Citation Nr: 21029766 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-11 569 DATE: May 17, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine prior to April 17, 2019, is denied. Entitlement to a disability rating of 40 percent, and no higher, for degenerative disc disease of the lumbar spine, as of April 17, 2019, is granted. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine is dismissed. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy, and no higher, is granted. Entitlement to an initial disability rating of 20 percent for right lower extremity radiculopathy, and no higher, is granted. REMANDED Entitlement to service connection for residuals, total left knee replacement with degenerative changes, claimed as left knee condition, is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, he has a current diagnosis of PTSD which is at least as likely as not related to an in service stressor. 2. Prior to April 17, 2019, the Veteran's degenerative disc disease of the lumbar spine was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups; without ankylosis, incapacitating episodes due to intervertebral disc syndrome or associated objective neurological abnormalities. 3. As of April 17, 2019, the Veteran's degenerative disc disease of the lumbar spine was manifested by flexion less than 30 degrees of the thoracolumbar spine. 4. In January 2021, the Veteran's representative stated that the Veteran does not wish to appeal entitlement to a disability rating in excess of 40 percent for his degenerative disc disease of the lumbar spine. 5. Accounting for pain and sensory disturbances and affording the Veteran the benefit of the doubt, the Veteran's left lower extremity radiculopathy has been productive of moderate impairment, but not moderately severe throughout the appeal period. 6. Accounting for pain and sensory disturbances and affording the Veteran the benefit of the doubt, the Veteran's right lower extremity radiculopathy has been productive of moderate impairment, but not moderately severe throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.3 (2019). 2. Prior to April 17, 2019, the criteria for a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242 (2019). 3. As of April 17, 2019, the criteria for a disability rating of 40 percent, but no higher, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242 (2019). 4. The criteria for withdrawal of an appeal by the Veteran (or his representative) for entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine as of September 19, 2020, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2020). 5. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8720. 6. The criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1969. The Veteran was awarded both a Combat Action Ribbon and a Purple Heart. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2011, January 2015, and November 2018 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were previously before the Board in June 2018 and May 2020 when they were remanded for additional evidentiary development. They since been returned to the Board for further appellate action. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2020). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2020). In the present case, the Veteran, through his representative, has stated that he no longer wishes to appeal entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine. See January 2021 Attorney Correspondence. Hence, there remain no allegations of errors of fact or law for appellate consideration for that issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. The Board notes that the Veteran still appeals entitlement to an increased initial disability rating prior to September 19, 2020, discussed below. Service Connection 1. Entitlement to service connection for PTSD. The Veteran asserts entitlement to service connection for an acquired psychiatric disability. Specifically, the Veteran contends that he has PTSD related to his combat service in Vietnam. The Veteran's representative has also asserted that the Veteran's depressive disorder is secondary to his low back disability. See January 2021 Attorney Correspondence. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5); a link, established by the medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). There no dispute as to the fact of an in-service stressor in this case. The Veteran has verified service during Vietnam, during which he was in a truck when a mine exploded. He received a purple heart for injuries sustained during service. However, there is contradicting evidence as to whether the Veteran has a diagnosis of PTSD and whether an acquired psychiatric disability is related to his service. The Board will address each in turn. A review of the Veteran's service treatment records (STRs) shows no treatment for any psychiatric disability. The Veteran's September 1969 separation examination shows a normal psychiatric evaluation and the Veteran's denials of trouble sleeping, frequent or terrifying nightmares, depression, and nervous trouble. The