Citation Nr: 22011003 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 17-56 538 DATE: February 25, 2022 ORDER Entitlement to an initial disability rating of 20 percent from July 1, 2016, to November 3, 2019, for thoracolumbar intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, is granted. Entitlement to a 40 percent disability rating, but no greater, from November 4, 2019, but no earlier, for thoracolumbar intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, is granted. Entitlement to a separate 20 percent disability rating, but no higher, for left lower extremity radiculopathy (sciatic nerve) associated with thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture from July 1, 2016, but no earlier, is granted. FINDINGS OF FACT 1. From July 1, 2016, to November 3, 2019, the competing evidence is in approximate balance that the Veteran's thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, manifested by forward flexion limited to greater than 30 degrees but not greater than 60 degrees and did not manifest in favorable ankylosis of the entire thoracolumbar spine. 2. From November 4, 2019, the Veteran's thoracolumbar IVDS with DDD manifested by forward flexion limited to 30 degrees but did not manifest in unfavorable ankylosis of the entire thoracolumbar spine. 3. From July 1, 2016, the competing evidence is in approximate balance that the Veteran's left lower extremity radiculopathy manifested by moderate incomplete paralysis based on intermittent pain but no more. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 20 percent, but no higher, from July 1, 2016, to November 3, 2019, for thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5234-5243. 2. The criteria for entitlement to an initial disability rating of 40 percent, but no higher, from November 4, 2019, for thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5234-5243. 3. The criteria for entitlement to a separate 20 percent disability rating, but no higher, for left lower extremity radiculopathy (sciatic nerve) associated with thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture from July 1, 2016, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1991 to May 2001 and June 2001 to June 2016. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). Following the November 2016 rating decision, the Veteran requested a hearing before the Board. Said hearing occurred in February 2021, a transcript of which has been associated with the claims file and reviewed. In June 2021, the Board remanded the issue of an increased rating for thoracolumbar IVDS with DDD for additional development. Upon review, the Board finds substantial compliance with the June 2021 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminary matters The Board notes the Veteran was granted service connection for thoracolumbar IVDS with DDD at 10 percent disabling from July 1, 2016, in a November 2016 rating decision. Thereafter, the Veteran filed a February 2017 claim for service connection for right lower extremity radiculopathy which the RO granted in a March 2017 rating decision, assigning a 10 percent disability rating from the date of claim. The Veteran then filed an October 2017 notice of disagreement (NOD) referencing only the November 2016 rating decision and listing only evaluation of thoracolumbar IVDS with DDD. The Veteran did not appeal the specific rating assigned for right lower extremity radiculopathy as part of the March 2017 rating decision. The RO issued a November 2017 Statement of the Case (SOC) continuing a 10 percent rating for thoracolumbar IVDS with DDD. The Veteran perfected his appeal to the Board for all issues listed in the November 2017 SOC and requested a hearing. Said hearing occurred in February 2021 addressing only the evaluation of thoracolumbar IVDS with DDD and an unrelated increased rating knee claim. Indeed, neither the Veteran nor his representative raised the issue of an increased rating for the Veteran's separately assigned right lower extremity radiculopathy rating. Further, the Board has never taken jurisdiction of the right lower extremity radiculopathy ratings issue. Regarding the left lower extremity, following the Board's additionally directed development in the June 2021 decision, the RO issued a November 2021 rating decision separately granting service connection for left lower extremity radiculopathy at 10 percent disabling from November 8, 2021. The Board notes that under Chavis, the Court has acknowledged that under certain circumstances, the Board has jurisdiction over separate neurological ratings awarded during the adjudication of an increased rating claim for the spine without the need of the claimant filing a specific NOD for the separately awarded neurological ratings. Chavis v. McDonough, 34 Vet. App. 1 (2021). Regarding only left lower extremity radiculopathy which was separately awarded in the November 2021 rating decision while this claim was in remand status, the Board finds, like in Chavis, the Board has jurisdiction to address the newly awarded rating for left lower extremity radiculopathy. Chavis, 34 Vet. App. 1. Thus, the issue has been appropriately recharacterized above. Regarding the right lower extremity radiculopathy only, the Board finds the facts as outlined above distinguishable from Chavis and, therefore, declines to address the issue. Significantly, as explained, the Veteran appealed only the increased rating assigned for thoracolumbar IVDS with DDD without mention of the separate rating decision granting service connection for right lower extremity radiculopathy. This was then confirmed as part of the Veteran's perfected appeal which only listed the evaluation of thoracolumbar IVDS with DDD. Further, the Board finds particularly significant that the Veteran had the opportunity at the time of the February 2021 Board hearing to address the separately awarded