Citation Nr: 21030548 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-18 338 DATE: May 19, 2021 ORDER Entitlement to service connection for degenerative arthritis of the cervical spine is granted. Entitlement to a rating greater than 20 percent for degenerative arthritis of the lumbar spine is denied. Entitlement to an initial 20 percent disability rating, but no greater, for right lower extremity peripheral neuropathy is granted. Entitlement to an initial disability rating greater than 10 percent for left lower extremity peripheral neuropathy is denied. Entitlement to a 10 percent disability rating, but no greater, for residual fracture of the right middle finger is granted. REMANDED Entitlement to service connection for a left foot disability, to include degenerative joint disease (DJD) of the left foot is remanded. Entitlement to service connection for a right foot disability, to include DJD of the right foot is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's cervical spine disability had its inception during active duty and manifested to a compensable degree within one year of active service. 2. For the entire appeal period, the Veteran's degenerative arthritis of the lumbar spine does not result in forward flexion of the thoracolumbar spine to 30 degrees or less nor was there evidence of favorable ankylosis, 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. 3. The preponderance of the evidence shows the Veteran's right lower extremity radiculopathy resulted in no more than moderate incomplete paralysis of the sciatic nerve. 4. The preponderance of the evidence shows the Veteran's left lower extremity radiculopathy resulted in no more than mild incomplete paralysis of the sciatic nerve. 5. The preponderance of the evidence shows the Veteran's right middle finger disability manifested in a gap less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and with extension limited by less than 30 degrees; and X-ray imaging in 2010 confirmed DJD of the Veteran's middle finger. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for a rating greater than 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria to an initial 20 percent disability, but no greater, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8720. 4. The criteria to an initial disability rating greater than 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8720. 5. The criteria for Entitlement to a 10 percent disability rating, but no greater, for residual fracture of the right middle finger have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5229, 5226. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to January 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded these issues in August 2019 for further development and there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). A Travel Board hearing was held in May 2019. The Veterans Law Judge who conducted that hearing retired. The Board notified the Veteran of this development on March 9, 2021 and provided him an opportunity to request another optional Board hearing within 30 days or submit a written statement in leu of a hearing. The Veteran did not respond to the March 9, 2021 notification nor was a statement received by the Board. As such, the Board finds that the Veteran does not wish to have an optional Board hearing. These matters are properly before the Board. During the course of the appeal, the RO awarded disability ratings for left lower extremity radiculopathy (10 percent effective April 28, 2010) and right lower extremity radiculopathy (10 percent effective April 28, 2010). While he did not enter a notice of disagreement as to the propriety of the assigned ratings for such disabilities, the Board finds that they are part and parcel of his claim for an increased rating for his service-connected back disability. See General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), Note (1). Therefore, the Board has assumed jurisdiction over such matters. 1. Entitlement to service connection for a cervical spine disability is granted. The Veteran contends service connection for degenerative arthritis of the cervical spine is warranted. Specifically, he believes his current disability is a result of a motor vehicle injury he incurred in 1980 and other complaints of neck pain. The Board agrees. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The Veteran's service treatment records show he was involved in a motor vehicle accident on December 14, 1980. He sought treatment the following day and complained of stiff neck. The treating physician diagnosed a muscle sprain, prescribed medication, and told the Veteran to return in two days. On December 17, 1980, the Veteran returned to the clinic and stated that his neck was still stiff but better than before. His physician confirmed the muscle sprain/spasm diagnosis and noted it was resolving. The Veteran returned to the clinic complaining of neck pain on January 5, 1981, April 28, 1983, August 10, 1987, November 9, 1988, December 1, 1988, December 12, 1988, December 21, 1988, January 23, 1989, April 4, 1989, June 13, 1989, March 26, 1992, February 23, 19913, October 31, 1994, and November 4, 1994. The Veteran underwent a VA examination in October 1995. The Veteran reported he has occasional neck pain that existed since the 1980 motor vehicle accident. The examiner did not identify a cervical spine disability nor did he discuss the Veteran's neck complaints as it was beyond the scope of the October 1995 VA examination. A September 2010 VA examiner diagnosed the Veteran with degenerative joint disease of the cervical spine. The Veteran reported he has intermittent throbbing neck pain which wakes him at night. The pain's severity was assessed at 8/10 and radiated to the right shoulder and back of the head. The Veteran stated that pain lasts from 30 minutes to 3 hours and takes two Aleve tables every 6-8 hours, as needed. He reported that his neck disability