Citation Nr: 18145382 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-37 844 DATE: October 30, 2018 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is denied. Entitlement to a disability rating in excess of 10 percent for hallux valgus, right foot is denied. Entitlement to an effective date prior to May 22, 2015 for the grant of service connection for right ankle arthritis is denied. Entitlement to a disability rating in in excess of 10 percent for right ankle arthritis is denied. Entitlement to an effective date prior to January 26, 2018 for a 50 percent disability rating for bilateral pes planus with plantar fasciitis and degenerative changes of the left great toe is denied. Entitlement to a disability rating in excess of 50 percent for bilateral pes planus with plantar fasciitis and degenerative changes of the left great toe is denied. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to an effective date of August 2, 2017 for the assignment of a 20 percent disability rating for right lower extremity radiculopathy is granted. A rating reduction from 40 percent to 20 percent for a lumbosacral spine disability was improper; the 40 percent rating is restored. Entitlement to a disability rating in excess of 40 percent for a lumbosacral spine disability from January 26, 2018 is denied. Entitlement to an effective date prior to May 22, 2015 for the grant of service connection for left lower extremity L5 lumbar radiculopathy is denied. The rating reduction from 20 percent to 10 percent for left lower extremity L5 lumbar radiculopathy is improper; a 20 percent rating is restored. Entitlement to a disability rating in excess of 20 percent for left lower extremity L5 lumbar radiculopathy (claimed as left leg pain) starting April 18, 2018 is denied. REMANDED Entitlement to service connection for a left knee disorder, diagnosed as osteochondral depression in lateral femoral condyle, is remanded. Entitlement to service connection for left ankle arthritis is remanded. Entitlement to service connection for depression is remanded. Entitlement to an effective date prior to August 29, 2014 for the grant of service connection for right lower extremity radiculopathy is remanded. Entitlement to an effective date prior to August 20, 2014, for the assignment of a 40 percent disability rating for service-connected lumbosacral spine is remanded. Entitlement to an effective date prior to May 22, 2015 for a total disability rating due to individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to May 22, 2015 for eligibility to Dependent’s Educational Assistance under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right shoulder disability. 2. Limitation of right knee flexion to 45 degrees or less or right knee extension to 10 degrees or more is not shown at any time during the appeal period. 3. The Veteran has been assigned the maximum rating of 10 percent for his hallux valgus of the right foot great toe. 4. On May 22, 2015 a claim for service connection for right ankle pain was received; and a September 2015 rating decision granted service connection for right ankle arthritis, effective May 22, 2015. 5. The Veteran’s right ankle arthritis is manifested by moderate limitation of motion due to pain, but without ankylosis. 6. The Veteran filed an increased disability rating on January 26, 2018, and it is not factually ascertainable that the Veteran’s bilateral foot disability condition warranted a disability rating of 50 percent earlier than January 26, 2018. 7. The Veteran was awarded the maximum rating allowed for his bilateral pes planus with plantar fasciitis under the rating schedule. 8. The Veteran’s right lower extremity radiculopathy is manifested by moderate intermittent paralysis of the sciatic nerve. 9. It is factually ascertainable that the Veteran’s right lower extremity radiculopathy warranted a disability rating of 20 percent from August 2, 2017. 10. The reduction in rating for the Veteran’s lumbosacral spine disability, from 40 percent to 20 percent effective September 1, 2012 was improper. 11. From January 26, 2018, the Veteran’s lumbosacral spine is manifested by forward flexion to 30 degrees; pain on weight bearing; tenderness; additional limited functional ability during flare-ups; without ankylosis or doctor-prescribed incapacitating episodes. 12. On May 22, 2015 a claim for service connection for left leg pain was received; and the first diagnosis of left lower extremity radiculopathy is in June 2015. 13. At the time of the May 2018 rating decision, improvement in the Veteran’s left lower extremity radiculopathy under the ordinary conditions of life had not been demonstrated. 14. The Veteran’s radiculopathy of the left lower extremity is productive of moderate incomplete paralysis for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260, 5261 (2017). 3. The criteria for entitlement to a disability rating in excess of 10 percent for hallux valgus of the right foot have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5280 (2017). 4. The criteria for an effective date prior to May 22, 2015 for the grant of service connection for right ankle arthritis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 5. The criteria for entitlement to a disability rating in excess of 10 percent for right ankle arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271 (2017). 6. The criteria for entitlement to an effective date earlier than January 26, 2018 for the assignment of a disability rating of 20 percent for a bilateral pes planus with plantar fasciitis and degenerative changes of the left great toe have not been met. 38 U.S.C. §§ 501, 7105(d) (2012); 38 C.F.R. §§ 3.156, 3.400(q), 20.201 (2017). 