Citation Nr: 22049941 Decision Date: 09/01/22 Archive Date: 09/01/22 DOCKET NO. 13-14 103 DATE: September 1, 2022 ORDER Entitlement to an initial 20 percent rating for left elbow degenerative arthritis (limitation of flexion) prior to March 15, 2019, is granted. Entitlement to an initial 20 percent for thoracolumbar spine degenerative arthritis prior to March 15, 2019, is granted. Entitlement to an initial, separate 10 percent rating for radiculopathy of the right lower extremity prior to February 27, 2017, is granted. Entitlement to an initial, separate 10 percent rating for radiculopathy of the left lower extremity prior to February 27, 2017, is granted. REMANDED Entitlement to a rating in excess of 20 percent for left elbow degenerative arthritis (limitation of flexion) prior to and from March 15, 2019, is remanded. FINDINGS OF FACT 1. Throughout the appeal period prior to March 15, 2019, the Veteran's left elbow degenerative arthritis has been manifested by limitation of flexion to less than 90 degrees. 2. Throughout the appeal period, and prior to March 15, 2019, the Veteran's thoracolumbar spine degenerative arthritis has been manifested by forward flexion less than 60 degrees, but not by forward flexion limited to 30 degrees or less, unfavorable ankylosis of the entire thoracolumbar spine, and/or incapacitating episodes as defined by VA of a duration of at least 6 weeks during a 12-month period. 3. For the entire rating period on appeal and prior to February 27, 2017, the Veteran's low back disability has been manifested by radiculopathy of the right and left lower extremities with mild incomplete paralysis of the sciatic nerves. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for left elbow degenerative arthritis, prior to March 15, 2019, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5206 (2021). 2. The criteria for an initial 20 percent rating for thoracolumbar spine degenerative arthritis, prior to March 15, 2019, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2021). 3. The criteria for an initial 10 percent rating for radiculopathy of the right lower extremity prior to February 27, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2021). 4. The criteria for an initial 10 percent rating for radiculopathy of the left lower extremity prior to February 27, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to February 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affair (VA) Regional Office (RO). This matter was previously before the Board in November 2019, at which time it was remanded for additional development. In May 2021, the Board issued a decision denying entitlement to an initial rating in excess of 10 percent prior to March 15, 2019, in excess of 20 percent from March 15, 2019, to December 17, 2020, and in excess of 40 percent thereafter. The Board also denied entitlement to a rating in excess of 10 percent for left elbow degenerative arthritis (limitation of flexion) prior to March 15, 2019, and in excess of 20 percent thereafter. The Board also granted initial 10 percent ratings for radiculopathy of the right and left lower extremities effective February 27, 2017. Finally, the Board remanded the issue of entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). The Board subsequently granted entitlement to a TDIU; accordingly, this matter is no longer before the Board. The Veteran appealed the Board's May 2021 decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2022, the parties filed a Joint Motion for Partial Remand vacating the Board's May 2021 decision to the extent that it denied an initial rating in excess of 10 percent for left elbow degenerative arthritis prior to March 15, 2019, and in excess of 20 percent thereafter; a rating in excess of 10 percent for thoracolumbar spine degenerative arthritis prior to March 15, 2019; and separate compensable ratings for bilateral lower extremity radiculopathy prior to February 27, 2017, and remanded the matter for readjudication in light of the Joint Motion for Partial Remand. The remaining issues were not disturbed. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). To the extent that the Veteran has already been awarded staged ratingswith only some stages currently before the Boardthe Board will consider the propriety of the rating at each stage and whether further staged rating is warranted. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (November 30, 2020). The regulations now clarify that Diagnostic Code 5242 is specifically for conditions that are not intervertebral disc syndrome (IVDS), and that Diagnostic Code 5243 only applies if there is actual IVDS, but the rating criteria were not otherwise modified. These new regulations also do not impact the rating criteria for elbow conditions other than to state which types of arthritis can be rated under Diagnostic Codes 5003 and 5010. 