rating for right lower extremity radiculopathy, but no such contention was raised. Thus, it must be concluded that the Veteran is not disputing this aspect of the unappealed March 2017 rating decision. For these reasons, the matter is clearly distinguishable from the procedural history in Chavis. Accordingly, the separately assigned rating for right lower extremity radiculopathy will not be addressed in the context of this appeal, but rather, the Board will only consider whether there are any other neurological manifestations that ought to be separately rated. The Board observes that the United States Court of Appeals for Veterans Claims (the Court) has held that a total disability rating indicating unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating when raised by the Veteran or the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, a review of the record reveals that the Veteran is employed, and there are no contentions that said employment is marginal. As the record does not suggest that the Veteran is unable to secure or follow a substantially gainful occupation, TDIU has not been raised and is not before the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran contends his thoracolumbar IVDS with DDD should be assigned a higher disability rating for the period on appeal. The Veteran is currently assigned a 10 percent disability rating from July 1, 2016, and a 40 percent disability rating from November 8, 2021, for thoracolumbar IVDS with DDD under DC 5235-5243 with a separate 10 percent disability rating for associated left lower extremity radiculopathy under DC 8520. As will be discussed in more detail below, the Board finds an initial 20 percent disability rating, but no higher, for thoracolumbar IVDS with DDD is warranted from July 1, 2016, to November 3, 2019; a 40 percent disability rating is warranted from November 4, 2019, but no higher or earlier; and a 20 percent disability rating for left lower extremity radiculopathy from July 1, 2016, under DC 8520, but no higher or earlier, is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. The basis of disability evaluations 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. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); see also Plate V. 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. Effective from February 7, 2020, VA made non-substantive edits to the parenthetical of Diagnostic Code 5242 so that it now includes degenerative disc disease (other than intervertebral disc syndrome). VA also made clarifying changes to Diagnostic Code 5243 so that it is only assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root and provides that all other disc diagnoses are evaluated under Diagnostic Code 5242. See 85 Federal Register, 76453, 76462 (November 30, 2020). Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating 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 disability rating 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 disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. 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 on 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. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis" indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating 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 Board notes the Veteran filed a claim for service connection for the thoracolumbar spine on April 11, 2016, prior to separation from active duty. Thus, under 38 C.F.R. § 3.400, the Veteran was awarded benefits for the thoracolumbar IVDS and DDD from July 1, 2016, the day following separation from active service as VA received the claim within one year from separation of service. The Veteran timely appealed the initial November 2016 rating decision stemming from said claim. As such, the Board will consider the period on appeal beginning July 1, 2016, the date of eligibility for benefits based on receipt of the Veteran's claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Turning to the relevant evidence of record, while prior to the period on appeal, the Veteran's earlier treatment records offer insight into his disability picture during service. In 2013, the Veteran denied experiencing any bowel or bladder complications. See October 2013 treatment records. The Veteran was noted to experience pain radiating bilaterally to the mid thighs. See November 2013 treatment records. Active ROM testing was noted to be 50 percent forward flexion, 50 percent backward bending, 75 percent bilateral side flexion, and 50 percent range each direction for thoracolumbar rotation. See July 2013 treatment records. Service treatment records (STRs) in 2014 indicate the Veteran declined experiencing radiating symptoms. See December 2014 STRs. In 2017, treatment records reflect "radiculopathy, lumbar region." See March 2017 treatment records. The Veteran was also noted to have left side sciatica. See April 2017 treatment records. He declined experiencing neurological symptoms. See April 2017 treatment records. Treatment records in November 2019 continued to reflect radiculopathy lumbar region, sciatica left side. See November 2019 treatment records. Active ROM testing revealed flexion to 30 degrees with pain and stiffness and extension to three degrees with pain and stiffness. See November 2019 treatment records. The Veteran has been afforded three VA examinations during the period on appeal, the first of which occurred in June 2016. The Veteran reported symptoms of back pain. See June 2016 VA examination. A response regarding flare-ups was not provided. Initial range of motion (ROM) testing was normal with forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Pain was noted upon examination with all movements that did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpitation of the joints or associated soft tissue of the thoracolumbar spine. Repetitive