7. The criteria for entitlement to a rating in excess of 50 percent disabling for bilateral pes planus with plantar fasciitis and degenerative changes of the left great toe and have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). 8. The criteria for entitlement to an effective date of August 2, 2017 for the assignment of a disability rating of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 501, 7105(d) (2012); 38 C.F.R. §§ 3.156, 3.400(q), 20.201 (2017). 9. The criteria for entitlement to a rating in excess of 20 percent disabling for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.124a, Code 8520 (2017). 10. The rating reduction for a lumbosacral spine disability, from 40 percent to 20 percent was not proper. 38 U.S.C. § 1155, 5107, 5109A, 5112 (2012); 38 C.F.R. § 3.105, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2017). 11. The criteria for entitlement to a rating in excess of 40 percent disabling for a lumbosacral spine disability are not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). 12. The criteria for entitlement to an effective date prior to or to May 22, 2015 for service connection for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 501, 7105(d) (2012); 38 C.F.R. §§ 3.156, 3.400(q), 20.201 (2017). 13. The rating reduction for left lower extremity radiculopathy, from 20 percent to 10 percent was not proper. 38 U.S.C. § 1155, 5107, 5109A, 5112 (2012); 38 C.F.R. § 3.105, 4.71a, Diagnostic Code 8520 (2017). 14. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.124a, Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to September 1985, with additional period of active duty for training from August to November 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal of rating decisions of the St. Paul, Minnesota Regional Office (RO) of the Department of Veterans Affairs (VA). As the Board has reversed the reductions at issue, the appeals concerning an effective date prior to January 26, 2018 for the assignment of a 40 percent disability rating for a lumbosacral spine disability and the issue of the effective for the assignment of the decreased 10 percent disability rating for left lower extremity radiculopathy are no longer on appeal. The Board also notes that a claim for left leg pain has been certified to the Board. However, the claim was granted in the November 2017 rating decision which granted service connection for left lower extremity radiculopathy. As such, the claim is no longer on appeal. Service Connection In general, entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical nexus requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a) (2017). 1. Right Shoulder Disability The Veteran contends that service connection is warranted for a right shoulder disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right shoulder disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran filed a claim for a shoulder disorder in May 2015. The Veteran underwent a QTC examination in July 2016. The Veteran reported he was unsure when he injured his shoulder. The Veteran reported aching in shoulder is mild, and stated his pain is more in the back of the shoulder in the trapezius area. The examiner reviewed the claims file and noted the Veteran had a work injury from repetitive motion in 2008. He was treated for subacromial bursitis and was placed on lifting restriction. The examiner stated that at the time of the 2008 injury, the Veteran denied any prior shoulder injury. The Veteran’s examination was normal except for mild decrease in range of motion and tenderness in the right upper trapezius which would lead to more of a cervical spine problem versus a shoulder issue. An x-ray done in July 2016 was normal. The QTC examiner determined that, while he experienced subjective symptoms of shoulder pain, and a prior diagnosis of bursitis in 2008, he did not have a current diagnosis of a right shoulder disability. Further, despite consistent treatment from March 2014 to June 2018, VA treatment records do not contain a diagnosis of a right shoulder disorder. While the Veteran believes he has a current diagnosis of a right shoulder disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Earlier Effective Dates and Increased Ratings Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ([I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).   Right Knee Degenerative Joint Disease 2. Increased Rating The Veteran seeks a disability rating in excess of 10 percent for his service-connected right knee degenerative joint disease. The Veteran’s right knee disability is currently rated under Diagnostic Code (DC) 5260, for painful motion of the knee. See 38 C.F.R. § 4.59. In evaluating the Veteran’s current level of disability, the Board will consider all applicable DCs. Under DC 5010, arthritis due to trauma, substantiated by x-ray findings, is to be rated as degenerative arthritis under DC 5003. Under DC 5003, degenerative changes established by x-ray findings are rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. Under DC 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable rating. Limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. Limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under DC 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. During the April 2018 VA examination, the Veteran reported symptoms associated with his right knee disability of knee pain on the right worse than the left. He stated prolonged standing, walking, and