Citation Nr: 1326224 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-37 256A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for right hand carpometacarpal arthritis (right hand disability), to include as secondary to service-connected disabilities. 2. Entitlement to service connection for left hand carpometacarpal arthritis (left hand disability), to include as secondary to service-connected disabilities. 3. Entitlement to an increased disability rating (evaluation) for service-connected back disability, to include consideration of the propriety of the reduction from 40 percent to 20 percent, effective June 1, 2009. 4. Entitlement to restoration of a 10 percent evaluation for service-connected right knee limitation of flexion, effective June 1, 2009, to include consideration of the severance of the separate evaluation for right knee limitation of flexion (reduction from 10 percent to 0 percent). 5. Entitlement to an initial disability rating (evaluation) in excess of 10 percent for service-connected lumbar radiculopathy of the right lower extremity (RLE). 6. Entitlement to an initial disability rating (evaluation) in excess of 10 percent for service-connected lumbar radiculopathy of the left lower extremity (LLE). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to September 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A November 2008 rating decision denied service connection for right and left hand disabilities. A March 2009 rating decision reduced the disability rating for back disability from 40 percent to 20 percent, effective June 1, 2009, and severed service connection for a separate 10 percent rating for right knee limitation of flexion, effective June 1, 2009. The Board notes that the RO's severance, or discontinuance, of the separate 10 percent rating for service-connected right knee limitation of flexion appears tantamount to a rating reduction. In a September 2009 rating decision, the RO also granted service connection for lumbar radiculopathy of the RLE and LLE, each assigned at 10 percent, effective January 14, 2008. The Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability (TDIU) due to service-connected disability is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the Veteran has already been granted entitlement to TDIU, effective August 26, 2010. Accordingly, further consideration of a TDIU is not warranted. In May 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing in Denver, Colorado. A transcript of that hearing is in the Veteran's file on the "Virtual VA" system. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran did not sustain an injury to either hand or experience chronic symptoms of right or left hand disabilities in service. 2. Right and left hand disabilities did not manifest to a compensable degree within one year of service separation, symptoms have not been continuous since service separation, nor are the disabilities related to active service or causally related to or permanently worsened by any service-connected disability. 3. In a November 2008 rating decision, the RO determined there was clear and unmistakable error (CUE) in the November 2006 rating decision that assigned the service-connected back disability a 40 percent evaluation, effective July 10, 2006, and proposed to reduce the 40 percent evaluation to 20 percent. In a March 2009 rating decision, the RO reduced the evaluation to 20 percent, effective June 1, 2009. 4. The 40 percent evaluation for the service-connected back disability had been in effect for less than five years; the RO complied with the procedural requirements for reduction. 5. There was CUE in the rating decision that assigned the 40 percent rating in that the facts were incorrectly reported; therefore, reduction of the disability rating for the service-connected back disability from 40 percent to 20 percent was proper. 6. For the appeal period prior to November 4, 2011, the service-connected back disability did not manifest thoracolumbar range of motion limited to 30 degrees of forward flexion or less, findings of favorable or unfavorable ankylosis of any part of the spine, or any incapacitating episodes requiring bed rest prescribed by a physician. 7. For the appeal period from November 4, 2011, the service-connected back disability manifests forward flexion of the thoracolumbar spine to 30 degrees or less. 8. In a November 2006 rating decision, the RO granted a separate evaluation of 10 percent for the right knee limitation of flexion associated with the service-connected right knee internal derangement, effective July 10, 2006; in a November 2008 rating decision, the RO proposed to sever this separate evaluation; and in a March 2009 rating decision, the RO reduced the evaluation to noncompensable, effective June 1, 2009. 9. There was not clear error in the rating decision that assigned a 10 percent rating for right knee limitation of flexion; therefore, reduction of the disability rating for right knee limitation of flexion from 10 percent to 0 percent was not proper. 10. For the entire initial rating period, the service-connected lumbar radiculopathy of the RLE manifests moderate incomplete paralysis of the affected nerve. 11. For the entire initial rating period, the service-connected lumbar radiculopathy of the LLE manifests moderate incomplete paralysis of the affected nerve. CONCLUSIONS OF LAW 1. Right hand disability was not incurred in active service, proximately due to or aggravated by a service-connected disability, nor may be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. Left hand disability was not incurred in active service, proximately due to or aggravated by a service-connected disability, nor may be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. The RO satisfied the procedural requirements governing the reduction in ratings prior to effectuating its March 2009 rating decision implementing the proposed reduction of the 40 percent rating for service-connected back disability. 