Citation Nr: 21040449 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-06 982 DATE: July 3, 2021 ORDER 1. Entitlement to service connection for colon polyps, to include as secondary to service-connected irritable bowel syndrome (IBS) and as a qualifying chronic disability under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is denied. 2. Prior to February 22, 2017, entitlement to a rating in excess of 10 percent for degenerative disc disease with chronic lumbosacral strain is denied. 3. From February 22, 2017 to August 15, 2019, entitlement to a 20 percent rating, but no higher, for degenerative disc disease with chronic lumbosacral strain is granted. REMANDED 4. Entitlement to a total disability rating based on total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that colon polyps had an onset in service, is otherwise related to active service, to include service in Southwest Asia, or is secondary to his service-connected IBS. 2. Prior to February 22, 2017, the Veteran's degenerative disc disease with chronic lumbosacral strain was manifested by pain and limitation of motion. The evidence did not show forward flexion of the thoracolumbar spine of 60 degrees or less, combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm, guarding, or localized tenderness that results in abnormal gait or abnormal spinal contour. 3. From February 22, 2017 to August 15, 2019, the Veteran's degenerative disc disease with chronic lumbosacral strain is manifested by pain and limitation of motion. The evidence shows forward flexion of the thoracolumbar spine to no less than 45 degrees; neither favorable nor unfavorable ankylosis of the thoracolumbar spine is shown. CONCLUSIONS OF LAW 1. The criteria for service connection for colon polyps are not met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.310, 3.317. 2. Prior to February 22, 2017, the criteria for a rating in excess of 10 percent for degenerative disc disease with chronic lumbosacral strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. From February 22, 2017 to August 15, 2019, the criteria for a 20 percent rating, but no higher, for degenerative disc disease with chronic lumbosacral strain are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1994 to March 1995 and from November 2003 to March 2005. He also served in the Army National Guard of Florida from January 1975 to May 1984 and from December 1987 to March 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2013 and July 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). With regard to the claim of service connection for colon polyps, the Board denied this claim in a July 2019 decision. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred by not providing an adequate statement of reasons or bases to support its decision. Specifically, in denying the claim, the Board did not consider the assertion that although his colon polyps were not discovered until he received a colonoscopy in 2007, approximately two years after his discharge, that the polyps actually began developing while he was in service. In this regard, he stated that in 2007 when he completed the colonoscopy, he already had polyps and that "they are of the impression that they had been present for some time based on the size/development." Therefore, remand was warranted for the Board to address all expressly raised theories of entitlement. The claims folder was thereafter returned to the Board, and in February 2021, the Board remanded the claim for further evidentiary development. The claim is now before the Board for appellate adjudication. With respect to the Veteran's claim of increased rating for degenerative disc disease with chronic lumbosacral strain prior to August 16, 2019, in an April 2020 decision, the Board denied this claim. The Veteran appealed the denial to the Court. In a January 2021 JMPR, the parties agreed that the Board erred by not providing an adequate statement of reasons or bases to support its decision. Specifically, the Board did not address a February 2017 VA physical therapy medical record. On remand, the Board was to address this record. The claim is now before the Board for appellate adjudication. The Board notes that in a May 2021 statement, the Veteran raised a claim of TDIU based in part on his service-connected degenerative disc disease with chronic lumbosacral strain. The Board therefore finds that the issue of entitlement to a TDIU has been implicitly raised and is part and parcel to the increased rating claim on appeal herein. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Service Connection 1. Entitlement to service connection for colon polyps The Veteran contends that he suffers from colon polyps that are a result of his Southwest Asia service or secondary to his service-connected IBS. See, e.g., a January 2019 VA examination report. The Board notes that the Veteran's service personnel records verify his service in Southwest Asia. Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 77 Fed. Reg. 71382 (2016). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(ii). Direct service connection As discussed above, the Veteran contends that his current colon polyps are related to service. The Board notes that the Veteran's service treatment records do not document complaints of or treatment for colon polyps. However, the current medical evidence documents a finding of colon polyps. See, e.g., the January 2019 VA examination report. Moreover, although the colon polyps were not first identified until 2007 from a colonoscopy, the Veteran has asserted that he believed the polyps were present in service. See the Veteran's statement dated May 2019. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran's current colon polyps are related to his service on a direct basis. The Veteran was afforded a VA examination in January 2019 for his colon polyps. The examiner documented the Veteran's history of the reported colon polyps and diagnosed the Veteran with colon polyps. In a VA addendum medical opinion report, dated April 2021, another VA examiner concluded after review of the Veteran's medical history that it is less likely than not that the Veteran's colon polyps were incurred in or caused by service. The examiner's rationale for his conclusion was based on the Veteran's service treatment records, which did not document a finding of colon polyps or symptoms associated therewith. Further, in discussing the 2007 colonoscopy, the examiner reported that at 20 cm. into the colon the Veteran was noted to have a 3 mm. polyp which was excised and there were no other polyps noted. The examiner then noted a repeat colonoscopy in 2008 that showed an absence of recurrence. The examiner determined that the 3 mm. polyp was likely a new occurrence and not related to service. In finding such, the examiner reported that a 3 mm. polyp is not considered large (1 cm. being the threshold for large) and therefore, the size of the polyp did not suggest a long-standing polyp. The January 2019 VA examination with subsequent medical opinion obtained in April 2021 was based on upon thorough review of the record and analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that his current colon polyps are not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To the extent the Veteran himself asserts his current colon polyps are related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, colon polyps were not documented in service and his service examinations indicated normal findings, and the Veteran repeatedly denied gastrointestinal problems despite reporting on multiple occasions concerns related to his skin, vision, back, left knee, and left ankle. The Board also notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal findings during service. Further, the in-service examinations are more credible and more probative than his lay assertions. The Board concludes that the objective evidence is more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran's statements with regard to a nexus between his colon polyps and service to be of minimal probative value and outweighed by the VA opinion, which was prepared by a skilled neutral professional. The Board adds that the Veteran does not have a qualifying chronic disability that is an undiagnosed illness or a medically unexplained chronic multi-symptom illness. The Veteran's colon polyps have been attributed to a known clinical diagnosis with a known etiology and therefore do not constitute a functional gastrointestinal disorder. As such, awarding service connection pursuant to 38 U.S.C. § 1117 is not warranted. Secondary service connection The competent evidence establishes that the Veteran has colon polyps. See, e.g., the January 2019 VA examination report. Additionally, the Veteran is currently service connected for IBS. The Board has carefully evaluated the evidence and, for reasons stated below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current colon polyps disability is due to or aggravated by his service-connected IBS and service connection is therefore not warranted on a secondary basis. Specifically, the Veteran was provided a VA examination for his colon polyps in January 2019. After examination of the Veteran and consideration of the Veteran's medical history, the examiner concluded that the Veteran's current colon polyps were less likely than not due to or aggravated by the Veteran's service-connected IBS. The examiner's rationale for this opinion was based on a review of available medical literature that did not show any relationship between the development of polyps and IBS. Likewise, the medical literature did not support the contention that IBS aggravated either of these conditions. He explained that both conditions were common GI problems which may coexist but not necessarily as cause-and-effect. The January 2019 VA examination was based upon thorough consideration and analysis of the Veteran's pertinent medical history. See Bloom, supra. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that his current colon polyps disability is not secondary (caused or aggravated by) his service-connected IBS. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant's responsibility to support a claim for VA benefits]. The Board observes that the Veteran has contended that his colon polyps are secondary to his service-connected IBS. The Board notes that the Veteran is competent to report that he has been diagnosed with colon polyps. However, to the extent the Veteran proffers this information as a positive nexus between his colon polyps and IBS, the Board finds that such an opinion is outweighed by the evidence of record, in particular the January 2019 VA medical opinion, which was based on thorough review of the Veteran's pertinent medical history and medical condition and supported by an adequate rationale. Therefore, this lay evidence is accorded little probative value. Here, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for colon polyps, to include as secondary to service-connected IBS and as a qualifying chronic disability under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The benefit sought on appeal is accordingly denied. Increased Rating 2. 3. Entitlement to a rating in excess of 10 percent for degenerative disc disease with chronic lumbosacral strain prior to August 16, 2019 and 20 percent, but no higher, thereafter Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's degenerative disc disease with chronic lumbosacral strain is currently rated 10 percent disabling prior to August 16, 2019 under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted 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 is warranted 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 is warranted for IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran received VA examinations for his spine in March 2010 and September 2013. At the March 2010 examination, the Veteran reported constant pain with weekly flare-ups that limit his daily activities to less than half of normal. Upon examination, the Veteran exhibited forward flexion to 90 degrees and combined range of motion of 200 degrees. The examiner noted muscle spasms and guarding but stated that they did not cause abnormal gait or