stairs increase the right knee pain. Sometimes he will have to shift his weight to the left leg because of an increase in right leg pain, to include right knee pain. He stated his right knee sometimes feels unstable when using the stairs. Upon physical examination of the knee, the examiner indicated that the right knee exhibited limited range of motion with flexion to 100 degrees and extension to 0 degrees. The Veteran was able to perform repetitive range of motion testing without any additional degree of limitation. The Veteran complained of increased pain with repeated use but did not know how much more range of motion there is with increased pain. The examiner reported pain on flexion and weight bearing, crepitus, and objective evidence of localized tenderness or pain on palpation of the joint. The Veteran stated he ambulates with a cane secondary to back and lower extremity problems. The examiner indicated he would not recommend an occupation that requires walking or standing. At the outset, the Board notes that the evidence does not support an award for an increased rating at any point of the appeal period for the left knee under DC 5256 for ankylosis of the knee; DC 5258 for dislocated semilunar cartilage; DC 5259 for symptomatic removal of semilunar cartilage; DC 5262 for impairment of tibia and fibula, or; DC 5263 for genu recurvatum as none of these disabilities have been demonstrated during the April 2018 VA examination or in VA treatment records. The April 2018 VA examiner specifically noted that there was no ankylosis. X-ray examination found no evidence for fracture or other significant bone, joint, or soft tissue abnormality. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5259, 5262, 5263 (2017). The Board also finds that the preponderance of the evidence of record is against higher or an additional separate rating for the service-connected right knee disability under DC 5257 for recurrent subluxation or lateral instability. While the Veteran has made subjective claims of right knee instability during the April 2018 VA examination, the April 2018 VA examiner found no subluxation or instability. Furthermore, there are no complaints of instability in the VA treatment records. Therefore, a separate rating of 10 percent under DC 5257 is not appropriate for the right knee at any point of the appeal period. The preponderance of the evidence of record is against a 20 percent rating for the right knee under DCs 5260 and 5261, the DCs used to evaluate limitation of flexion and extension of the knee, respectively. The Board notes that 20 percent ratings under these DCs require evidence of limitation of flexion and extension of the knee to 30 and 15 degrees, respectively. This has not been demonstrated at any point of the appeal period. At the April 2018 VA examination, right knee flexion was to 100 degrees with full extension. The weight of the evidence does not establish that it is factually ascertainable that the Veteran manifested additional functional loss sufficiently severe enough to warrant an increased disability rating during any portion of this period. A VA examiner indicated that prolonged standing contributed to additional functional loss. Nevertheless, the Veteran was ultimately able to perform repetitive range of motion testing without additional loss of range of motion. The examiner indicated that the Veteran’s functional loss was caused by pain alone. Therefore, it is not factually ascertainable that the Veteran was manifesting additional functional loss sufficiently severe enough to warrant a higher disability rating. In sum, the evidence does not show that a disability rating in excess of 10 percent for the Veteran’s right knee disability is warranted. As the preponderance of the evidence is against the claim for a higher rating for right knee degenerative joint disease, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Hallux Valgus, Right Foot 3. Increased Rating Throughout the claims period, the Veteran’s service connected right foot hallux valgus has been assigned a 10 percent rating under DC 5280. Under those criteria, a maximum 10 percent rating is assigned for unilateral hallux valgus when the condition is post-operative with resection of metatarsal head or when the condition is severe, if equivalent to amputation of the great toe. The Veteran is receiving the maximum 10 percent rating. The Board has considered the application of other diagnostic codes. The Veteran is separately rated for service-connected bilateral pes planus and plantar fasciitis with degenerative changes of the left foot under DC 5276 for acquired flatfoot. There is no evidence of pes cavus or malunion or nonunion of tarsal or metatarsal bones during the appeals period, to include the April 2018 VA examination, which may provide a higher disability rating. Under Diagnostic Code 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167. However, Diagnostic Code 5284 does not apply to the eight-foot conditions specifically listed in the rating schedule under Diagnostic Codes 5276-5283. Specifically, Diagnostic Code 5284 refers to other foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code. The Court of Appeals for Veterans Claims has held that when a when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy under Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). That is the case here as the Veteran is service-connected for his hallux valgus. As such, Diagnostic Code 5284 is not for application. Finally, higher ratings may be assigned for amputation. See Diagnostic Codes 5171, 5172, and 5173. However, the Veteran does not have amputation and, according to his April 2018 VA examination and treatment records, he is able to ambulate. The evidence does not show that the affected toes are functionally the equivalent of amputations of those toes. Here, as previously stated, the Veteran has already been assigned a 10 percent rating, which is the highest possible rating for this condition, and there are no other diagnostic codes under which the Veteran might receive a higher evaluation. Therefore, a rating in excess of 10 percent for right foot hallux valgus is not warranted.   