has progressively worsened since his 1980 car accident. The Veteran underwent a VA examination in January 2020. The examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by his claimed in-service injury. The examiner explained that she found no supporting evidence of medical treatment for a motor vehicle accident in 1980. The examiner stated that the only evidence of any in-service injury was the Veteran's lay statements. In September 2020, the examiner provided an addendum opinion. She continued to believe that the Veteran's disability was less likely than not related to or caused by active service. However, now she explained that after reviewing service treatment records from 1988 to 1992 for neck complaints, a March 1992 examination, an October 1995 General Medicine report, and the Veteran's separation examination, she believes that any neck condition incurred during service resolved prior to discharge from active service. An opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458 (1993). The Board finds the January 2020 opinion inadequate because the examiner based her opinion on the premise that the Veteran did not incur an in-service injury. Moreover, the examiner relies almost exclusively on the lack of evidence of such in the service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). The Board gives no probative weight to the January 2020 VA opinion. Turning to the September 2020 opinion, the VA examiner discussed several physical evaluations and examinations since 1980 which showed no physical changes. However, she did not discuss the relevance of the Veteran's consistent complaint of neck pain during service and for years thereafter. Nor did she address the fact that the Veteran was prescribed physical therapy on numerous occasions due to his chronic neck pain. Favorable facts cannot be ignored or merely brushed aside. As such, the Board finds that the September 2020 opinion is not probative. In making this determination, the Board has the authority to analyze the credibility and probative value of evidence when making factual findings. Madden v. Brown, 125 F. 3d 1477, 1481 (fed. Cir. 1997). The Board may also favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). While the Board may assess the credibility and weight given to medical evidence, the Board is not free to substitute its own judgment for such as a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). An incomplete analysis will render a medical opinion inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board has weighed the probative evidence of record, including the VA medical opinions, the Veteran's service treatment records, as well as his competent and credible assertions concerning continuing neck pain symptomatology, and finds that the evidence is in equipoise. 38 C.F.R. §§ 3.307, 3.309. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that service connection for degenerative arthritis of the cervical spine is warranted Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § § 4.3. 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 required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, 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." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id. Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If 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. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5242 assigned a rating under the General Rating Formula for Diseases and Injuries of the Spine. DC 5242 assigned a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided where forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is evidence of favorable ankylosis of the entire thoracolumbar spine. Note 2 provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation of the cervical spine are both zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. The alternative rating for IVDS based on incapacitating episodes provides the following ratings: A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past twelve months. A 20 percent rating is warranted for 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 is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. DC 5242 also allowed a rating pursuant DC 5003. Under DC 5003, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. A 20 percent rating is applied where there is X-ray evidence of arthritic changes involving two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003, 5010. The Veteran's lower extremity radiculopathies are rated under DC 8720. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis 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. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words mild, moderate, and severe as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. As of February 7, 2021, under the amended criteria, DC 5010 assigns a disability rating pursuant to limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, the rating criteria for DC 5242 was not substantially changed. The amendments to the rating criteria included additional consideration under DCs 5003 and 5010. DC 5242's scope was narrowed to include degenerative disc disease other than intervertebral disc syndrome. 