Veteran was afforded a VA examination in October 2011. The VA examiner noted a diagnosis of anxiety disorder but reported that the Veteran did not have a PTSD diagnosis under the DSM-IV criteria. The Veteran reported being in a truck when a mine detonated while in Vietnam. Therefore, his military combat stressor was conceded. The Veteran further reported being married for 43 years and having "associates" as well as enjoying watching softball and baseball. The Veteran endorsed psychiatric symptoms of anxiety and chronic sleep impairment. The VA examiner reported that the Veteran's psychiatric disability has been formally diagnosed but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Following the examination, the VA examiner opined that the Veteran's anxiety disorder is less likely than not caused by or related to his military combat experience. In support of this opinion, the VA examiner reasoned that, due to the elapsed time and onset of symptoms, anxiety symptoms are less likely related to combat experiences. Further, the Veteran has been in a stable marriage, able to hold different jobs for several years, and completed a bachelor's degree after service. The Veteran has submitted a June 2018 medical opinion from his VA psychiatrist. The VA psychiatrist reported that the Veteran is getting treatment for combat related PTSD, characterized by recurrent dreams, nightmares, depression, anxiety, and anger issues. The Veteran was afforded a VA examination in June 2019. The VA examiner noted a diagnosis of unspecified depressive disorder but reported that the Veteran did not have a diagnosis of PTSD that conforms to the DSM-5. The Veteran reported having many friends and being married for 52 years with no children. The Veteran further reported earning a bachelor's degree after service and working in the mainframe computer industry for 44 years. The Veteran endorsed psychiatric symptoms of depressed mood and chronic sleep impairment. The VA examiner noted that the Veteran was well groomed with appropriate hygiene, spoke with normal rate and volume, and with no signs of psychosis or mania. The VA examiner reported that the Veteran's psychiatric disability results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Following examination, the VA examiner opined that the Veteran's depressive disorder less likely than not began during service or was otherwise caused by his military service. In support of this opinion, the VA examiner reasoned that the first time the Veteran sought mental health treatment was in 2010, 40 years post-service. The VA examiner further reported that it was noteworthy that the Veteran was administered three tests during the evaluation, all suggestive of feigning symptoms. The VA examiner also opined that it is less likely than not that the Veteran's psychiatric disability was caused or aggravated by his service-connected low back disability. In support of this opinion, the VA examiner merely restated his direct service connection reasoning. In February 2020, the Veteran's psychiatrist wrote that the Veteran was being treated for PTSD characterized by recurrent dreams, depression, anger, and hypervigilance. The Veteran has submitted a January 2021 private PTSD Disability Benefits Questionnaire (DBQ), showing a diagnosis of PTSD under the DSM-5 criteria. The Veteran endorsed psychiatric symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, spatial disorientation, and disorientation to time or place. The private clinician reported that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In an accompanying medical opinion, the private clinician noted that he reviewed the Veteran's claims file as well as private medical records. The private clinician reported that the Veteran had psychiatric symptoms while on active duty, including explosive anger, detachment from others, sleep impairment, irritability, and traumatic flashbacks. Following a review of the evidence, the private clinician opined that the Veteran's PTSD is at least as likely as not related to his military service. The Veteran has submitted a January 2021 private medical opinion. The private psychologist noted that she reviewed the Veteran's claims file, including service records, support statements, and treatment records. The private psychologist reported that, based on the reviewed records, it is evident that the Veteran meets the criteria for PTSD according to the DSM-5 as well as the criteria for unspecified depressive disorder. Following a review of the record and the Veteran's statements, the private psychologist opined that it is more likely than not that the Veteran's PTSD and unspecified depressive disorder are the direct result of his experiences in service. In support of this opinion, the private psychologist noted the Veteran's combat experience during service. The private psychologist also noted the previous denials of service connection for PTSD based on the Veteran not seeking treatment during service or many years after. The private psychologist reasoned that it is common for individuals suffering from psychological