Right Ankle Arthritis 4. Earlier Effective Date The Veteran seeks an earlier effective date for the grant of service connection for right ankle arthritis. The claim was granted in the September 2015 rating decision with an effective date of May 22, 2015. As noted, the Veteran served on active duty from April 1977 to September 1985. Entitlement to service connection likely arose earlier than the established effective date as the Veteran has a right ankle disability determined to be related to service. However, the case turns on the date of receipt of the Veteran’s claim as the effective date is the later of these two aspects of the claim. Additionally, as the Veteran did not file a claim for his right ankle arthritis by September 1986, the effective date cannot be made the day following separation from service. The Veteran’s formal claim for right ankle arthritis was received on May 22, 2015. There is no evidence of receipt of a claim, either formal or informal, for right arthritis prior to May 22, 2015. The Board notes that the Veteran filed a claim for bilateral ankle sores secondary to his service-connected flat feet in May 2013. However, the Veteran specifically limited this claim to a skin condition as indicated in both the May 2013 claim and August 2013 statement. Therefore, an earlier effective date is not warranted by the preponderance of the evidence. First, the record is absent any written communication related to desiring to bring a claim for right ankle arthritis prior to the May 22, 2015 claim. Although medical treatment records referencing the Veteran’s right ankle arthritis may be found earlier than May 22, 2015, the mere presence of medical treatment does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ([W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.). In sum, the Board finds that the May 22, 2015 claim of service connection which includes bilateral ankle pain is the earliest correspondence that meets the criteria for a claim of service connection for right ankle arthritis. This was more than one year after separation from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than May 22, 2015, for the grant of service connection for right ankle arthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Increased Rating The Veteran’s right ankle arthritis is rated under DCs 5010-5271. Under DC 5010, traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003. 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. 38 C.F.R. § 4.71a. Limitation of motion of the ankle is addressed under Diagnostic Code 5271. Under that regulation, moderate limitation of motion of the ankle warrants a 10 percent disability rating. Marked limitation of motion of the ankle warrants a 20 percent disability rating. 38 C.F.R. § 4.71a. Additionally, the Veteran may receive a higher 20 percent disability rating for ankylosis of the ankle in plantar flexion, less than 30 degrees, marked deformity with malunion of the os calcis or astragalus, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, or for having undergone an astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, and 5274. The Veteran was afforded a VA examination in August 2015. The Veteran reported pain on the front of the ankle with weight bearing. He complained of flare-ups in which his ankle swells and he had to lay down to reduce swelling. He stated he cannot do normal activities that day. Range of motion testing showed dorsiflexion to 9 degrees and plantar flexion to 37 degrees. The examiner noted functional loss of range of motion due to pain and pain on examination at rest. Additionally, there was severe tenderness along the ankle joint line and pain with weight bearing. The examiner found no additional limitation of motion after repetitive testing. The examiner noted no ankylosis. The examiner diagnosed osteoarthritis of the ankle. The Veteran underwent an additional VA examination in November 2017. At that time, the Veteran complained of an intermittent pulsating pain at the top/front of the ankle. He stated he seems like it wants to roll and is aggravated by being on his feet too much or pumping the breaks in his car during traffic. The Veteran denied flare-ups. Range of motion testing showed dorsiflexion to 15 degrees and plantar flexion to 30 degrees. There was no evidence of pain on passive range of motion testing or in non-weight bearing. The examiner noted weight bearing activities and pain note don examination causes functional loss. There was no evidence of pain with weight bearing or localized tenderness, but there was crepitus. The examiner found no additional limitation of motion after repetitive testing. The examiner noted no ankylosis. The Veteran reported regular use of a cane. The examiner diagnosed osteoarthritis of the ankle. The remainder of the Veteran’s treatment records show continued complaints of limitation of motion of the ankle, but do not indicate a degree of limitation and do not indicate ankylosis of the