38 C.F.R. § 3.105(e) (2012). 4. The reduction of the Veteran's disability rating for service-connected back disability from 40 percent to 20 percent was warranted, and the requirements for restoration of a 40 percent rating for service-connected back disability have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.13, 4.71a, Diagnostic Code (DC)s 5242, 5243 (2012). 5. For the appeal period prior to November 4, 2011, the criteria for an increased disability rating in excess of 20 percent for service-connected back disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.31, 4.71a, DCs 5003, 5237, 5242 (2012). 6. For the appeal period from November 4, 2011, resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 40 percent, but no higher, for service-connected back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.31, 4.71a, DCs 5003, 5237, 5242 (2012). 7. The criteria for restoration of a 10 percent evaluation for service-connected right knee limitation of flexion associated with the service-connected right knee internal derangement, effective June 1, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.71a, DC 5260 (2012). 8. For the entire initial rating period, resolving all reasonable doubt in the Veteran's favor, the criteria are met for a disability rating of 20 percent for service-connected lumbar radiculopathy of the RLE. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, DC 8720 (2012). 9. For the entire initial rating period, resolving all reasonable doubt in the Veteran's favor, the criteria are met for a disability rating of 20 percent for service-connected lumbar radiculopathy of the LLE. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, DC 8720 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As to the restoration/propriety of a reduction appeal for service-connected back disability and right knee limitation of flexion, the Board notes that such an appeal stems from a 38 C.F.R. § 3.105(e) reduction, not a claim or application for benefits. As such, it arises from an action initiated by the RO, not the Veteran. The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements. See 38 C.F.R. § 3.105(e), (i) (2012). For this reason, the notice and assistance provisions of the VCAA do not apply to those claims. In this case, VA has complied with the notification and due process requirements applicable to the reduction of a disability evaluation for service-connected back disability and right knee limitation of flexion. Specifically, a November 2008 proposal informed the Veteran of the proposed reductions, the evidence, and reasons and bases for the proposed reductions. A letter accompanying the November 2008 proposal also informed the Veteran of his right to submit additional evidence or argument and to present such evidence or argument at a personal hearing. The reductions, following the 60-day period to allow evidence to be submitted, were adjudicated in a March 2009 rating decision. In addition, the March 2009 reduction rating decision provided that, 60 days following the March 2009 decision, June 1, 2009, the reductions would take effect. For the claims for service connection for right and left hand disabilities, increased rating for service-connected back disability, and initial ratings for service-connected lumbar radiculopathy of the RLE and LLE, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). After having carefully reviewed the record on appeal, the Board concludes that the VCAA notice requirements have been satisfied with respect to the service connection and initial rating issues decided herein. The RO sent the Veteran a letter in July 2006 that informed him of the requirements needed to establish increased evaluations. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the letter also informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. For the issues of service connection for right and left hand disabilities, in a timely January 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran. In May 2013, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. During that hearing the Veteran's representative and the Veterans Law Judge explained the issues on appeal and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Veteran's representative and the Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claims. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). With regard to the service connection claims on appeal, the Veteran was not afforded a VA examination or medical opinion, but none is required. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-79. As noted below, the only evidence that the Veteran's claimed right and left hand disabilities are related to service or to any of his service-connected disabilities is his own conclusory generalized lay statements. Accordingly, the Board finds that referral for a VA examination or medical opinion for right and left hand disabilities is not warranted. On the other hand, the Veteran has been afforded adequate examinations for service-connected lumbar radiculopathy of the RLE and LLE in July 2006, November 2010, and November 2011. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded adequate examinations for these issues on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Laws and Regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). The conditions at issue, right and left hand disabilities (osteoarthritis), are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as osteoarthritis, to a degree of 10 percent or more within one year of separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In rendering a decision on appeal the Board must also 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). 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. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's 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 a veteran or obtained on a veteran's 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 the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Right and Left Hand Disabilities The Veteran has claimed entitlement to service connection for right and left hand disabilities, which he essentially contends developed secondary to his service-connected back and knee disabilities. While these claims appear to be for secondary service connection, the Veteran's representative argued at the May 2013 Board hearing that the claims are also for direct service connection; therefore, the Board will also consider whether the right and left hand disabilities are directly related to service. See Hearing Tr. at 2. After a review of all the evidence of record, lay and medical, the Board finds the evidence demonstrates the Veteran did not sustain a right or left hand injury in service, and that right and left hand disability symptoms were not chronic in service. The Veteran's service treatment records do not reveal a right or left hand injury or symptoms of chronic right and left hand disabilities. The Veteran also does not contend that he suffered from a left or right hand injury or disease in service or that right and left hand disability symptoms were chronic in service. At the June 1986 service separation examination, the Veteran did not report any right or left hand disability and the examiner did not diagnose any right or left hand disability. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board finds the evidence demonstrates the Veteran's right and left hand disabilities did not manifest to a compensable degree within one year of service separation. There are no post-service treatment records documenting a right or left hand disability within one year of service separation. The Board next finds the evidence demonstrates that right and left hand disability symptoms have not been continuous since service separation in September 1986. As indicated, the June 1986 separation examination report did not reflect a right or left hand disability. Following service separation in September 1986, the evidence of record shows no complaints, diagnosis, or treatment for right or left hand disability until April 1997. The absence of post-service findings, diagnosis, or treatment for 11 years after service is one factor that is against a finding of continuous symptoms after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). While the Veteran is competent to state that he had right and left hand disability symptoms at any time, including in service, the Board finds that the Veteran has not contended or submitted any lay or medical evidence showing that right and left hand disability symptoms have been continuous since service separation. See Charles v. Principi, 16 Vet. App. 370 (2002). In private treatment records dated from April 1997 to August 2005, the Veteran did not report chronic right or left hand disability symptoms in service, or continuous right or left hand disability symptoms since service, or problems related to his service. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1991); Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). Other evidence of record that is against a finding of post-service continuity of symptoms of right and left hand disabilities includes a March 2005 private treatment record, where the Veteran reported pain in his right hand due to moving into a new house. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board also notes that the Veteran's service connection claims to VA for other disabilities in November 1986 did not include or mention right or left hand disabilities; the first time the Veteran had asserted right and left hand disabilities during service was in January 2008. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection shortly after service, but did not mention symptoms of right or left hand disabilities at that time. This suggests to the Board that there was no pertinent symptomatology of right or left hand disabilities at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In this case, the Veteran demonstrated in November 1986 that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for right or left hand disabilities at the time of the November 1986 claim, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of symptomatology of right or left hand disabilities at the time he filed the claim after service. Based upon the above discussion, the Board finds that there are multiple reasons to conclude that the lay and medical evidence that is of record is against the claim for service connection for right and left hand disabilities. As indicated, there is no credible evidence of chronic in-service right and left hand disability symptoms, or continuous post-service right and left hand disability symptoms. The Board finds that there is no competent or credible evidence of a relationship between the Veteran's current right and left hand disabilities and his military service. The Veteran is also claiming that his right and left hand disabilities are the direct result of his service-connected disabilities. While the Veteran is service connected for back and knee disabilities, the evidence demonstrates that the claimed right and left hand disabilities are not caused or aggravated by any service-connected disability. There is no medical opinion that suggests the Veteran's right and left hand disabilities are caused or aggravated by his service-connected disabilities. In fact, the only evidence that the Veteran's claimed right and left hand disabilities are related to his service-connected disabilities is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Regarding