Citation Nr: 22018513 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-07 903 DATE: March 29, 2022 ORDER Entitlement to an evaluation in excess of 10 percent for cervical spine cervicalgia and degenerative disc disease at C5-C6 prior to December 6, 2018, Entitlement to an evaluation in excess of 20 percent for cervical spine cervicalgia and degenerative disc disease at C5-C6 on or after April 1, 2019 (exclusive of a temporary total evaluation from December 6, 2018, to April 1, 2019), is denied. Entitlement to an evaluation in excess of 10 percent for lumbar spine degenerative disc disease and degenerative arthritis is denied. Entitlement to an evaluation in excess of 10 percent for a right ankle disability, status-post fibula stress fracture and history of sprain, is denied. REMANDED Entitlement to service connection for right lower extremity pain and numbness, to include as secondary to the service-connected lumbar spine disability, is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected lumbar spine disability, is remanded. FINDINGS OF FACT 1. Prior to December 6, 2018, the Veteran has not been shown to have forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. Since April 1, 2019, the Veteran has not been shown to have forward flexion of the cervical spine limited to 15 degrees or less; favorable ankylosis of the entire cervical spine; or, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. The Veteran has not been shown to have forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees; 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. She also does not have incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 4. The Veteran's right ankle disability is not productive of marked limitation of motion; ankylosis; malunion of the os calcis or astragalus; or evidence of an astragalectomy. CONCLUSIONS OF LAW 1. Prior to December 6, 2018, the criteria for an evaluation in excess of 10 percent for cervical spine cervicalgia and degenerative disc disease at C5-C6 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Since April 1, 2019, the criteria for an evaluation in excess of 20 percent for cervical spine cervicalgia and degenerative disc disease at C5-C6 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for an evaluation in excess of 10 percent for lumbar spine degenerative disc disease and degenerative arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 4. The criteria for an evaluation in excess of 10 percent for a right ankle disability, status-post fibula stress fracture and history of sprain, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2006 to February 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2014 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. During the pendency of the appeal, in an April 2019 rating decision, the agency of original jurisdiction (AOJ) assigned a temporary total evaluation based on surgical or other treatment necessitating convalescence for a cervical disc replacement, or discectomy, effective from December 6, 2018, and a 20 percent evaluation, effective from April 1, 2019. Excluding the period of temporary total evaluation, the evaluations assigned are less than the maximum award allowed under VA law and regulations; therefore, the claim for increased evaluations for the cervical spine disability remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2020, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had also originally included the issues of entitlement to service connection for left lower extremity pain and numbness, headaches, sleep apnea, allergic rhinitis, and fibromyalgia. Following the July 2020 remand, the AOJ granted service connection for those disabilities in a December 2020 rating decision. Therefore, those issues are no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In the December 2020 rating decision, the AOJ also increased the evaluations for lumbar spine degenerative disc disease and degenerative arthritis, the right ankle disability, and cervical spine cervicalgia and degenerative disc disease at C5-C6, from separate noncompensable evaluations to separate 10 percent evaluations, each effective from February 7, 2011. Because those evaluations are less than the maximum awards allowed under VA law and regulations, the claims for increased evaluations remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Further, in a December 2020 letter, the Board notified the Veteran that she may request a virtual tele-hearing instead of waiting for a travel Board hearing at the RO; however, this letter was sent in error, as the record shows that the Veteran has not requested a second hearing. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). Further, in a January 2021 letter, the Veteran's representative notified the Board that neither he nor that the Veteran was notified of any scheduled hearings and the pertaining claims. Thereafter, in January 2022, the Veteran's representative withdrew any hearing request. Based on the foregoing, there is no outstanding hearing request. Moreover, the Veteran's February 2019 testimony has been considered by the undersigned Veterans Law Judge in making this decision. Law and Analysis In the July 2020 remand, the Board noted that, during the February 2019 hearing, the Veteran received treatment from private providers, including an orthopedist and a neurosurgeon. During the hearing, the Veteran's representative also noted that the Veteran was last afforded VA examinations for her service-connected lumbar spine and right ankle disabilities in January 2014. The Board noted that copies of VA examinations dated in January 2014 had not been associated with the record; however, the Board indicated that VA examinations dated in March 2013 had been associated with the record. Thus, the Board remanded the case, in part, to obtain any outstanding private treatment records and copies of any outstanding VA examination reports. In August 2020, pursuant to the remand, the AOJ sent the Veteran correspondence requesting that she submit the names and address of her private providers and the medical authorization forms to secure potential private medical evidence. Thereafter, the AOJ obtained private and VA medical records and associated them with claims file. The Board also notes that it had incorrectly stated in the prior remand that the VA examination