distress to not initially seek assistance or treatment since they may not be in an appropriate state of mind to do so, which is the case for the Veteran. After reviewing, the Board finds that the evidence is at least in relative equipoise. The October 2011 and June 2019 VA examination reports show no PTSD diagnosis conforming to either the DSM-IV criteria or DSM-5 criteria. Meanwhile, the Veteran's VA psychiatrists have submitted PTSD diagnoses, and the January 2021 private medical opinions report a PTSD diagnosis conforming to the DSM-5 criteria both attributing the Veteran's PTSD to the Veteran's service. So, in weighing the evidence on the issue of diagnosis of PTSD, the Board finds that the evidence is in equipoise. The question of a diagnosis being in equipoise, the Board finds that 38 U.S.C. § 5107 (b) is controlling and that the benefit of the doubt should be provided to the Veteran, and thus a diagnosis of PTSD is found. As a result, all elements of service connection PTSD are established, and the claim is granted. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine By way of history, the Veteran was granted entitlement to service connection for degenerative disc disease of the lumbar spine, status post lumbar surgery, in a February 2011 rating decision, evaluated as 20 percent disabling effective March 2010. A December 2011 rating decision confirmed and continued the Veteran's 20 percent disability rating. The Board remanded the Veteran's increased rating claim in June 2018 to afford the Veteran a VA examination. In a September 2020 rating decision, the Veteran's disability rating was increased to 40 percent effective September 19, 2020. A September 2020 supplemental statement of the case (SSOC) denied entitlement to a disability rating in excess of 20 percent prior to September 19, 2020 and in excess of 40 percent thereafter. In a January 2021 correspondence from his representative, the Veteran asserted that he does not want to appeal entitlement to a disability rating in excess of 40 percent. Thus, the Board will only address entitlement to an initial disability rating in excess of 20 percent prior to September 19, 2020. Prior to September 19, 2020, the Veteran's low back disability was rated as 20 percent disabling pursuant to Diagnostic Code 5242, which pertains to lumbosacral or cervical strain, using the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating will apply 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 on abnormal gait or abnormal spinal contour; or, 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; 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 rating of 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. 38 C.F.R. § 4.71a, n. 2 and Plate V. "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). The IVDS Rating Formula provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. Furthermore, there is no medical evidence of the Veteran ever having IVDS. See September 2010, October 2011, June 2019, and September 2020 VA Examination Reports. The Board notes that the November 2019 VA examiner reported IVDS; however, this was based on the Veteran's reports and not the medical evidence of record. Furthermore, the September 2020 VA examiner was specifically directed to determine any diagnosis of IVDS and he reported that no IVDS diagnosis is justified. Thus, the Veteran is appropriately rated under the general rating formula. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 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."). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran was afforded a VA examination in September 2010. The VA examiner noted a diagnosis of degenerative arthritis of the lumbar spine and degenerative disc disease of the lumbar spine, now status post lumbar surgery, with residuals. The Veteran reported pain progression to the point of requiring lumbar surgery in November 2009, and continuing pain, especially when sitting or standing for prolonged periods of time. The Veteran endorsed experiencing severe flare ups described as low back pain precipitated by awkward or abrupt movements, excessive physical activity, and prolonged periods of sitting or standing. The VA examiner noted paresthesias, leg or foot weakness, fatigue, decreased motion, stiffness, weakness, and spasm. There was no evidence of incapacitating episodes of spine disease. The Veteran's gait was described as slightly slow, broadband, and slightly stooped when rising from a chair. There was no evidence of gibbus, kyphosis, lordosis, flattening, list, scoliosis, or ankylosis. Range of motion (ROM) testing revealed flexion to 50 degrees, with pain from 30 to 50 degrees, extension to 20 degrees, with pain from 10 to 20 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 20 degrees. Repetitive use testing revealed evidence of pain following repetitive motion with no additional limitation after three repetitions. The Veteran has submitted a November 2010 private treatment record. The Veteran complained of back pain with some radiation to his gluteal region, and mainly