2. Entitlement to a rating greater than 20 percent for degenerative arthritis of the lumbar spine The Veteran contends a disability rating greater than 20 percent for his service-connected lumbar spine disability is warranted. VA general examination in October 2010 included a diagnosis of lower back strain with bilateral radiculopathy. The Veteran reported constant lower back pain. He described it as excruciating, nagging, dull, and sharp at times. The severity of his back pain averages 5/10 and increases to 10/10, lasting approximately one day. The Veteran reported pain radiates down his right leg to the calf. Bending or sitting aggravates his disability. Range of motion studies revealed no evidence of spasm or muscle atrophy. Forward flexion was from 0 to 90 degrees, extension was from 0 to 20 degrees, right lateral flexion was from 0 to 25 degrees, left lateral flexion was from 0 to 20 degrees, right lateral rotation was from 0 to 55 degrees, and left lateral rotation was from 0 to 40 degrees. There was evidence of pain on active motion, guarding, pain with motion, tenderness, and weakness. There was no additional loss of motion after repetitive use testing due to pain. Lower muscle strength was normal. It was noted that right and left lower extremities showed decreased sensation to vibration, pain or pinprick, and light touch. There was no dysesthesias, and lower extremity position sense was normal, bilaterally. The examiner stated the Veteran experienced increased absenteeism, cannot sit for more than 15 minutes, drive for long periods without stopping, difficulty exiting his vehicle, and is unable to perform certain chores i.e. shopping. VA back conditions examination in January 2020 included a diagnosis of degenerative arthritis of the spine with bilateral lower extremity radiculopathy. It was noted that the Veteran's back flare-ups 10-12 days per month. He described the severity of his pain as 10/10 which lasts "a few days." The Veteran reported his lumbar disability prevents him from bending, lifting, running, sitting, or standing for long periods of time, and difficulty with general ambulation, including walking. Range of motion studies revealed forward flexion from 0 to 60 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 20 degrees. Pain was noted on examination that resulted in/caused function loss forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. There was evidence of pain on weight bearing and tenderness at the belt line of middle back area. The Veteran performed repetitive-use testing with additional loss of range of motion. and no additional loss of function or range of motion after repetitive use testing. Observed repetitive use range of motion studies showed forward flexion from 0 to 50 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 15 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 15 degrees, and left lateral rotation from 0 to 15 degrees. The Veteran was not examined immediately after repetitive use over time or during flare-ups. The examiner stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time and flare-ups. The examiner found evidence that pain significantly limited functional ability with repeated use over a period of time and flare-ups. Estimated forward flexion measured 0 to 50 degrees, extension measured 0 to 15 degrees, left lateral flexion measured 0 to 15 degrees, left lateral rotation measured 0 to 15 degrees, right lateral flexion measured 0 to 15 degrees, and right lateral rotation measured 0 to 15 degrees. The examiner stated pain caused this additional functional loss. The Veteran had muscle spasm which resulted in abnormal gait of spine contour. It was revealed disturbance of locomotion, interference with sitting, and interference with standing contributed to the Veteran's lumbar disability. Specifically, the Veteran has difficulty picking up his feet and turning in certain directions, and sitting and standing for long periods. Muscle strength testing showed active movement against some resistance during right and left hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion. There was normal strength in great toe extension, bilaterally. Reflex testing showed hypoactive responses for bilateral knees and ankles. Sensory testing revealed decreased sensation to light touch at upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes, bilaterally. Straight testing was positive, and the Veteran exhibited signs and symptoms of radiculopathy. The right lower extremity exhibited moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The left lower extremity showed mild intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner found no further signs or symptoms of radiculopathy. She described the right lower extremity radiculopathy as moderate and the left side as mild. There was evidence of IVDS, but the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. The Veteran regularly uses a brace and constantly uses a cane. The lumbar disability impacted the Veteran's functional ability. He has difficulty getting up and down, bending, picking up objects, and sitting or standing for long periods. Passive range of motion was not performed because the examiner determined it was not feasible to perform testing in a safe and reasonable manner. The Board finds that a disability rating greater than 20 percent is not warranted. In order to obtain a rating in excess of 20 percent, the evidence must show forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. Such is simply not shown in the record before the Board. As there is evidence the Veteran suffers from arthritis of the spine, the Board has considered the application of a separate compensable rating under Diagnostic Code 5003. However, the pain and limited ROM associated with arthritis are already accorded for in relation to his current 20 percent rating. Therefore, to provide for an additional 10 percent rating beyond his current 20 percent rating would equate to impermissible pyramiding. 38 C.F.R. § 4.14. The Board has also considered whether higher ratings for the Veteran's thoracolumbar spine disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and determined that such is not warranted. Pain during range of motion testing was noted on examination in October 2010 and January 2020. However, limitation of flexion still measured in excess of 30 degrees. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given the reports of flare-ups during the October 2010 and January 2020 examinations. Importantly, the VA examiners reviewed the Veteran's medical records, including the frequency and severity of flare-ups, manifesting as excruciating, nagging, dull, and sharp pain at times, increased absenteeism, inability sit greater than 15 minutes, drive for long periods without stopping, difficulty exiting his vehicle, inability to perform certain chores i.e. shopping, difficulty getting up and down, bending, picking up objects, and post-test ROM measurements. This evidence, however, does not demonstrate additional functional loss. The reported flare-up is not shown to additionally limit flexion to 30 degrees or less, or cause ankylosis-like movement of the thoracolumbar spine. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. The record is reasonably clear that the Veteran experienced motion loss during flare-ups, described as limited movement. The medical and lay statements do not indicate that the flare-ups are so severe as to approximate the higher rating criteria more nearly. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. The VA examination reports indicate that the Veteran has significantly greater movement than the motion loss contemplated for the 40 percent rating criteria for DC 5242 and there is no evidence of ankylosis of the thoracolumbar spine in treatment records or VA examination reports. The Veteran does not specifically identify more motion loss suggestive of thoracolumbar spine range of motion flexion limited to 30 degrees or less, or ankylosis-like symptoms. 38 C.F.R. § 4.71a, DC 5242. For these reasons, a rating in excess of 20 percent denied. The Board has considered the alternative DC 5243 rating criteria based upon incapacitating episodes. In this case, there was evidence of IVDS, however the examiner noted the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. For the foregoing reasons a rating in excess of 20 percent for degenerative arthritis of the spine is not warranted. As the preponderance of the evidence is against higher ratings, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 3. Entitlement to an initial 20 percent disability rating, but no greater, for right lower extremity peripheral neuropathy is granted and entitlement to an initial disability rating greater than 10 percent for left lower extremity peripheral neuropathy is denied. The Veteran contends higher initial disability ratings are warranted for his bilateral lower extremity radiculopathies. The October 2010 VA examiner noted that the right and left lower extremities showed decreased sensation to vibration, pain or pinprick, and light touch. There was no evidence of dysesthesias, and bilateral lower extremity position sense was normal. Upon examination, the January 2020 VA examiner noted right lower extremity exhibited moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The left lower extremity showed mild intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner found no further signs or symptoms of radiculopathy. The Board finds that a rating in excess of 10 percent for left lower extremity radiculopathy is not warranted. Based on the preponderance of the evidence, there is no indication in the record that the Veteran experienced left lower extremity radiculopathy severity greater than mild radiculopathy. The Board also finds that the Veteran is entitled to an initial 20 percent disability rating, but no greater, for right lower extremity radiculopathy. As noted above, the Veteran exhibited no greater than moderate radiculopathy of the right lower extremity. As such, a rating greater than 20 percent is not warranted. 4. Entitlement to a 10 percent disability rating, but no greater, for residual fracture of the right middle finger is granted. The Veteran's disability is currently rated under Diagnostic Codes 5229-5226. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, these diagnostic codes were not changed. Pursuant to Diagnostic Code 5226, a 10 percent rating is the maximum warranted for favorable or unfavorable ankylosis of the long finger (right third finger condition). Under Diagnostic Code 5229, VA regulations provide a zero percent (noncompensable) rating for index or long finger limitation of motion with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension limited by no more than 30 degrees A 10 percent rating with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. Under DC 5003, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. A 20 percent rating is applied where there is X-ray evidence of arthritic changes involving two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003, 5010. The Veteran underwent a VA examination in October 2010. The Veteran reported the middle finger locks which causes fleeting sharp pain. He stated that reportative use of his hand causes triggering of the middle finger, pulling the lawn mower cord causes the finger to flex, and he needs to hold the finger in extended position or it will lock again. The Veteran used a rubber ball when experiencing frequent locking of the middle finger. Range of motion studies revealed no evidence of pain, normal extension (0 degrees) of the right distal interphalangeal (DIP) joint, proximal interphalangeal (PIP) joint, and metacarpophalangeal (MP) joint. The gap between the long finger and proximal traverse crease of the right had on maximal flexion was less than 1 inch (less than 2.5 centimeters). The examiner found objective evidence of pain but there was no additional limitation of motion. There was no evidence of ankylosis or deformity of one or more digits. The examiner noted decreased strength for pushing, pulling, and twisting in the middle finger. Imaging test results showed evidence of mild degenerative arthritis (DJD) of the right hand middle finger. The Veteran reported he had mild difficulty completing chores, decreased dexterity, weakness, and inability to grip tightly. The Veteran was able to shop, exercise, travel, feed himself, bathe, dress and groom himself without difficulty. The Veteran underwent a hand and finger VA examination in January 2020. He denied flare-ups but reported difficulty holding tools or using them. Range of motion studies revealed the DIP joint measured 0 to 60 degrees, the PIP joint measured 0 to 90 degrees, and the MP joint measured 0 to 75 degrees. The gap between the long finger and proximal traverse crease of the right had on maximal flexion was 1 centimeter. There was no evidence of pain on examination, pain with use of hand, localized tenderness, or pain of the joint or associated soft tissue. The Veteran completed repetitive use without additional functional loss or range of motion after three repetitions. The Veteran was not examined during flare-ups or immediately after repetitive use. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups or with repetitive use over time. She noted that pain, weakness, fatigability, or incoordination did not limit functional ability during flare-ups or with repetitive use over time. The examiner did not describe additional functional loss in terms of range of motion because she found no basis to offer an estimate after review of the record, physical examination, review of the Veteran's subjective complaints, reported history, and her medical knowledge and expertise. The examiner also explained that the Veteran denied flare-ups and therefore did not describe additional functional loss in terms of range of motion. The January 2020 report showed intermittent swelling with repetitive use, reduced muscle strength (4/5), and arthritis of the right hand. There was no evidence of muscle atrophy, ankylosis or other pertinent findings. The Veteran did not use any assistive devices and the examiner stated the Veteran would not be equally well served by amputation of his middle finger. The examiner stated that the Veteran ran a mechanic shop, was unemployed, and has difficulty holding tools. There was no objective evidence of pain on passive range of motion testing or use in nonweight-bearing. The Board finds that a 10 percent disability rating, but no greater, is warranted. In this regard, the Veteran has had arthritis related to the claimed condition as documented by in the October 2010 and January 2020 VA examinations. The Board has also considered whether higher ratings for the Veteran's middle finger is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and determined that such is not warranted. A 10 percent disability rating is currently assigned pursuant to § 4.49. Moreover, limitation of flexion still measured in excess of 30 degrees and a gap between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, measured 1 centimeter and there is no evidence of ankylosis. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given the reports of flare-ups during the October 2010 examination. Importantly, the VA examiner reviewed the Veteran's medical records, including the frequency and severity of flare-ups, manifesting as locking, trigger finger, dull and sharp pain at times, difficulty using tools, and missing work. This evidence, however, does not demonstrate additional functional loss. Importantly, the 2010 VA examiner specifically stated the Veteran was able to shop, exercise, travel, feed himself, bathe, dress and groom himself without difficulty. The reported flare-up is not shown to additionally limit flexion to 30 degrees or less, or cause ankylosis-like movement of the middle finger. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. The record is reasonably clear that the Veteran experienced motion loss during flare-ups, described as limited movement. The medical and lay statements do not indicate that the flare-ups are so severe as to approximate the higher rating criteria more nearly. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. The VA examination reports indicate that the Veteran has significantly greater movement than 30 degrees. The Veteran does not specifically identify more motion loss suggestive of middle finger range of motion flexion limited to 30 degrees or less, or ankylosis-like symptoms For the foregoing reasons a rating 10 percent disability rating, but no greater, for the right middle finger is warranted. As the preponderance of the evidence is against higher ratings, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND The issues of service connection for a left foot disability, to include DJD of the left foot and service connection for a right foot disability, to include DJD of the right foot are remanded. The Veteran underwent a VA examination in January 2020. The examiner diagnosed the Veteran with bilateral degenerative arthritis of the feet. However, the examiner's conclusion, nexus opinion, and rationale are inadequate. Specifically, the examiner indicated that it is less likely as not that the Veteran's left and right foot disabilities were incurred in or caused by service, and that these disabilities did not manifest within one year of discharge. The examiner based her opinion on the lack of service treatment records showing that the Veteran had these conditions during service. A rationale based entirely on lack of records is inadequate. As such, this VA opinion report is inadequate for adjudication and a remand is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's current VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether: (a.) It is at least as likely (50 percent or greater) that the Veteran's right foot disability, to include DJD is related to active service (b.) It is at least as likely (50 percent or greater) that the Veteran's right foot disability, to include DJD manifested within one year of discharge from service. (c.) It is at least as likely (50 percent or greater) that the Veteran's left foot disability, to include DJD is related to active service. (d.) It is at least as likely (50 percent or greater) that the Veteran's left foot disability, to include DJD manifested within one year of discharge from service. The examiner must provide adequate rationale for all opinions provided. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.