report was dated in March 2013, as the report itself shows that the examination was performed in January 2014 (date of receipt was incorrectly listed as March 2013 in the electronic claims file). In the July 2020 remand, the Board also found that additional VA examinations were needed to ensure compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that the final sentence of 38 C.F.R. § 4.59 creates a requirement that the examination should record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing."). The Veteran was afforded VA examinations in connection with her neck, back, and ankle disabilities in October 2020. The October 2020 VA examiner included these findings in the VA examination reports. Thus, The Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). The Veteran and her representative have not raised any other issues with the duty to notify or duty to assist decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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. 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating neck, back, and ankle disabilities, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. Where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the regulations in effect prior to February 7, 2021, Diagnostic Code 5010 stated that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the regulations in effect from February 7, 2021, Diagnostic Code 5003 now only applies to degenerative arthritis, other than posttraumatic. Otherwise, Diagnostic Code 5003 remains the same and under the revised regulations. Diagnostic Code 5010 now states that traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Cervical Spine The Veteran's cervical spine cervicalgia and degenerative disc disease at C5-C6 is currently assigned a 10 percent evaluation prior to December 6, 2018, and a 20 percent evaluation beginning April 1, 2019 (exclusive of a temporary total evaluation from December 6, 2018, to April 1, 2019), pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (IVDS) should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula, 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, a 10 percent evaluation is warranted when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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 evaluation is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 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 30 percent evaluation is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated 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 cervical spine is 45 degrees of forward flexion, 45 degrees of extension, 45 degrees of left and right lateral flexion, and 80 degrees of left and right lateral rotation. The normal combined range of motion of the cervical spine is 340 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, 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 neurologic 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). Under the Formula for Rating 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 2 weeks but less than 4 weeks during the past 12 months. A 40 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 IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). If IVDS 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 for that segment. Id., Note (2). Under the new, revised rating criteria effective February 7, 2021, Diagnostic Code 5243 for IVDS is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 should be assigned for all other disc diagnoses. Diagnostic Code 5242 pertains to degenerative arthritis and degenerative disc disease other than IVDS. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 10 percent prior to December 6, 2018, or in excess of 20 percent on or after April 1, 2019, for her service-connected cervical spine disability. For the period prior to December 6, 2018, the Veteran has not been shown to have forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees. In fact, during a January 2014 VA examination, the examiner noted that the Veteran had flexion to 45 degrees or more with no objective evidence of painful motion. A January 2016 private orthopedic treatment record also shows the Veteran had forward flexion to 45 degrees. In addition, for the period prior to December 6, 2018, the evidence does not show that the Veteran's combined range of motion of the cervical spine was not greater than 170 degrees. In fact, during the January 2014 VA examination, the Veteran had a combined range of motion of the cervical spine of 340 degrees, which represents a normal combined range of motion of the cervical spine. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. The evidence also does not show that, prior to December 6, 2018, the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In fact, the January 2014 VA examiner specifically indicated that the Veteran did not have guarding or muscle spasms of the cervical spine. In addition, since April 1, 2019, the Veteran has not been shown to have forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. In fact, during an April 2019 VA examination, the examiner indicated that the Veteran had forward flexion to 30 degrees, and during an October 2020 VA examination, the Veteran demonstrated forward flexion to 40 degrees. The April 2019 and October 2020 VA examiners also specifically indicated that there was no ankylosis of the cervical spine. Moreover, based on the aforementioned range of motion findings, it appears that the Veteran's entire cervical spine is not totally fixated or immobile. While the noted ranges of motion were limited by pain at times, these findings are consistent with and fully contemplated by the 20 percent rating currently assigned for the period beginning on April 1, 2019. There is also no indication that the Veteran has had IVDS with incapacitating episodes meeting the durational requirement for a rating under the IVDS rating criteria noted above. The January 2014, April 2019, and October 2020 VA examiners each noted that the Veteran did not have IVDS of the cervical spine. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating IVDS Based on Incapacitating Episodes. The Board further finds that a separate disability rating is not warranted at any time during the appeal period because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from her already service-connected cervical spine disability and radiculopathy of the left and right upper extremities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran is already in receipt of separate disability ratings for radiculopathy of the left and right upper extremities associated with her cervical spine disability, and there is no other separate neurological disability. Indeed, the January 2014, April 2019, and October 2020 VA examiners found that the Veteran did not have any other neurologic abnormalities related to her cervical spine disability, such as bowel or bladder problems due to cervical myelopathy. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, increased evaluations for the Veteran's cervical spine disability are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 and 20 percent ratings, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. Although pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body such as excursion, strength, speed, coordination, and endurance; it is the presence of this functional loss that is the relevant question in assigning disability evaluations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The January 2014 VA examiner noted that there was no objective evidence of painful motion on range of motion testing of the Veteran's cervical spine. In addition, the examiner found that the Veteran had no additional limitation in range of motion following repetitive use testing or during flare-ups and that she had no functional loss and/or functional impairment of the cervical spine. Prior to a surgical cervical disc replacement at C5-6 in December 2018, the Veteran complained of stable, intermittent cervical spine pain that was aggravated by daily activities and relieved with rest. See, e.g., December 2015, January 2016 private treatment records. During the October 2020 VA examination, the Veteran later reported that her pain had worsened prior to her surgery. Nevertheless, during the April 2019 VA examination, the Veteran reported that the pain and stiffness in her neck had not changed since surgery, and she specifically denied having flare-ups of pain. She did note that she had difficulty lifting heavy objects, typing, or siting for long periods of time, and upon range of motion testing, the examiner reported that pain was noted on examination. However, the examiner also indicated that there was no additional loss of function or range of motion after repetitive use testing. During the October 2020 VA examination, the Veteran stated that her December 2018 surgery had not resolved all of her neck pain, but it had improved her pain, and she denied receiving any current treatment for her cervical spine. She described pain, soreness, and tenderness, but she again specifically denied flare-ups of pain. On range of motion testing, the examiner reported that pain was noted on examination, but the examiner also noted that the pain was mild to moderate in severity. The examiner further indicated that, although there was additional loss of range of motion after repetitive use testing, the Veteran still maintained forward flexion to 35 degrees. Although the examiner stated that the Veteran was not being examined immediately after repetitive use over time, it was noted that pain caused functional loss. However, the examiner estimated that functional loss would result in a reduction of forward flexion to 30 degrees. The Board finds that the effect of the pain in the Veteran's cervical spine is contemplated in the currently assigned 10 and 20 percent evaluations, and the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations. As demonstrated by the aforementioned evidence, the Veteran still maintained range of motion greater than required by the rating criteria even when other factors, such as repetitive use, are considered, and she does not more nearly approximate the criteria for a higher evaluation. Therefore, the Board finds that increased evaluations are not warranted for the cervical spine cervicalgia and degenerative disc disease at C5-C6 prior to December 6, 2018, or since April 1, 2019. Lumbar Spine The Veteran's lumbar spine degenerative disc disease and degenerative arthritis is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (IVDS) should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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 Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated 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 Formula, Note (2) and Plate V. Under the Formula for Rating 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 2 weeks but less than 4 weeks during the past 12 months. A 40 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 IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). If IVDS 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 for that segment. Id., Note (2). Under the new, revised rating criteria effective February 7, 2021, Diagnostic Code 5243 for IVDS is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 should be assigned for all other disc diagnoses. Diagnostic Code 5242 pertains to degenerative arthritis and degenerative disc disease other than IVDS. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 10 percent for her service-connected lumbar spine disability. Initially, the Board finds that, under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran's lumbar spine disability does not warrant a rating in excess of 10 percent. Specifically, she has not been shown to have forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees. In this regard, during a January 2014 VA examination, the Veteran demonstrated forward flexion to 90 degrees or greater, and during an October 2020 VA examination, the Veteran was found to have forward flexion to 80 degrees. The evidence also does not show that the Veteran's combined range of motion of the thoracolumbar spine was not greater than 120 degrees. In fact, during the January 2014 VA examination, the Veteran had a combined range of motion of the thoracolumbar spine of 240 degrees, and during the October 2020 VA examination, her combined range of motion of the thoracolumbar spine was 170 degrees. In addition, the evidence does not show that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, the January 2014 and October 2020 VA examiners indicated that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. For these reasons, the Veteran has not been shown to have met the criteria for an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. In addition, there is no indication that the Veteran has incapacitating episodes. with a total duration of at least 4 weeks but less than 6 weeks during a 12-month period. As noted above, 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, Diagnostic Code 5243, Note (1). There are no treatment records indicating that the Veteran was prescribed bed rest by any physician for her low back disability. Moreover, the January 2014 and October 2020 VA examiners found that the Veteran did not have IVDS of the thoracolumbar spine. As such, to the extent these criteria are for application, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from her already service-connected lumbar spine disability and left lower extremity radiculopathy. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran is already in receipt of a separate disability rating for radiculopathy of the left lower extremity associated with her low back disability, and as discussed below, the issue of entitlement to service connection for radiculopathy of the right lower extremity associated with her low back disability is being remanded for further development. There is no indication that she has any other separate neurological manifestations. Indeed, the January 2014 and October 2020 VA examiners found that the Veteran did not have other neurological abnormalities or findings related to a thoracolumbar spine (back) condition, such as bowel or bladder problems or pathologic reflexes. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a rating in excess of the assigned 10 percent evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the 10 percent rating, and no higher. The Veteran has complained of pain throughout the appeal period. However, the effect of the pain in the Veteran's back is contemplated in the assigned 10 percent evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. During the January 2014 VA examination, the Veteran denied any flare-ups of pain, and the January 2014 VA examiner noted that there was no objective evidence of painful motion on range of motion testing of the Veteran's lumbar spine. In addition, the examiner noted that the Veteran had no additional limitation in range of motion following repetitive use testing or during flare-ups and that she had no functional loss and/or functional impairment of the thoracolumbar spine. During the October 2020 VA examination, the Veteran described low back and pelvic girdle pain, but she specifically denied having flare-ups of pain. On range of motion testing, the examiner reported that pain was noted on examination and that the Veteran had difficulty with bending and rotation, but the examiner also indicated that the pain was mild in severity. The examiner further found that there was no additional loss of range of motion after repetitive use testing. Although the examiner noted that the Veteran was not being examined immediately after repetitive use over time, pain caused functional loss. Nevertheless, the examiner estimated that functional loss would result in a reduction of forward flexion to 75 degrees. Thus, even taking into account the Veteran's reports, the evidence does not show that she more nearly approximates the criteria for a higher evaluation. Indeed, she has still maintained a range of motion greater than required by the rating criteria for an increased evaluation. Pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For these reasons, the Board concludes that the Veteran's lumbar spine disability does not warrant a rating in excess of 10 percent. Right Ankle The Veteran's service-connected right ankle condition is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under the regulations in effect prior to February 7, 2021, Diagnostic Code 5271 pertains to limitation of motion of the ankle. A 10 percent evaluation is warranted for moderate limitation of motion, and 20 percent evaluation is warranted for marked limitation of motion. Under the regulations in effect prior to February 7, 2021, the words "moderate" and "marked" are not defined in the VA rating schedule. For VA compensation purposes, normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Under the regulations in effect since February 7, 2021, Diagnostic Code 5271 provides that a 10 percent disability rating is assigned for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent disability rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that Veteran is not entitled to an evaluation in excess of 10 percent for her service-connected right ankle condition. The Veteran has not been shown to have marked limitation of motion of the right ankle as required under the old and current versions of Diagnostic Code 5271. In fact, during a January 2014 VA examination, the Veteran had right ankle dorsiflexion to 20 degrees or greater and plantar flexion to 45 degrees or greater. During an October 2020 VA examination, the Veteran also had right ankle dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Thus, she was actually shown to have normal range of motion. See 38 C.F.R. § 4.71, Plate II. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right ankle disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the currently assigned 10 percent evaluation, and no higher. In this regard, the Board observes that the Veteran complained of pain. However, the effect of the pain in the Veteran's right ankle is already contemplated in the assigned evaluation. Indeed, in the December 2020 rating decision, the AOJ specifically granted the 10 percent evaluation based on a finding of painful motion of the ankle pursuant to 38 C.F.R. § 4.59. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond the 10 percent already assigned. In fact, the January 2014 and October 2020 VA examiners noted that, although the Veteran may have experienced pain in her right ankle on movement, there was no additional loss of range or function after repetitive use. Pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). The Board has also considered other potentially applicable diagnostic codes to determine whether the Veteran may be entitled to a higher or separate evaluation. However, the Veteran has not been shown to have right ankle ankylosis, malunion of the os calcis or astragalus, or evidence of an astragalectomy, to provide a basis to assign an evaluation in excess of 10 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5373, or 5274. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). The aforementioned range of motion findings demonstrate that the Veteran's right ankle is not fixated or immobile. Moreover, the January 2014 and October 2020 VA examiners specifically found that she did not have ankylosis. The January 2014 and October 2020 VA examiners also indicated that the Veteran did not have malunion of the os calcis or astragalus or an astragalectomy. For these reasons, the Board concludes that the Veteran's right ankle disability does not warrant a rating in excess of 10 percent. Conclusion Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In the July 2020 remand, the Board found that the claim for service connection for right lower extremity radiculopathy was inextricably intertwined with the claim for an increased rating for lumbar spine degenerative disc disease and degenerative arthritis, as resolution of the claim for an increased rating for the lumbar spine disability may have an impact on the claim for service connection for right lower extremity radiculopathy. During an October 2020 VA back examination, the Veteran reported that she had low back pain that radiated down the back of her bilateral legs with partial numbness of her toes with certain positions. Upon examination, the VA examiner noted that the Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in her right lower extremity. However, the VA examiner then indicated that the Veteran's sciatic nerve of the left lower extremity was involved rather than both bilateral lower extremities. In fact, the examiner noted that the right lower extremity was not affected. However, that latter statement appears to contradict the earlier notation that the Veteran did have symptoms in her right lower extremity. Therefore, the Board finds an additional VA medical opinion to opinion is needed. Moreover, in the July 2020 remand, the Board noted that the Veteran was diagnosed with bilateral ankle sprains during a March 2013 VA examination. The Board notes that the VA Disability Benefits Questionnaire (DBQ) was actually signed by the examiner in January 2014, and therefore, the VA examination will instead be identified as a January 2014 VA examination. During the January 2014 VA examination, the Veteran reported that she sustained injuries to both ankles during service, including a lower-level left ankle sprain. Further, during the February 2019 hearing, the Veteran testified that her current left ankle disability was related to her service-connected lumbar spine disability. Therefore, the Board remanded the claim to obtain a VA opinion to address the nature and etiology of any left ankle disorder that may be present. Thereafter, in October 2020, the Veteran was provided another VA ankles examination. The October 2020 VA examiner noted that the Veteran was treated with physical therapy for an acute injury of the left ankle during service; however, it was also noted that there was a lack of chronic continued care. The examiner related that, although the Veteran had a current left ankle sprain with instability, she had a recent injury when she kicked a baby gate. Thus, the examiner opined that the left ankle disorder was less likely than not incurred in or caused by service. The examiner further noted that the left ankle findings were not directly caused by the lumbar spine and that the Veteran's left lower extremity radiculopathy did not cause instability or swelling. Therefore, the examiner opined that the Veteran's left ankle disorder was less likely than not proximately due to or the result of the Veteran's service-connected lumbar spine degenerative disc disease and degenerative arthritis. The examiner also stated that she could not confirm that left lower extremity radiculopathy aggravated the Veteran's acute left ankle disorder without mere speculation and current EMG studies. Nevertheless, the October 2020 VA examiner did not address the Veteran's contention that she injured her left ankle during service and that she had continuous pain since that time. Moreover, the October 2020 VA examiner did not address the aggravation prong of secondary service connection with respect to the Veteran's service-connected lumbar spine disability or explain why EMG studies were not obtained if needed. Therefore, the Board finds that an additional VA medical opinion is needed. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for right lower extremity pain and numbness and a left ankle disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a clarifying opinion as to the etiology any right lower extremity radiculopathy that may be present. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has current right lower extremity radiculopathy that manifested in or is otherwise causally or etiologically related to her military service, to include any injuries or symptomatology therein. The examiner should also provide an opinion as to whether it is at least as likely as not that any current right lower extremity radiculopathy was either caused or aggravated by the Veteran's service-connected lumbar spine disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to the October 2020 VA examiner or, if she is unavailable, to another examiner for a clarifying opinion to determine the etiology of her left ankle disorder. 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 factual matters of which she had 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 opine as to whether it is at least as likely as not that any current left ankle disorder manifested during service or is otherwise causally or etiologically related to her service, to include any injury or therein. The examiner should also state whether it is at least as likely as not that the Veteran's current left ankle disorder was either caused or aggravated by her service-connected lumbar spine disability and/or left lower extremity radiculopathy. If the examiner determines that any additional testing is needed to render this opinion, such testing should be performed, or the examiner should explain why such testing cannot be performed. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing these actions, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.