pain in his posterior thighs down to his knees. The private physician noted the Veteran's October 2009 L5/S1 fusion. Upon examination, the Veteran's lumbar spine showed bilateral equal musculature with no pain to palpation of the paralumbar musculature or interspinous areas. There was no tenderness over the SI joints of in the sciatic grooves. The private examiner noted a normal gait and no L4/L5/S1 deficits. The Veteran was afforded a VA examination in October 2011. The VA examiner noted a diagnosis of degenerative disc disease lumbar spine, status post disc repair. The Veteran reported constant pain and stiffness from low back into both buttocks and into his posterior thighs with no numbness or tingling. The Veteran denied experiencing flare ups. ROM testing revealed flexion to 55 degrees with pain beginning at 50 degrees, extension to 20 degrees with pain beginning at 15 degrees, right lateral flexion to 20 degrees with pain beginning at 15 degrees, left lateral flexion to 20 degrees with pain beginning at 15 degrees, right lateral rotation to 20 degrees with pain beginning at 15 degrees, left lateral rotation to 20 degrees with pain beginning at 15 degrees. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of ROM. The VA examiner noted functional loss of the spine, including less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. There was evidence of guarding or muscle spasm resulting in abnormal spinal contour but no evidence of pain on palpation. Muscle strength was 5/5 with no atrophy. The VA examiner reported no IVDS of the thoracolumbar spine. The Veteran required no assistive devices as a normal mode of locomotion. The VA examiner reported that the Veteran's spine disability does not impact his ability to work. The Veteran has submitted a June 2018 private treatment record. The private physician reported numbness, tingling, and weakness. Moderate guarding, spasms, and inflammation were noted. The private physician reported that the Veteran is considered to have a severe disability of his lower back. The Veteran has submitted an April 2019 private Back Conditions Disability Benefits Questionnaire (DBQ). The private physician noted diagnoses of mechanical back pain syndrome, facet joint arthropathy, degenerative disc disease, radiculopathy, and ankylosis of the thoracolumbar spine. The Veteran reported constant back pain affecting activities of daily life. The Veteran endorsed experiencing flare ups, described as constant stabbing pain, radiating down the left leg. The Veteran also endorsed experiencing functional loss, described as an inability to stand for more than two minutes, sit for more than 15 minutes, walk more than five minutes. ROM testing revealed flexion to 15 degrees, normal extension, right lateral flexion to five degrees, left lateral flexion to three degrees, right lateral rotation to ten degrees, and left lateral rotation to 12 degrees, all with evidence of pain. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of ROM. The private physician noted localized tenderness or pain to palpation, guarding resulting in abnormal gait and spinal contour. Functional loss included less movement than normal, weakened movement, incoordination, pain on movement, interference with sitting, and interference with standing. Muscle strength was reduced to 4/5 with no atrophy. The private physician noted favorable ankylosis of the entire thoracolumbar spine. The Veteran endorsed occasional use of a cane. The private physician reported that the Veteran's back disability impacts his ability to perform occupational tasks, including standing more than ten minutes, sitting more than ten minutes, and an inability to bend over. The Veteran was afforded a VA examination in June 2019. The VA examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran reported constant pain. The VA examiner noted that the Veteran's subjective complaints of pain during the examination appeared to be out of proportion to objective examination findings. The Veteran denied experiencing flare-ups and functional loss or impairment. ROM testing revealed flexion to 80 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees, with no pain noted on examination. There was no evidence of pain with weight bearing nor objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of ROM. Pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use. The VA examiner noted no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5 with no atrophy. There was no evidence of ankylosis nor IVDS. The Veteran reported regular use of a cane. The VA examiner reported that the Veteran's back disability does not impact his ability to work. The Veteran was afforded a VA examination in November 2019. The VA examiner noted a diagnosis of degenerative disease of the lumbar spine, status post lumbar surgery. The Veteran reported constant aching pain in the lower back, radiating to both legs. The Veteran endorsed experiencing flare-ups, described as lasting about two days and needing to lie in bed or on the couch or floor with ice and heat. The Veteran also endorsed