Citation Nr: 22009986 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 11-30 186 DATE: February 22, 2022 ORDER Entitlement to a rating of 40 percent for a lumbar disability prior to September 20, 2021 (excluding the periods from September 6, 2016 to October 31, 2016 and April 11, 2017 to June 1, 2016, when temporary total disability ratings were assigned) is granted. Entitlement to a rating in excess of 40 percent for a lumbar disability for the entire appeal period is denied. REMANDED Entitlement to a rating in excess of 20 percent for a cervical spine disability is remanded. FINDING OF FACT For the entire appeal period, the Veteran's lumbar disability has resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, but has not been characterized by unfavorable ankylosis, or the functional equivalent, of the entire thoracolumbar spine, and has not resulted in incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. Prior to September 20, 2021, the criteria for entitlement to a disability rating of 40 percent, but no higher, for the Veteran's lumbar spine disability have been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243. 2. For the entire appeal period, the criteria for entitlement to a disability rating in excess of 40 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the U.S. Air Force from December 1975 to December 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). During the pendency of the appeal, a July 2017 rating decision increased the Veteran's disability rating for right lower extremity radiculopathy of the sciatic nerve to 20 percent effective March 23, 2017. Additionally, a December 2021 rating decision increased the Veteran's rating for a lumbar disability to 40 percent effective September 20, 2021. The current matter on appeal was previously before the Board in August 2014, February 2017, and December 2017. In December 2017, the Board denied a disability rating for the Veteran's right lower extremity radiculopathy of the sciatic nerve in excess of 10 percent prior to March 23, 2017 and in excess of 20 percent effective March 23, 2017. Accordingly, this issue is no longer on appeal. In this decision, the Board also remanded the Veteran's increased rating claims for his cervical and lumbar disabilities for further development. The Board finds that there was substantial compliance with its December 2017 remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2021. A transcript of that proceeding is associated with the claims file. The Board notes that the Veteran received 100 percent temporary ratings for convalescence after surgery on his lumbar spine for the period from September 6, 2016 to October 31, 2016 and April 11, 2017 to June 1, 2017. On March 21, 2017, the Veteran requested an extension of the first convalescence period and included a letter from his neurosurgeon to support his request. However, there has been no action on the Veteran's request. Accordingly, the Board is referring this issue to the AOJ for adjudication. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flareups. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an increased rating for a lumbar spine disability The Veteran's lumbar spine disability is evaluated under Diagnostic Code 5242-5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under these Diagnostic Codes, it is advised that IVDS should be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Veteran is in receipt of a 20 percent rating effective January 1, 1996. He received temporary ratings of 100 percent for the periods from September 6, 2016 to October 31, 2016 and April 11, 2017 to June 1, 2017. He is also in receipt of a 40 percent rating effective September 20, 2021. The General Rating Formula provides for a 20 percent rating where there is 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 is not greater than 120 degrees, or there is 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 evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). In April 2021, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months. A 20 percent evaluation 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 evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation of that segment. Id., Note (2). Factual Background Turning to the evidence, the Veteran reported in March 2011 that he experiences low back pain on a daily basis that causes numbness in both legs. He further reported that he has to stop frequently on long road trips to relieve his back pain. He was provided a VA examination in March 2011 to assess the nature and severity of his lumbar disability. At this time, the Veteran indicated that his back condition was getting worse and reported a history of numbness and parasthesia of the lower extremities, decreased motion, stiffness, muscle spasms, and spine pain. He indicated that he has moderate to severe shooting pain around the hips and down the right leg. He further noted that he is able to walk less than a mile, but greater than a quarter of a mile. The examiner provided diagnoses of degenerative osteoarthritis of the lumbar spine and thoracic spines and radiculopathy of the right lower extremity. Upon range of motion testing, the Veteran exhibited forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. Pain was present with active motion. Weight bearing, non-weight bearing, and passive motion was not tested. With respect to repetitive use, the Veteran did not exhibit additional functional loss after three repetitions. The examiner concluded that there was no history of flare ups and no incapacitating episodes within the past year. The examiner did not offer an opinion as to whether the Veteran experienced additional functional loss with repeated use over time. On examination, there was objective evidence of localized tenderness, muscle spasms, and guarding but it did not result in an abnormal gait or spine contour. The Veteran exhibited full strength in all areas bilaterally. He also exhibited decreased sensation to pinprick and light touch in an L5 distribution. There was no evidence of ankylosis. Ultimately, the examiner noted that the Veteran's lumbar disability does not impact his occupation. In November 2011, the Veteran submitted a statement in which he reported that the March 2011 VA examination did not capture the entire picture of his lumbar disability. The Veteran explained that range of motion testing would have been greatly reduced if it was performed in the evening after being in motion all day. He elaborated that he has to exit his vehicle extremely slowly at the end of the day due to the pain he experiences. He further reported that there are times when he cramps up from bending at the waist and cannot stand erect due to pain. The Veteran was provided another VA examination in October 2014. At this time, the Veteran reported that his back condition was gradually worsening. He described having stiffness, tightness, and achiness as affecting the midline lumbar and midline thoracic regions with pain and discomfort into the paralumbar and parathoracic musculature. He also complained of bilateral lower extremity radiculopathy. The examiner provided diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. Upon range of motion testing, the Veteran exhibited forward flexion to 60 degrees and extension, right and left lateral flexion, and right and left lateral rotation to 20 degrees. Pain was present with active motion. Weight bearing, non-weight bearing, and passive motion was not tested. With respect to repetitive use, the Veteran exhibits additional functional loss after three repetitions due to pain on movement and less movement than normal. He exhibited forward flexion to 55 degrees and extension, right and left lateral flexion, and right and left lateral rotation to 15 degrees. With respect to flare ups, the Veteran reported that prolonged weightbearing, prolonged sitting, bending, lifting, twisting, overexertion, and changes in the weather flare up his condition. He elaborated that flare ups include increased pain, decreased range of motion, and decreased mobility. He further reported that severe flare ups require self-administered rest, but he indicated that he has not had any periods of complete incapacity due to this condition within the past year. Despite these reports, the examiner concluded that he could not say without mere speculation whether pain, fatigue, weakness, lack of endurance, or incoordination contribute to functional loss with flare ups and repeated use over time because he was not examining the Veteran under either circumstance. On examination, there was objective evidence of localized tenderness. There was also evidence of muscle spasm that resulted in abnormal gait or spine contour. The Veteran exhibited full muscle strength in all areas bilaterally. He exhibited decreased sensation of the foot and toes bilaterally and straight leg raise testing was positive. Radicular symptoms included moderate intermittent pain, moderate paresthesia, and mild numbness bilaterally with involvement of the sciatic nerve root bilaterally. There was no evidence of ankylosis or other neurological abnormalities. The examiner also noted that the Veteran has IVDS episodes, but he indicated that the Veteran has not had any incapacitating episodes over the past 12 months. Additionally, the examiner noted that there were no additional factors contributing to disability. He also noted that the Veteran does not use an assistive device. Ultimately, he concluded that the Veteran's lumbar disability does not impact his ability to perform occupational tasks. In August 2016, the Veteran was evaluated by neurosurgery. He reported that he began experiencing an acute onset of back pain and he initially sought care in the emergency room in June 2016. He indicated that he had tried physical therapy, but his pain continued to escalate and progressed rapidly. He reported that he was no longer able to climb ladders at work due to buckling and weakness of the right leg. On examination, he exhibited limited range of motion due to pain, positive straight leg raise testing, marked decrease in right quadriceps reflex, loss of sensation over the right anterior thigh, and mild to moderate quadriceps weakness. At this time, he was found to have a large disc herniation. In September 2016, a discectomy and L2-L3 laminectomy was performed. In September and November 2016, the Veteran reported improvement from the surgery in follow