use testing was completed with at least three repetitions without additional ROM loss. Guarding or muscle spasm was not indicated. Muscle strength testing was normal without atrophy. Reflex and sensation testing was normal. Radiculopathy was not found. Ankylosis was not indicated. Other neurologic abnormalities were not found. The examiner found the Veteran did not have IVDS. Assistive devices were not reported. The examiner opined that the Veteran's thoracolumbar spine condition did not impact his ability to work. An addendum opinion was submitted un September 2016 wherein the examiner opined that the Veteran did not report flare-ups of the thoracolumbar spine. See September 2016 addendum. During a March 2017 VA examination, the Veteran was noted to have IVDS with DDD and annular tears of the inter-vertebral discs, and sciatica / lumbar radiculopathy of the right lower extremity. See March 2017 VA examination. The Veteran stated that his back pain had increased since the previous examination and he has since developed intermittent pain, numbness, and paresthesias of the right lower extremity. Flare-ups were not reported. Functional loss was noted to be no prolonged standing or walking, no frequent stooping or kneeling, no repetitive climbing of stairs or ladders, and no lifting. Abnormal initial ROM results were obtained with flexion to 70 degrees, extension to 15 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Pain was noted upon examination with all movements that causes functional loss. There was no objective evidence of localized tenderness or pain on palpitation. Repetitive use testing was completed without additional ROM loss. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Guarding or muscle spasm was not indicated. Muscle strength testing was normal without atrophy. Reflex testing was normal. A sensory examination revealed decreased sensation in the right lower leg / ankle and right foot / toes. Radiculopathy was noted regarding only the right lower extremity with mild severity including symptoms of intermittent pain, paresthesias and / or dysesthesias, and numbness. Ankylosis was not found. The Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine. IVDS was noted without any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Assistive devices were not indicated. There was evidence of pain on passive ROM testing and when the joint is used in non-weight-bearing. During the February 2021 hearing, the Veteran testified, that his ROM during the March 2017 VA examination was worse than reported and has worsened since then. He stated that he experiences back spasms on a "fairly regular basis." The Veteran explained that when his spasms are bad, he cannot move at all for about a week, and he lays in bed. During these spasms, the Veteran stated that he experiences pain and limited ROM. A non-VA provider conducted ROM testing for the Veteran's lumbar spine revealing lumbar flexion to 24 degrees, lumbar extension to 10 degrees, and right and left lateral flexion to 10 degrees. See March 2021 VA examination. In accordance with the Board's June 2021 remand, the Veteran was afforded another VA examination in November 2021. A diagnosis of IVDS with DDD and annular tears of intervertebral discs L4/5 and L5/S1 as well as sciatica on the left and right sides were indicated. See November 2021 VA examination. The Veteran reported that his back causes day-to-day problems including restrictions in movement on a daily basis. Forward flexion was described as restricted by tightening in the back and pain. He stated that if he pushes beyond this, his back can spasm which can last "days to weeks" with additional ROM restrictions during the spasms. He endorsed experiencing radiating pain to the bilateral lower extremities. Flare-ups were reported roughly every 1-2 weeks with muscle spasms and limited ROM. Functional loss was noted to include no prolonged standing, bending, or heavy lifting. Initial ROM testing revealed forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Pain was noted with each movement. Passive ROM testing revealed the same results, also with pain on each movement. Painful ROM was noted to limit ROM in all planes and restrict lifting and prolonged standing. Mild tenderness to percussion was noted. Repetitive use testing was completed without additional ROM loss. Pain and lack of endurance were noted to significantly limit functional ability with flare-ups. An estimated ROM during flare-ups was noted to be forward flexion to 5 degrees, extension to 10 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. Muscle spasms were not present during the examination but were noted to have historically occurred. Guarding was noted that did not result in abnormal gait or spinal contour. Muscle atrophy was not indicated. Some muscle strength testing revealed active movement against some resistance. Reflex testing and sensory examinations were normal. Radiculopathy was indicated with right lower extremity mild intermittent pain and left lower extremity moderate intermittent pain. The examiner opined that the likely caused of the Veteran's radicular symptoms comes from the disc herniation at L4 / L5. Ankylosis of the spine was not indicated. No other neurologic abnormalities were indicated. IVDS was found without episodes of acute signs and symptoms due to IVDS that required bed rest by a physician and treatment in the past 12 months. Use of an assistive device was not reported. The examiner relied upon a November 2013 MRI of the lumbar spine explaining that the MRI confirms degenerative arthritis and showed pathology consistent with radiculopathy. 1. Entitlement to an initial disability rating of 20 percent from July 1, 2016, to November 3, 2019, for thoracolumbar intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, is granted. 2. Entitlement to a 40 percent disability rating, but no greater, from November 4, 2019, but no earlier, for thoracolumbar intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture, is granted. The Veteran contends his thoracolumbar IVDS with DDD symptoms warrant a higher initial disability rating. The Board finds an initial 20 percent rating, but no higher, is warranted from July 1, 2016, to November 3, 2019, and a 40 percent disability rating, from November 4, 2019, but no higher or earlier, is warranted. The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule during the entire period on appeal. July 1, 2016, to November 3, 2019 From July 1, 2016, to November 3, 2019, the competing evidence is in approximate balance that the Veteran's thoracolumbar IVDS with DDD symptoms more nearly approximated a 20 percent disability rating. While the 2016 and 2017 VA examinations reflect ROM warranting a 10 percent disability rating, as is currently assigned, the Veteran testified that his ROM was worse than reflected in the examinations of record at that time. Indeed, upon review, treatment records reflect worsened ROM than indicated in the 2016 and 2017 VA examinations. In 2013, the Veteran's flexion was noted to be 50 percent or 45 degrees. The Board finds the Veteran's contention of having less ROM than reflected in the 2016 and 2017 VA examinations is corroborated by the 2013 treatment records. While said records are outside of the period on appeal, the Veteran's disability rating is assigned from the day after separation. Thus, treatment records during service provide insight to the overall disability picture of the Veteran at separation. Flexion to 45 degrees warrants a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine. Thus, while the VA examinations of record during this time reflect different ROM testing, the treatment records coupled with the Veteran's testimony reflect worsened ROM. Ultimately, the evidence in favor of and opposing an increased rating during this period are almost exactly or nearly equal and, therefore, the benefit of the doubt rule indicates the increase must be granted. The Board notes the Veteran testified to experiencing flare-ups during the 2021 Board hearing, which is reflected in the 2021 VA examination of record. The Veteran specifically declined experiencing flare-ups during the 2017 VA examination and flare-ups were not indicated during the 2016 VA examination which was also confirmed via addendum opinion in 2016. Treatment records during this time also do not reflect flare-ups. Accordingly, the Board relies upon the most limited ROM available during this time which is 45 degrees flexion in assigning a 20 percent disability rating. In so opining, the Board also concludes a higher disability rating during this period is not warranted. Indeed, treatment records during this period lack any ROM testing results revealing flexion limited to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. Treatment records lack any indication that the Veteran experiences fixation of a spinal segment in neutral position. While all of the VA examinations of record found the Veteran's thoracolumbar spine was not ankylosed, consideration must still be given to whether he is functionally ankylosed. Chavis, 34 Vet. App. at 20 (holding that consideration must still be given to whether a claimant's functional loss "is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran has not contended, nor does the record suggest, his thoracolumbar spine is immobile. The Veteran reports an inability to stand or walk for prolonged periods, frequently stoop or kneel, repetitively climb stairs or ladders, or lift. These functional impairments, while limiting in ROM, reveal that the Veteran is indeed still mobile, albeit with pain. As such, a higher rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted. The Board has considered whether a higher disability rating would be achieved under the Formula for Rating IVDS Based on Incapacitating Episodes. While the Veteran has IVDS, each VA examination of record has found the Veteran has not experienced incapacitating episodes during the past 12 months. Further, the Veteran's treatment records lack any mention of experiencing incapacitating episodes. The Board is aware of the Veteran's testimony of staying in bed during flare-ups but finds the competent medical evidence of record lacks any indication that the Veteran experiences periods of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Indeed, the Veteran testified during the 2021 Board hearing that he has been prescribed medication but did not mention prescribed bed rest. Thus, a higher disability rating would not be achieved under the Formula for Rating IVDS Based on Incapacitating Episodes. Additionally, the Board has considered whether a separate rating is warranted for any neurologic abnormalities during this period but finds such a rating is not warranted. Aside from the lower extremity radiculopathy addressed below and the separately awarded right lower extremity radiculopathy, the record lacks any reference to or statements regarding other neurologic abnormalities. Thus, the Board finds a 20 percent disability rating, but no higher, is warranted from July 1, 2016, to November 3, 2019, for the Veteran's thoracolumbar IVDS with DDD. From November 4, 2019 The Board finds, based on the evidence of record, the Veteran's thoracolumbar IVDS with DDD more nearly approximates a 40 percent disability rating from November 4, 2019, but no earlier or higher. While the RO awarded the Veteran a 40 percent disability rating from June 28, 2021, the date of the most recent VA examination, the evidence of record indicates a 40 percent disability rating is warranted from November 4, 2019, but no earlier. Indeed, while this claim was pending a hearing before the Board, the Veteran's treatment records indicated active ROM limited to 30 degrees flexion on