experiencing functional loss, described as limitations in walking more than five minutes, standing in one position for more than one minute, sitting in one position for more than five minutes, bending, twisting, pushing, pulling, squatting, walking up and down stairs, and lifting more than twenty pounds. ROM testing revealed flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees, with pain noted on examination causing functional loss. There was evidence of pain with weight bearing but no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of ROM. The VA examiner reported that pain significantly limits the Veteran's functional ability with repeated use over a period of time but could not describe the limitation in terms of ROM. The VA examiner reported muscle spasm and guarding resulting in abnormal gait or spinal contour. Muscle strength was 5/5 with no atrophy. The VA examiner noted favorable ankylosis of the entire thoracolumbar spine. The VA examiner also noted IVDS with about 15 incapacitating episodes a year; however, the Board notes that the VA examiner reported that this was based solely on Veteran reports and not medical evidence. The Veteran reported constant use of a walker. The VA examiner reported that the Veteran's spine disability impacts his ability to work, limiting his ability to stand, sit, walk, bend, twist, push, pull, squat, walking up and down stairs, lifting, and running. After review of the evidence, in consideration of the above criteria, the Board finds that the preponderance of the evidence supports a finding that the Veteran's degenerative disease of the lumbar spine is most accurately characterized by the 20 percent criteria under Diagnostic Code 5242 prior to April 17, 2019. See 38 C.F.R. § 4.71a. As noted above, a 40 percent rating is not warranted unless the probative medical evidence of record establishes forward flexion of the thoracolumbar spine is limited 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Prior to April 17, 2019, forward flexion was found to be to 50 degrees, at worst, with no evidence of favorable ankylosis. See September 2010 and November 2011 VA Examination Report. The Board has considered whether a rating higher than 20 percent is warranted prior to April 17, 2019 based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The September 2010 and November 2011 VA examination noted there was no additional limitation after repeated use testing. Further, the functional limitations found on examination did not cause his disability to be more closely described as flexion of 30 degrees or less or ankylosis. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that VA examiners have specifically found that the Veteran did not have ankylosis. His VA treatment records do not show ankylosis. The Veteran has not asserted that he has ankylosis. He does not have ankylosis because he retains motion in his thoracolumbar spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). In sum, the Board finds that the 20 percent rating contemplated functional loss due to pain, excess fatigability, and less movement. The Veteran's degenerative disease of the lumbar spine is most accurately represented by the 20 percent rating criteria prior to April 17, 2019. C.F.R. § 4.71a, Diagnostic Code 5242. A rating in excess of 20 percent is not warranted prior to April 17, 2019. However, as of April 17, 2019, the Board finds that the Veteran's degenerative disease of the lumbar spine symptoms warrant a 40 percent disability rating. The Veteran's April 2019 private treatment record shows favorable ankylosis of the thoracolumbar spine as well as flexion limited to 15 degrees. The Board notes that the Veteran's June 2019 VA examination report noted no finding of ankylosis. However, the Veteran's November 2019 VA examination report also noted favorable ankylosis of the thoracolumbar spine as well as flexion limited to 30 degrees. Thus, the Veteran's degenerative disease of the lumbar spine symptoms show a worsening as of April 17, 2019, when favorable ankylosis and flexion of 30 degrees or less is first reported. As instructed in the January 2021 correspondence from the Veteran's representative, the Veteran does not wish to appeal his entitlement to a disability rating in excess of 40 percent. As such, the Board finds that the grant of the 40 percent disability rating as of April 17, 2019 constitutes a grant in full and will not discuss entitlement to a disability rating in excess of 40 percent. In reaching this conclusion, the Board has considered the Veteran's lay statements of record. However, his lay statements due not demonstrate that the forward flexion of his lumbar spine was limited to less than 30 degrees prior to April 17, 2019. Furthermore, in January 2021, the Veteran's attorney asserted that a higher evaluation was warranted based on the 2019 VA examination reports of record rather than earlier examination reports. 