Citation Nr: 1312289 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-13 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) 2. Entitlement to service connection for an acquired psychiatric disability, to include on a secondary basis. 3. Entitlement to service connection for a disability manifested by sleeplessness. 4. Entitlement to an increased rating for intervertebral disc syndrome of the lumbar spine, currently evaluated as 40 percent disabling. 5. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity. 6. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity. 7. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 8. Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1988, and from May 1995 to February 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for a psychiatric disability, to include PTSD, and a disability manifested by sleeplessness. In addition, the RO denied an increased rating for intervertebral disc syndrome of the lumbar spine and the Veteran's claim for special monthly compensation based on the need for the regular aid and attendance of another person. The Board notes that by rating action dated January 2009, the RO granted service connection for radiculopathy of the left lower extremity, and assigned a 10 percent evaluation, effective October 16, 2007. By rating decision dated June 2012, the RO granted service connection for radiculopathy of the right lower extremity. Since these conditions are all manifestations of the service-connected intervertebral disc syndrome, the Board will adjudicate the claim for an increased rating for radiculopathy of each lower extremity. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have PTSD that can be causally linked to an event or incident in service. 2. The Veteran has been granted service connection for intervertebral disc syndrome of the lumbar spine, evaluated as 40 percent disabling; residuals of an injury to the medial collateral ligament of the right knee, evaluated as 10 percent disabling; radiculopathy of the left lower extremity, evaluated as 10 percent disabling; radiculopathy of the right lower extremity, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; residual scar status post surgical fusion, evaluated as noncompensable; and for erectile dysfunction, evaluated as noncompensable. The combined schedular rating is 60 percent. 3. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has an acquired psychiatric disability that is etiologically related to military service or a service-connected disability. 4. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a disability manifested by sleeplessness that is etiologically related to military service. 5. The Veteran's low back disability is manifested by severe limitation of motion, without evidence of ankylosis or any incapacitating episodes. 6. Radiculopathy of the left lower extremity is manifested by weakness and loss of sensation, and is not more than mild in severity. 7. Radiculopathy of the right lower extremity is manifested by weakness and loss of sensation, and does not result in more than mild incomplete paralysis. 8. The Veteran does not have loss of use of a hand or foot, is not blind and is able to perform self-care tasks or protect himself from the hazards incident to his daily environment without care or assistance of another person on a regular basis. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2012). 3. The criteria for service connection for a disability manifested by sleeplessness have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). 4. The criteria for an evaluation in excess of 40 percent for intervertebral disc syndrome of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 5. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2012). 6. The criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2012). 7. The criteria for special monthly compensation based on the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. Notice was provided in March and June 2007, and January 2012 letters. The claims were subsequently readjudicated in an August 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, VA examination reports, statements from the Veteran's mother and several acquaintances and the Veteran's testimony at a hearing before the undersigned. VA clinical examinations with respect to the increased rating claims and the aid and attendance claim have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disability at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board acknowledges the Veteran has not been afforded a VA medical examination to obtain an opinion regarding the etiology of any psychiatric disorder or for any disability manifested by sleeplessness. Based on the evidence in this case, the Board finds that an examination is not necessary. As is discussed in greater detail below, there has been no indication that any current psychiatric disability or a sleep disorder may be associated with service, so as to warrant a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). A. PTSD and an acquired psychiatric disability, to include on a secondary basis Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evaluation, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The Board notes that on July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The revisions add to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. 