Citation Nr: 22017890 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 08-33 930 DATE: March 26, 2022 ORDER Service connection for right lower extremity radiculopathy is granted. Service connection for left lower extremity radiculopathy is granted. Service connection for a low back disability is granted. An increased rating of 40 percent, but no higher, for compression fracture of fourth thoracic vertebrae is granted. REMANDED Entitlement to a total disability based on individual unemployability (TDIU), prior to July 24, 2014, is remanded. FINDINGS OF FACT 1. Right lower extremity radiculopathy has been shown to be related to the service-connected compression fracture of fourth thoracic vertebrae disability. 2. Left lower extremity radiculopathy has been shown to be related to the service-connected compression fracture of fourth thoracic vertebrae disability. 3. The evidence is at least in equipoise as to whether the Veteran's low back disability began during active service and has been continuous to the present. 4. Resolving all reasonable doubt in the Veteran's favor, the range of motion of the Veteran's compression fracture of fourth thoracic vertebrae disability has been more nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity radiculopathy has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for service connection for left lower extremity radiculopathy has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 3. The criteria for service connection for a low back disability has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 4. The criteria for a 40 percent rating, but no higher, for compression fracture of fourth thoracic vertebrae disability has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1983. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This case has a long procedural history, initially coming to the Board on appeal of a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office. In October 2010, October 2013, April 2018, and October 2019, the Board remanded the claims for further development. In October 2019, the Board remanded the issues of entitlement to service connection for degenerative disease of the lumbar spine, entitlement to a rating higher than 10 percent for compression fracture of the fourth thoracic vertebrae, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A subsequent August 2020 rating decision awarded entitlement to a TDIU effective July 24, 2014. The matter has now been returned for appellate consideration. The Board is satisfied there has been substantial compliance with the remand directives. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant law and regulations, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, subsequent manifestations of the same chronic disease at any later date however remoted will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during] a presumptive period." Service connection may also be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Lynch, 999 F.3d 1391. Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Bilateral Lower Extremity Radiculopathy During the July 2020 VA Back Conditions examination, the examiner diagnosed degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). On physical examination, the examiner noted the Veteran has radicular pain, signs and/or symptoms due to radiculopathy. The Veteran exhibited mild intermittent pain and paresthesias and/or dysesthesias of the right lower extremity, and moderate intermittent pain and paresthesias and/or dysesthesias of the left lower extremity. The examiner indicated the radiculopathy of the right lower extremity involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) to a mild level of severity, and the radiculopathy of the left lower extremity involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) to a moderate level of severity. The Veteran has been diagnosed with right lower extremity radiculopathy and left lower extremity radiculopathy associated with the service-connected compression fracture of fourth thoracic vertebrae disability. Accordingly, the criteria for service connection for right lower extremity radiculopathy and left lower extremity radiculopathy have been met, and the claims are granted. Low Back Disability The Veteran's service treatment records are incomplete and/or unavailable. When service treatment records are unavailable through no fault of the veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain its findings and conclusions, and to consider carefully the benefit of the doubt rule. Washington, 19 Vet. App. 362; Cuevas v. Principi, 3 Vet. App. 542, 547 (1992). The Board's analysis has been undertaken with these heightened duties in mind. The Veteran asserted that his current low back disability had its onset during active service, and he continuously experienced relevant symptoms since that time. In resolving reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection has been met. As an initial matter, the evidence of record demonstrates the Veteran has been diagnosed with a low back disability, diagnosed as degenerative disk disease of the lumbar spine, intervertebral disc syndrome, spinal stenosis, and lumbar spondylolisthesis. See March 2009, December 2010, April 2015, July 2017, and July 2020 VA examination reports. As to the in-service event, injury, or disease, the Veteran's service treatment records are incomplete and/or unavailable. The Veteran reported that he sustained an injury in a diving board accident while in service in Hawaii in 1983; he struck the top and back of his head. Service connection for a compression fracture of fourth thoracic vertebrae disability arising from this accident has been established. See May 2009 rating decision. Next, the Board finds the evidence is in approximate balance as to whether the Veteran had the onset of symptoms of a low back disability in service and since service separation. Regarding the Veteran's assertions he has experienced low back disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Turning to the medical opinions of record regarding the etiology of the Veteran's low back disability, the Veteran attended a VA examination in March 2009. However, in the October 2010 remand decision, the Board found the March 2009 VA examination inadequate for adjudicative purposes. Therefore, a new examination was necessary to thoroughly assess the etiology of the Veteran's low back disability. Pursuant to the Board's remand, the Veteran underwent a VA examination in December 2010. During the examination the Veteran reported he began to experience low back pain after being involved in an in-service diving accident. In providing a negative nexus opinion, the examiner stated, "one does not find that there is enough evidence from the injury that the veteran sustained in 1983, that is documented in service, would be at a significant level to develop degenerative disk disease of the lumbar spine this many years later. One would expect if any degenerative changes were to develop, it would be around the area of the T4 compression fracture which was not seen on the x-ray from November 2007." The examiner concluded, "the Veteran's current lumbar degenerative changes are not caused by or related to his T4 wedge compression fracture and/or any injuries in service. There is no indication that its origins were from service." It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board finds the December 2010 opinion is also inadequate. In this regard, it must be clear the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The December 2010 examiner did not address the Veteran's competent and credible statements regarding in-service onset and continuity of his symptoms since service separation. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). Moreover, VA may not consider the absence of evidence as substantive negative evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). As the March 2009 and December 2010 medical opinions are inadequate, these cannot serve as the basis of a denial of entitlement to service connection. Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran's statements that he experienced a low back disability in-service and he continued to experience low back disability symptoms since service separation. While the Veteran is not competent to report to the etiology of his condition, his statements are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno v. Brown, 6 Vet. App. 465 (1994). A layperson is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. Lay testimony is competent to establish the present of observable symptomatology, where the determination is not medical in nature and is capable to lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Symptoms of a low back disability are capable of lay observation. Therefore, as the VA examinations afforded to the Veteran for this claim are of limited probative value, the Board finds that the evidence of record, considering the Veteran's credible lay statements of continued symptomatology, are in approximate balance. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Lynch, 999 F.3d 1391. Affording the Veteran the benefit of the doubt, service connection for a low back disability is granted based upon continuity of symptomatology. As the Board has granted direct service connection it need not address secondary service connection, or any other theories for service connection in this matter. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a claim for increase, when it is factually ascertainable that an increase in the disability had occurred. 38 C.F.R. §§ 3.157, 3.400. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestations of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. When there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the weight of the persuasive evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). In determining the appropriate evaluation for musculoskeletal disability, particular attention is focused on functional loss of use of the affected part(s). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.85, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims (Court) held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factor, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran is seeking an increased disability rating for his compression fracture of fourth thoracic vertebrae disability. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his service-connected disability. Layno, 6 Vet. App. 465. The Veteran was provided with VA Back Conditions examinations in February 2012, April 2015, July 2017, and July 2020. The February 2012 and April 2015 VA examinations are not adequate because they do not comply with Correia and Sharp, and they failed to adequately comply with the requirements of 38 C.F.R. § 4.59. In an October 2019 Remand, the Board acknowledged that the July 2017 examination failed to comply with the requirements of Sharp. Accordingly, the Board requested a VA examination. The Board finds the July 2020 examination complies with Sharp. Unfortunately, the earlier failures to comply with VA's duty to assist necessarily resulted in the loss of certain evidence concerning range of motion during flare-ups, after repeated use over time, and on passive motion and in non-weight-bearing where applicable. Accordingly, the Board has considered increased ratings, and awarded them where appropriate, as a way to avoid the possibility that inadequacies in earlier examination reports could potentially prejudice the Veteran. The claim for an increased rating for the Veteran's compression fracture of fourth thoracic vertebrae disability was received September 28, 2011. Currently, the Veteran has a 10 percent disability rating for his compression fracture of fourth thoracic vertebrae disability under Diagnostic Code (DC) 5235. While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides: A rating of 10 percent is warranted when there is 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 height. 38 C.F.R. § 4.71a, DC 5235. A rating of 20 percent is warranted when 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 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. Id. A rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 precent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A rating of 100 percent is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Note (2). In his December 2010 correspondence, the Veteran stated his compression fracture of fourth vertebrae disability had worsened. He stated, since his accident in the Army, he experienced extreme/chronic pain every day. In February 2012, the Veteran was afforded a VA examination. During the examination, the Veteran reported constant pain in his back. He reported flare-ups of the thoracolumbar spine; he stated the flare-ups impacted his ability to lift, bend, and twist. On examination, initial range of motion testing demonstrated forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral flexion to 30 degrees. There was objective evidence of pain on all ranges of motion. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran had guarding and muscle spasm of the thoracolumbar spine. There was no evidence of muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS. In his July 2014 VA Form 9, the Veteran stated he had marked guarding, stability problems, and constant pain in his entire back. In April 2015, the Veteran was afforded a VA examination. He endorsed worsening pain throughout his upper and lower back, worsening with movement and bending forward. Functionally, he reported difficulty sleeping, standing, and walking. The examiner diagnosed degenerative arthritis of the lumbar spine, spinal stenosis, and lumbar degenerative disc disease. On examination, initial range of motion testing demonstrated forward flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. There was objective evidence of pain on all ranges of motion. Pain noted on examination resulted in/caused functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability as "the examiner would need to be present on these occasions to objectively measure any change from baseline functioning as noted and documented on the current examination." There was no guarding or muscle spasm. There was no muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS. The examiner noted the Veteran's use of a soft low back brace/belt for his back disorder. In July 2017, the Veteran was afforded a VA examination. He reported experiencing back pain from the mid-thoracic to lower lumbar region. He described the pain as constant, sharp, gnawing, and irritating, varying in degrees of severity. On examination, initial range of motion testing demonstrated forward flexion to 40 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. There was objective evidence of pain on all ranges of motion. Pain on exam resulted in/caused functional loss. There was objective evidence of midline thoracic and lumbar spine tenderness; bilateral thoracic and lumbar paraspinal muscle tenderness. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability as "the examiner would need to be present on these occasions to objectively measure any change from baseline functioning as noted and documented on the current examination." There was no guarding or muscle spasm. There was no muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS. The examiner noted the Veteran's use of a back brace, which he wore for pain relief and support, and a single point cane, to assist with ambulation. Regarding Correia, the examiner remarked he was unable to perform passive range of motion for thoracolumbar spine, and there was no evidence of pain when the joint is used in non-weight bearing. Pursuant to the October 2019 remand order, in a July 2020, the Veteran was afforded a VA examination. He reported flare-ups of the thoracolumbar spine; flare-ups occur several times per week, to a moderate level of severity; flare-ups are precipitated by overexertion of activity and alleviated by "rest and marijuana." He reported functional loss or functional impairment as he is unable to tolerate sitting, standing, or walking for more than 15 to 30 minutes, and he was unable to lift more than 50 pounds. The examiner diagnosed degenerative arthritis of the lumbar spine and intervertebral disc syndrome. On examination, initial range of motion testing demonstrated forward flexion to 20 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 10 degrees. There was objective evidence of pain on all ranges of motion. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, and the examination was conducted during a flare-up; range of motion testing demonstrated forward flexion to 15 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 5 degrees. The examiner stated pain, fatigue, weakness, and lack of endurance significantly limit functional ability with repetitive use and with flare-ups. The Veteran had guarding or muscle spasms of the thoracolumbar spine resulting in abnormal gait or abnormal contour. There was no evidence of muscle atrophy, ankylosis or any neurological abnormalities related to his disability. There was evidence of radiculopathy, and IVDS of the thoracolumbar spine with no episodes of acute signs and symptoms that required bed rest. Regarding Correia, the examiner remarked there was objective evidence of pain on passive range of motion testing of the back and non-weight bearing testing of the back. Given the totality of the evidence, when considering the Veteran's competent and credible reports of limited spine motion and pain, combined with his consistent reports of flare-ups, the Board finds a 40 percent rating, but no higher is warranted from September 28, 2011. In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. 202. The Board has also considered the effects of less movement than normal, weakened movement, fatigability, interference with sitting and standing, and deformity. 38 C.F.R. § 4.45. The Board accepts the Veteran's competent and credible assertions that his thoracolumbar spine is painful and as described in examinations, he suffers from additional loss of motion and pain during flare-ups. The February 2012 examination provides objective evidence that the Veteran's forward flexion was limited to 70 degrees. The examiner stated the Veteran had "marked guarding" on physical examination due to low back pain. The April 2015 examiner noted the Veteran's thoracolumbar spine disability had progressed; forward flexion was limited to 50 degrees. The Veteran's MRI of the lumbar spine showed interval progression of multilevel degenerative disease of the lumbar spine, most severe at L4-L5; moderate spinal canal, subarticular recess, and neural foraminal stenosis also at L3-L4 which also appears progressed. The July 2017 examination provides objective evidence that the Veteran's forward flexion was limited to 40 degrees, with objective pain on motion resulting in functional loss. There was objective evidence of midline thoracic and lumbar spine tenderness. The July 2020 examination provided objective evidence that the Veteran's forward flexion was limited to 20 degrees and pain, fatigue, weakness, and lack of endurance resulted in additional loss of function/range of motion. Given this, and resolving all doubt in favor of the Veteran, the evidence demonstrates limited flexion that more nearly approximates forward flexion of the thoracolumbar spine 30 degrees or less, since September 28, 2011. However, the Board finds the Veteran is not entitled to a rating in excess of 40 percent at any time during the appeal period. A rating in excess of 40 percent is not warranted because the 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5235. The VA examinations and the Veteran's treatment records, do not demonstrate evidence of ankylosis or limited range of motion equivalent to ankylosis of the thoracolumbar spine. The Board acknowledges the Veteran's assertions that his service-connected compression fracture of fourth thoracic vertebrae disability warranted a higher evaluation. In determining the actual degree of disability, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran's impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like identification of ankylosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no assertion or indication that he was entitled to a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Although the July 2020 examiner report confirmed a diagnosis of IVDS of the thoracolumbar spine, the examiner stated the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. In sum, the most probative evidence establishes that the Veteran's service-connected compression fracture of fourth thoracic vertebrae disability was manifested by forward flexion of 30 degrees or less since September 28, 2011. Accordingly, the criteria for a 40 percent rating for a compression fracture of fourth thoracic vertebrae disability have been met, and the claim is granted. REASONS FOR REMAND As the Board has granted service connection for radiculopathy right lower extremity, service connection for radiculopathy left lower extremity, and service connection for a low back disability, and granted an increased rating for the Veteran's compression fracture of fourth thoracic vertebrae disability, the Agency of Original Jurisdiction must effectuate these grants. Disability ratings and effective dates will be assigned at that time. As such decisions may impact the determination of the Veteran's claim for a TDIU prior to July 24, 2014, the issues are inextricably intertwined, and remand of the TDIU claim is required. Harris v. Derwinski, 1 Vet. App. 180 (1991). This matter is REMANDED for the following action: After the Agency of Original Jurisdiction effectuates the Board's decision, the Veteran's claim for a TDIU prior to July 24, 2014, should be readjudicated. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.