3. Entitlement to an initial disability rating in excess of 10 percent for bilateral lower extremity radiculopathy, prior to September 19, 2020, and in excess of 20 percent thereafter. By way of history, the Veteran was granted entitlement to service connection for bilateral lower extremity radiculopathy in a January 2015 rating decision, both evaluated as 10 percent disabling effective June 2011. The assigned effective date was based on the date of the Veteran's claim for an increase in his lumbar spine disability with no objective evidence of radiculopathy on any earlier effective date. The Veteran submitted a timely notice of disagreement (NOD) and appealed the issues to the Board. The Board remanded the Veteran's increased rating claims in June 2018 to afford the Veteran a VA examination. In a September 2020 rating decision, the Veteran's disability ratings were increased to 20 percent effective September 19, 2020. A September 2020 supplemental statement of the case (SSOC) denied entitlement to disability ratings in excess of 10 percent prior to September 19, 2020 and in excess of 20 percent thereafter. In a January 2021 correspondence from his representative, the Veteran stated that he no longer wants to appeal entitlement to disability ratings in excess of 20 percent. Thus, the Board will only address entitlement to initial disability ratings in excess of 10 percent prior to September 19, 2020. Prior to September 19, 2020, the Veteran's bilateral lower extremity radiculopathy were both rated as 10 percent disabling pursuant to DC 8720 for neuralgia of the sciatic nerve. Under Diagnostic Code 8720, a veteran is entitled to a 10 percent disability rating for mild neuralgia, neuritis, or incomplete paralysis of the sciatic nerve; 20 percent is warranted for moderate neuralgia, neuritis, or incomplete paralysis of the sciatic nerve; 40 percent is warranted for moderately severe neuralgia, neuritis, or incomplete paralysis of the sciatic nerve; 60 percent is warranted for severe neuralgia, neuritis, or incomplete paralysis of the sciatic nerve with marked muscular atrophy; and 80 percent is warranted for complete paralysis the sciatic nerve. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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. Based on the evidence of record, the Board finds that a rating of 20 percent, but no higher, for the Veteran's right and left lower extremity radiculopathy is warranted for the entire rating period on appeal. The Veteran was afforded a VA examination in November 2011. Sensation to light touch testing was normal bilaterally for the lower extremities. The VA examiner noted bilateral moderate constant pain and moderate intermittent pain. The VA examiner reported moderate sciatic nerve radiculopathy bilaterally. The Veteran has submitted an April 2019 private Back Conditions Disability Benefits Questionnaire (DBQ). The private physician noted decreased sensation to light touch as well as mild constant and intermittent pain and moderate dull pain, paresthesias and/or dysesthesias, and numbness. The private physician reported bilateral moderate sciatic nerve radiculopathy. The Veteran was afforded a VA examination in June 2019. Sensation to light touch was normal. The VA examiner reported no radicular pain or any other signs or symptoms due to radiculopathy. The VA examiner concluded that there was no evidence of bilateral lower extremity radiculopathy. The Veteran was afforded a VA examination in November 2019. Sensation to light touch was decreased in lower leg/ankle and foot/toes. The VA examiner noted severe constant pain, mild paresthesias and/or dysesthesias, and mild numbness. The VA examiner reported mild bilateral radiculopathy. The Veteran was afforded a VA examination in September 2020. The VA examiner noted severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness, bilaterally. The VA examiner reported moderate radiculopathy. Considering the evidence and affording the Veteran the benefit of the doubt, the Veteran's bilateral lower extremity radiculopathy have consistently been manifested by symptoms contemplated by a higher 20 percent rating from the beginning of the appeal period. The Veteran's November 2011 and April 2019 DBQ both reported the Veteran's bilateral radiculopathy as moderate. The Board notes that the June 2019 and November 2019 VA examinations reported mild bilateral radiculopathy. However, the November 2019 VA examiner also reported severe constant pain. Furthermore, the Veteran's September 2020 VA examination shows moderate bilateral radiculopathy. However, at no point during the appeal period have the Veteran's left and right lower extremity radiculopathy more nearly approximated the criteria for a 40 percent disability rating. Indeed, the most probative evidence of record does not indicate moderately severe radiculopathy of the sciatic nerve in either extremity. See June 2019, November 2019, and September 2020 VA Examination Reports. In summary, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's left and right lower extremity sciatic radiculopathy more nearly approximate the criteria for 20 percent disability ratings, and no higher, for the entire period on appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 8720. REASONS FOR REMAND 1. Entitlement to service connection for residuals, total left knee replacement with degenerative changes, claimed as left knee condition is remanded. The Veteran asserts entitlement to service connection for residuals of total left knee replacement with degenerative changes, claimed as left knee condition. Specifically, the Veteran contends that his left knee disability is caused or aggravated by an abnormal gait due to his service-connected lumbar spine disability. See September 2018 Fully Developed Claim. The Veteran has also stated that he has injured his left knee in 2014 after falling due to his back pain. Id. The Board notes that the Veteran is service connected for degenerative disc disease of the lumbar spine, status post lumbar surgery, effective March 2010. A VA medical opinion was obtained in October 2018. Following a review of the record, the VA examiner opined that the Veteran's left knee disability is less likely than not caused by his service-connected lumbar spine disability. In support of this opinion, the VA examiner reasoned that there was no objective evidence of pelvic tilting due to a low back condition. The VA examiner further reasoned that, in a general population study, a person over 50 years of age has a greater than 50 percent chance of developing arthritis in joints. In accordance with the May 2020 Board remand, an addendum VA medical opinion was obtained in September 2020. Following a review of the record, the VA examiner opined that the Veteran's left knee DJD is not aggravated by his service-connected lumbar spine degenerative disc disease. In support of this opinion, the VA examiner reasoned that there is no evidence of an unsteady gait related to the Veteran's lumbar condition. The VA examiner cited to medical record notes showing no muscle wasting, joints with good range of motion, and spine with good range of motion. The Board notes that the October 2018 VA examiner merely stated that there was no evidence of pelvic tilting and generally cited to a study regarding arthritis development in people over 50 years old. The VA examiner did not address any of the Veteran's contentions of an abnormal gait due to his service-connected lumbar spine disability. As such, the Board finds the October 2018 opinion is inadequate. Furthermore, the September 2020 VA examiner focused on an absence of medical evidence that showed an abnormal gait. See Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020) (holding that an examination that does not address credible and relevant lay evidence does not include enough detail to inform the Board's decision and, thus, is inadequate). However, a January 2018 VA treatment record shows that the Veteran requires a cane due to his low back pain and insufficient balance. The VA physical therapy assistant noted that a rollator would be better to maintain stability, improve gait pattern, and decrease leaning. Furthermore, during the Veteran's November 2019 and September 2020 VA examinations, the VA examiner noted that muscle spasm and guarding resulting in an abnormal gait or spinal contour. As this evidence was of record at the time of the VA opinion and reflects a gait abnormality, it is unclear whether this evidence was considered. Therefore, the Board finds the September 2020 opinion is inadequate. The Board finds that an addendum opinion is necessary to determine whether the Veteran's service-connected lumbar spine disability that has caused or aggravated his left knee disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician to determine the nature and etiology of residuals, total left knee replacement with degenerative changes. An examination (including via telehealth) should only be scheduled if the clinician determines one is needed in order to provide the requested opinions. The clinician should render an opinion, consistent with sound medical judgment, as to the following questions: 2. Is it at least as likely as not (a 50 percent or greater probability) that any left knee disability was caused by the Veteran's service-connected lumbar spine disability? 3. Is it at least as likely as not (a 50 percent or greater probability) that any left knee disability was aggravated by the Veteran's service-connected lumbar spine disability? In providing the opinions, the examiner is asked to consider the evidence of an abnormal gait shown in January 2018 VA treatment record and November 2019 and September 2020 VA examinations and the Veteran's competent lay statements regarding adjusting his walking to compensate for back pain as well as the reported fall in 2014 due to his back pain, causing his left knee disability. A rationale must be provided for all opinions that are rendered. 4. Upon completion of the above, readjudicate the claim on appeal. If the benefit sought is not granted in full, provide the Veteran with a Supplemental Statement of the Case (SSOC) and allow an appropriate opportunity to respond thereto before returning the case to the Board. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.