up visits. However, he returned in January 2017 with complaints of severe back and right leg pain that was identical to what he had prior to surgery. On examination, he had giveaway weakness of hip flexion on the right. An MRI was performed and showed a recurrent L2-L3 disc herniation. The Veteran was provided a VA examination in March 2017. The examiner provided diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. In reaching this conclusion, the examiner noted that an MRI in the Veteran's claims file shows multilevel degenerative disc disease. Upon range of motion testing, the Veteran exhibited forward flexion to 40 degrees, extension to 3 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 10 degrees and left lateral rotation to 20 degrees. The examiner concluded that abnormal motion itself contributes to functional loss due to difficulty using the trunk with twisting and turning. Pain was present with active motion and weight bearing. Non-weight bearing and passive motion were not tested. With respect to flare ups, the Veteran reported that they occur with minimal activity, and especially with standing, sitting, and weather changes. The examiner noted that the Veteran was not being examined during a flare up or after repeated use over time. He further noted that he could not say without mere speculation whether pain, weakness, fatigability, and incoordination significantly limit functional ability with flare ups or repeated use over time. However, he did note that it is feasible, and limitations are likely to occur during flare ups, but it is not possible to determine the additional functional loss in terms of range of motion without examining the Veteran during a flare up. On examination, there was objective evidence of localized tenderness as well as guarding and muscle spasms resulting in an abnormal gait or spine contour. The Veteran exhibited decreased strength in all areas bilaterally. He also exhibited decreased sensation of the right thigh/knee, leg/ankle, and foot/toes. Straight leg raise testing could not be performed. Radicular symptoms included moderate intermittent pain and moderate numbness of the right lower extremity with involvement of the sciatic and femoral nerve roots on the right. There was no evidence of ankylosis or other neurological abnormalities. The examiner noted that the Veteran has IVDS episodes, and he indicated that the Veteran was prescribed four days of bed rest by his surgeon after surgery in September 2016. Additional factors contributing to disability included disturbance of locomotion, interference with sitting, and interference with standing. The examiner also noted that the Veteran uses a cane on a regular basis and a wheelchair on an occasional basis. Additionally, the examiner concluded that the Veteran's lumbar disability impacts his ability to perform occupational tasks, noting that the Veteran last worked as a handyman in August 2016 and has not worked since. In March 2017, the Veteran returned for neurosurgery follow up, at which point he complained of recurrent back and right leg pain. The Veteran had failed conservative interventions, such as physical therapy. His neurosurgeon noted that he has had a protracted recovery from surgery and is being considered for additional surgery. In April 2017, the Veteran underwent a redo of the discectomy and L2-L3 laminectomy. He was seen for follow up after this surgery from May to August 2017. In May, his neurosurgeon noted that he was about the same as he was before surgery. The neurosurgeon noted that the Veteran was still off from work and could not drive due to narcotic medication. In June, he reported persistent symptoms for almost two months postoperatively and indicated that he got no improvement from physical therapy. In August 2017, it was noted again that the Veteran did not improve with the surgery. On examination, the Veteran exhibited giveaway weakness diffusely in his legs. And an MRI showed scar tissue around the L2 and L3 nerve roots with a possible small disc bulge. The neurosurgeon concluded that there was not much more he could offer the Veteran and indicated that he would be very reluctant to consider another surgery. At this time, the neurosurgeon offered work restrictions that included no bending, stooping, or lifting over 10 pounds. The Veteran was provided a VA examination in January 2018. At this time, the Veteran reported that his back condition worsened. He elaborated that he is unable to perform any physical activity, including exercise or lifting objects. He also reported that he cannot walk more than half a block. The examiner provided diagnoses of IVDS and degenerative osteoarthritis of the lumbar spine and thoracic spine. Upon range of motion testing, the Veteran exhibited forward flexion to 40 degrees, extension, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. Pain was present with active motion, weight bearing, non-weight bearing, and on rest/nonmovement. The examiner concluded passive motion was not performed because it was medically contraindicated. With respect to flare ups, the Veteran reported having them several times a day that are severe and last one to two seconds at a time. The examiner noted that the Veteran