ankle. The Board notes that the Veteran’s treatment records do not indicate any marked limitation of motion, ankylosis, marked deformity with malunion of the os calcis or astragalus, or surgery. The weight of the evidence does not establish that it is factually ascertainable that the Veteran manifested additional functional loss sufficiently severe enough to warrant an increased disability rating during any portion of this period. A VA examiner indicated that prolonged standing contributed to additional functional loss and that the Veteran’s functional loss was caused by pain alone. Nevertheless, the Veteran was ultimately able to perform repetitive range of motion testing without additional loss of range of motion. Therefore, it is not factually ascertainable that the Veteran was manifesting additional functional loss sufficiently severe enough to warrant a higher disability rating. Given the evidence noted above, the Board finds that the Veteran’s right ankle does not manifest with marked limitation of motion, ankylosis, marked deformity with malunion of the os calcis or astragalus, or surgery. Therefore, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for right ankle arthritis. The claim is thus denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107(b) (2012). Bilateral Feet and Left Great Toe 6. Increased Rating Throughout the claims period, the Veteran’s service connected bilateral pes planus with plantar fasciitis and left great toe degenerative changes has been assigned a 50 percent rating under DCs 5003-5276. Under those criteria, a maximum 50 percent rating is assigned for bilateral pronounced flatfoot, acquired. The Veteran is receiving the maximum rating. As to a separate or a higher rating for each foot under 38 C.F.R. § 4.71a, Diagnostic Code 5284, the Board notes that Diagnostic Code 5284 is used to rate a foot disability when a claimant has suffered an injury to the feet. In the current appeal, the Veteran’s service connected pes planus and degenerative changes of the left great toes doo not arise out of a foot injury but instead was awarded to him because a chronic disorder of the feet (pes planus) incurred during active service. As such, the Board finds that the Veteran’s service-connected bilateral pes planus with plantar fasciitis is not ratable under DC 5284. Therefore, the Board also finds that neither a higher scheduler rating or separate ratings for each foot is warranted under DC 5284. This is true at all times during the pendency of the appeal and therefore the Board need not consider staged ratings. The Board has considered the application of other diagnostic codes. The Veteran is separately rated for service-connected hallux valgus of the right foot under DC 5280. None of the remaining diagnostic codes pertaining to the foot, however, provide for a rating in excess of 50 percent. Moreover, in Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court held that Diagnostic Code 5284 does not apply to the eight-foot conditions specifically enumerated under § 4.71a because applying Diagnostic Code 5284 to those listed conditions would essentially render the diagnostic codes of the enumerated conditions] redundant. 27 Vet. App. at 338 (quoting Prokarym v. McDonald, 27 Vet. App. 307, 311 (2015)). Pursuant to Copeland, the Board is prevented from rating the disability resultant from flat feet under a different code. As to the Veteran’s left big toe arthritis, the Board notes that arthritis is rated on the basis of limitation of motion of the part affected. As limitation of motion is a factor for consideration under Diagnostic Code 5276, such limitation is already contemplated in the assigned rating. See C.F.R. § 4.14. Thus, the Board determines that the Veteran’s symptoms of bilateral pes planus with plantar fasciitis and left great toe degenerative changes are appropriately governed by DC 5276. Here, as previously stated, the Veteran has already been assigned a 50 percent rating, which is the highest possible rating for this condition, and there are no other diagnostic codes under which the Veteran might receive a higher evaluation. Therefore, a rating in excess of 50 percent is not warranted. 7. Earlier Effective Date The Veteran asserts he is entitled to an effective date earlier than January 26, 2018 for the assignment of a disability rating of 50 percent for a bilateral foot disability. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date. In October 2010, the Veteran filed a claim for service connection of a bilateral foot disorder, and, in March 2011, the RO granted service connection and assigned a disability rating of 30 percent effective the date the claim was received. The Veteran did not challenge his initial disability rating. The Veteran filed a claim for TDIU, which includes an increased rating claim, on January 26, 2018. In May 2018, the RO increased the Veteran’s disability rating to 50 percent effective January 26, 2018. The Veteran appealed. As noted above, the effective date of an increased disability rating is the date that the entitlement arose or the date of claim (whichever came later); unless it is factually ascertainable that entitlement arose within one year earlier than the date of receipt of the claim for increase. 