November 4, 2019. At the February 2021 Board hearing, the Veteran testified to experiencing worsened symptoms and more limited ROM including flare-ups since the 2017 VA examination. Indeed, the November 2021 VA examination corroborated the Veteran's contentions revealing ROM estimates during flare-ups limited to 5 degrees flexion. Considering the totality of the evidence, the Board finds a 40 percent disability rating is warranted from November 4, 2019, the date upon which the Veteran's ROM was limited to 30 degrees flexion. Especially considering this evidence of worsening was corroborated by and consistent with the Veteran's testimony and substantiated by the November 2021 VA examination. Accordingly, a 40 percent disability rating is awarded from November 4, 2019, but no earlier. In so opining, the Board also concludes a higher disability rating during this period is not warranted. Indeed, the record lacks any indication that the Veteran experienced unfavorable ankylosis of the entire thoracolumbar spine. While all of the VA examinations of record found the Veteran's thoracolumbar spine was not ankylosed, consideration must still be given to whether he is functionally ankylosed. Chavis, 34 Vet. App. at 20. Here, the Veteran has not contended, nor does the record suggest, the Veteran's thoracolumbar spine is immobile. The Veteran reported an inability to stand for a prolonged period, bend, or lift heavy objects. These functional impairments, while limiting in ROM, reveal that the Veteran is indeed still mobile, albeit with pain. As such, a higher rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted. The Board has considered whether a higher disability rating would be achieved under the Formula for Rating IVDS Based on Incapacitating Episodes. While the Veteran has IVDS, the June 2021 VA examination, and both previous examinations, revealed the Veteran has not experienced incapacitating episodes during the past 12 months. Further, the Veteran's treatment records lack any mentioned of experiencing incapacitating episodes. The Board is aware of the Veteran's testimony of staying in bed during flare-ups but finds the competent medical evidence of record lacks any indication that the Veteran experiences periods of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Indeed, the Veteran testified during the 2021 Board hearing that he has been prescribed medication but did not mention prescribed bed rest. Thus, a higher disability rating would not be achieved under the Formula for Rating IVDS Based on Incapacitating Episodes. Additionally, the Board has considered whether a separate rating is warranted for any neurologic abnormalities during this period but finds such a rating is not warranted. Aside from the lower extremity radiculopathy addressed below and the separately awarded right lower extremity radiculopathy, the record lacks any reference to or statements regarding other neurologic abnormalities. Thus, the Board finds a 40 percent disability rating, but no higher, is warranted from November 4, 2019, but no earlier, for the Veteran's thoracolumbar IVDS with DDD. 3. Entitlement to a separate 20 percent disability rating, but no higher, for left lower extremity radiculopathy (sciatic nerve) associated with thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture from July 1, 2016, but no earlier, is granted. The Veteran has been separately awarded a 10 percent disability rating for left lower extremity radiculopathy sciatic nerve) associated with thoracolumbar IVDS with DDD and annular tears of intervertebral discs L4-L5 and L5-S1, status post coccyx fracture effective November 8, 2021. Upon review, the Board finds the competing evidence is in approximate balance of a separate 20 percent disability rating from July 1, 2016, but no higher or earlier. That is, the evidence in favor of and opposing the separate rating are almost exactly or nearly equal and, therefore, the benefit of the doubt rule indicates the claim must be granted. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021). The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. More specifically, the Board is aware that the 2016 and 2017 VA examiners both found that the Veteran did not exhibit symptoms of left lower extremity radiculopathy. Elsewhere, however, treatment records reference radiculopathy symptoms in the left lower extremity. Indeed, 2013 treatment records reference pain radiating down both thighs. 2017 treatment records note radiculopathy lumbar region. In 2019, radiculopathy of the lumbar region, sciatica left side was indicated. Of most significance is the most recent VA examination wherein the examiner opined that the Veteran's November 2013 MRI of the lumbar spine showed pathology consistent with radiculopathy. Thus, while two VA examinations indicate the Veteran did not experience left lower extremity radiculopathy in 2016 or 2017, the Board finds a separate rating for radiculopathy is warranted from July 1, 2016, based on the evidence of record being at least in approximate balance. Regarding severity, the RO assigned a 10 percent disability rating for left lower extremity radiculopathy based on the November 2021 VA examination of record. Upon review, however, the Board finds a 20 percent disability rating is warranted. Indeed, the November 2021 VA examiner assessed the Veteran's left lower extremity radiculopathy as moderate intermittent pain. The Board finds the November 2021 VA examination to be highly probative regarding the severity of the Veteran's radiculopathy symptoms. The record lacks complaints of impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. As such, the Board finds that the Veteran's left lower extremity radiculopathy is primarily manifest by pain. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis from July 1, 2016. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.