was not being examined during a flare up or after repeated use over time and she concluded that she could not say without mere speculation whether pain, fatigue, weakness, lack of endurance, or incoordination contribute to functional loss. The examiner reasoned that there is no conceptual or empirical basis for making such a determination without directly observing function during a flare up. On examination, there was objective evidence of localized tenderness, guarding, and muscle spasms, but it did not result in an abnormal gait or spine contour. The Veteran exhibited decreased strength in all areas bilaterally. He also exhibited decreased sensation of the upper anterior right thigh, thigh/knee, leg/ankle, foot/toes. Straight leg raise testing was positive. Radicular symptoms included mild to moderate constant pain, mild to moderate paresthesia, and mild to moderate numbness bilaterally with involvement of the sciatic nerve root bilaterally. There was no evidence of ankylosis or other neurological abnormalities. The examiner also noted that the Veteran has IVDS episodes, but he indicated that the Veteran has not been prescribed bed rest by a physician. The examiner further noted that there were no additional factors contributing to disability. He also noted that the Veteran uses a cane on a constant basis. The examiner noted that the Veteran's lumbar disability impacts his ability to perform occupational tasks, noting that the Veteran has severe back pain with spasms. The Veteran was also seen by neurosurgery in January 2018. It was noted that he was doing a better since his laminectomy in April 2017, as he was crawling around before the surgery. However, the Veteran complained of incapacitating pain in the left buttock and thigh region. The neurosurgeon concluded that there was not much to offer with respect to surgery except for a neurostimulator implant. The Veteran elected for this option and it was implanted in May 2018. The Veteran was seen by neurosurgery for follow up from May through December 2019. In May, it was noted that the Veteran had 40 percent pain reduction from the neurostimulator, though he still required narcotic pain medication. At this time, the Veteran also reported having increased difficulty walking and indicated that he had nearly fallen on several occasions. In December, he reported an onset of right groin, back, and bilateral leg pain with numbness in the extremities. It was also noted in September and December that the Veteran cannot walk more than a quarter of a mile, sit more than 30 minutes, or stand more than 10 minutes. It was also noted that the Veteran sleeps less than four hours at a time due to pain. In addition to this treatment, the Veteran was provided with additional VA examinations in May and December 2019 to assess the nature and severity of his lumbar disability. During the examination in May, the Veteran reported having painful stabbing and aching lower back pain with numbness of the legs. He reported having flare ups that take his breath away and indicated that he cannot drive very far or perform his past work as a handyman. The examiner provided diagnoses of IVDS, degenerative osteoarthritis of the lumbar spine and thoracic spine, and radiculopathy of the bilateral lower extremities. The examiner indicated that he was unable to test the Veteran's active or passive range of motion without risk of injury. However, he noted that there was objective evidence of pain with non-weightbearing. Meanwhile, concluded that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with flare ups or repeated use over time. On examination, there was no objective evidence of localized tenderness, guarding, or muscle spasms. The Veteran maintained full strength. He exhibited decreased sensation of the upper anterior thighs, the right thigh/knee, and the left lower leg/ankle. Radicular symptoms included mild constant pain, and mild numbness bilaterally with involvement of the femoral nerve root bilaterally. There was no evidence of ankylosis or other neurological abnormalities. With respect to diagnostic imaging, the examiner indicated that an MRI from January 2017 showed moderate central canal stenosis at L3-L4 with severe facet arthropathy that is worse on the right and mild to moderate central canal stenosis at L4-L5. The examiner also noted that the Veteran has IVDS episodes, but he indicated that the Veteran has not been prescribed bed rest by a physician. The examiner further noted that there were no additional factors contributing to disability. He also noted that the Veteran uses a cane on a regular basis. The examiner noted that the Veteran's lumbar disability impacts his ability to perform occupational tasks. He concluded that the Veteran would have difficulty lifting, pushing, or carrying objects over 10 pounds. He also concluded that the Veteran would have trouble bending and twisting at the lumbar spine more than occasionally. He further concluded that the Veteran's sitting tolerance is good for at least a few hours at a time and there is no effect on the Veteran's arm use. During the examination in December, the Veteran reported having painful stabbing and aching lower back pain with numbness of the legs and