifestations of the left lower extremity radiculopathy. However, the Veteran is not entitled to a rating in excess of 10 percent for his radiculopathy of the right lower extremity throughout the period on appeal. As explained above, the Veteran's symptoms in his right lower extremity were either nonexistent or mild. Further, throughout the period on appeal, VA examiners have found the overall severity of the right lower extremity to be mild. 5. Entitlement to an evaluation in excess of 10 percent for left elbow degenerative arthritis (limitation of flexion) prior to March 15, 2019 The Veteran contends that his left elbow degenerative arthritis warrants a higher rating prior to March 15, 2019. The Veteran states that his left elbow condition started about 1990 during survival school. The Veteran reports having a burning, tearing pain in the back of his elbow. The Veteran also states that he needs support from an armrest or a pillow or else he would have pain. The Veteran states that he cannot pick up more than 10 pounds because of the pain. The Veteran was initially assigned a 0 percent rating for his left elbow degenerative arthritis effective January 4, 2010 in the September 2011 rating decision. Subsequently, the AOJ determined that entitlement to an earlier effective date for left elbow degenerative arthritis was warranted because a clear and unmistakable error was made, and the Veteran was assigned a 10 percent rating effective December 18, 2009. The Veteran's left elbow degenerative arthritis is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003, for degenerative arthritis, and Diagnostic Code 5206, for limitation of flexion of forearm, with a rating of 10 percent prior to March 15, 2019. Diagnostic Code 5003 applies to degenerative arthritis. Degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint, but, if that limitation is noncompensable, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion; in the absence of limitation of motion, a compensable rating is only warranted for involvement of 2 or more major joints or minor joint groups. Id. For the purpose of ratings for arthritis, an elbow is considered a major joint. 38 C.F.R. § 4.45. A 20 percent rating is not warranted under Diagnostic Code 5003 because there is no probative medical or lay evidence of incapacitation due to the left elbow arthritis. Limitation of flexion in the elbow in the major extremity is evaluated as follows: flexion limited to 45 degrees (50 percent); flexion limited to 55 degrees (40 percent); flexion limited to 70 degrees (30 percent); flexion limited to 90 degrees (20 percent); flexion limited to 100 degrees (10 percent); and flexion limited to 110 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5206. The Veteran was afforded a VA examination for this condition in May 2011. The examiner noted that there was instability in the left elbow. The examiner also observed that there were no signs of edema, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, guarding of movement, malalignment, and drainage, and that there was no subluxation or ankylosis. In this examination, the Veteran's ROM was noted as being within normal limits, and the Veteran's flexion was recorded as 145 degrees. At the May 2011 VA examination, there was no evidence of objective pain on motion noted on the exam. However, the Veteran reported having weakness, stiffness, fatigability, deformity, drainage, effusion, subluxation, and dislocation. At this time, the Veteran also stated that he experienced flare ups as often as three times per day that last for one hour and that during flare ups he is unable to lift or push with force and has limitation of motion. The Veteran's other VA and private treatment records prior to March 15, 2019, consistently note left elbow pain but do not indicate a worsening or specify range of motion measurements. The records also show December 2009 MRI and October 2011 x-ray evidence of degenerative joint disease of the left elbow. In October 2011, the Veteran's wife stated that the Veteran's left elbow pain interfered with his ability to lift and push objects. The Veteran's 10 percent rating prior to March 15, 2019 is appropriate. As stated above, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. At the May 2011 VA examination, there was no x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Additionally, the Veteran's flexion was not limited to 56-90 degrees. Therefore, a rating in excess of 10 percent prior to March 15, 2019 is not warranted. 6. Entitlement to an evaluation in excess of 20 percent for left elbow degenerative arthritis (limitation of flexion) from March 15, 2019 The Veteran also contends that his left elbow degenerative arthritis warrants a higher rating from March 16, 2019. The Veteran was assigned a 20 percent rating for his left elbow degenerative arthritis effective March 15, 2019 in an August 2019 rating decision. This rating was continued in a January 2021 rating decision. The Veteran was afforded a VA examination in February 2017. However, this examination was subject to the Board's January 2018 remand because the Veteran disputed the accuracy of the February 2017 examination, and because there was conflicting medical evidence of record. It is not assigned any probative weight. After the Board's January 2018 remand, the Veteran was afforded a new VA examination in March 2019. The March 2019 VA examination was subject to the Board's November 2019 remand. The VA examiner specifically stated that, "ROM is same for passive and non-weightbearing as that of active and weight-bearing." The right elbow was also tested. In the March 2019 examination, the Veteran's initial ROM measurements for his left elbow were noted as being abnormal or outside the normal range. The Veteran's initial ROM measurement for flexion was noted as 0 to 90 degrees. The examiner noted that the ROM itself did not contribute to functional loss. The examiner also opined that pain was noted on the examination and caused functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions, and this caused additional loss of function or ROM. The Veteran's ROM measurement for flexion was recorded as 0 to 80 degrees. The examiner also noted that pain and lack of endurance caused functional loss after repeated use over time, and that this could be measured in ROM. The Veteran's ROM for flexion was measured as 0 to 70 degrees. The examiner also noted that pain and lack of endurance significantly limited the Veteran's functional ability with flare ups, which could be measured in terms of ROM. The Veteran's ROM for flexion was recorded as 0 to 60 degrees. As the examiner was able to provide ROM measurements for flare ups, this opinion is adequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017). At the March 2019 VA examination, the examiner also noted that the Veteran did not have ankylosis. The examiner also observed that the Veteran's ROM was the same for passive and non-weight bearing as that of active and weight-bearing. The examiner also opined that there was evidence of pain on passive ROM testing and non-weight bearing testing of the left elbow. Therefore, the March 2019 examiner's opinion is compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was subsequently assigned a 20 percent rating because his flexion was 56 to 90 degrees and because there was x-ray evidence of degenerative arthritis. The Veteran was afforded another VA examination in December 2020. The Veteran reported having flare ups in his left elbow that occur a few times a week. The Veteran reported that the flare ups are severe and last for 30 minutes and are precipitated by forgetting to use an arm rest or sleeping on his left side. The Veteran stated that the flare ups are alleviated by rest and support. At the time of the December 2020 VA examination, the Veteran's initial ROM measurements were noted as being abnormal or outside the normal range. The initial ROM measurement for flexion is 0 to 80 degrees. Pain was noted on the examination and causes functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions, and this did not cause additional loss of function on ROM. Additionally, the examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner opined that pain significantly limited the Veteran's functional ability with flare ups. The examiner opined that this could be described in terms of ROM, and that the Veteran's flexion was recorded as being from 0 to 80 degrees. The Veteran does not have ankylosis of the left side. The examiner also stated that left elbow passive range of motion testing was not performed as it was not medically appropriate because risk of injury is too high. The examiner opined that there is objective evidence of pain on non-weight bearing testing of the left elbow. The Veteran's medical treatment records after March 15, 2019 show complaints of elbow pain but no ROM measurements were taken. The Veteran's left elbow degenerative arthritis warrants a rating of 20 percent from March 15, 2019. The March 2019 and December 2020 VA examinations demonstrate that the Veteran's flexion is limited to 56-90 degrees, he has painful motion of the elbow, and x-ray evidence of degenerative arthritis. Therefore, a rating in excess of 20 percent for the Veteran's left elbow degenerative arthritis from March 15, 2019 is not appropriate. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded The Board has jurisdiction to consider entitlement to a TDIU as part of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). During appointments in June and August 2017, the Veteran stated that he had to quit his job due to his constant lower back pain. When reasonably raised by the facts of a particular case, the Board must address whether the Veteran's ability to work is limited to marginal employment and, when appropriate, explain why the evidence does not demonstrate that the Veteran is incapable of more than marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). The matters are REMANDED for the following action: (Continued on the next page) 1. Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant education and employment information. 2. Readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.