38 C.F.R. § 3.304(f) previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to establish the occurrence of the claimed in-service stressor. VA later amended 38 C.F.R. § 3.304(f) to also authorize VA to accept the statements of Veterans who are former prisoners-of-war, as well as those with an in-service diagnosis of PTSD, as sufficient to establish occurrence of an in-service stressor if such statements are consistent with the places, types, and circumstances of service. If a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist , or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). As will be discussed, because the most probative evidence indicates the Veteran does not meet the diagnostic criteria for PTSD, the amended regulation does not impact this decision. Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity The Veteran asserts service connection is warranted for PTSD and for an acquired psychiatric disability, to include as secondary to service-connected disability. The evidence supporting the Veteran's claim includes his statements and some of the findings of record. In August 2008, the Veteran related that while he was assigned to the USS Dixon in 1987, he was issued a temporary assignment to the USS Coontz. He maintains he participated in the removal of the remains of crew members of the USS Stark, which had been struck by an Iraqi missile. VA outpatient treatment records disclose psychological testing was performed by the VA in March 2007. The Veteran asserted he saw many casualties when he was in the Navy. He stated he was never in direct combat or in danger of self-harm. When he was seen in a VA outpatient treatment clinic in February 2008, he stated he had nightmares related to his Persian Gulf service, including a recurrent one of an incident that happened to him when he pulled a body out of the water by the arm, and the arm tore off the body. The record reflects various diagnoses, including alcohol and cocaine dependence, anxiety disorder, PTSD, and personality disorder/traits. The diagnoses were anxiety disorder, general anxiety, PTSD, polysubstance dependence and antisocial personality. He again stated in July 2008 that he had been assigned to the recovery of the USS Stark and had to clean up debris, including human remains. The assessment was history of PTSD. The Veteran reported in October 2008 that he believed he had PTSD because he had all the symptoms. When asked what symptoms he was referring to, the Veteran responded difficulty sleeping, problems with aggression and difficulty with focus and concentration. He again stated he pulled remains out of the Persian Gulf and that there were sharks in the water. The assessments were generalized anxiety disorder, alcohol and cocaine dependence and personality disorder, not otherwise specified with antisocial traits. The evidence against the Veteran's claim includes the service treatment records and the post-service medical evidence of record. The service treatment records are negative for complaints or findings pertaining to a psychiatric disability, to include PTSD. When examined in April 1988, prior to his separation from his first period of service, a psychiatric evaluation was normal. In addition, service department examinations in February 1990 and November 1993 reveal no psychiatric abnormalities. The Veteran denied nervous trouble or excessive worry. The only pertinent entry from the Veteran's second period of service is the February 1995 enlistment examination which showed a psychiatric evaluation was normal. Personnel records reflect the Veteran was assigned to the USS Dixon from August 1984 until March or April 1988. There is no indication in the personnel records he was temporarily assigned to the USS Coontz. VA outpatient treatment records reveal the Veteran was seen in November 2006, having been referred for cocaine dependence and alcohol abuse. He denied any previous psychiatric history. He voiced disappointment in July 2007 related to not having a diagnosis of PTSD. A depression screen was positive. The assessments were cocaine and alcohol dependence. The Veteran was seen by a psychologist in May 2009. She informed the Veteran that in her clinical opinion, there was not enough information to support a diagnosis of PTSD. The examiner observed the Veteran appeared to become visibly upset when told this, evidenced by a change in demeanor and a reddened face. While the Veteran alleges he was assigned to the USS Coontz on a temporary basis, and that while on that ship he was subjected to stressors involving human remains, the evidence of record fails to support his claim. The personnel records do not show any such transfer. Since his stressor hinges on his assertion he was stationed aboard the USS Coontz, the fact he was not undermines his credibility. Thus, in the absence of a stressor, there can be no valid claim for PTSD. The Veteran also claims service connection is warranted for an acquired psychiatric disability, to include as secondary to service-connected disability. Service connection is in effect for intervertebral disc syndrome, evaluated as 40 percent disabling; residuals of an injury to the medial collateral ligament of the right knee, evaluated as 10 percent disabling; radiculopathy of the left lower extremity, evaluated as 10 percent disabling; radiculopathy of the right lower extremity, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; scar, residual status post surgical fusion, evaluated as noncompensable; and for erectile dysfunction, evaluated as noncompensable. The combined schedular rating is 60 percent. As mentioned above, the service treatment records from both periods of service are negative for complaints or findings pertaining to a psychiatric disability. The Veteran was initially seen in