the Veteran's statements as to the cause of the current right and left hand disabilities, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because he was a layperson, conflicts with Jandreau). However, in this case, the cause of the Veteran's right and left hand disabilities involves complex medical etiological questions because it deals with the origin and progression of these disabilities. The Veteran is competent to relate symptoms of right and left hand disabilities that he experienced at any time, but is not competent to opine on whether there is a link between the current right and left hand disabilities and service-connected disabilities. Such diagnosis and opinion as to nexus requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For these reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claims for service connection for right and left hand disabilities. As a result, these claims must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Rating Reduction / Restoration Criteria In a rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Id. The examination reports on which the reduction is based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). For disabilities that are likely to improve, that is, disabilities for which a rating has been in effect for less than five years, as in this case, re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c) (2012). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See id. Back Disability Rating Reduction The Veteran contends that the reduction of the back disability rating was improper and that the 40 percent evaluation should be restored. In this case, the procedural requirements for rating reductions were met. The RO issued a rating decision in November 2008, which proposed the reduction in the disability rating for the Veteran's service-connected back disability. The Veteran was advised of the proposed reduction in November 2008. In response, the Veteran did not submit evidence or argument; however, he participated in a personal hearing at the RO in January 2009. The RO issued a rating decision in March 2009, implementing the proposed reduction, effective June 1, 2009. The Veteran was notified of this reduction by letter dated in March 2009. Regulations provide that the effective date of the reduction is the last day of the month in which a 60-day period from notice of the reduction expires. See 38 C.F.R. § 3.105(e). Accordingly, making the reduction effective from June 1, 2009, was proper under the regulation. For ratings in effect for five years or more, there are additional requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344. The Court has held that the appropriate dates to be used for measuring the five-year time period, according to VA regulation, are the effective dates, i.e., the date that the disability rating subject to the reduction became effective is to be used as the beginning date and the date that the reduction was to become effective is to be used as the ending date. See Brown, 5 Vet. App. at 417-18. The Veteran was originally assigned the 40 percent disability rating for his back disability in a rating decision of July 2006, and it was made effective on July 10, 2006. Therefore, when his rating was reduced effective on June 1, 2009, it had been in effect for less than five years, and the provisions of 38 C.F.R. § 3.344 do not apply. In this case, then, the RO applied the regulations regarding the procedure for reductions in ratings properly. The question that remains is whether the evidence on which the reduction was based supported the reduction. The Veteran was rated under DC 5242 prior to the decision reducing the rating. As a result of the July 2006 rating decision, the Veteran had been receiving a 40 percent rating under the criteria of DC 5242. The March 2009 rating decision implementing the reduction gives as its reason CUE in the July 2006 rating decision, citing 38 C.F.R. § 3.105(a) and (e). Previous determinations which are final and binding, including decisions of service connection and other issues, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). CUE is defined as a very specific and rare kind of error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has indicated that a three-pronged test is used to determine whether there is CUE in a prior decision: (1) it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The Board agrees with the RO that CUE occurred in the July 2006 rating decision. A 40 percent rating for back disability under DC 5242 should not have been awarded. The RO reported that the July 2006 VA spine examination showed that the Veteran's thoracolumbar spine flexion was 0 to 7 degrees; however, the range of motion reflected by the July 2006 VA spine examination was actually 0 to 70 degrees, with pain at 50 degrees. The Board agrees with the RO's action in every regard. All due process requirements were met and the RO made appropriate findings of CUE. The Board concludes that the reduction was appropriate. See 38 C.F.R. § 3.105(a), (e). The Board notes that the matter of the reduction in the assigned disability rating for the Veteran's back disability does not necessarily include a claim for an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). In this case, however, the RO denied an evaluation greater than 20 percent for service-connected back disability in December 2011, which was post-reduction. Throughout the appeal, the Veteran has asserted entitlement to an increased evaluation and at the Board hearing, the Veterans Law Judge stated that the issue was whether the reduction was proper and whether there was an increased rating as part of that appeal. Accordingly, the Board has phrased the issue as stated above. See Percy v. Shinseki, 23 Vet. App. (2009) (by treating an issue as part of an appeal, VA waived any objections to the adequacy of the appeal with respect to that issue). Increased Rating for Back Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion; however, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. §§ 4.40 and 4.45. Generally, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made 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. The General Rating Formula provides, in pertinent part, a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. Id., DCs 5235-5242. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Id. at Note (1). 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. Id. at Note (2) (See also Plate V). Each range of motion measurement should be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. at Note (5). Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Formula (effective September 26, 2003) provides a 20 percent rating with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. DC 5010 provides for arthritis due to trauma, substantiated by x-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). Id. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. The Veteran is in receipt of a 20 percent rating for degenerative disc disease of the lumbar spine for the entire increased rating period, under the provisions of 38 C.F.R. § 4.71a, DC 5243 (IVDS). In a July 2006 VA spine examination, the Veteran reported constant pain in his lower back. He reported that he was independent with most activities of daily living and denied any incapacitating episodes in the past 12 months. Upon physical examination, the Veteran's range of motion of the thoracolumbar spine was limited due to pain. Flexion was reported as 0 to 70 degrees. Extension was 0 to 10 degrees. Bilateral flexion was 0 to 20 degrees. Bilateral rotation was 0 to 35 degrees. The VA examiner noted an additional 20 degree loss of limitation on motion with repetitive use due to pain, weakness, impaired endurance, or incoordination. In an August 2008 VA spine examination, the Veteran, again, reported constant pain in his lower back, he was independent with most activities of daily living, and denied any incapacitating episodes in the past 12 months. Upon physical examination, the Veteran's range of motion of the thoracolumbar spine was limited due to pain. Flexion was reported as 0 to 60 degrees, with pain at 45 degrees. Extension was 0 to 15 degrees, with pain at the endpoint. Left lateral flexion was 0 to 25 degrees, with pain at 10 degrees. Right lateral flexion was 0 to 25 degrees, with pain at 15 degrees. Left lateral rotation was 0 to 10 degrees, with pain at 10 degrees. Right lateral rotation was 0 to 15 degrees, with pain at 15 degrees. The VA examiner noted specific findings of no additional limitation on motion with repetitive use due to pain, weakness, impaired endurance, or incoordination. In an October 2010 VA spine examination, the Veteran reiterated his reported back symptomatology at the July 2006 and August 2008 VA spine examinations. Upon physical examination, flexion was reported as 0 to 70 degrees. Extension was 0 to 20 degrees. Left lateral flexion was 0 to 20 degrees. Right lateral flexion was 0 to 20 degrees. Left lateral rotation was 0 to 30 degrees. Right lateral rotation was 0 to 30 degrees. The VA examiner noted specific findings of no additional limitation on motion with repetitive use due to pain, weakness, impaired endurance, or incoordination. On November 4, 2011, the Veteran underwent a VA general medical examination. He reported stiffness, fatigue, spasms, decreased motion, paresthesia, numbness, and constant pain. He denied the back disability resulted in any incapacitation in the past 12 months. The VA examiner reported inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. Upon physical examination, flexion was reported as 0 to 60 degrees, with pain at 30 degrees. Extension was 0 to 15 degrees, with pain at 5 degrees. Left lateral flexion was 0 to 25 degrees, with pain at 15 degrees. Right lateral flexion was 0 to 30 degrees, with pain at 15 degrees. Left lateral rotation was 0 to 25 degrees, with pain at 5 degrees. Right lateral rotation was 0 to 25 degrees, with pain at 15 degrees. The VA examiner noted specific findings of no additional limitation of motion with repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. Here, the Board finds that, based on the competent and credible evidence of record, the Veteran's back disability does not meet or more nearly approximate the criteria for a rating in excess of 20 percent under the General Rating Formula, prior to November 4, 2011. As noted above, the July 2006, August 2008, and October 2010 VA spine examination reports do not document findings of forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis of the thoracolumbar spine, nor incapacitating episodes of IVDS, thus not meeting the rating criteria for a next-higher rating. 38 C.F.R. § 4.71a, DCs 5237, 5242. Thereafter, the Veteran exhibited, at the November 2011 VA general medical examination, forward flexion of the thoracolumbar spine to 30 degrees secondary to pain, thus meeting the rating criteria for 40 percent, but no higher, as the evidentiary record did not reflect findings of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine, or incapacitating episodes of IVDS. 38 C.F.R. § 4.71a, DCs 5237, 5242. In reaching these conclusions, the Board has relied upon the evidence of additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in); 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. Based upon these findings, and resolving reasonable doubt in the Veteran's favor, the Board finds the assignment of a rating in excess of 20 percent for the back disability prior to November 4, 2011 is not warranted and a 40 percent rating for back disability, but no higher, is warranted for the appeal period from November 4, 2011. 38 C.F.R. § 4.71a, DC 5242. Severance of Separate Rating for Right Knee Limitation of Flexion The Veteran contends that the severance of the separate rating of right knee limitation of flexion was improper and that the 10 percent evaluation should be restored. The Board notes that the RO's severance, or discontinuance, of the separate 10 percent rating for right knee limitation of flexion appears tantamount to a rating reduction. In this case, the procedural requirements for rating reductions were met. The RO issued a rating decision in November 2008, which proposed the severance of the separate disability rating for the Veteran's service-connected right knee limitation of flexion. The Veteran was advised of the proposed reduction in November 2008. In response, the Veteran did not submit evidence or argument; however, he participated in a personal hearing at the RO in January 2009. The RO issued a rating decision in March 2009, implementing the proposed reduction, effective on June 1, 2009. The Veteran was notified of this reduction by letter dated in March 2009. Regulations provide that the effective date of the reduction is the last day of the month in which a 60-day period from notice of the severance expires. See 38 C.F.R. § 3.105(e). Accordingly, making the reduction effective from June 1, 2009, was proper under the regulation. Again, for ratings in effect for five years or more, the provisions under 38 C.F.R. § 3.344 apply. See Brown, 5 Vet. App. at 417-18. The Veteran was originally assigned the 10 percent disability rating for his right knee limitation of flexion in a rating decision of July 2006, and it was made effective on July 10, 2006. Therefore, when his rating was reduced effective on June 1, 2009, it had been in effect for less than five years, and the provisions of 38 C.F.R. § 3.344 do not apply. In this case, then, the RO applied the regulations regarding the procedure for reductions in ratings properly. The question that remains is whether the evidence on which the reduction was based supported the reduction. In this case, by way of history, the RO granted in a November 2006 rating decision a separate evaluation for right knee limitation of flexion secondary to the Veteran's service-connected right knee internal derangement disability. The RO also assigned a 10 percent evaluation, effective July 10, 2006, under 38 C.F.R. § 4.71a, DC 5260 (leg, limitation of flexion). Such ratings were based on a July 2006 VA examination report which revealed flexion from 0 to 90 degrees, with pain at 70 degrees, with an additional 30 degrees loss of range of motion due to painful motion, fatigue, weakness, and lack of endurance, and an additional 10 degree loss of range of motion with repetitive motion. Pursuant to DC 5260, in the March 2009 rating decision, the RO reduced the evaluation from 10 percent to noncompensable (severing the separate evaluation for right knee limitation of flexion), effective June 1, 2009, on the basis that a July 2006 VA examination report indicated, at worst, right knee flexion limited to 50 degrees; however, the knee must have flexion limited to 45 degrees to assign a compensable (10 percent) rating. The Veteran was rated under DC 5260 prior to the decision reducing the rating. As a result of the July 2006 rating decision, the Veteran had been receiving a 10 percent rating under the criteria of DC 5260. The March 2009 rating decision implementing the reduction gives as its reason CUE in the July 2006 rating decision, citing 38 C.F.R. § 3.105(a) and (e). The Board does not agree that CUE occurred in the July 2006 rating decision. In the July 2006 rating decision, the RO found that the right knee limitation of flexion was 0 to 90 degrees, with pain at 70 degrees, and additional loss of range of motion of 30 degrees due to painful motion, fatigue, weakness, and lack of endurance. There was also an additional 10 degree loss of range of motion with repetitive motion. The Board finds no CUE in the July 2006 rating decision. The Board notes that the error must be undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313 (1992). The Board finds that the RO reasonably found that the limitation of flexion in the July 2006 VA knee examination was between 30 and 45 degrees as to warrant the 10 percent rating, based upon the additional limitation of motion due to other orthopedic factors and repetitive motion. Accordingly, the Board finds that restoration of the 10 percent separate evaluation for right knee limitation of flexion is warranted. Brown, 5 Vet. App. at 420-21; 38 C.F.R. §§ 4.1, 4.2, 4.13. Initial Ratings for Lumbar Radiculopathy of the RLE and LLE The Veteran is in receipt of 10 percent ratings for service-connected lumbar radiculopathy of the RLE and LLE for the entire initial rating period, under the provisions of 38 C.F.R. § 4.124a, DC 8720 (neuralgia). DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis (DC 8720) and neuralgia (DC 8620) of that nerve. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe paralysis. Moderate paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild paralysis. Id. The rating schedule does not define the terms "mild," "moderate," "severe," or "marked," as used in these DCs to describe the degree of deformity of the lower extremities. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Board notes that the term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis, not characterized by organic changes referred to in this section, will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. After a review of all the evidence in this Veteran's case, the Board finds that the Veteran's service-connected lumbar radiculopathy of the RLE and LLE are manifested by no more than moderate incomplete paralysis of the affected nerves. A January 2008 private treatment record reflected a diagnosis of radicular bilateral lower extremity radiculopathy. The private examiner reported slight decrease within the sural nerve on the right foot. The quadriceps tendon and Achilles tendon deep reflexes were equal and brisk. A July 2008 private treatment record also reflected bilateral leg radiculopathy. In a separate July 2008 private treatment record, the Veteran reported symptoms of sciatica. The Veteran reported constant pain in his calves and thighs that was relieved by sitting. The private examiner reported constant shooting pain bilaterally in the Veteran's lower extremities, and the following motor examination results: hip flexors 5/5; knee extensors 5/5; ankle dorsiflexors 5/5; and plantar flexors 5/5. Reflexes were normal and Clonus and Babinski's sign were negative. In an August 2008 private treatment record, the Veteran reported constant radicular pain shooting down into his buttocks and feet. At the October 2010 VA spine examination, the Veteran reported back pain that radiated down his legs and caused occasional numbness. Sensation to vibration, temperature, and touch of the bilateral lower extremities were normal, except for minimal decreased sensation to vibration, temperature, and touch in the L5 distribution. Deep tendon reflexes in the bilateral lower extremities were hypoactive in the knees and ankles bilaterally, but were symmetrical. In the November 2011 VA general medical examination report, the VA examiner reported no edema in either the lower right or left lower extremity. Muscle tone was normal and there was positive straight leg testing on the left and right. Lasegue's sign was negative and there was no atrophy present in the limbs. Motor strength was within normal limits, but right and left sensory function for the L4-S1 nerves were decreased. During the May 2013 Board personal hearing, the Veteran testified that he experienced burning pain in both of his legs. He also testified that his muscles would twitch and flex and he experiences periods of numbness in both of his legs and feet that prohibit him from standing up. In light of the Veteran's subjective complaints of constant pain and numbness and the objective evidence, wholly sensory, of decreased sensation, the Board finds that the evidence is in relative equipoise regarding whether the criteria for 20 percent ratings for lumbar radiculopathy of the RLE and LLE under DC 8720 are met for the entire initial rating period. In this respect, the evidence shows that these disabilities are more than mild in severity - not only is there decreased sensation, but the disabilities are also shown to cause pain and numbing, and functional impairment by difficulty standing up. 38 C.F.R. § 4.124a, DC 8720. The Board notes that no higher rating is warranted for the service-connected lumbar radiculopathy of the RLE and LLE under any other diagnostic code. The Board further notes that the maximum rating to be assigned, when the involvement is wholly sensory, will be, at most, to the moderate degree. 38 C.F.R. § 4.123. Here, there is no impairment of reflexes or affected musculature. As a result, the evidence reflects that these disabilities manifest in no worse than moderate incomplete paralysis of the affected nerves. Resolving all reasonable doubt in the Veterans favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for the 20 percent rating, but no higher, for lumbar radiculopathy of the RLE and LLE under DC 8720 for the entire initial rating period. 38 C.F.R. § 4.124a. Extra-schedular Consideration The Board has considered whether an extra-schedular evaluation is warranted for the service-connected back disability and lumbar radiculopathy of the RLE and LLE. In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that VA's disability-by-disability interpretation of 38 C.F.R. 3.321(b)(1) is not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole, thus the Board was not required to consider whether a veteran's was entitled to referral for extra-schedular consideration of the service-connected disabilities on a collective basis. See Johnson v. Shinseki, WL 1224810 (Vet. App. March 27, 2013). Turning to the first step of the extra-schedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected back disability are specifically contemplated by the schedular rating criteria, and no referral for extra-schedular consideration is required. The service-connected back disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202), and incapacitating episodes. The service-connected lumbar radiculopathy of the RLE and LLE rating criteria specifically provide for ratings based on the presence of pain, numbness, and sensory deficit. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with these service-connected disabilities, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). [Continued on Next Page] ORDER Service connection for right hand disability is denied. Service connection for left hand disability is denied. Restoration of the 40 percent rating for back disability, effective June 1, 2009, is denied. An increased disability rating for back disability in excess of 20 percent for the period prior to November 4, 2011 is denied; and an increased disability rating of 40 percent for back disability for the period from November 4, 2011, is granted, subject to the laws and regulations governing the award of monetary benefits. Restoration of the separate 10 percent rating for right knee limitation of flexion, effective June 1, 2009, is granted. An initial 20 percent rating, but not higher, for the service-connected lumbar radiculopathy of the RLE radiculopathy is granted, subject to the regulations governing the award of monetary benefits. An initial 20 percent rating, but not higher, for the service-connected lumbar radiculopathy of the LLE radiculopathy is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs