Citation Nr: 25003463 Decision Date: 03/12/25 Archive Date: 03/12/25 DOCKET NO. 18-51 419 DATE: March 12, 2025 ORDER Service connection for a right hip disorder is denied. A rating in excess of 10 percent prior to January 10, 2019, for a lumbar spine disorder is denied. A 40 percent rating from January 10, 2019, to January 14, 2024, for a lumbar spine disorder is granted, subject to the rules and regulations governing the award of monetary benefits. A rating in excess of 40 percent from January 14, 2024, for a lumbar spine disorder is denied. A 20 percent rating for right lower extremity (RLE) radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. A right hip disorder did not manifest in service, within the one-year presumptive period, or for many years thereafter, and is not otherwise related to service or a service-connected disability, to include the lumbar spine disorder. 2. For the period prior to January 10, 2019, the Veteran's lumbar spine disorder was not manifested by forward flexion of the thoracolumbar spine to 60 degrees or less; combined range of motion of the thoracolumbar spine 120 degrees or less; 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 (IVDS) with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 3. For the period from January 10, 2019, to January 14, 2024, the evidence is at least in equipoise as to whether the Veteran's lumbar spine disability was manifested by forward flexion to 30 degrees or less, without evidence of IVDS and incapacitating episodes having a total duration of at least six weeks during the past 12 months. 4. For the period from January 14, 2024, the Veteran's lumbar spine disability has been manifested by no more than forward flexion to 30 degrees or less, without evidence of IVDS and incapacitating episodes having a total duration of at least six weeks during the past 12 months. 5. For the entire appeal period, the Veteran's RLE radiculopathy has been manifested by no more than moderate symptomology. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. For the period prior to January 10, 2019, the criteria for a rating in excess of 10 percent for a lumbar spine disorder were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. For the period from January 10, 2019, to January 14, 2024, the criteria for a 40 percent rating, but no higher, for a lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 4. For the period from January 14, 2024, the criteria for a rating in excess of 40 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 5. The criteria for a 20 percent rating, but no higher, for RLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to November 1968. In a decision issued in February 2024, the Board, in pertinent part, denied service connection for a right hip disorder and remanded the claims seeking an increased ratings for a lumbar spine disorder and right lower extremity sciatica. The Veteran appealed the denied claim to the United States Court of Appeals for Veterans Claims (Court). In November 2024, the Court issued an Order that vacated the Board's February 2024 decision with respect to the claim for service connection for a right hip disorder and remanded that matter for adjudication consistent with the instructions outlined in a November 2024 Joint Motion for Partial Remand (JMPR). The Board emphasizes that with regard to the claim seeking service connection for a right hip disorder, the November 2024 JMPR was based primarily on the fact that the Board did not adequately address the August 2023 VA examination and medical opinions. However, this additional evidence does not establish a nexus. Therefore, the Board will largely adopt its previous determination with regard to the claim seeking service connection for a right hip disorder, which found that there was no nexus between this disability and his service. Regarding the TDIU issue on appeal, during the pendency of the appeal, the evidence was submitted to suggest that the Veteran's service-connected disabilities affect his ability to work. See January 2019 Private Treatment records. Accordingly, the Board finds that a claim for a TDIU has been raised by the record and will be considered as part and parcel to the increased rating claims currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to service connection for a right hip disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The record establishes that the Veteran has a diagnosis for a right hip disorder. Such evidence is sufficient to meet element (1) for establishing service connection on a direct and secondary basis. As for service incurrence, the Veteran's service treatment records (STRs) to include his November 1968 service separation examination report, are silent for any complaints, findings, treatment, or diagnosis related to a right hip disorder. The Board acknowledges the Veteran's contention that his right hip problem began at the same time that he had his back injury during active duty service (in 1968) and that his hip pain has gotten worse since that time. See October 2022 and August 2023 VA Examination reports. Significantly, however, the Veteran's November 1968 separation examination reflects that his lower extremities were clinically evaluated as normal and his postservice private treatment records reflect right hip problems only as early as 2010 (over 40 years after separation from service). See March 2010 Private Treatment records. Furthermore, at the October 2022 VA examination, the Veteran reported the onset for his right hip disorder as in 2010. This evidence suggests a much later onset for the Veteran's right hip symptoms. Notably, the Veteran's statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999). The Board also notes that, at the February 2022 Board hearing, the Veteran did not assert that his right hip problem began during active duty service. Rather, it was his contention that the right hip disorder was secondary to the lumbar spine disorder. Thus, the Board finds that the more probative evidence of record weighs against establishing service connection on a presumptive basis or under the theory of continuity of symptomatology. See 38 C.F.R. § 3.303(b). However, because the Veteran contended that his right hip disorder was related to his in-service fall that caused his lumbar spine disorder, a VA examination and medical opinion were obtained to specifically address direct service connection. In October 2022, the Veteran underwent a VA examination to ascertain the etiology of his right hip disorder. The examiner diagnosed right hip osteoarthritis and rendered a negative nexus opinion indicating that the Veteran's right hip disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's STRs and post 1 year period from discharge were insufficient to support a right hip bone injury resulting in the development of post-traumatic arthritis. The examiner noted that the Veteran's current post-traumatic arthritis was diagnosed 54 years after service and the claims file failed to support that the Veteran's current hip problem resulted from an in-service fall from a telephone pole in 1968. The examiner also noted that there were other factors which may have contributed to the Veteran's right hip disorder. The examiner explained that the current right hip osteoarthritis was a natural progression of the aging joint. The Board finds this opinion to be highly probative as it is based on a review of the Veteran's claims file and is supported by a complete rationale. The Board takes note of the March 2023 private chiropractor statement that indicates that the same injury the Veteran sustained to his back during service was likely to have been the cause of his hip condition. However, this statement is conclusory and is not supported by an explanation or rationale. Likewise, the Board finds this statement is entitled to very little to no probative value and it is outweighed by the more probative October 2022 VA medical opinion above. Accordingly, the Board finds that the weight of the evidence is against a finding that the Veteran's right hip disorder is etiologically related to his active duty service. Thus, service connection on a direct basis is not warranted. As indicated above, it is also the Veteran's contention that his right hip disorder is secondarily related to his service-connected lumbar spine disorder. In fact, during the February 2022 Board hearing, the Veteran's attorney stated that they were essentially contending that the right hip disorder was secondary to the lumbar spine. To address the question of whether the Veteran's right hip disorder was etiologically related to his service-connected lumbar spine disorder, the Regional Office (RO) also procured a secondary service connection opinion. In October 2022, the VA examiner rendered a negative nexus opinion indicating that the Veteran's right hip disorder was less likely than not caused or aggravated by his service-connected lumbar spine disorder. The examiner explained that the Veteran's right hip disorder was not medically related to his lumbar spine disorder and was a separate entity entirely. The examiner explained further that, according to medical literature, bone degeneration was a natural progression of aging bone and the arthritis in one joint/bone did not cause arthritis in another. The examiner indicated that a thorough review of medical literature failed to demonstrate a causal relationship. The Board finds this opinion to be highly probative on the question of whether there is a direct causative relationship between the Veteran's lumbar spine and his right hip disorder as it is based on a review of the Veteran's claims file and is supported by a complete rationale. The Board notes that in the March 2023 private chiropractor statement the chiropractor also stated that degenerative joint disease influences the Veteran's entire lower extremity, including the right hip. The chiropractor, however, did not provide an explanation as to how the Veteran's lumbar spine disorder influenced his right hip other than to say this condition would continue to degenerate over time due to abnormal nerve and muscle function in both legs. These statements are largely conclusory, in that, while the chiropractor suggests there is an effect on the Veteran's right hip, there is no indication as to how the Veteran's lumbar spine disorder and/or abnormal nerve/muscle function would influence or affect his right hip or cause additional degeneration. The chiropractor also does not otherwise consider whether the Veteran's bone degeneration is a natural progression of aging bone due to the Veteran's age, which was concluded and supported in the October 2022 VA medical opinion. Likewise, the Board finds this statement is entitled to very little to no probative value and it is outweighed by the more probative October 2022 VA medical opinion above. In February 2023, the Board determined that the October 2022 VA examiner failed to adequately explain whether the Veteran's service-connected lumbar spine disorder and right lower extremity sciatica could have aggravated the right hip disorder. Accordingly, in August 2023, the RO procured a VA examination and medical opinion to address this question. The VA examiner again diagnosed the Veteran with osteoarthritis of the right hip. The Veteran reported that his right hip began after his back injury during active duty service. The examiner opined that it was less likely than not that the Veteran's right hip disorder was proximately due to or aggravated by his service-connected lumbar spine disorder and/or RLE sciatica. The examiner explained that the Veteran's right hip disorder and sciatica were not medically related and were separate entities entirely. The examiner cited to medical literature and explained that osteoarthritis was the natural progression of aging bone and was not associated with sciatica/neuropathy in any extremity. The examiner noted that risk factors for the development of ostearthritis include age, heredity, excess weight, and overuse/misuse. The examiner also noted that arthritis in one joint did not cause development of arthritis in another joint or bone. With regard to aggravation, the examiner explained that the Veteran's claims file did not show a diagnosis for right hip ostearthritis until 2022 which occurred more than 50 years post service. The examiner explained that there were no medical records that established a longitudinal association to the Veteran's lumbar spine or sciatica. The examiner explained further that the Veteran's osteoarthritis was a natural progression of aging and there was no medical evidence that showed an increase load on the hip joint that resulted from his back pain. The examiner highlighted that medical records did not indicate that the Veteran had an altered gait. The Board finds this opinion to be highly probative on both the question of whether there is a direct causative relationship between the Veteran's lumbar spine and his right hip disorder and on whether the Veteran's lumbar spine has aggravated his right hip disorder, as it is based on a review of the Veteran's claims file and is supported by a complete rationale. The Board acknowledges the Veteran and his attorney's general contentions that the right hip disorder is related to the lumbar spine disorder and/or service, however, they are lay persons and not competent to opine as to the etiology of the right hip disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2022 and August 2023 VA medical opinions of record. Based on the foregoing, the Board finds that the weight of the probative evidence of record is against a finding that the Veteran's right hip disorder began during or within one year of active duty service or was otherwise related to his active duty service and/or his service-connected disabilities. Accordingly, the claim for service connection for a right hip disorder is denied. 2. Entitlement to an increased disability rating for a lumbar spine disorder. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007) Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. §§ 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. §§ 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. §§ 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's lumbar spine disorder is currently assigned a 10 percent rating prior to January 10, 2019; 20 percent rating from January 10, 2019, to January 14, 2024; and 40 percent rating from January 14, 2024, under Diagnostic Code 5243 for degenerative arthritis. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever would result in a higher rating. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar (lumbar) spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (2). Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months and a higher 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. [An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note 1 following Formula for Rating IVDS Based on Incapacitating Episodes. In July 2012, the Veteran underwent a VA examination to evaluate his lumbar spine disorder. The examiner diagnosed degenerative disc disease of the thoracolumbar spine. The Veteran reported that his back pain was getting worse (up to 9 out of 10), with sciatica in the left leg. The Veteran did not report flareups. Range of motion testing showed flexion at 75 degrees, with painful motion beginning at 75 degrees; extension at 20 degrees with painful motion beginning at 15 degrees; left and right lateral flexion at 20 degrees, with painful motion beginning at 20 degrees; left lateral rotation at 25 degrees with painful motion beginning at 25 degrees; and right lateral rotation at 25 degrees with painful motion beginning at 20 degrees. There was no additional range of motion loss on repetitive use testing. Contributing factors to disability include less movement than normal and pain on movement. The Veteran had tenderness or pain on palpation of the joint and muscle spasms/guarding that do not result in abnormal gait or spinal contour. There was no muscle atrophy and no IVDS. The Veteran was noted to have radicular symptoms consisting of moderate intermittent pain of the RLE. Based on this finding, the examiner indicated that the Veteran had mild radiculopathy of the left lower extremity associated with sciatic nerve involvement. The Veteran did not require the use of an assistive device for locomotion. The examiner concluded that the Veteran's lumbar spine disorder did not impact his ability to work. On January 10, 2019, the Veteran's lumbar spine was evaluated by a private chiropractor. The private chiropractor noted active/passive range of motion with flexion limited to 35 degrees (noted to be severe), extension limited to 15 degrees (noted to be severe), right lateral bending limited to 15 degrees (noted to be moderate), left lateral bending limited to 20 degrees (noted to be moderate), right lateral rotation limited to 10 degrees (noted to be moderate), and left lateral rotation limited to 15 degrees (noted to be moderate). It was also noted that the Veteran's range of motion would decrease another 15 percent when a flareup occurs. The private chiropractor concluded that the Veteran would experience pain with sitting too long, weakness when standing too long, and marked interference with his employment. In March 2021, the Veteran underwent diagnostic testing for his lumbar spine and a magnetic resonance imaging (MRI) test showed mild to moderate multilevel degenerative changes throughout the lumbar spine. In January 2022, the Veteran was evaluated by a private chiropractor. His lumbar spine was noted to have flexion to 60 degrees with pain, extension to 20 degrees with pain, left and right lateral flexion to 10 degrees with pain, and left and right lateral rotation to 15 degrees with pain. In October 2022, the Veteran underwent another VA examination to evaluate the severity of his lumbar spine disorder. The examiner diagnosed degenerative joint/disc disease of the thoracolumbar spine. The Veteran reported that his low back condition had gotten worse, and he had sharp throbbing pain with shooting pain down his right leg several times a week. The Veteran denied flareups. Range of motion testing showed flexion at 90 degrees, extension at 30 degrees, left and right lateral flexion at 30 degrees, and right and left lateral rotation at 30 degrees. There was pain on active and passive motion. Passive range of motion was the same as active. There was no additional range of motion loss on repetitive use testing. The examiner indicated that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time or with flareups. There was no guarding or muscle spasms. The Veteran was noted to have mild intermittent pain, paresthesias, and numbness of the right lower extremity based on sciatic nerve involvement. There was no muscle atrophy, no ankylosis, and no IVDS. The Veteran was noted to be utilizing a cane occasionally for ambulation due to his lumbar spine and RLE sciatic nerve radiculopathy. The examiner indicated that the Veteran's lumbar spine disorder did not impact his ability to perform occupational tasks. In February 2023, the Veteran was evaluated by a private treatment provider, and he was noted to have decreased range of motion. In August 2024, the Veteran most recently underwent a VA examination to evaluate the severity of his lumbar spine disorder. The examiner diagnosed degenerative disc disease of the thoracolumbar spine and bilateral lower extremity radiculopathy. The Veteran reported daily stiffness in the morning in the lower back, right worse then left. The Veteran also reported that he had numbness and tingling down the right leg and weakness in both legs. The Veteran indicated he had severe flareups several times a week with pain and stiffness in the low back and numbness/paresthesia down his legs that caused difficulty with sitting/standing for long periods of time. Range of motion testing showed flexion at 40 degrees, extension at 30 degrees, left and right lateral flexion at 30 degrees, and right and left lateral rotation at 30 degrees. There was pain noted on all ranges of motion. Passive range of motion was the same as active. There was no additional range of motion loss on repetitive use testing. With repeated use over a period of time and with flareups, the examiner indicated that there would be additional loss of range of motion with flexion at 10 degrees, extension at 10 degrees, left and right lateral flexion at 10 degrees, and right and left lateral rotation at 10 degrees. The Veteran had muscle spasms/guarding that resulted in an abnormal gait or abnormal spinal contour. There was no muscle atrophy and decreased 4/5 strength on bilateral ankle plantar flexion. The Veteran was noted to have mild paresthesias and numbness for the bilateral lower extremities due to sciatic nerve involvement. There was no muscle atrophy, no ankylosis, and no IVDS. The Veteran was noted to be utilizing a cane occasionally for ambulation. The examiner indicated that the Veteran's lumbar spine disorder caused difficulty with range of motion, especially with climbing hills and the Veteran would have limited ability to stand or sit for prolonged periods of time. The examiner also indicated that the Veteran could no longer do yard work and he would benefit from sedentary work that did not require standing. The Veteran's contemporaneous VA and private treatment records reflect that the Veteran had lumbar spine pain with radiating pain into his bilateral lower extremities. Based on the foregoing, the Board finds that, for the period prior to January 10, 2019, the criteria for a rating in excess of 10 percent are not met. As outlined above, a higher 20 percent rating requires evidence of forward flexion less than 60 degrees; combined range of motion no greater than 120 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 IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. This has not been shown. Although the Veteran was noted to have back pain, the evidence reflects at worst limitation of flexion to 75 degrees; extension at 15 degrees, left and right lateral flexion at 20 degrees, left lateral rotation at 25 degrees, and right lateral rotation at 20 degrees and there was no evidence of IVDS with incapacitating episodes. Accordingly, prior to January 10, 2019, a rating in excess of 10 percent for a lumbar spine disorder is not warranted. From January 10, 2019, to January 14, 2024, the Board finds that the evidence is at least in equipoise as to whether the criteria for a higher 40 percent rating have been met. In that regard, the Board notes that during the January 10, 2019 private chiropractic evaluation, the Veteran was indicated to have severe limitation of motion of the spine with limitation of flexion to 35 degrees. The private chiropractor speculated that there would be additional limitation of flexion due to flareups with a 15 percent decrease in range of motion or less than 30 degrees of flexion. The Board acknowledges that the Veteran appears to have improved range of motion findings in a January 2022 chiropractic treatment note and in the October 2022 VA examination report. These findings, however, did not take into account any additional loss of range of motion due to flareups. The Board highlights that the January 2019 private chiropractic evaluation was the bases for the initial 20 percent increase for the Veteran's lumbar spine disorder. See April 2020 Rating Decision. Therefore, the Board affords these findings significant probative value. The Board also notes that the January 2019 private chiropractor's findings are largely consistent with the findings from the most recent August 2024 VA lumbar spine examination. Thus, considering this evidence in a light most favorable to the Veteran, the Board finds that the Veteran's flareups likely became worse when he was evaluated on January 10, 2019, and continued. Accordingly, in affording the Veteran the benefit of the doubt the Board finds that a 40 percent rating for the lumbar spine disorder is warranted from January 10, 2019, to January 14, 2024. For the period from January 10, 2019, however, the record does not reflect that the criteria for a rating in excess of 40 percent have been met. In order to warrant an evaluation in excess of 40 percent for the Veteran's lumbar spine disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. The Veteran's VA/private treatment records and VA examination reports do not show this. The Board has also considered whether a rating in excess of 40 percent is warranted based on functional loss. 38 C.F.R. §§ 4.40, 4.45; Chavis v. McDonough, 34 Vet. App. 1 (2021). Although the Veteran's lumbar spine is limited and he has flareup episodes, the evidence of record does not show that his spine has been fixed in either flexion or extension, including during flareups. The Veteran has not otherwise indicated that this was the case. Therefore, unfavorable ankylosis has not been more nearly approximated and, for the period from January 10, 2019, a rating in excess of 40 percent for a lumbar spine disorder is not warranted. In making the above determination, the Board acknowledges that the VA examinations of the Veteran's lumbar spine must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which addresses 38 C.F.R. § 4.40, and states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such 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." In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. The Board finds that the most recent August 2024 VA examination complies with these requirements. Moreover, the Veteran is now in receipt of a 40 percent rating from January 10, 2019. A rating in excess of 40 percent for the lumbar spine involves a finding of ankylosis or its functional equivalent. Thus, a remand for an additional examination would serve no useful purpose in this regard. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Likewise, the Board finds that the evidence of record was sufficient to adjudicate his claim. 3. Entitlement to an increased disability rating for RLE radiculopathy. Under Diagnostic Code 8520, for the sciatic nerve a 10 percent disability rating is assigned for mild, incomplete paralysis; a 20 percent disability rating is assigned for moderate, incomplete paralysis; a 40 percent disability rating is assigned for moderately severe, incomplete paralysis; and a 60 percent rating is assigned for severe, incomplete paralysis with marked muscular atrophy. Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Accordingly, within these confines set down by the caselaw from the United States Court of Appeals for Veterans Claims (Court), the Board will use relevant dictionary definitions of "mild," "moderate," or "severe" in analyzing whether the Veteran's entitlement to higher ratings. In this regard, the Merriam-Webster Dictionary definition of "mild" includes "moderate in action or effect," "not being or involving what is extreme," and "not severe" or temperate. The Merriam-Webster Dictionary definition of "moderate" includes "temperate," "tending toward the mean or average amount or dimension," "not violent, severe, or intense," and "limited in scope or effect." Finally, the Merriam-Webster Dictionary definition of "severe" includes "causing discomfort or hardship," "very painful or harmful," "requiring great effort," and "of a great degree." See also 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1303. On January 8, 2019, a private chiropractor provided a radiculopathy questionnaire regarding the Veteran's symptomatology. The Veteran was noted to have RLE sciatic nerve incomplete paralysis that was moderately severe. The Veteran was noted to have pain when standing/walking too much on the right side and right leg spasms. The examiner indicated that the Veteran's RLE radiculopathy markedly interfered with the Veteran's employment. After reviewing the claims file, the Board finds that the evidence is at least in equipoise as to whether the Veteran's RLE radiculopathy was more closely approximated by the criteria for a higher 20 percent rating. This is based on the symptoms shown in the July 2012 VA examination that demonstrated moderate intermittent pain associated with RLE radiculopathy. The Veteran's more recent VA examinations also indicate that the Veteran was using a cane for ambulation due to his RLE radiculopathy. Thus, in affording the Veteran the benefit of the doubt, the Board finds that the evidence is evenly balanced as to whether the Veteran had moderate radicular symptoms at all times relevant to this appeal. Accordingly, a 20 percent rating is warranted for RLE radiculopathy. A higher 40 percent rating requires evidence of moderately severe symptomatology. The Board defines "moderate" in this appeal as "temperate," "tending toward the mean or average amount or dimension," "not violent, severe, or intense," and "limited in scope or effect." During the relevant appeal period, there is no indication in the record, including the Veteran's VA/private treatment records, that the symptomatology attributable to the Veteran's service-connected RLE radiculopathy exceeded this definition. In fact, the evidence does not reflect that the Veteran's RLE radiculopathy caused more severe symptoms. Rather, the record supports that the RLE sciatic nerve radiculopathy was limited in scope and based on the Veteran's own reports, he did not have any falls or unsteadiness of gait. The Veteran's more recent VA examinations also only reflect, at most, mild symptomatology. Significantly, the VA examination reports document the symptoms that were either reported by the Veteran, identified by the examiner during the examination, or identified by diagnostic testing that was conducted contemporaneous to the times in questions. Moreover, the VA examiners possess the proper training and education to make such assessments regarding the severity of the Veteran's RLE radiculopathy. The Board acknowledges the January 2019 private chiropractor's statement that the Veteran's RLE sciatic nerve incomplete paralysis was moderately severe. The private chiropractor appears to base this conclusion on the fact that the Veteran had pain with standing/walking, and flareups that cause a 15 percent decrease in range of motion, and spasms. The Board notes, however, that the Veteran's right hip flareups and decreased range of motion have been attributed to right hip osteoarthritis. See September 2023 VA Examination report. Moreover, the Board finds that the Veteran's spasms and pain with standing/walking are contemplated by the 20 percent rating assigned for moderate symptomatology. Notably, as indicated in the VA examinations of record, the Veteran has mostly moderate to mild RLE radicular symptoms of pain, numbness, and paresthesias and he only relies on a cane occasionally for locomotion, without any evidence of falls/weakness. Accordingly, the Board finds that the more probative evidence of record weighs against a determination that the Veteran's RLE radiculopathy was moderately severe. As such, a higher rating in excess of 20 percent is not warranted for the Veteran's RLE sciatic nerve radiculopathy. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As noted at the outset, entitlement to a TDIU has been raised by the record. However, the Veteran has not been sent notice for his TDIU claim and has not completed a VA Form 21-8940 (Application for Increased Compensation Cased on Unemployability). This form requests information regarding the Veteran's occupational and educational history, which is necessary to adjudicate entitlement to a TDIU. Therefore, remand is required to provide the Veteran with this form, or for him to submit equivalent information, as well as any other development deemed necessary. The matter is REMANDED for the following action: (Continued on the next page) ? Provide the Veteran with appropriate notice in connection with the claim for TDIU. Specifically, the Veteran should be sent a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and a VA Form 21-4198 (Request for Employment Information in Connection with Claim for Disability Benefits) and ask him to complete and return these forms. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.