November 2006 due to cocaine and alcohol dependence/abuse. The Board acknowledges he has received various diagnoses, including cocaine dependence and anxiety disorder. Even if the Board were to assume the Veteran has an acquired psychiatric disability, the record establishes it was initially documented many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) ("evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). The Board acknowledges the assertions of the Veteran that he has PTSD and/or an acquired psychiatric disability that is related to service or a service-connected disability. As a lay person, however, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In the absence of any indication of an acquired psychiatric disability for years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. Similarly, there is no clinical evidence linking any current acquired psychiatric disability to service, or that it is related to, or was aggravated by, a service-connected disability. The Veteran has not provided any support for this allegation. In the absence of such evidence, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include on a secondary basis. In sum, there is no evidence of PTSD in service, the preponderance of the probative evidence indicates that the Veteran does not meet the diagnostic criteria for PTSD. The Board finds, accordingly, that service connection for PTSD and for an acquired psychiatric disability, to include on a secondary basis, is denied. B. A disability manifested by sleeplessness The Veteran asserts service connection is warranted for a disability manifested by sleeplessness. During the hearing before the undersigned in January 2013, the Veteran testified he did not sleep well, and that it had a lot to do with his PTSD. He alleged that a physician told him there was a high probability his sleep apnea is related to PTSD. The service treatment records and service department medical records are negative for complaints or findings pertaining to a sleep disorder. The Veteran specifically denied trouble sleeping on service department examinations in February 1990, November 1993 and February 1995. The record indicates the Veteran first reported problems sleeping when he was seen by the VA in July 2008. At that time, he described nightmares and trouble sleeping. Several months later, he said his symptoms included difficulty sleeping. He stated in December 2008 that he was still not sleeping, even with medication. The impressions included dyssomnia, not otherwise specified (obstructive sleep apnea). In January 2009, the Veteran related he continued to suffer from initial and middle insomnia. The evidence demonstrates that a disability manifested by sleeplessness, if present, was first demonstrated many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) ("evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service. There is no indication in the record that the Veteran has a sleep disorder that is associated with service or a service-connected disability. The Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding the existence or onset of a disability manifested by sleeplessness. The Board finds, accordingly, that the preponderance of the evidence is against the claim for service connection for a disability manifested by sleeplessness. II. Increased rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Intervertebral disc syndrome of the lumbar spine With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent evaluation may be assigned. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluations under Diagnostic Code 5243, 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 1. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of 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. Note 2. Under the General Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease: A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assignable for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation may be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Several "Notes" to the new criteria provide additional guidance as to the assigning the appropriate rating: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. §§ 4.45, 4.59 (2011). On VA examination in October 2006, the Veteran complained of low back pain, muscle spasms and stiffness. He related he had not seen a physician for follow-up for his low back problem for the previous three years. An examination revealed forward flexion was to 60 degrees; extension backward was to 5 degrees, lateral flexion was to 15 degrees on the right and to 10 degrees on the left, and rotation was to 12 degrees on the right and to 15 degrees on the left. Pain was reported on flexion and extension. There was no fixed deformity of the lumbar spine. A moderate to severe muscle spasm was noted involving the entire lumbar spine. There was 50 percent less range of motion with acute flare-ups. There was also decreased range of motion on repetitive motion of the lumbar spine. The examiner noted there were objective signs of fatigability of the lumbar spine. He added that the functional impact was moderate to severe, and was due mostly to pain, but to lack of endurance and chronic fatigue as well. The diagnoses were traumatic spondylosis involving the entire lumbar spine with degenerative disc disease at L5-S1, associated with limitation of motion and sciatic radiculopathy. VA outpatient treatment records disclose the Veteran was seen in December 2007. It was noted he had an antalgic gait. He did not use an external support for ambulation. Straight leg raising