38 C.F.R. § 3.400. As such, the question is whether it is factually ascertainable that the Veteran met the criteria for a disability rating in excess of 30 percent from January 26, 2017 to January 25, 2018. VA progress notes during this time are negative for any complaints, treatment, or diagnosis of a bilateral pes planus or plantar fasciitis disability. Therefore, it is not factually ascertainable that the Veteran manifested the criteria necessary for an increased disability rating or additional functional loss sufficiently severe enough to warrant a higher disability rating during any earlier period. It was not until VA examination in April 2018 that a greater level of disability was shown. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an effective date earlier than January 26, 2018 for the assignment of a disability rating of 50 percent for a bilateral foot disability. Right Lower Extremity 8. Earlier Effective Date The Veteran asserts he is entitled to an effective date earlier than January 26, 2018 for the assignment of a disability rating of 20 percent for a right lower extremity radiculopathy. The Veteran was initially granted a 10 percent rating for his right lower extremity radiculopathy in a January 2015 rating decision. The Veteran filed a notice of disagreement with the assigned rating, but did not perfect an appeal. In January 2018, the Veteran filed a claim for TDIU which included an increased rating claim. In a May 2018 rating decision, the RO increased the Veteran’s disability rating to 20 percent, effective January 26, 2018. The weight of the evidence indicates that the Veteran is entitled to an earlier effective date of August 2, 2017. As noted above, the effective date of an increased disability rating is the date that the entitlement arose or the date of claim (whichever came later); unless it is factually ascertainable that entitlement arose within one year earlier than the date of receipt of the claim for increase. 38 C.F.R. § 3.400. As such, the question is whether it is factually ascertainable that the Veteran met the criteria for a disability rating in excess of 10 percent from January 26, 2017 to January 25, 2018. As noted below, the August 2017 VA examination report included findings of moderate incomplete paralysis of the right sciatic nerve. Under DC 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent disability rating. Therefore, it is factually ascertainable that the Veteran manifested the criteria necessary for an increased 20 percent disability rating to prior to January 26, 2018. Here, the weight of the probative evidence of record demonstrates that the Veteran is entitled to an effective date of August 2, 2017 for the assignment of a disability rating of 20 percent for a right lower extremity radiculopathy. 9. Increased Rating The Veteran’s right lower extremity radiculopathy is rated under DC 8521 for impairment of the external popliteal nerve. However, as noted below, the Veteran’s affected nerve is the sciatic nerve. As such, the Veteran’s right lower extremity disability is more accurately rated under DC 8520 for impairment of the sciatic nerve. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, a 40 percent rating is assigned for moderately severe incomplete paralysis, a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy, and an 80 percent rating is assigned for complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words mild, moderate, moderately severe, and severe as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6. The Veteran underwent a VA examination in August 2017. At that time, he complained of pain shooting down both legs and tingling, burning, numbness sensation in both feet. He reported taking medication for nerve pain. Prolonged standing and walking increase the discomfort in both lower legs and feet. He described moderate intermittent pain, moderate paresthesias, and mild numbness. Upon physical examination, the examiner noted decreased muscle strength on ankle dorsiflexion, without muscle atrophy. Reflex examination was hypoactive at the ankle. Sensory examination showed decreased vibration sensation at the lower leg/ankle and foot/toes. The examiner reported moderate incomplete paralysis of the right sciatic nerve. The examiner also reported mild incomplete paralysis of the anterior tibial nerve. In an April 2018 VA examination report, the examiner noted normal muscle strength, without muscle atrophy. Reflex examination was normal. Sensory examination was decreased at the right foot/toes. He described mild intermittent pain on the right as well as mild paresthesias. The examiner reported moderate radiculopathy on the right and mild radiculopathy on the left. The Veteran also underwent a VA peripheral nerves examination in April 2018. At that time, he described moderate right lower extremity intermittent pain and moderate paresthesias. Upon physical examination, the examiner noted normal muscle strength, without muscle atrophy. Reflex examination was normal. Sensory examination showed decreased sensation at the right lower foot/toes. The examiner reported moderate incomplete paralysis of the right sciatic nerve. VA treatment records are consistent with the VA examinations of record. In reviewing the evidence of record, the Board finds no objective medical evidence that would support a higher rating of 40 percent. While there is reported numbness and pain, the evidence does not show worsening that would correspond to an incomplete paralysis to a moderately severe degree. VA examination reports have documented decreased sensation and decreased muscle strength, but no muscle atrophy was noted. In considering the neurologic symptoms of the right leg, the evidence suggests a moderate incomplete paralysis of the sciatic nerve warranting a 20 percent disability rating. Consideration has also been given for a higher rating of 60 percent. However, without