sharp pain in the groin area. He indicated that he takes oxycodone for pain and reported that he cannot do his job or activities such as walking and driving. The Veteran also reported having flare ups daily, which range from moderate to severe intensity. He further reported that his pain is constant during flare ups and last all day. The examiner provided diagnoses of degenerative disc disease and IVDS, degenerative osteoarthritis of the lumbar spine and thoracic spine with limitation of motion of the lumbar spine, radiculopathy of the left lower extremity, and radiculopathy of the femoral nerve in the bilateral lower extremities. The examiner indicated that he was unable to test the Veteran's active or passive range of motion without risk of injury. However, he noted that there was objective evidence of pain with non-weightbearing. He further concluded that he could not estimate additional functional loss with flare ups and repeated use over time without resorting to speculation. On examination, there was no objective evidence of localized tenderness, guarding, or muscle spasms. The Veteran maintained full strength with all but left hip flexion. He exhibited decreased sensation of the upper anterior thighs, lower legs, ankles, feet, and toes. Straight leg raise testing was negative bilaterally. Radicular symptoms included mild constant pain, mild paresthesia, and moderate numbness bilaterally with involvement of the femoral and sciatic nerve roots bilaterally. There was no evidence of ankylosis or other neurological abnormalities. With respect to diagnostic imaging, the examiner indicated that an MRI from January 2017 showed moderate central canal stenosis at L3-L4 with severe facet arthropathy that is worse on the right and mild to moderate central canal stenosis at L4-L5. The examiner also noted that the Veteran has IVDS episodes, but he indicated that the Veteran has not been prescribed bed rest by a physician. However, the examiner noted that instability of station was an additional factor contributing to disability. He also noted that the Veteran uses a cane on a regular basis. The examiner noted that the Veteran's lumbar disability impacts his ability to perform occupational tasks. He concluded that the Veteran would be able to walk the distance of a small building using a cane, but he could not carry more than 10 pounds in one hand. The examiner further concluded that the Veteran could not push, pull, or lift to any significant extent. He also concluded that the Veteran could stand for 10 minutes at a time and he has no restrictions with sitting or using his arms and hands in a sedentary setting. In September 2021, the Veteran was provided another VA examination to assess the nature and severity of his lumbar disability. The Veteran reported that his lumbar spine is deteriorating fast. He complained of sharp pain with radiation into the groin and bilateral legs. He elaborated that he feels like a hot knife is being poked into the kidney and down all of the time. The examiner provided diagnoses of degenerative disc disease, IVDS, spinal stenosis, and laminectomy of lumbar spine with IVDS. Upon range of motion testing, the Veteran exhibited forward flexion to 30 degrees; extension to 20 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. Pain was present with active motion, weight bearing, non-weight bearing, and on rest/nonmovement. The examiner concluded that pain on movement contributed to functional loss and passive motion was not performed because it was medically contraindicated. With respect to repetitive use, the Veteran was able to perform at least three repetitions without additional functional loss. The Veteran was not being tested after repeated use over time. However, the examiner concluded that pain and weakness would cause additional functional loss. The examiner estimated this loss in terms of range of motion as follows: forward flexion to 15 degrees; extension to 10 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. With respect to flare ups, the Veteran reported that they occur once daily and last between an hour and a day and a half. He described a flare up as causing stabbing pain that puts him out. He indicated that he does not want anyone around him, and he just wants to sit or lay down. The examiner noted that the Veteran was being examined during a flare up and concluded that pain and weakness contribute to functional loss. The examiner further noted that there was objective evidence of crepitus and localized tenderness of moderate severity. Guarding and muscle spasms were present, but the examiner concluded that the do not result in an abnormal gait or abnormal spinal contour. The Veteran exhibited reduced muscle strength with hip and knee flexion bilaterally. He had decreased reflexes in the lower leg, ankle, foot, and toes bilaterally. He was unable to perform straight leg raise testing. The examiner noted severe constant pain in the lower extremities bilaterally with moderate numbness and involvement of the sciatic and femoral nerve roots. The examiner concluded that there was no evidence of ankylosis or other neurological abnormalities. With respect to diagnostic imaging, the examiner indicated that a recent MRI