Citation Nr: 18143007 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-19 821 DATE: October 17, 2018 ORDER Service connection for residuals of a left tibia fracture is granted. A higher rating in excess of 10 percent from May 8, 2013 to June 14, 2017 for a lumbosacral strain with degenerative disc disease is denied. A rating of 20 percent from June 14, 2017 for a lumbosacral strain with degenerative disc disease is granted. A rating in excess of 10 percent from May 8, 2013 for a right hip strain is denied. An effective date prior to May 8, 2013 for service connection for lumbosacral strain with degenerative disc disease is denied. An effective date prior to May 8, 2013 for service connection for a right hip strain is denied. An initial rating in excess of 10 percent from March 31, 2016 for a left lower extremity radiculopathy is denied. An initial rating in excess of 10 percent from March 31, 2016 for a right lower extremity radiculopathy is denied. An effective date prior to March 31, 2016 for service connection and 10 percent rating for left lower extremity radiculopathy is denied. An effective date prior to March 31, 2016 for service connection and 10 percent rating for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran sustained a left tibia fracture during service. 2. The Veteran has a current diagnosis of left medial tibial stress syndrome. 3. The left medial tibial stress syndrome is a residual of the left tibia fracture during service. 4. For the entire rating period on appeal from May 8, 2013 to June 14, 2017, the lumbosacral strain with degenerative disc disease has been manifested by painful limitation of motion of the thoracolumbar spine with forward flexion limited to 70 degrees, without ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12-month period. 5. For the entire rating period on appeal from June 14, 2014, the lumbosacral strain with degenerative disc disease has more nearly approximated painful limitation of motion of the thoracolumbar spine with forward flexion limited to 50 degrees, without ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12-month period. 6. For the entire rating period on appeal from May 8, 2013 the right hip strain was manifested by limitation of extension that more nearly approximates 5 degrees, but was not productive of ankylosis, fracture, malunion, or nonunion of the femur, or flail hip joint, and did not manifest limitation of flexion to 45 degrees, or limitation of abduction with motion lost beyond 10 degrees. 7. The Veteran’s original claim for service connection for a lumbosacral strain with degenerative disc disease and a right hip strain was received May 3, 2013. 8. The Veteran was separated from service on May 7, 2013. 9. The February 2014 rating decision granted service connection for a lumbosacral strain with degenerative disc disease and a right hip strain with an effective date of May 8, 2013, which is the first day after service separation. 10. For the entire rating period on appeal from March 31, 2016 the service-connected left and right lower extremity radiculopathy did not more nearly approximate moderate incomplete paralysis of the sciatic nerve. 11. Prior to March 31, 2016, the Veteran was not diagnosed with either a right or left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of a left tibia fracture have been met. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). 2. For the rating period on appeal from May 8, 2013 to June 14, 2017, the criteria for a disability rating in excess of 10 percent for a lumbosacral strain with degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 3. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from June 14, 2017, the criteria for an increased disability rating of 20 percent, and no higher, for the lumbosacral strain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 4. For the entire rating period on appeal from May 8, 2013 the criteria for a disability rating in excess of 10 percent for the service-connected right hip strain have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5250-5255 (2017). 5. The criteria for service connection for a lumbosacral strain with degenerative disc disease and a right hip strain with an effective date prior to May 8, 2013 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110, 5111 (2012); 38 C.F.R. § 3.400 (2017). 6. The criteria for a higher initial disability rating for right lower extremity radiculopathy, in excess of 10 percent from March 31, 2016, have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520 (2017). 7. The criteria for an increased disability rating for left lower extremity radiculopathy, in excess of 10 percent from March 31, 2016, have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520 (2017). 8. The criteria for an effective date prior to March 31, 2016 for service connection and 10 percent rating for the left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 9. The criteria for an effective date prior to March 31, 2016 for service connection and 10 percent rating for the right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, had active service from January 2010 to May 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) that granted service connection and awarded a 10 percent initial rating for a lumbosacral strain with an effective date of May 8, 2013, and denied service connection for residuals of a left tibial fracture. Before the Board also on appeal is an April 2014 RO rating decision that granted service connection and awarded a 10 percent rating for a right hip strain with an effective date of May 8, 2013. The Veteran timely appealed the issues of a 10 percent disability rating for the lumbosacral strain and right hip, the denial of service connection for residuals of a left tibia fracture, and the issue of a May 8, 2013 effective date. The February 2014 RO rating decision also denied service connection for a generalized anxiety disorder, but in consideration of additional evidence during the pendency of this appeal, the RO issued a July 2016 rating decision that granted service connection for a generalized anxiety disorder; therefore, the issue of service connection for a generalized anxiety disorder is not before the Board. On appeal is also an April 2016 rating decision that granted service connection and awarded a 10 percent initial rating for a bilateral lower extremity radiculopathy with an effective date of March 31, 2016. The Veteran timely appealed the issues of a 10 percent initial rating and effective date of March 31, 2016. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Veteran's claim for service connection for a back injury, right hip strain, and bilateral lower extremity radiculopathy, all claimed as associated with the back, were filed as a Fully Developed Claim (FDC) pursuant to the Secretary of VA's program to expedite claims. Under this framework, a claim is submitted in a "fully developed" status, limiting, if not eliminating, the need for further development by VA. As part of the FDC process, a veteran is to submit all evidence relevant and pertinent to the claim; however, under certain circumstances, additional development may still be required prior to adjudication of the claim. In a claim for increase, the VCAA requirement is a generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As to the duty to assist, the record reflects that VA attempted to obtain VA and private treatment (medical) records; however, VA found that the Veteran’s service treatment records are missing and unavailable for the period from January 25, 2010 to May 7, 2013. In an October 2013 correspondence, the Veteran was notified that a complete set of the service treatment records were unable to be obtained. The AOJ requested that the Veteran submit any service treatment records in his possession, to which the Veteran did not respond. In November 2013, the AOJ made a formal finding of the unavailability of these records. The Board finds that all procedures to obtain the service treatment records have been correctly followed. The AOJ has included in the record evidence of written and telephonic efforts to obtain the needed military information that has been exhausted; AOJ found that further attempts were futile and that, based on these facts, the record is not available. The following efforts to obtain the service treatment records were as follows: on June 11, 2013, the AOJ requested the Veteran’s service treatment records from the Records Management Center (RMC). On June 17, 2013 the RMC responded that the folder requested has been flashed as a VBMS folder. The RMC responded that several searches of the facility were conducted but they were unable to locate the folder. In response, the RMC has " FLAGGED" their filing system to show that the AOJ has interest in the record, in the event the record is found in the future. If the folder is located in the future, the RMC will immediately forward the record to the Scanning Vendor. As of November 7, 2013, the AOJ had not received the service treatment records from RMC or from any other source. When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA provided several VA examinations, most recently, a VA thoracolumbar spine examination that included examination of the hips and lower extremities took place in March 2016. A VA authorized back (thoracolumbar spine) examination that included some information on the hips and lower extremities, took place in June 2017. The examination reports from March 2016 and June 2017 reflect that the record was reviewed and appropriate testing was administered as to the level of impairment. The March 2016 examination report reflects that, after a review of the record, the diagnosis was a bulging disc, right hip strain, and bilateral radiculopathy. The June 2017 examination report reflects that, after a review of the record, the diagnosis was degenerative arthritis of the spine with disc herniation (DDD of the spine), intervertebral disc syndrome (IVD syndrome), and bilateral radiculopathy. Service Connection Legal Authority Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and injury or disease during service. Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and has a disease that has manifested to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). In this case, the Veteran has been diagnosed with a left medial tibial stress syndrome (claimed as residuals of a left tibia fracture), which is not listed as a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply as to that issue. Walker, 708 F.3d at 1131. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Residuals Left Tibia Fracture The Veteran contends that he sustained a left tibia facture during basic training in service. See July 2013 Statement in Support of Claim. The Veteran generally contends that the lower leg pain had an onset date of 2010 during training in service, and that as a result of service he now has residual disability of the left tibia fracture. See February 2014 C&P Exam. After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran sustained a left tibia fracture during service. Service treatment records are unavailable; however, the Veteran has reported an in-service left tibia fracture and continued symptoms of lower leg pain and disorder. The Veteran has a current diagnosis of left medial tibial stress syndrome. A VA examination from February 2014 reflects that there is a left medial tibial stress syndrome diagnosis. At the February 2014 VA examination, the