spinal contour. There were no noted periods of bed rest prescribed by a physician. At the September 2013 examination, the Veteran reported constant pain. He denied flare-ups, stating that his pain was constant. Upon examination the Veteran exhibited forward flexion to 80 degrees when considering pain and a combined range of motion of 175 degrees. The examiner stated there were no muscle spasms or guarding. The examiner stated that IVDS was not present. The examiner specifically documented that there was no ankylosis. The Board notes that VA medical records document treatment for the Veteran's back during the period under consideration. A February 2013 MRI note states that there was lordosis and scoliosis present. Also, notably, a VA physical therapy record dated February 22, 2017 documents range of motion findings that were limited in all planes "by 50 [percent] with inc[rease] in pain." The record also documents an antalgic gait, and the Veteran indicated limited movement due to the back pain. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative disc disease with chronic lumbosacral strain based on incapacitating episodes during the period under consideration. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for any duration. The Board also finds that prior to February 22, 2017, the preponderance of the evidence is against a rating in excess of 10 percent under the General Rating Criteria. To warrant a 20 percent rating, the Veteran would need to exhibit limitation of motion more nearly approximating 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. The most probative evidence of record does not indicate that the Veteran's lumbar spine disability was manifested by forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the lumbar spine not greater than 120 degrees. In this regard, forward flexion and combined range of motion documented in the VA examination reports discussed above are much greater than the required criteria for a higher 20 percent rating. Forward flexion was limited to 80 degrees at worst and combined range of motion was limited to 175 degrees at worst. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The March 2010 exam noted muscle spasm and guarding but stated that there was no abnormal gait or abnormal spinal contour. Although scoliosis was noted on the February 2013 MRI, later examinations denied that there was any muscle spasm or guarding or any abnormal spinal contour. Therefore, the preponderance of the evidence suggests that the Veteran did not have muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. The Board finds that from February 22, 2017 to August 15, 2019, a 20 percent rating is warranted for the Veteran's degenerative disc disease with chronic lumbar strain. In this regard, as discussed above, the VA treatment record dated February 22, 2017 documents a finding of 50 percent limited range of motion. As such, this treatment record indicates that the Veteran had 45 degrees forward flexion as 90 degrees is normal range of forward flexion. There are no other range of motion findings during this period. Accordingly, in resolving the benefit of the doubt in the Veterans favor, the Board finds that a 20 percent rating is warranted for the Veteran's degenerative disc disease with chronic lumbar strain from February 22, 2017 to August 15, 2019. The Board further finds that a rating more than 20 percent is not warranted from February 22, 2017 to August 15, 2019. To warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show that the Veteran's back disability results in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Based on the evidence of record during the period under consideration, the Veteran's low back symptomatology does not approach a 40 percent disability rating. With respect to favorable ankylosis of the entire thoracolumbar spine, the objective medical evidence of record is pertinently absent any indication that ankylosis exists. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Medicine at 68 (4th Ed. 1987)]. Neither the medical nor lay evidence of record suggests that the Veteran's lumbar spine is immobile. On the contrary, the record shows that the Veteran has maintained motion, albeit limited motion, throughout the course of the appeal. Moreover, the evidence demonstrates that the Veteran has maintained forward flexion better than 30 degrees including consideration of pain and functional loss. Accordingly, a 40 percent disability rating of the Veteran's lumbar spine is not warranted. The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for diseases and injuries of the spine. The Board finds that the 10 and 20 percent rating already assigned contemplate the Veteran's symptoms of pain. The clinical findings are evidence against weakness and functional impairment in the spine that are more than mildly disabling. Thus, a higher rating than 10 percent prior to February 22, 2017 or 20 percent from February 22, 2017 to August 15, 2019 under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the Veteran's disability picture for the period on appeal. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity lumbar radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Accordingly, a disability rating in excess of 10 percent is denied for degenerative disc disease with chronic lumbar strain prior to February 22, 2017, and a 20 percent rating is granted from February 22, 2017 to August 15, 2019. REASONS FOR REMAND 4. Entitlement to TDIU Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record. As noted above, the Veteran has raised a claim for a TDIU based in part on his service-connected degenerative disc disease with chronic lumbosacral strain. On remand, the AOJ should take any appropriate action deemed necessary to adjudicate his claim. The matter is REMANDED for the following action: After review of the evidence of record, adjudicate the Veteran's TDIU claim remanded herein. If the benefit sought on appeal is denied, the Veteran and his attorney should be provided a new Supplemental Statement of the Case. A. Keninger Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.