showed moderate central canal stenosis at L3-L4 with severe facet arthropathy that is worse on the right, mild to moderate central canal stenosis at L4-L5, and scar tissue around the L2-L3 nerve root with a possible disc bulge. The examiner further noted that the Veteran has a spinal stimulator and a history of L2-L3 discectomies and redo L2-L3 laminectomy and discectomy. The examiner also concluded that the Veteran has IVDS episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. However, the examiner noted that this was not prescribed by a physician. Additionally, the examiner noted that additional factors contributing to disability include difficulty sitting, standing, or walking for prolonged periods, disturbance of locomotion, and less movement than normal. The examiner noted that the Veteran's lumbar disability impacts his ability to perform occupational tasks, such as standing, walking, or sitting for prolonged periods. Additionally, the examiner noted that the Veteran cannot mow the lawn or lift, and he has to hire people to do the things he was once able to do. In October 2021, the Veteran testified about the limitations he experiences due to his lumbar disability. He reported that his pain level is at a 7 on a scale from 1 to 10, which radiates into the legs. He testified that he cannot bend forward more than 20 degrees and he has muscle cramping and popping of the back. He further testified that prolonged standing, prolonged sitting, and climbing stairs causes flares, during which his legs go numb and cause him to lose his balance. He indicated that he has to rest in bed for two days on average when he has a flare and he estimated that he was bedridden four times in the prior month and a half due to flare ups. In November 2021, the Veteran returned for a neurosurgery consult after being last seen in 2019. He complained of pain in the right buttocks and groin that was gradually worsening. It was noted again noted that the Veteran cannot walk more than a quarter of a mile, sit more than 30 minutes, or stand more than 10 minutes. It was also noted that the Veteran sleeps less than four hours at a time due to pain. The Veteran did not report any periods of incapacitation requiring bed rest at this time. The Veteran's neurosurgeon noted that a computerized tomography (CT) scan from 2019 shows moderate to moderately severe spinal stenosis at L2-L3 and L4-L5 and severe disc degeneration at L2-L3. X-rays were ordered and performed in December 2021. These showed that the Veteran's condition has progressed from moderate to severe central canal stenosis at L3-L4. The imaging also documents Grade 1 retrolisthesis L2 on L3 with moderate right sided foraminal stenosis. Ultimately, the Veteran's neurosurgeon referred the Veteran to pain management for further treatment. Analysis Based on the foregoing, the Board finds that the Veteran's lumbar disability most closely approximates the 40 percent for the entire period on appeal, excluding the periods when the Veteran was in receipt of a temporary total disability rating. Although the Veteran did not exhibit forward flexion limited to 30 degrees or less with range of motion testing until his September 2021 VA examination, it is reasonable to conclude that limitation at this level was present during flare ups and with repetitive use for the entire appeal period. In the Veteran's prior VA examinations, only one examiner concluded that the Veteran did not experience additional functional loss with flare ups or repeated use over time. However, this examiner, who evaluated the Veteran in December 2017, was not even able to test the Veteran's initial range of motion. All of the other prior VA examiners either did not address repetitive use and flare ups or they concluded that they could not offer an opinion about additional functional loss without resorting to speculation. However, the Veteran repeatedly complained of significant limitation from both flare ups and repetitive use. For example, he reported in November 2011 that his functional loss was not adequately captured by his VA examination in March 2011. He elaborated that his range of motion is greatly reduced in the evenings after being in motion all day and that there are times when he cannot stand erect due to pain. Additionally, he reported that he has to rest in bed when he has severe flare ups. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge and there is no reason to doubt the credibility of these statements. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Consistent with the Veteran's reports, neurosurgery records demonstrate that the Veteran's condition deteriorated significantly during the appeal period. He required surgical intervention in September 2016, and although his pain improved initially, it returned to pre-surgery levels. He demonstrated giveaway weakness in neurosurgery visits and an MRI showed a recurrent disc herniation. Another surgery was performed in April 2017. However, the Veteran continued to experience giveaway weakness diffusely in his legs and another MRI showed scar tissue around the L2 and L3 nerve roots. The Veteran's neurosurgeon was reluctant to consider another surgery. However, the Veteran complained of incapacitating pain in January 2018 and a neurostimulator implant was provided in May 2018. Despite this treatment, the Veteran continued to complain of severe lumbar pain throughout neurosurgery visits in 2019. Notably, he indicated that he has flare ups that take his breath away and reported that he is unable to drive far or perform his past work as a handyman. While the Veteran was not seen by neurosurgery in 2020, there is no reason to believe that his symptoms improved. Indeed, he complained of continued pain that was gradually worsening when he returned for follow up in November 2021. At this time, diagnostic imaging showed that the Veteran's condition had progressed from moderate central canal stenosis of L3-L4 to severe. Based on the Veteran's consistent reports of pain and functional limitation, considered in combination with his diagnoses and surgical history, the Board finds that his range of motion most closely approximates 30 degrees forward flexion for the entire appeal period. Thus, a 40 percent rating is warranted for the entire appeal period. However, a rating in excess of 40 percent is not warranted. A rating higher than 40 percent is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine that results in one of the additional symptoms set forth in Note 5 under the General Rating Formula. Here, there is no evidence that the Veteran satisfies these criteria. Neither VA examinations, lay statements, nor the Veteran's treatment records show symptoms that approximate the thoracolumbar spine fixed in a bent position or other symptoms such as limited line of vision and restricted opening the mouth, impaired breathing, or gastrointestinal problems. The VA examinations do not show evidence of ankylosis. While the Veteran has difficulty sitting, standing, or walking for prolonged periods, bending repeatedly, and lifting objects over 10 pounds, these restrictions are adequately compensated by the 40 percent rating. As the Veteran has some range of motion, although significantly limited due to pain, he does not exhibit unfavorable ankylosis or the functional equivalent of the entire thoracolumbar spine. The Board acknowledges that all of the examinations performed prior to 2021 do not adequately consider the Veteran's functional limitations on passive and active range of motion, range of motion on weight bearing and non-weight bearing, and during flare-ups. However, the September 2021 VA examination does address these criteria. Accordingly, as the September 2021 VA examination is adequate, and there is no indication that the Veteran's condition has improved as of the September 2021 examination, basing the Veteran's rating on the most recent examination eliminates the need for a retrospective opinion. Additionally, the Board notes that the Veteran has already been awarded separate evaluations for bilateral lower and upper extremity radiculopathy as well as a total disability rating based on individual unemployability (TDIU). As the Veteran has not appealed these claims, they are not before the Board at this time. The Board also notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. Although the March 2017 VA examiner noted that the Veteran was prescribed four days of bed rest after his surgery in September 2016, this episode is adequately compensated by a temporary total disability rating. In sum, the Board finds that a disability rating of 40 percent rating, but no higher, for the entire appeal period (excluding the periods when the Veteran was in receipt of a temporary total disability rating) is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a cervical spine disability is remanded. The Board notes that the Veteran's last VA examinations to assess his cervical spine disability occurred in May and December 2019. Since these examinations, the Veteran maintains that his condition has worsened. In October 2021, the Veteran testified at his hearing that he experiences pain at a level 7 on a scale from 1 to 10. He reported that this pain radiates into his shoulder and causes cramping several times a week. He also reported that it feels like bones are rubbing together. The Veteran indicated that he has flare ups from weather changes and from repetitive motions of the head. The Veteran testified that these symptoms cause functional impairment, including difficulty driving. The Board finds that the February 2019 examination is too remote in time to address the current severity of the Veteran's service-connected cervical spine disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature and severity of his cervical spine disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his cervical spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiners should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. The examiner must also indicate whether the Veteran has any neurological manifestations as a result of his cervical spine disability. If so, the examiner should indicate the nerve or nerves affected, whether the neurological symptoms are better described as paralysis, neuritis, or neuralgia, and describe the severity of the neurological symptoms. 3. After completing the preceding development, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.