Veteran reported flare-ups impacting his lower leg that range from mild to moderate, causing pain in the shin area during running and prolonged standing or walking. Testing revealed tenderness on palpation of the left medial anterior tibia area. Range of motion and stability testing was normal. Image results were negative for any arthritis, joint, or bone abnormalities. The Board also finds that the evidence on the question relationship of a current left medial tibial stress syndrome to the in-service fracture is at least in relative equipoise. The Veteran has testified to experiencing symptoms of the left leg since the in-service injury. While no medical opinion was provided in the February 2014 VA examination, the examiner concluded that it was not possible to exclude developing stress changes in the posterior cortex of the proximal tibial metadiaphysis. In consideration thereof, and resolving reasonable doubt in the Veteran's favor, the Board finds that direct service connection for left medial tibial stress syndrome, as a residual of the in-service left leg fracture, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Rating Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When rating 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); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. In this case, for the entire initial rating period from May 8, 2013, the Veteran has been in receipt of a 10 percent disability rating for a lumbosacral strain with degenerative disc disease under the rating criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The Veteran generally contends that a disability rating higher than 10 percent is warranted for the lumbosacral strain with degenerative disc disease. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). 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 a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under Diagnostic Code 5243 Intervertebral Disc Syndrome (IVDS), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period on appeal from May 8, 2013 to June 14, 2017, the lumbar spine disability has more nearly approximated painful limitation of motion of the thoracolumbar spine with forward flexion limited to 70 degrees, without ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12-month period. For the rating period from June 14, 2017, forward flexion of the thoracolumbar spine was limited to 50 degrees, without ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12-month period. Private treatment records from Logan College of Chiropractic Health Centers reflect that the Veteran was evaluated for mid and low back pain in June 2013, several weeks following separation from service. Imaging was conducted of the thoracic and lumbar regions of the spine. Thoracic imaging reported adult idiopathic scoliosis and postural subluxations. Lumbar imaging reported type IIB S1 transitional segment with postural subluxations. A February 2014 VA examination report reflects forward flexion in the thoracolumbar spine is painful at 70 degrees, with extension becoming painful at 15 degrees. Left lateral flexion was measured at 20 degrees while right and left lateral rotation was 30 degrees or greater. There was no objective evidence of painful motion observed during right or left lateral rotation. Repetitive testing did not reveal a change in degrees. The Veteran reported functional loss as less movement than normal, pain on movement, and mild tenderness on palpation of mid thoracic spine area. No muscle spasms, guarding, or abnormal gait were found. Some tendon reflexes were decreased around the knees and ankles. At this time, no IVDS was diagnosed. No Flare-ups were reported. The Veteran stated that he is unable to stand for prolonged periods following 1.5-2 hours. No ankylosis of the thoracolumbar spine and/or incapacitating episodes was reported. Imaging revealed a mild dextroscoliosis and slight reduction in disc space at the L5-S1 vertebrae suggestive of a degenerative disc disease. Spina bifida at S1 was also observed. A March 2016 VA examination for the thoracolumbar spine was conducted diagnosing a L5-L1 bulging disc. The Veteran reported that he has pain in his mid and lower back and that if he stands for too long his feet will go numb. Range of motion testing was reported as normal and, while pain was noted on examination, no functional loss was reported. Testing revealed normal flexion in the hips, knees, and ankles. A decrease in tendon reflexes was observed in both knees and ankles. IVDS was not found. No ankylosis of the thoracolumbar spine and/or incapacitating episodes was found. Imaging was negative for arthritis. A June 2017 VA examination reported that the Veteran has a diagnosis of degenerative arthritis of the spine and a diagnosis of IVDS. The Veteran reported increased pain with constant stiffness and tightness that keeps him awake at night. The Veteran also reported trouble lifting and carrying over 50 pounds and walking or standing for long periods of time. The Veteran did report flare-ups that are severe on a weekly basis that last all day. Forward flexion was limited to 50 degrees and extension was limited to 10 degrees. Lateral rotation of right and left sides was limited to 15 degrees. Right lateral flexion was limited to 15 degrees while left lateral flexion was limited to 20 degrees. Pain was noted on all range of motion testing. Muscle spasms resulting in abnormal gait or abnormal spinal contour was reported. Guarding and tenderness were also reported. Imaging results reported the presence of arthritis. The examination report also reflects a positive finding for IVDS, which did not cause any incapacitating episodes over the last 12 months, and a negative finding for ankylosis. Based on the foregoing, the Board finds that, for the rating period on appeal from May 8, 2013 to June 14, 2017, the lumbar spine disability has more nearly approximated forward flexion limited to 70 degrees due to painful motion. Evidence of record demonstrates that the lumbar spine disability has not manifested in unfavorable ankylosis of the entire thoracolumbar spine (criteria required for a 50 percent rating) or has forward flexion of the spine manifested in 30 degrees, but no greater than 60 degrees. Forward flexion was measured at 70 degrees resulting in a 10 percent rating. Therefore, a disability rating in excess of 10 percent is not warranted for the period from May 8, 2013 to June 14, 2017. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board next finds that a rating of 20 percent for the lumbar spine disability is warranted from June 14, 2017, in consideration of the evidence demonstrating that the lumbar spine disability has manifested in forward flexion limited to 50 degrees, but not greater than 60 degrees. A rating of 30 percent concerns only the cervical spine and is not warranted unless forward flexion of the cervical spine is limited to 15 degrees or less. Since the Veteran’s claim for a rating in excess of 10 percent concerns only the thoracic lumbar region of the spine, a 30 percent rating cannot be applied. A rating of 40 percent is not warranted unless forward flexion of the thoracolumbar spine is measured at 30 degrees or less, or unless favorable ankylosis of the entire thoracolumbar spine is found; neither of which are present in this case. 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237. The evidence of record demonstrates that the lumbar spine disability has not manifested in incapacitating episodes having a total duration of at least six weeks during a 12-month period (criteria required for a 60 percent rating). See DC 5243. Although the June 2017 VA examination report reflects a positive finding for IVDS that did not result in any incapacitating episodes in the last 12-month period, the February 2014 and March 2016 VA examination reports both reflect negative findings for IVDS. VA and private treatment records throughout the entire period on appeal also do not reflect incapacitating episodes of at least six weeks during any 12-month period. The Board has also considered whether a separate rating is warranted for any neurologic deficits resulting from the service-connected lumbar spine disability at any point during the entire rating period on appeal from May 8, 2013. No evidence has been received by VA indicating that the Veteran is currently diagnosed with any neurologic abnormalities (other than the service-connected bilateral lower extremity radiculopathy) associated with the service-connected lumbar spine disability. Additionally, the February 2014, March 2016, and June 2017 VA examination reports all contain negative findings for other neurologic abnormalities that may be associated with the lumbar spine disability. As the evidence does not demonstrate fractures, dislocations, sacroiliac injury or weakness, spinal stenosis, spondylolisthesis or segmental instability, ankylosing spondylitis, or spinal fusion, Diagnostic Codes 5235-5236, 5238-5241 are not for application. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the lumbar spine disability for the rating period on from June 14, 2017 forward. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. Rating Right Hip Strain Disorders of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5250 contemplates ankylosis of the hip. Favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating; intermediate ankylosis warrants a 70 percent rating; and unfavorable ankylosis, which contemplates extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated, warrants a 90 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under Diagnostic Code 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Id. An 80 percent disability rating will be assigned under Diagnostic Code 5254 when there is a flail joint of the hip. Diagnostic Code 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. Id. The terms "moderate" and "marked" are not defined in the VA Schedule. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this case, for the entire rating period from May 8, 2013, the Veteran has been in receipt of a 10 percent disability rating for a right hip strain associated with a lumbosacral strain with degenerative disc disease under the rating criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5251. The Veteran generally contends that a disability rating higher than 10 percent is warranted for the right hip strain associated with the lumbosacral strain with degenerative disc disease. Having reviewed all the evidence of record, the Board finds that for the rating period from May 8, 2013 the service-connected right hip strain was not productive of ankylosis, fracture, malunion, or nonunion of the femur, or flail hip joint, and did not manifest limitation of flexion to 45 degrees, or limitation of abduction with motion lost beyond 10 degrees. The evidence more nearly approximates painful limitation of extension to 5 degrees. The Veteran received a VA hip and thigh conditions examination in February 2014. Per the examination report, a diagnosis of a right hip strain was confirmed. The Veteran reported having intermittent right hip pain since 2010 while in boot camp training for service. The Veteran said that at the current time the pain was mild to moderate with flare-ups occurring upon prolonged periods of standing or walking greater than 1.5 hour. Range of motion testing showed right hip flexion to 120 degrees, with objective evidence of painful motion at 120 degrees. Right hip extension was greater than 5 degrees, with range of motion extension limited to 25 degrees with pain beginning at 25 degrees. Right hip internal rotation was limited to 40 degrees with painful motion beginning at 40 degrees. Right hip external rotation was limited to 50 degrees with pain beginning at 50 degrees. Right hip adduction limited to 25 degrees and abduction was limited to 45 degrees with pain beginning both at 25 and 45 degrees respectively. No ankylosis of the right hip joint or malunion or nonunion of the femur, flail hip joint or leg length discrepancy was found. The examiner reported that the Veteran had not had any hip surgeries or scars associated with surgery. The examiner reported that the physical examination was positive for objective right hip pain; however, the X-ray results were negative, which is consistent with a strain. At a March 2016 VA examination, the Veteran reported right hip pain with loss of motion and the presence of flare-ups after long periods of standing that affect ability to bend. Objective testing revealed flexion limited to 115 degrees, while extension, abduction, and adduction were all normal. External rotation was limited to 50 degrees and internal rotation was normal at 40 degrees. Pain was observed during flexion and external rotation. No ankylosis or degenerative or traumatic arthritis was documented. No fractures or dislocations were found and joints were reported as intact. After a review of all the evidence, lay and medical, the Board finds that a disability rating in excess of 10 percent is not warranted for the service-connected right hip strain for any time during the appeal period from May 8, 2013. Specifically, the evidence reflects that, from May 8, 2013, the service-connected right hip strain was not productive of ankylosis, fracture, malunion, or nonunion of the femur, or flail hip joint, and did not manifest limitation of flexion to 45 degrees, or limitation of abduction with motion lost beyond 10 degrees. The February 2014 VA examination reported pain and limitation of extension greater than 5 degrees. As such, the Board finds that the limitation of motion at extension approximates 5 degrees as required by DC 5251 (the maximum amount allowed under this diagnostic criteria) due to painful limitation of motion to warrant a 10 percent rating, and no higher, under DC 5251. The March 2016 VA examination report reflects that the service-connected right hip strain was not productive of ankylosis, fracture, malunion, or nonunion of the femur, or flail hip joint, and did not manifest limitation of flexion to 45 degrees, limitation of extension to 5 degrees (when tested, range of extension was reported at 30 degrees), or limitation of abduction with motion lost beyond 10 degrees. Taking into account additional functional limitations reported by the Veteran (flare-ups, stiffness, pain, limitation in bending), the evidence indicates ranges of motion for the entire rating period that do not more nearly approximate the 20 percent criteria. As such, the degree of functional impairment does not warrant a higher rating based on limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, and 4.59, 4.71a, Diagnostic Codes 5250-5255; see also DeLuca, supra. The Board also finds that, for the entire initial rating period from May 8, 2013, no other higher or separate ratings are warranted under the remaining diagnostic code pertaining to the right hip. The evidence does not demonstrate right hip flexion limited to 30 degrees, as required for a 20 percent rating under Diagnostic Code 5252. 38 C.F.R. § 4.71a; February 2014 and March 2016 VA examination reports. As discussed above, without any of the aforementioned symptoms, a higher initial disability rating (or a separate compensable rating) is not warranted for the relevant rating period from May 8, 2013; therefore, because the preponderance of the evidence is against a disability rating in excess of 10 percent for the service-connected right hip strain from May 8, 2013, a higher initial disability rating must be denied as to this time period. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255. Effective Dates for Service Connection for the Spine and Hip Disabilities An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. See 38 C.F.R. § 3.400(b)(2). Otherwise, except as specifically provided, the effective date of an evaluation and award for compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran was separated from service on May 7, 2013. See DD Form 214. The Veteran filed a VA compensation and pension claim for a lumbosacral strain and a hip strain associated with the lumbosacral strain on May 3, 2013. Since the Veteran was not yet a “veteran” until he was formally separated from service on May 7, 2013, the RO correctly assigned an effective date of May 8, 2013, which is the earliest legally permissive date that an award of service connection can be granted. In light of the foregoing, the Veteran’s claims for an earlier effective date for a lumbosacral strain and hip strain associated with a lumbosacral strain are denied. See 38 C.F.R. § 3.400. Rating Left and Right Lower Extremity Radiculopathy Under the Diagnostic Code 8520 criteria, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, and moderately severe, and severe with marked muscular atrophy, incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. Id. 