was negative. Sensation was grossly intact. Muscle strength was 5/5 and deep tendon reflexes were 2+. In June 2008, the Veteran's mother and several friends wrote that the Veteran has chronic low back pain and discomfort, and that he has difficulty walking. The Veteran was afforded a VA examination of the spine in October 2008. He reported daily pain, ranging from 8-10/10. He stated he was pretty much sedentary, either sitting in bed or in a wheelchair. He claimed he had received seven epidural injections without relief. He had no physician-sanctioned days lost secondary to acute flares or incapacitation over the last 12 months. After three repetitions, flexion was from 0 to 10 degrees; extension was from 0 to 80 degrees; lateral motion was from 0 to 10 degrees, bilaterally; and rotation was from 0 to 12 degrees, bilaterally. All motions were accompanied by pain. There was tenderness to the entire spine, legs and anterior thighs. A 1+ spasm was noted. The Veteran had problems standing and his gait was broad-based and antalgic. Strength was 4+/5 bilaterally. It was difficult to estimate the loss of range of motion with acute flares since the 8/8 Waddell sign made the examination unreliable. The examiner estimated there would be lumbosacral strain functional limitations after repetitive use of moderate severity, mostly manifested by pain. The diagnoses were lumbosacral multi-level degenerative disc disease with spinal stenosis and degenerative joint and facet arthrosis of the entire spine, of moderate severity. A lumbar laminectomy was performed at a private facility in September 2009. The postoperative diagnosis was lumbar stenosis. In a November 2009 rating decision, the RO assigned a 100 percent evaluation for intervertebral disc syndrome of the lumbar spine under the provisions of 38 C.F.R. § 4.30 (2012). This evaluation was effective from September 28, 2009, through December 31, 2009. The Veteran was again afforded an examination of the spine by the VA in June 2010. It was indicated there were no incapacitating episodes. He walked with a cane. An examination revealed gait and posture were normal. There was no spasm or atrophy. Guarding, pain with motion, tenderness and weakness were present. It was reported there was objective evidence of pain on motion. The Veteran stated he was unable to do forward flexion or extension due to pain. He was able to do lateral flexion and rotations at a very minimal motion. The diagnosis was degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities. It was indicated the condition had significant effects on the Veteran's occupation due to decreased mobility, problems with lifting and carrying and decreased strength in the lower extremities. When examined by VA in October 2010, the Veteran reported stiffness of the lumbar spine. An examination demonstrated abnormal gait. Forward flexion was from 0 to 40 degrees; extension was from 0 to 10 degrees; lateral flexion was from 0 to 20 degrees, bilaterally; and rotation was from 0 to 20 degrees, bilaterally. There was no additional loss of motion after five repetitions. The examiner indicated the Veteran had very limited motion, but ankylosis of the thoracolumbar spine was not present. It was also stated there was pain, weakness, lack of endurance and tenderness, but no fatigue, incoordination, muscle spasm or instability. It was noted the Veteran had not had any incapacitating episodes in the preceding 12 months. The diagnoses were status post lumbar spine injury with surgical fusion and residual scar and intervertebral disc syndrome of the lumbar spine. The examiner stated the condition had a moderate effect on the Veteran's usual occupational and daily activities. In order to assign a higher rating for the low back disability, the record must demonstrate unfavorable ankylosis of the lumbar spine, or that the Veteran has had incapacitating episodes of at least six weeks in the previous year. The Board acknowledges that the medical records clearly reflect the Veteran continues to experience low back pain and limitation of motion of the lumbar spine. The fact remains, however, he does maintain motion of the lumbar spine and, therefore, he does not have ankylosis. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's [Illustrated Medical Dictionary], at 86 [(27th ed. 1988]). Coyalong v. West, 12 Vet. App. 524, 528 (1999). In addition, there is no evidence the Veteran's low back disability has caused any incapacitating episodes. In this regard, the Board notes that on the VA examinations in October 2008 and October 2010, he denied having any incapacitating episodes. Clearly, there is no evidence in the record that bedrest has been prescribed by a physician for his low back disability. The Board concedes the Veteran is competent to report symptoms he experiences, such as pain and limitation of motion, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that his intervertebral disc syndrome of the lumbar spine has increased in severity, so as to warrant a higher rating. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his low back disability. The Board finds, therefore, that the preponderance of the evidence is against the claim for an evaluation in excess of 40 percent for intervertebral disc syndrome of the lumbar spine. The Board is aware of the holding in Johnson v. Brown, 10 Vet. App. 80 (1997) that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. However, although the Veteran is currently in receipt of the maximum schedular disability rating available for the low back based on limited motion, and not ankylosis, it is necessary to consider whether additional functional loss due to pain and weakness on use results in the disability being comparable to ankylosis to the degree warranting a higher evaluation. The Board finds that it does not. Although range of motion of the low back was reduced on repetitive motion on VA examination in October 2006, there was no such additional limitation of motion on the October 2010 VA examination. The Board finds that such retained range of motion of the low back is not comparable to ankylosis. B. Radiculopathy of each lower extremity Diagnostic Code 8526 pertains to a disability comparable to paralysis of the anterior crural nerve (femoral). Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. VA outpatient treatment records disclose the Veteran was seen in December 2007 for evaluation of symptoms of low back pain with some suggestion of radiculopathy to the posterior aspect of the right leg. He denied symptoms of bowel and bladder dysfunction. An examination revealed straight leg raising was negative. A sensory evaluation was grossly intact, and muscle strength was 5/5. Deep tendon reflexes were 2+. On VA examination of the spine in October 2008, the Veteran described radicular pain into the left leg, to the level of the foot. He said he had problems with numbness and weakness to the lower extremities. He denied bowel or bladder complaints. A physical examination demonstrated straight leg raising was positive at 45 degrees with radicular pain to the right and left leg to the level of the calf. He had problems standing, and his gait was broad based and antalgic. A neurological examination showed reflexes were 0 and symmetric in the lower extremities. There was no calf atrophy. The examiner stated the Veteran was having radicular pain in the lower extremities. VA outpatient treatment records disclose the Veteran was seen in August 2009. An examination disclosed that straight leg raising was negative. A sensory evaluation was grossly intact and muscle strength was 5/5. Deep tendon reflexes were 2+. The Veteran was examined by VA in June 2010. He reported numbness, but denied paresthesias and leg or foot weakness. He said he had pain that radiated to his hips and legs. A motor examination revealed knee flexion and extension, ankle dorsiflexion and plantar flexion and extension of the great toe were all 5/5 bilaterally. There was no muscle atrophy. Vibration sense, pinprick, light touch and position sense were all 1/2 bilaterally. It was indicated that on the left lower extremity, there was decreased sensation on the dorsum of the foot, great toe and distal third of the lower leg. On the right lower extremity, there was decreased sensation to the dorsum of the foot and distal third of the lower leg. Knee jerks were 2+ bilaterally and ankle jerks were 1+ bilaterally. Babinski was normal bilaterally. The diagnosis was degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities, status post laminectomy. When seen in a VA outpatient treatment clinic in July 2010, the Veteran reported his surgery had not improved his condition. He indicated he still had radiculopathy with numbness, tingling and weakness of the left foot with left foot drop. He asserted that three or four months earlier, he started having right leg numbness to the thigh. An examination revealed bilateral weakness of the legs with left foot drop. Incontinence of urine was noted. The Veteran was again examined by the VA in October 2010. He reported pain in his low back, the posterior thighs and behind the knees. He said the pain was constant, and characterized it as moderate. He also reported severe stiffness, as well as weakness. He reported the weakness was located in the feet in plantar flexion and dorsiflexion. An examination demonstrated that straight leg raising was negative bilaterally. It was indicated there was decreased sensation in the lower extremities, involving the peroneal nerve, bilaterally. Muscle strength was abnormal, with weakness of the feet on extension bilaterally. There were poor toe movements bilaterally. Muscle tone was normal bilaterally. Patellar and Achilles reflexes were 2+ bilaterally. There was bilateral neuritis. Pinprick and vibratory sense were abnormal bilaterally. There was decreased pinprick bilaterally. No motor deficit was present. The Veteran did not have any bowel or bladder dysfunction. The diagnoses were status post lumbar spine injury with surgical fusion and intervertebral disc syndrome of the lumbar spine. It was stated the most likely peripheral nerve was the peroneal nerve with residual radiculopathy of the left lower extremity. Initially, the Board observes that the findings in each lower extremity are essentially the same. It is not disputed that the Veteran has radicular pain resulting from his service-connected intervertebral disc syndrome of the lumbar spine. The Board also notes that the findings have been inconsistent. In this regard, the Board points out that reflexes were 0 in the lower extremities on the October 2008 VA examination, they were normal on the October 2010 examination. Similarly, straight leg raising was positive in October 2008, but negative in October 2010. The Veteran's bilateral radiculopathy of the lower extremities is manifested by decreased sensation and weakness of the feet. The Board concludes the symptoms of his service-connected bilateral radiculopathy of the lower extremities are not more than mild. The Board concedes the Veteran is competent to report symptoms he experiences, such as weakness and pain, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that radiculopathy of the lower extremities has increased in severity, so as to warrant a higher rating. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his radiculopathy of either lower extremity. The Board finds, therefore, that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for radiculopathy of the left lower extremity or an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity. Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's low back disability, to include pain and limitation of motion, or radiculopathy of the lower extremities, are contemplated by the applicable rating criteria. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). III. Special monthly compensation based on aid and attendance Special monthly compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The Veteran has not argued, and the evidence does not otherwise establish, that the Veteran is blind or that he suffers the loss of use of a hand or foot. His claim turns on whether he is bedridden or requires aid and attendance. Following the June 2010 VA examination, the examiner indicated the Veteran was able to perform most activities of daily living. In this regard, she stated the Veteran's low back disability had only a mild impact on his ability to do chores, go shopping, or to bathe, dress or use the toilet. He was able to perform acts of personal hygiene. The Board concedes his disability prevented him from exercising or playing sports. These are not relevant factors in a determination as to whether he is in need of aid and attendance. It is readily apparent the Veteran was able to perform many tasks without assistance. In a June 2008 statement, J.S. related he had employed the Veteran as a subcontractor. He asserted that as time went by, he saw the Veteran's ability to get the job done deteriorate. Not noted he stopped calling on the Veteran since he was in bed and not able to walk. It is also significant to point out that on a VA aid and attendance examination in September 2011, the Veteran was able to feed himself. Although it was noted he needed assistance in bathing and tending to other hygiene needs, the Board observes that the reason for this was that he had problems reaching back. He was not legally blind, and did not require nursing home care. The examiner indicated the Veteran was able to walk with assistive devices. The evidence supporting the Veteran's claim consists of his statements. In contrast, the Board concludes the medical findings to be more probative regarding the Veteran's need for aid and attendance. The Board emphasizes the record fails to demonstrate the Veteran is blind, has experienced the loss of use a foot or hand, and that he is not bedridden. The Board finds therefore that the preponderance of the evidence is against the claim for special monthly compensation based on the need for the regular aid and attendance. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. Service connection for an acquired psychiatric disability, to include on a secondary basis is denied. Service connection for a disability manifested by sleeplessness is denied. An increased rating for intervertebral disc syndrome of the lumbar spine is denied. An initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is denied. An initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied. Special monthly compensation based on the need for the regular aid and attendance of another person is denied. REMAND On the June 2010 VA examination, the examiner noted the Veteran was unemployed, but not retired. It was indicated that the reason for his unemployment was due to back problems. Thus, the Board finds that the issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. at 447; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board points out there is conflicting evidence in the claims folder. As noted above, the examiner indicated in June 2010 that the Veteran was not working due to his back condition. She stated the Veteran had decreased mobility and problems lifting and carrying. However, she indicated the condition had only a mild effect on chores and shopping, as well as a moderate effect on recreation. Similarly, following the October 2010 VA examination, the examiner concluded the Veteran's lumbar spine disability, to include radiculopathy, had only a moderate effect on the Veteran's usual occupation and daily activities. In assessing his ability to work, it appears the examiners only considered the Veteran's intervertebral disc syndrome and radiculopathy of each lower extremity. There is no indication his other service-connected disabilities were factored into the determination regarding the Veteran's employability. Accordingly, the case is REMANDED for the following action: 1. Schedule an appropriate VA examination to evaluate the status of the service-connected disabilities. The claims folder should be made available to the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, (intervertebral disc syndrome of the lumbar spine, evaluated as 40 percent disabling; residuals of an injury to the medial collateral ligament of the right knee, 10 percent; radiculopathy of the left lower extremity, 10 percent; radiculopathy of the right lower extremity, 10 percent; tinnitus, 10 percent; residual scar status post surgical fusion, noncompensable; and for erectile dysfunction, noncompensable) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Thereafter, adjudicate the claim for TDIU. 3. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claims may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs