Citation Nr: 25004780 Decision Date: 04/08/25 Archive Date: 04/08/25 DOCKET NO. 19-08 946 DATE: April 8, 2025 ORDER Entitlement to service connection for a left-hand disability, to include secondary to service-connected right index finger, is granted. Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease (DDD), prior to August 16, 2023, is denied. Entitlement to a rating in excess of 40 percent, from August 16, 2023, for lumbar DDD is denied. FINDINGS OF FACTS 1. The evidence is approximately balanced as to whether the Veteran's left-hand disability is caused by his service-connected right index finger. 2. The competent and credible evidence of record, prior to August 16, 2023, established the Veteran's lumbar DDD was manifested by forward thoracolumbar flexion of 60 degrees at worst with a combined range of motion of the thoracolumbar spine at 155 degrees without favorable ankylosis of the entire thoracolumbar spine. 3. The competent and credible evidence of record, from August 16, 2023, established the Veteran's lumbar DDD was manifested by forward thoracolumbar flexion of 35 degrees with a combined ROM of the thoracolumbar spine at 100 degrees and without favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for left-hand disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an initial rating in excess of 20 percent prior to August 16, 2023 for DDD are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 40 percent for DDD from August 16, 2023 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1992 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) from February 2016 and March 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Timely notices of disagreement (NOD) were filed by the Veteran in April 2016 and April 2017. In a March 2018 rating decision, the RO granted the Veteran's claim to service connection for lumbar DDD with an initial rating of 10 percent. The Veteran filed a June 2018 NOD appealing the initial rating of the service-connected lumbar DDD. The RO issued statements of the case in January 2019 and March 2019, and the Veteran timely filed VA Form 9s in January 2019 and March 2019, appealing the statements of the case, and electing to appeal without a Board hearing. In a September 2019 decision, the Board remanded for further development the claims of entitlement to service connection for bilateral plantar fasciitis, right foot disabilities, left foot disabilities, and a left-hand disability; and the claim of entitlement to an initial rating in excess of 10 percent for lumbar DDD. In an August 2020 rating decision, the RO granted the Veteran's claims of entitlement to service connection for radiculopathy, sciatic nerve, left lower extremity and right lower extremity. In an August 2020 supplemental statement of the case, the RO denied the Veteran's claims of entitlement to service connection for bilateral plantar fasciitis, right foot and left foot disabilities, to include arthritis and foot strain, and a left-hand disability; and the claim of entitlement to an initial rating higher than 10 percent for DDD. In a June 2021 decision, the Board granted the Veteran's claim of entitlement to service connection for bilateral plantar fasciitis and denied the claims of entitlement to service connection for right foot and left foot disabilities, to include arthritis and foot strain, and a left-hand disability; and the claim of entitlement to an initial rating higher than 10 percent for lumbar DDD. The Veteran appealed the June 2021 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2022 decision, the Court approved the parties' Joint Motion for Partial Remand (JMPR) to vacate the portion of the June 2021 Board's decision that denied the Veteran's claim of entitlement to service connection for a left-hand disability and entitlement to an initial rating in excess of 10 percent for lumbar DDD. The Court remanded to the Board for readjudication. In an August 2022 decision, the Board remanded the claims for further adjudication. In a May 2023 supplemental statement of the case, the RO denied the claims of entitlement to service connection for a left-hand disability and entitlement to an initial rating in excess of 10 percent for lumbar DDD. In a July 2023 decision, the Board remanded the claims for further development. In March 2024 and April 2024, the RO granted an initial rating of 20 percent and 40 percent effective August 16, 2023 for lumbar DDD. In an April 2024 supplement statement of the case, the RO denied the claim of service connection for a left-hand disability and denied an initial rating in excess of 20 percent and a rating in excess of 40 percent from August 16, 2023 for lumbar lumbar. In a June 2024 decision, the Board remanded the claims for further development. In a February 2025 supplement statement of the case, the RO denied the claim of service connection for a left-hand disability and denied an initial rating in excess of 20 percent and a rating in excess of 40 percent from August 16, 2023 for lumbar DDD. The Veteran was notified in a March 2025 correspondence that the appeal had returned to the Board, and it is now properly before the Board. The Board notes that in an April 2024 correspondence, the Veteran appeared to have submitted an Appeals Satisfaction Notice to withdraw all remaining issues associated with the appeal. However, the signature on the request did not match that of the Veteran or his representative. In May 2024, the Board sent correspondence to the Veteran requesting verification within 30 days to clarify whether the Veteran intended to withdraw the appeal. The correspondence notified the Veteran that the Board would proceed with adjudication of the appeal if no response was received within the 30-day period. The Veteran did not respond within 30 days, and the Board will proceed to adjudicate the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Entitlement to service connection for a left-hand disability, to include secondary to service-connected right index finger, is granted. The Veteran contends that his left-hand disability is due to his military service. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. The Veteran's service treatment records are silent to complaints, treatments, or diagnoses related to the Veteran's left-hand disability and indicate that the Veteran did not have a left-hand disability while on active duty. However, the Veteran reported having pain and numbness in his fingers while performing military duties in the cold at Fort Lewis from 1992 to 1998. See October 2018 Disability Benefits Questionnaire (DBQ). He further explained that while in Korea from 1989 to 1999, the symptoms worsened in the cold climate and included joint stiffness, popping, and swelling, which have continued since service. Id. He stated that his symptoms were not recorded at separation but that he continued to have problems with his left-hand joints. Id. In the alternative, the Veteran contends that service connection is warranted on a secondary basis due to overuse of his left hand following dislocation his service-connected right index finger, as he noticed increased symptoms that included painful motion, limited motion, and loss of grip strength that cause him to drop things when held in the left hand. Id.; see also August 2020 Statement in Support of Claim. The first element of service connection has been satisfied as the Veteran has been diagnosed with a current disability, left hand degenerative arthritis. See January 10, 2025 VA examination; see also February 8, 2025 VA Examination. The second and third element of direct service connection were addressed in the following VA examinations pursuant to the June 2024 Board remand. Since the June 2024 Board decision to remand the claim, the Veteran was afforded a VA examination on July 23, 2024, filed on July 25, 2024. The examiner opined the Veteran's claimed left-hand disability was less likely than not incurred in or caused by the Veteran's military service. See July 25, 2024 VA Examination. As rationale, the examiner stated that x-rays obtained in service were negative for a chronic condition and that there was an absence of post military records of for chronic left-hand pain or treatment. Id. The Board finds this opinion inadequate as the examiner essentially relied on the absence of evidence in service treatment records for the opinion. See Dalton v. Peake, 21 Vet. App. 23 (2007) (finding that an examination is inadequate where the examiner relied on lack of evidence in service treatment records to provide a negative opinion). Additionally, although the examiner listed the relevant evidence, the examiner did not address the Veteran's statement about the symptoms of his left-hand disability since his military service, such as painful motion, limited motion, and loss of grip strength. Id. (finding that an examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury in service). As the July 24, 2024 VA examination did not fully address all pertinent medical evidence of record, the Board assigns it no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the July 25, 2024 VA examination, the examiner opined the Veteran's left-hand disability was less likely than not proximately due to the result of the Veteran's right index finger dislocation. As rationale, the examiner stated that the left hand and right index finger involve different parts of the body with separate mechanisms of injury and no direct anatomical connection. See July 25, 2024 VA Examination. Although admitting to not being a radiologist, the examiner believed that if imaging from October 2015 showed degenerative arthritis and then imaging from February 2023 showed a normal hand, then it must have been an overread by the initial radiologist or that it was extremely minimal and went missed with the recent imaging. Id. The examiner did not address the Veteran's statement about pain of his left-hand disability from using it more often due to his service-connected right index finger. See Dalton, 21 Vet. App. 23. As the July 24, 2024 VA examination did not fully address all pertinent medical evidence of record, the Board assigns it little probative weight. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl 21 Vet. App. 120. In a January 8, 2025 addendum, filed January 10, 2025, an examiner stated the Veteran had a diagnosis for left-hand degenerative arthritis and opined that the condition was less likely than not incurred in or caused by the Veteran's military service. As rationale, the examiner noted the Veteran stated that the condition started in 1998 and began from overcompensating for the right index finger. See January 10, 2025 VA Examination. The examiner continued to explain that the evidence of record did not sufficiently demonstrate that the current left-hand arthritis was caused by and continued from military service. Id. The examiner noted service treatment records did not show complaints of chronic left-hand pain or disability during military service. Id. The examiner stated that per a medical history report on May 10, 1995, the Veteran selected NO to arthritis and NO to bone, joint, or other deformity. Id. No left-hand problems were reported. Id. The Veteran's separation exam showed normal upper extremities, and the Veteran selected NO to arthritis and NO to bone, joint, or other deformity. Id. No abnormal left-hand findings or diagnosis was found by the examining physician during separation exam. Id. The examiner noted continuity had not been established and no nexus had been established. As the January 10, 2025 VA examination addressed pertinent medical evidence of record and the Veteran's statement, the Board assigns it significant probative weight. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl 21 Vet. App. 120. In the same January 10, 2025 VA examination, the examiner opined that the Veteran's left-hand degenerative arthritis was at least as likely as not proximately due to or the result of his right index finger dislocation. As rationale, the examiner noted the Veteran had symptomatic and chronic right-hand problems resulting in overuse and overcompensation of the left hand. See January 10, 2025 VA Examination. The examiner stated that the Veteran's injured right hand altered the biomechanics and kinetic of upper extremity use. Id. The left hand overcompensated for many years for the right-hand disabilities. Id. This led to the pain with movement and limited ROM consistent of the Veteran's left hand including degeneration of the left-hand joints as seen in October 2015 left hand x-ray. Id. The examiner stated medical studies sufficiently established that a diseased or injured limb/upper extremity led to overcompensation resulting to disability and damage of the contralateral side. Id. As the January 10, 2025 VA examination addressed pertinent medical evidence of record and the Veteran's statement, the Board assigns it significant probative weight. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl 21 Vet. App. 120. Prior to June 2024 Board decision, on August 21, 2023, the Veteran was afforded a VA examination. The examiner opined the Veteran's left-hand condition was less likely than not incurred in or caused by an in-service injury, event, or illness. See August 21, 2023 VA Examination. The examiner stated that the Veteran did not have a diagnosed left-hand condition because, even though a bilateral x-ray on October 2, 2015 indicated degenerative changes in the hands, x-rays on October 16, 2007, March 1, 2017, August 1, 2019, and December 16, 2019 showed normal findings. Id. The examiner acknowledged the Veteran's assertion that his condition began during the performance of duties in cold weather, such as physical training, field training exercises, and operating heavy machinery, and were aggravated by further exposure to cold climates in Korea. Id. However, the examiner noted that service treatment records were silent for left-hand conditions. Id. The examiner also noted that the Veteran had not complained of left-hand problems until 2007, many years after he separated from active duty. Id. Additionally, the examiner opined that the Veteran did not have a diagnosed left-hand condition related to his service connected left hip disability, left knee pain, left and right lower extremities, bilateral pes planus with plantar fasciitis, right index finger, lumbar degenerative disc disease, or right knee strain. Id. The examiner did not provide sufficient reasons and bases why the October 2, 2015 x-rays, which indicated degenerative changes, did not support a diagnosis of a left-hand condition, and the examiner's opinion is conclusory. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl 21 Vet. App. 120. Accordingly, the opinion is inadequate, and the Board assigns it no probative weight. On February 9, 2023, the Veteran was afforded a VA examination, filed on February 10, 2023. The examiner opined that if arthritis of the left hand was conceded that it was less likely than not that any hand condition had its nexus in service or due to events in service. See February 10, 2023 VA Examination. As rationale, the examiner stated that there was no evidence of a significant left-hand injury while in service; that it would be unlikely a significant left-hand injury would have gone unnoted or unreported; that any claim of onset in service with continuity of symptoms since service was dispelled by the absence of evidence supporting the claim; that it would be highly unlikely a significant hand condition would have gone unnoted or unreported at separation; that absence of care in the ensuing years since service was germane; and that it would have been highly unlikely an individual could continue to function day-to-day or in an occupational environment with an ongoing hand condition having its nexus dating from 2000. Id. The examiner noted that arthritis was diagnosed in 2015 but later x-rays, including one from August 1, 2019, were negative for degenerative changes. Id. As the February 10, 2023 VA examination addressed pertinent medical evidence of record and the Veteran's statement, the Board assigns it significant probative weight. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl 21 Vet. App. 120. On December 16, 2019, the Veteran was afforded a VA examination filed on January 7, 2020. The examiner opined that the Veteran's left-hand condition was less likely than not incurred in or caused by the Veteran's military service. See January 7, 2020 VA Examination. As rationale, the examiner stated that no diagnosis was given for the Veteran's left hand. Id. The examiner did not address all relevant facts as the examiner did not address the October 2015 x-rays, which indicated degenerative changes in the Veteran's left hand. The Board finds the opinion inadequate and assigns it no probative weight. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl 21 Vet. App. 120. Addressed in more detail below, the Board finds that service connect on a direct basis for the Veteran's left-hand disability is not warranted; however, service connection for his left-hand disability, secondary to right index finger, is warranted. Service Connection on a Direct Basis The Veteran asserted having pain and numbness in his fingers while performing military duties in the cold at Fort Lewis from 1992 to 1998. See October 2018 DBQ. He further explained that while in Korea from 1989 to 1999, the symptoms worsened in the cold climate and included joint stiffness, popping, and swelling, which have continued since service. Id. He stated that his symptoms were not recorded at separation but that he has continued to have problems with his left-hand joints. Id. The Veteran is competent to report his symptoms. However, the Veteran's service treatment records are silent to a left-hand disability. In the Veteran's separation examination, the Veteran indicated he had no arthritis and no bone, joint, or other deformity, and the Veteran had normal upper extremities. The Veteran had not complained of left-hand problems until 2007, several years after he separated from active duty. Therefore, the Veteran's assertions to pain and numbness in his left hand while performing military duties, which continued since service, are not credible and given no probative value. Rucker, 10 Vet. App. 67; Layno, 6 Vet. App. 465. All the VA medical examiners of record provided negative nexus opinions for service connection on a direct basis. See July 25, 2024, January 10, 2025, August 21, 2023, February 9, 2023, and January 7, 2020 VA Examinations. Some VA medical opinions were found inadequate, such as the August 21, 2023 and December 16, 2019 VA examinations, and were assigned no probative value. However, the VA examinations, which were assigned probative value, provided negative nexus opinions for direct service connection of the Veteran's left-hand disability. See January 10, 2025 and February 9, 2023 VA Examinations. Accordingly, the Board finds VA examination opinions are the most probative evidence of record against service connection on a direct basis for the Veteran's left-hand disability. Weighing the probative values of the VA medical opinions and lay statements, both for and against direct service connection, the Board finds the evidence of record does not support that all the elements necessary for establishing service connection on a direct basis are met. As the weight of the persuasive evidence is against the Veteran's claim for entitlement to service connection on a direct basis for a left-hand disability, the benefit of the doubt doctrine is not applicable, and must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection, secondary to service-connected right index finger In the alternative, the Veteran contends that service connection is warranted on a secondary basis due to overuse of his left hand following dislocation his service-connected right index finger. The Board finds that entitlement to service connection for the Veteran's left-hand disability, secondary to service-connected right index finger is warranted. To that end, the Veteran was afforded VA examinations addressing entitlement to service connection, secondary a service-connected disability. In the July 25, 2024 VA examination, the examiner opined the Veteran's left hand disability was less likely than not proximately due to the result of the Veteran's right index finger dislocation. As stated above, the Board assigned the July 25, 2024 VA opinion little probative weight due to the examiner not fully addressing all pertinent medical evidence of record, such as the Veteran's statement about pain in his left hand. In the January 10, 2025 VA examination, the examiner opined that the Veteran's left-hand degenerative arthritis was at least as likely as not proximately due to or the result of his right index finger dislocation. The Board assigned the January 10, 2025 VA opinion significant probative weight. In the August 21, 2023 VA examination, the examiner opined the Veteran did not have a left-hand disability that could be related to his service-connected right index finger. The Board found the August 21, 2023 VA opinion inadequate for providing sufficient reasons and bases for the opinion. Accordingly, as the January 10, 2025 VA examination opinion is the most probative opinion evidence of record, resolving any doubt in the Veteran's favor, weighing the probative values of the VA medical opinions, both for and against service connection, secondary to right index finger, the Board finds the evidence of record is at least in relative equipoise as to whether the Veteran's left-hand disability was related to his right index finger. The Board adheres to the benefit of the doubt rule. Therefore, the Board resolves the issue in the Veteran's favor and, as all the elements necessary for establishing service connection, secondary to service-connected right index finger, are met, finds that entitlement to service connection for left-hand disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59; see also Chavis v. McDonough, 34 Vet. App. 1 (2021) (ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis). Entitlement to an initial rating in excess of 20 percent prior to August 16, 2023 and to a rating in excess of 40 percent thereafter for lumbar degenerative disc disease is denied. The Veteran was service connected for lumbar DDD in a March 2018 rating decision and granted an initial rating of 10 percent effective October 2, 2015 under Diagnostic Code 5237. In a March 2024 rating decision, the RO increased the rating to a 40 percent evaluation effective from August 16, 2023. In an April 2024 rating decision, the RO granted an increase to the initial rating to a 20 percent evaluation. The Veteran contends that his lumbar DDD is entitled to an initial rating in excess of 20 percent and a rating in excess of 40 percent from August 16, 2023. The Veteran's low back disability is currently rated under Diagnostic Code 5237 for lumbosacral strain and the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the general rating formula for rating diseases and injuries of the spine was not changed by the February 2021 regulatory changes. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. Id. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. §4.25. See 38C.F.R. §4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note (1) 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of IVDS or incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. Initial rating in excess of 20 percent prior to August 16, 2023 During the period prior to August 16, 2023, the Board finds that an initial rating in excess of 20 percent is not warranted for the Veteran's lumbar DDD. The medical and lay evidence establishes that the Veteran manifests pain and limitation of motion of the thoracolumbar spine that most nearly approximates the criteria associated with a 20 percent evaluation, but not higher. The June 2024 Board decision remanded the claim of an initial rating in excess of 20 percent for retroactive VA medical opinion. The VA examiner was instructed to provide an estimated range of motion (ROM) for the Veteran's lumbar DDD due to flare-ups based on the evidence of record at the time of the Veteran's statements during the prior September 2016 and December 2019 VA examinations. On July 23, 2024, the Veteran was afforded a VA examination where the examiner reviewed the Veteran's evidence of record and provided retrospective estimated ROM due to flare-ups based on the evidence of record at the time of the Veteran's statements and the September 2016 VA examination. The examiner stated that the ROM loss due to pain in both weightbearing and non-weight bearing positions, on both active and passive motion, and on repeated use over time was: Forward flexion endpoint: 60 degrees; Extension endpoint: 15 degrees; Right lateral flexion endpoint: 20 degrees; Left lateral flexion endpoint: 20 degrees; Right lateral rotation endpoint: 20 degrees; and Left lateral rotation endpoint: 20 degrees. The examiner added that the ROM due to flare ups were the same based on the evidence of record and the Veteran's statements at the time of the September 2016. The July 23, 2024 VA examiner also provided retrospective estimated ROM due to flare-ups based on the evidence of record at the time of the Veteran's statements and the December 2019 VA examination. The examiner stated that ROM loss due to pain in both weightbearing and non-weight bearing positions, on both active and passive motion, and on repeated use over time was: Forward flexion endpoint: 60 degrees; Extension endpoint: 15 degrees; Right lateral flexion endpoint: 15 degrees; Left lateral flexion endpoint: 15 degrees; Right lateral rotation endpoint: 15 degrees; and Left lateral rotation endpoint: 15 degrees. The examiner added that the ROM due to flare ups were the same based on the evidence of record and the Veteran's statements at the time of the December 2019 VA examinations. At the September 2016 VA examination, the Veteran's ROM was: Forward flexion endpoint: 65 degrees; Extension endpoint: 20 degrees; Right lateral flexion endpoint: 30 degrees; Left lateral flexion endpoint: 30 degrees; Right lateral rotation endpoint: 30 degrees; and Left lateral rotation endpoint: 30 degrees. The examiner reported that the Veteran experienced decreased or abnormal range of motion, pain, and muscle spasm without abnormal gait and spinal contour. See September 2016 VA Examination. The examiner indicated that there was pain on motion, without incoordination or atrophy, or additional loss of range of motion upon repetitive use testing; strength and reflex testing was normal. Id. The examiner stated that the Veteran had pain on motion only in forward flexion, and that his functional loss was due to pain; the VA examiner stated that the Veteran's functional loss caused difficulty with lifting and prolonged walking or standing. At the December 2019 VA examination, the Veteran's ROM was: Forward flexion endpoint: 70 degrees; Extension endpoint: 20 degrees; Right lateral flexion endpoint: 20 degrees; Left lateral flexion endpoint: 20 degrees; Right lateral rotation endpoint: 20 degrees; and Left lateral rotation endpoint: 20 degrees. The examiner reporter that the Veteran experienced decreased range of motion and pain on all planes of motion, without pain on weight-bearing; there was also no tenderness to palpation, muscle spasm, guarding, or muscle atrophy. See December 2019 VA Examination. The VA examiner indicated that there was pain on motion, without incoordination or weakness. Id. There was no additional loss of range of motion upon repetitive use testing; strength and reflex testing was normal. Id. The VA examiner noted that the Veteran's functional loss was secondary to pain, and caused difficulty with running, squatting bending, and walking; the Veteran reported experiencing difficulty walking more than 30 yards without pain. Id. Applying the facts to the criteria set forth above, the Veteran is not entitled to an initial rating of in excess of 20 percent for his service-connected lumbar DDD prior to August 16, 2023 under the General Rating Formula for Diseases and Injuries of the Spine. The Board finds the Veteran's service-connected lumbar spine DDD prior to August 16, 2023 was, at worst, productive of forward flexion of greater than 60 degrees with a combined ROM of the thoracolumbar spine at 135 degrees. The Board notes that the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine prior to August 16, 2023. In light of the foregoing, the Board finds that an initial rating in excess of 20 percent for the service-connected lumbar DDD is not warranted for the period prior to August 16, 2023. Rating in excess of 40 percent from August 16, 2023 From August 16, 2023, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's lumbar DDD. The medical and lay evidence establishes that the Veteran manifests pain and limitation of motion of the thoracolumbar spine that most nearly approximates the criteria associated with a 40 percent evaluation, but not higher, for the period after August 16, 2023. In an April 8, 2024 VA examination addendum, the examiner estimated Veteran's ROM due to flare-ups based on the evidence of record at the time of the Veteran's statements at the August 16, 2023 VA examination: Forward flexion endpoint: 35 degrees; Extension endpoint: 5 degrees; Right lateral flexion endpoint: 15 degrees; Left lateral flexion endpoint: 15 degrees; Right lateral rotation endpoint: 15 degrees; and Left lateral rotation endpoint: 15 degrees. The examiner noted pain, stiffness, cracking, popping, and muscle spasms which often cause the Veteran to work with a limp and required him to take medications and restrict activities in order to alleviate the pain, consistent with lumbar strain during a flare up. Id. In a March 5, 2024 VA examination addendum, the examiner noted the ROM weight bearing and non-weight bearing testing for the September 2016, December 2019, and August 2023 examinations, but did not provide retrospective opinions. In a February 21, 2024 VA examination addendum, the examiner did not provide retrospective ROM due to the lack of expertise in order to make an estimate. In the August 16, 2023 VA examination filed on September 13, 2023, the examiner provided active ROM values: Forward flexion endpoint: 35 degrees; Extension endpoint: 5 degrees; Right lateral flexion endpoint: 15 degrees; Left lateral flexion endpoint: 15 degrees; Right lateral rotation endpoint: 15 degrees; and Left lateral rotation endpoint: 15 degrees. The examiner noted passive ROM, repetitive use ROM, repeated use over time had the same values. Id. The examiner noted that the Veteran denied flare-ups and that the Veteran did not have localized tenderness, guarding, or muscle spasms. Id. The Veteran had disturbance of locomotion and difficulty with prolonged walking or running. Id. The Veteran had normal muscle strength for bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Id. The Veteran did not have muscle atrophy. Id. The Veteran did not have ankylosis of the spine. Id. Applying the facts to the criteria set forth above, a rating in excess of 40 percent for the Veteran's service-connected lumbar DDD from August 16, 2023 is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Board finds the Veteran's service-connected lumbar DDD is, at worst, productive of forward flexion of 35 degrees with a combined ROM of the thoracolumbar spine at 100 degrees. The Board notes that the evidence does not show that the Veteran has muscle spasms or guarding. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine. In light of the foregoing, the Board finds that a rating in excess of 40 percent for the Veteran's service-connected lumbar DDD from August 16, 2023 is not warranted. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38C.F.R. §§4.40, 4.45, 4.59 and DeLuca at 206-07. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignments, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up; the projected limitation of motion was based on the Veteran's report of symptomatology and reports of functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support an initial rating in excess of 20 percent prior to August 16, 2023 and in excess of 40 percent thereafter. As noted earlier, the Veteran does not have intervertebral disc syndrome. Nevertheless, the Board finds that the Veteran's lumbar DDD has not been productive of incapacitating episodes for the rating period on appeal. The evidence does not demonstrate that the Veteran experiences incapacitating episodes requiring bed rest; the Veteran's treatment records do not confirm that his treating physicians noted any incapacitating episodes or prescribed bed rest, and the Veteran's VA examination reports reflect that the Veteran has not experienced any incapacitating episodes requiring bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of a separate evaluation for right lower extremity and left lower extremity radiculopathy, and as such, it is not for consideration here. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hahn 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.