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. See 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. From March 31, 2016, the Veteran has been in receipt of a 10 percent disability rating each for left and right lower extremity radiculopathies (associated with service-connected lumbosacral strain with degenerative disc disease) under the rating criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neither the Veteran or the representative has provided a basis upon which they believe that a rating in excess of 10 percent for left and right lower extremity radiculopathy should be granted. With respect to the issue of a rating in excess of 10 percent for the bilateral lower extremity radiculopathy, the Board finds that, for the entire initial rating period from March 31, 2016, the right lower extremity radiculopathy has been manifested by intermittent mild pain, mild numbness, with no decrease in muscle strength, no muscle atrophy, and no decrease in sensation to light touch. The Board further finds that, for the entire initial rating period on appeal from March 31, 2016, that the left lower extremity radiculopathy has been manifested by constant and moderate pain, some function loss, moderate to severe stiffness, moderate numbness, tingling, no decreased muscle strength, no decreased reflexes, and no muscle atrophy, that more nearly approximating mild incomplete paralysis of the sciatic nerve. At the March 31, 2016 VA examination, it was determined that the right and left L4, L5, S1, S2, S3 nerve roots were involved. Upon examination, sensation to light touch was normal, no decrease in muscle strength or muscle atrophy was found. The Veteran reported some numbness and pain when standing for prolonged periods. The severity of the bilateral radiculopathy was reported as mild. At the June 14, 2017 VA examination, the Veteran reported that since the last examination the previous year, there had been more pain, numbness, and tingling in the left leg. The Veteran reported that the right leg had improved some but still had some tingling and soreness that was less severe on the right side than on the left side. The VA examiner concluded that the Veteran’s bilateral lower extremity radiculopathy was mild. The VA examiner assessed that the right lower extremity radiculopathy was manifested by intermittent mild pain and mild numbness. The sensory examination was normal. No decrease in muscle strength, reflexes, or muscle atrophy was reported. Examination of the left lower extremity in June 2017 was reported to manifest constant pain at a moderate level that caused some functional loss. Moderate to severe stiffness, moderate numbness, decreased sensation to light touch, and tingling down the left leg to the middle three toes was reported. No decreased muscle strength, reflexes or muscle atrophy was reported. VA and private treatment records from June 27, 2013 to June 14, 2017 (date of last exam) also do not reflect that the right or left lower extremity radiculopathy have resulted in moderate incomplete paralysis of the either lower extremity. As the record does not contain any other evidence indicating that the right or left lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve (criteria for a 20 percent rating) for the period from March 31, 2016, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 8520. 38 C.F.R. §§ 4.3, 4.7. Effective Date for Service Connection and Rating for Radiculopathy Neither the Veteran or the representative has provided a basis upon which they believe that an earlier effective date prior to March 31, 2016 for service connection for left and right lower extremity radiculopathy could legally be granted or should be granted. The Veteran’s initial claim for service connection for bilateral lower extremity radiculopathy (associated with back disability) was considered received by VA on May 8, 2013. For this reason, May 8, 2013 is the earliest possible effective date allowable under law, even if entitlement had arisen as of May 8, 2013, that is, if lower extremity radiculopathy were shown to be present. 38 C.F.R. § 3.400. However, because in this case lower extremity radiculopathy is not shown by the evidence until March 31, 2016, the Board finds March 31, 2016 for the service-connected bilateral lower extremity radiculopathy is the proper effective date. A private radiology report from Logan College of Chiropractic Health Centers from June 27, 2013 and June 28, 2013 reported a history of low back pain without radiation. The report from Logan does not show a radiculopathy or that a radiculopathy had resulted in moderate incomplete paralysis of either right or left lower extremities. VA treatment notes from December 2013 report that the Veteran had been seeing a chiropractor for chronic non-radicular axial mid and upper back pain since November 2010 - suggesting that at the time no radiculopathy was present. Further, the February 2014 VA examination reported that the Veteran did not have radicular pain associated with radiculopathy. At a March 31, 2016 VA examination, it was reported that the Veteran had a mild radicular pain in the bilateral lower extremities. At a June 14, 2017 VA authorized examination, a diagnosis of disc herniation at L5-S1 with bilateral lower extremity radiculopathy was confirmed. Prior to the March 31, 2016 VA examination, the Veteran did not have a current diagnosis of radiculopathy in either the right or left lower extremity. See February 2014 C&P Examination. The weight of the evidence demonstrates that prior to March 2016 the Veteran did not have a current right or left lower extremity radiculopathy disorder. With any claim for service connection, it is necessary for a current disability to be present. See Moore, 21 Vet. App. at 215; Brammer at 225; Rabideau, 2 Vet. App. at 143-44; McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. For these reasons, the Board finds that the criteria for an effective date prior to March 31, 2016 for service connection and 10 percent rating for the right and left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Reine Bedford, Associate Counsel