2. Entitlement to an initial rating in excess of 10 percent for left elbow degenerative arthritis prior to March 15, 2019 The Veteran seeks a rating in excess of 10 percent for his left elbow disability prior to March 15, 2019. A 10 percent rating has been assigned for the Veteran's left elbow degenerative arthritis on the basis of limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under Diagnostic Code 5206, limitation of flexion in the elbow in the minor extremity is evaluated as follows: flexion limited to 45 degrees (40 percent); flexion limited to 55 degrees (30 percent); flexion limited to 70 degrees (20 percent); flexion limited to 90 degrees (20 percent); flexion limited to 100 degrees (10 percent); and flexion limited to 110 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5206. The Board notes that the Veteran has also been awarded separate ratings for left elbow impairment of supination and pronation under Diagnostic Code 5213. This matter is not currently before the Board and is not subject of the Board's decision. In a January 2009 statement, the Veteran reported that he had chronic pain and stiffness of the elbow, which caused loss of range of motion. He indicated that his condition had continued to worsen and intensified with weather changes. A December 2009 urgent care record notes complaint of left elbow pain, more noticeable when lifting. The Veteran was afforded a VA examination in May 2011. The Veteran reported having weakness, stiffness, fatigability, deformity, drainage, effusion, subluxation, and dislocation. At this time, the Veteran also stated that he experienced flare-ups as often as three times per day that last for one hour and that during flare-ups he is unable to lift or push with force and has limitation of motion. The examiner noted that there was instability in the left elbow. The examiner also observed that there were no signs of edema, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, guarding of movement, malalignment, and drainage, and that there was no subluxation or ankylosis. Range of motion was noted as being within normal limits, and the Veteran's flexion was recorded as 145 degrees. Extension, supination, and pronation were also full. There was no evidence of objective pain on motion noted on the exam and no change on repetitive range of motion. The examiner indicated that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner diagnosed posttraumatic arthritis of the left elbow. X-ray of the elbow in October 2011 revealed mild degenerative joint disease of the left elbow with marginal osteophytosis. There was fragmented bony spurring of the olecranon process of the ulna at the insertion of the triceps tendon. In an October 2011 statement, the Veteran's wife stated that the Veteran's left elbow pain interfered with his ability to lift and push objects. A November 2011 report from Medex Urgent Care reflect assessment of pain and moderately severe degenerative arthritis with pain and loss of range of motion. A July 2014 private physical therapy record notes indication of decreased range of motion, decreased functional ability, and pain in the elbow. There was tenderness to palpation of the proximal wrist extensors. Elbow range of motion revealed flexion to 50 degrees and extension to negative 15 degrees. The Veteran was afforded a VA examination in February 2017, the Veteran reported that he could not use his left elbow. He wore a brace and received physical therapy. He stated that he had throbbing and burning pain and that there was a band at the back of his elbow. The examiner noted that the Veteran did not appear to put forth his best effort during examination and the examination was not reliable. The examiner noted that the Veteran was right-handed and that he did not have flare-ups. With respect to functional loss, the Veteran reported that he could not lift anything with his elbow. Range of motion testing revealed flexion to 40 degrees and extension to 0 degrees. There was no evidence of pain with weightbearing or tenderness or pain on palpation. The examiner diagnosed limited flexion of the forearm and noted that the disability caused limitations with heavy lifting, but no sedentary limitations. In a March 2017 statement, the Veteran indicated that he was in considerable pain at the time of the February 2017 VA examination because he had been sitting at his wife's bedside in an uncomfortable chair for an unexpected emergency surgery and that he disagreed with the conclusion of the VA examiner regarding his effort on examination. As a result, the Board previously found these examination results inadequate and remanded for additional examination. Accordingly, the Board will not discuss the findings of the February 2017 examination further. After the Board's January 2018 remand, the Veteran was afforded a new VA examination in March 2019. Range of motion testing revealed flexion as 0 to 90 degrees. The examiner noted that the range itself did not contribute to functional loss. The examiner also opined that pain was noted on the examination and caused functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions, and flexion was to 80 degrees. The examiner also noted that pain and lack of endurance caused functional loss after repeated use over time, with range of motion of flexion 70 degrees. The examiner also noted that pain and lack of endurance significantly limited the Veteran's functional ability with flare-ups, with flexion limited to 60 degrees. The Veteran did not have ankylosis, and range of motion was the same for passive and on non-weight bearing. Based upon the foregoing, the Board finds that the aforementioned evidence supports entitlement to a 20 percent evaluation throughout the appeal period prior to March 15, 2019. In reaching this determination, the Board notes that the evidence has varied. However, given the Veteran's consistent report of elbow pain, and the lack of findings on flare-up and repeated use over time on various examination prior to March 2019 and the inconsistent findings on 2017 examination, the Board resolves reasonable doubt in the Veteran's favor and finds that the 2019 VA examination finding of limitation of flexion to 90 degrees or less, as indicated on the 2019 VA examination, is applicable throughout the appeal period. The Board also notes that various other treatment records and lay statements document reduced range of motion during this appeal period. As to whether the Veteran is entitled to a rating in excess of 20 percent prior to and from March 15, 2019, this matter is subject of the Board's remand and will be discussed below. In conclusion, the Board finds that a 20 percent rating is warranted throughout the initial rating period for the Veteran's left elbow disability prior to March 15, 2019. In reaching this determination, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating in excess of 10 percent for thoracolumbar spine degenerative arthritis prior to March 15, 2019 The Veteran contends that a higher rating is warranted for his service-connected thoracolumbar spine disorder for the period prior to March 15, 2019. The Veteran was initially assigned a 0 percent rating for his thoracolumbar spine degenerative arthritis effective January 4, 2010, in a September 2011 rating decision. In a January 2021 rating decision, the AOJ determined that entitlement to an earlier effective date for thoracolumbar spine degenerative arthritis was warranted because a clear and unmistakable error was made, and the Veteran was awarded an initial 10 percent rating effective December 18, 2009. The Veteran's thoracolumbar spine degenerative arthritis is currently rated under Diagnostic Code 5242, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, 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 ranges of motion 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. Intervertebral disc disease (IVDS) (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. A 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, with higher evaluations for incapacitating episodes of increased duration. Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Turning to the evidence, a December 2009 private MRI revealed impression of degenerative disc disease greatest at L5-S1 and to a lesser extent L4-5. There was mild posterior disc bulge/endplate osteophyte complex at L5-S1 eccentric to the left where it caused only mild impression upon the undersurface of the existing left L5 nerve. There was a small annular tear at L4-5. There was no significant central stenosis at any level. In a statement received in January 2009, the Veteran reported that he had loss of range of motion in his back. He noted that changes in weather initiated his suffering and stiffness and swelling in the back. On VA examination in May 2011, the Veteran reported chronic low back pain, as well as stiffness, decreased motion, and numbness. Pain was exacerbated with activity and relieved with medication. During flare-ups, he experienced limitation of motion of the joint, which he indicated meant he could not bend over, sit up, or lay down. He had not been hospitalized or incapacitated due to his back Objectively, there was no evidence of radiating pain on movement and muscle spasm was absent. There was no guarding of movement. Examination did not reveal any weakness. There was no ankylosis. Range of motion revealed full flexion, extension, lateral flexion, and rotation. Repetitive range of motion did not result in additional limitation of motion. The examiner noted that the spine was not additional limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Symmetry of the spine was normal. The examiner diagnosed degenerative arthritis of the thoracic and lumbar spine. In an October 2011 statement, the Veteran's wife noted the Veteran's difficulties with low back pain when bending over and sitting down. His symptoms led to difficult sleeping and carrying objects over 5 pounds. At rest, he experienced aches and burning sensation. A November 2011 report from Medex Urgent Care revealed diagnosis of moderately severe degenerative arthritis with chronic mid-to-lower back pain and loss of range of motion. In a November 2011 statement, the Veteran indicated that the VA examiner did not take into account that he could only bend over with extreme pain. A July 2014 private physical therapy report revealed that the Veteran was seen for complaint of degenerative joint disease, decreased lordosis, pain, and decreased range of motion. The provider observed an excessive posterior tilt, guarded posturing, and forward flexed posturing. There was tenderness to palpation of the lumbar paraspinals. Flexion was to 20 degrees, extension was to 0 degrees, and side bending was to 8 degrees bilaterally. Functional limitations including pain with sitting or standing more than 10 minutes, with falling/staying asleep, traveling, driving, lifting, bending, washing or dressing were noted. An abnormal gait, low back pain, and muscle weakness were indicated. A September 2014 VA treatment report revealed lumbar spine flexion to 90 degrees and a negative straight leg raising test. X-ray revealed early lower lumbar degenerative disc disease. On treatment in June 2015, the Veteran complained of chronic low back pain and pain in the right lower extremity. Physical examination revealed L4-S1 tenderness to palpation and decreased range of motion both passive and active. Pain was elicited throughout range of motion. X-ray revealed endplate osteophytes, mild retrolisthesis of L3 on L4 and L4 on L5. Findings were also suggestive of L4-5 disc space narrowing and L5-S1 degenerative disc disease. An August 2015 private treatment report includes notation of chronic low back pain related to degenerative disc disease. He underwent lumbar facet intraarticular injection at L3-S1 in September 2015. An October 2015 report notes that the Veteran was to receive a TENS unit and back brace. Updated imaging was ordered due to extensive limitations in range of motion. An April 2016 treatment report notes that the Veteran was getting a back brace. On VA examination in February 2017, the Veteran endorsed low back pain and spasm. He took medication, used a TENS unit, and underwent physical therapy for his pain. During flare-ups, he indicated that his back felt like it was in a vice. The examiner was unable to test range of motion as he was in a wheelchair. When asked, he said he could not do range of motion without pain. He was able to sit in the wheelchair with his back flexed at 90 degrees. The examiner indicated that the Veteran did not have guarding or muscle spasm. There was no ankylosis of the spine. While he had intervertebral disc disease, he has not had episodes requiring bed rest prescribed by a physician in the past 12 months. The examiner diagnosed degenerative joint disease and disc disease of the lumbar spine. In a March 2017 statement, the Veteran indicated that he was in considerable pain at the time of the February 2017 VA examination because he had been sitting at his wife's bedside in an uncomfortable chair for an unexpected emergency surgery. Standing and walking were extremely painful. The Board notes that the February 2017 examination of the Board's January 2018 remand because of the Veteran's report. Given that this examination was found to be inadequate, the Board will not discuss the February 2017 findings further. An April 2017 lumbar spine MRI revealed moderate to severe degenerative disc and spondylitic changes of the lower lumbar spine, most significant at L4-L5 and L5-S1. A June 2017 study revealed severe degenerative disc disease. A June 2017 treatment report indicates that the Veteran reported worsening pain. He wore a back brace and used a cane. He stated that sitting or standing too long caused him to have sharp shoot pain bilaterally. Given the lack of probative findings from the February 2017 VA examination, the Board will also discuss the March 2019 VA examination. Range of motion testing revealed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner specifically stated that passive range of motion was the same as active range of motion. The examiner also observed that pain was noted on examination and caused functional loss. There was also evidence of pain with weight bearing, but no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The examiner observed that the Veteran was able to perform repetitive-use testing with at least three repetitions, with range of motion recorded as forward flexion to 55 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The examiner reported that pain and lack of endurance caused this functional loss. The examiner noted that this examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Regarding repeated use over time, the examiner opined that pain and lack of endurance cause functional loss and that the Veteran's range of motion after repeated use over time would be forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Additionally, the examiner determined that pain and lack of endurance also significantly limit the Veteran's functional ability during flare ups. The estimated range of motion on flare ups was forward flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Muscle spasm and guarding were not reported in the March 2019 exam, and the Veteran did not have ankylosis. The VA examiner also noted that there was no evidence of pain on passive range of motion testing of the back, and no evidence of pain on non-weight bearing testing of the back. Based upon the foregoing, the Board finds that the aforementioned evidence supports entitlement to an initial 20 percent evaluation throughout the appeal period prior to March 15, 2019. In reaching this determination, the Board notes that the evidence has varied. However, given the Veteran's consistent report of back pain, and the lack of findings on flare-up and repeated use over time on various examination prior to March 2019 and the inconsistent findings on 2017 examination, the Board resolves reasonable doubt in the Veteran's favor and finds that the 2019 VA examination findings of limitation of flexion to 60 degrees or less are applicable throughout the appeal period. The Board also notes that various other treatment records and lay statements document from this period document reduced range of motion and the 2014 physical therapy report documents guarding of the spine. The Board also finds that the weight of the evidence is against a disability rating in excess of 20 percent for the lumbar spine disability for this period. This is also consistent with the medical evidence of record, which fails to show that the Veteran's forward flexion of the thoracolumbar spine was less than 30 degrees. The Board acknowledges the one-time finding on physical therapy treatment in 2014 of flexion to 20 degrees; however, the Board finds that this one-time finding is outweighed by the other evidence of record, which consistently documents forward flexion over 30 degrees. Moreover, the evidence fails to show that the Veteran had favorable ankylosis of the entire thoracolumbar spine. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Moreover, the Board has considered range of motion findings in passive and non-weight bearing situations, as well as the examiner's discussion of functional limitation on repeated use over time or during flare-up. In this case, the estimated range of motion was to at worst 45 degrees forward flexion. There is nothing otherwise to suggest ankylosis of the thoracolumbar spine. The Board has also considered whether the Veteran's symptoms approximate ankylosis in light of Chavis v. McDonough, 34 Vet. App. 1 (2021). In Chavis, the Court held that ankylosis can be met with evidence of the functional equivalent of ankylosis during a flare. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28th ed. 1994) at 86). As outlined in Note (5) of the rating formula, fixation of a spinal segment in neutral position (zero degrees) indicates favorable ankylosis. As indicated above, the objective medical evidence of record and does not support a finding that the Veteran's symptoms approximate ankylosis. While the Veteran has reported significant pain and limitations with bending, sitting, and standing, and pain throughout range of motion there is nothing further in the record to suggest the functional equivalent of immobility. With regard to separate ratings for neurological abnormalities or chronic neurologic manifestations, the Veteran is already service connected for radiculopathy and this matter will be discussed below. No other neurologic impairment has been demonstrated. According, additional separate ratings for neurologic manifestations are not warranted. The Board has also considered whether the Veteran is entitled to a higher rating in the basis of IVDS. However, there is no evidence incapacitating episodes as contemplated by the regulation. Therefore, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. The Board has considered the Veteran's statements as to the severity of his disability. However, Neither the medical evidence nor the lay evidence of record suggests that an evaluation in excess of 20 percent is warranted at this time. In conclusion, the Board finds that a 20 percent rating is warranted throughout the initial rating period for the Veteran's thoracolumbar spine disability prior to March 15, 2019. In reaching this determination, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Separate rating for radiculopathy of the right lower extremity prior to February 27, 2017 5. Separate rating for radiculopathy of the left lower extremity prior to February 27, 2017 The Veteran seeks separate compensable ratings for radiculopathy of the bilateral lower extremities stemming from his service-connected thoracolumbar spine disorder, prior to February 27, 2017. As indicated above, Note 1 to the rating formula specifies that any associated objective neurologic abnormalities should be separately evaluated under an appropriate diagnostic code. In this case, the AOJ assigned separate 10 percent rating for radiculopathy of the right and left lower extremities effective March 7, 2017, with the left lower extremity assigned a 20 percent rating from March 15, 2019. In the May 2021 decision, the Board assigned initial 10 percent ratings for radiculopathy of the right and left lower extremities from February 27, 2017, but found that a compensable rating prior to that date was not warranted for either extremity. The only matter currently before the Board is entitlement to separate compensable ratings for radiculopathy prior to February 27, 2017. As noted above, the initial rating period stems from the Veteran's back claim, dated December 18, 2009. A December 2009 private back x-ray report indicates that the Veteran had presented with complaint of low back pain, now with parasthesias of the bilateral leg. On VA examination in May 2011, there was no evidence of radiating pain on movement, and there was no weakness present. Muscle tone was normal and straight leg raising tests were negative bilaterally. Neurological examination and peripheral nerve involvement or permanent nerve involvement was not indicated during the examination. In a November 2011 statement, the Veteran reported that he told the doctor on the VA examination that he felt radiating pain during the back examination, but it was not reported. A June 2015 report notes that the Veteran had chronic low back pain, now with burning in the right lower extremity when sitting for long period. On private treatment in August 2015, the Veteran endorsed low back pain and occasional tingling, burning, cramping pain down his legs. Straight leg raising testing was positive bilaterally. On the February 2017 VA examination, the examiner noted mild intermittent pain of the bilateral lower extremities and mild numbness of the left lower extremity, with mild involvement of the bilateral sciatic nerve. A March 2017 VA examination revealed complaints of burning pain that radiating down the legs. A subsequent June 2017 treatment report notes assessment of low back pain with radiculopathy. It was noted that the Veteran had a 16-year history of low back pain radiating down the left leg with paresthesias to the posterior aspect of the thigh and calf but no weakness. The Board acknowledges that the 2011 VA examiner did not find any neurologic abnormalities or diagnose radiculopathy. However, given the Veteran's consistent report of leg symptoms throughout the appeal period and the 2015 notation of positive straight leg raising testing bilaterally, as well as the Veteran's report that the 2011 VA examiner failed to account for his report of radiating symptoms and the length of time before the 2017 VA examination, Board resolves reasonable doubt in the Veteran's favor, and finds that the Veteran's radiculopathy has been present throughout the appeal period. Accordingly, separate ratings for right and left lower extremity radiculopathy are warranted throughout the initial rating period and prior to February 27, 2017. Under Diagnostic Code 8520, for paralysis of the sciatic nerve, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When the involvement is wholly sensory, the rating should be of the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board notes that there are no pertinent neurological findings prior to the 2017 VA examination, with the 2011 examiner reporting no pertinent findings, and a 2015 notation of positive straight leg testing but no other findings. The findings of the 2017 VA examiner reflect mild intermittent pain and numbness. There were some muscle strength deficits (2/5 for the lower extremities), but no atrophy, sensation was normal, and a straight leg raise test was negative bilaterally. Such findings are consistent with a 10 percent rating for mild incomplete paralysis. However, the Board also finds that a rating in excess of 10 percent is not warranted for either extremity. Here, the VA examiner indicated diminished strength, neurologic testing was otherwise normal. Moreover, the VA examiner indicated that the disability was productive of no more than mild incomplete paralysis of the bilateral sciatic nerves. Accordingly, the Board finds that the criteria for moderate incomplete paralysis have not been more nearly approximated. Accordingly, the Board concludes that separate 10 percent ratings for right and left lower extremity radiculopathy are warranted prior for the entire initial rating period, and prior to February 27, 2017. In reaching this determination, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND In light of points raised in the parties' April 2022 Joint Motion for Remand, remand for additional development on the claims on appeal is warranted. 1. Entitlement to a rating in excess of 20 percent for left elbow degenerative arthritis, prior to and from March 15, 2019 The Board has granted a uniform 20 percent rating for the Veteran's left elbow disability prior to and from March 15, 2019. As to whether a rating in excess of 20 percent is warranted, as noted in the Joint Motion for Remand, the Veteran was afforded a VA examination in December 2020, at which time the examiner noted that initial range of motion of the forearm was from 0 to 80 degrees flexion. The examiner noted that although the Veteran was not experiencing a flare-up during the examination, pain limited his functional during flare-up. However, range of motion was noted to be the same, from 0 to 80 degrees. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that an examiner must express an opinion regarding functional impairment and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Given the seemingly inconsistent findings on the December 2020 examination regarding functional impact on flare-up, the Veteran should be afforded a new examination to determine the nature and severity of his service-connected left elbow disability and that is consistent with Sharp. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examinations to ascertain the current severity and manifestations of the Veteran's service-connected left elbow disability. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: Active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the elbow is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or provide the requested estimates, or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner must provide a complete rationale for all the findings and opinions. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.