evidence of a severe incomplete paralysis with marked muscular atrophy of the right leg, the Veteran is not entitled to an increased evaluation of 60 percent. While the Veteran has asserted that his condition had progressed, objective clinical testing and examination did not reveal symptomatology that would support a rating in excess of the rating assigned. The Veteran is competent to report the symptoms he experiences, but his statements and the medical evidence of record must be reviewed together to determine the appropriate disability level. There is no doubt that the Veteran’s right lower extremity is symptomatic and causes discomfort, but it is for that reason that he has been assigned the current compensable rating. Left Lower Extremity Radiculopathy 10. Earlier Effective Date – Service Connection The Veteran seeks an earlier effective date for the grant of service connection for left lower extremity radiculopathy. The claim was granted in the November 2017 rating decision with an effective date of May 22, 2015. The Veteran’s formal claim for a left leg disability was received on May 22, 2015. There is no evidence of receipt of a claim, either formal or informal, for a left leg disorder prior to May 22, 2015. In a March 2014 VA progress note, the Veteran complained of pain which radiates down his leg after standing for more than 10 minutes or walking more than half a block. The Veteran denied numbness. During a January 2015 VA spine examination, the Veteran denied radicular pain in his left lower extremity. A June 2015 VA EMG report showed evidence of mild left L5 radiculopathy without evidence of ongoing axonal denervation. During an August 2017 VA examination, the examiner noted a diagnosis of bilateral lower lumbar radiculopathy. In this case, the Board finds that entitlement to service connection for left lower extremity radiculopathy arose in the June 2015 VA EMG report that first diagnosed this condition. The Board recognizes that entitlement arose after the May 22, 2015 claim for service connection of a left leg disorder. Nonetheless, the Board will not disturb the currently assigned effective date of May 22, 2015. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than May 22, 2015, for the grant of service connection for left lower extremity radiculopathy. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 11. Reduction The Veteran contends that the reduction in his rating for his left lower extremity radiculopathy from 20 percent to 10 percent effective April 18, 2018 was not proper. In an April 2018 rating decision, the RO reduced the Veteran’s 20 percent evaluation for the service-connected left lower extremity radiculopathy to 10 percent disabling. At that time, the RO granted increased ratings for the Veteran’s lumbosacral spine, right lower extremity radiculopathy, and pes planus disabilities. As such, the Board notes that this rating reduction did not affect the Veteran’s overall disability rating. Therefore, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The record shows that the RO reduced the rating at issue on the basis that the April 2018 VA examination had shown decreased severity of the Veteran’s incomplete paralysis of the left sciatic nerve warranting a 10 percent disability rating. Specifically, the RO determined that the Veteran’s left lower extremity radiculopathy did not show moderate severity, as required for a 20 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Even assuming for the sake of argument that the April 2018 VA medical examination did show that the Veteran’s left lower extremity radiculopathy fell within the criteria for 10 percent rating, that fact, in and of itself, would not justify the reduction. As set forth above, in order to warrant a reduction, the evidence must show that the Veteran’s service-connected left lower extremity radiculopathy materially improved overall, resulting in an improvement in his ability to function under the ordinary conditions of life and work. In this case, the Board finds that the record is not sufficient to support a finding that the Veteran’s disability actually improved as of April 18, 2018, resulting in an improvement in his ability to function under the ordinary conditions of life and work. The examiner recorded no such finding and the record documents his complaints of functional loss. Under these circumstances, the Board finds the evidence before the RO at the time of the May 2018 rating reduction decision did not show an actual improvement in the Veteran’s service-connected left lower extremity radiculopathy warranting the reduction from 20 percent to 10 percent. In sum, the RO reduced the Veteran’s rating on the basis of medical information that did not clearly show that any improvement observed at the time of the April 2018 VA examination would result in an improvement in his ability to function under the ordinary conditions of life and work. Since the burden is on VA to show that a rating reduction was warranted, and, for the reasons discussed above, VA failed to meet this burden, the 20 percent rating must be restored. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992) (holding that where VA has reduced a veteran’s disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required). 12. Increased Rating The Veteran asserts an initial disability rating in excess of 20 percent for left lower extremity radiculopathy is warranted. The Board finds, it is not. The Veteran’s left lower extremity radiculopathy is evaluated under the rating criteria for paralysis of the sciatic nerve. The rating criteria for paralysis of the sciatic nerve state that complete paralysis is demonstrated when the foot dangles and drops, when there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. This is evaluated as 80 percent disabled. Severe incomplete paralysis, with marked atrophy, is evaluated as 60 percent disabling. Moderately severe paralysis is evaluated as 40 percent disabling. Moderate paralysis is evaluated as 20 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The term incomplete paralysis, with this and other peripheral nerve injuries, 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. 38 C.F.R. § 4.124a. Moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. See VBA Adj. Manual M21-1, III.iv.4.G.4.c. In Miller v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that [a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level. 28 Vet. App. 376, 380 (2017). The Veteran was afforded a VA examination in August 2017. The examination showed a diagnosis of bilateral lower lumbar radiculopathy. The Veteran complained of pain shooting down both legs along the L5 nerve distribution. He also complained of tingling, burning, and numbness sensation in both feet. The Veteran reported moderate intermittent pain, moderate paresthesias, and mild numbness. Upon examination, sensory examination was decreased at the left leg/ankle and foot/toes. The examiner noted hypoactive reflexes at the ankle. And decreased muscle strength with ankle dorsiflexion. There was no evidence of atrophy. The examiner reported a diagnosis of moderate incomplete paralysis of the left sciatic nerve and mild incomplete paralysis of the left anterior tibial nerve. In a November 2017 VA progress note, the Veteran complained of shooting pain/numbness/tingling down the back of the legs with walking. He denied weakness and recent falls. Decreased sensation was noted from the mid tibias distally. During an April 2018 VA spine examination, the Veteran complained of mild paresthesias, but denied intermittent pain and numbness of the left lower extremity. During an April 2018 VA peripheral neuropathy examination, the examiner reported a diagnosis of bilateral lumbar lower extremity radiculopathy. The Veteran complained of mild intermittent pain, and no paresthesias or numbness. Muscle strength testing and reflex testing was normal. Sensory examination of the foot/toes was decreased. The examiner reported a diagnosis of mild incomplete paralysis of the left sciatic nerve. The Veteran reported he has fallen before because he could not feel the bottom of his feet. In reviewing the evidence of record, the Board finds no objective medical evidence that would not support a higher rating of 40 percent. While there is reported numbness and pain, the evidence does not show worsening that would correspond to an incomplete paralysis to a moderately severe degree. VA examination reports have documented decreased sensation and decreased ankle reflexes. No muscle atrophy was noted. In considering the neurologic symptoms of the left leg, the evidence suggests a moderate incomplete paralysis of the sciatic nerve warranting a 20 percent disability rating. Consideration has also been given for a higher rating of 60 percent. However, without evidence of a severe incomplete paralysis with marked muscular atrophy of the right leg, the Veteran is not entitled to an increased evaluation of 60 percent. Although the August 2017 VA examiner noted two different nerve distributions, both the anterior tibial nerve and sciatic nerve involve impairment to the L4 nerve root, constituting impairment to the same nerve root part of the same sciatic branch. Therefore, the functions associated with these nerves overlap, and, thus are not separate and distinct. In this case, the Veteran is therefore not entitled to a separate rating for his anterior tibial and sciatic nerve, as separate ratings for the same manifestations would constitute pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (pyramiding is rating the same physical manifestations of a disability under two separate DCs). While the Veteran has asserted that his condition had progressed, objective clinical testing and examination did not reveal symptomatology that would support a rating in excess of the rating assigned. The Veteran is competent to report the symptoms he experiences, but his statements and the medical evidence of record must be reviewed together to determine the appropriate disability level. There is no doubt that the Veteran’s left lower extremity is symptomatic and causes discomfort, but it is for that reason that he has been assigned the current compensable rating. As such, the Board finds that the Veteran’s signs and symptoms are more nearly approximated by the current 20 percent rating. 38 C.F.R. § 4.124a, Code 8520. Lumbosacral Spine 13. Reduction By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.104 (a), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or 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 law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). Evaluation of the propriety of the rating decision issued in April 2018 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. The reduction on appeal was based on a determination that an error existed in the January 2015 rating decision. If CUE was not present in the prior decision, then there is no basis for the reduction. If CUE was present in the January 2015 rating decision, because the remedy used to correct such error was reduction, the proper procedures governing reduction must be observed. The RO met the procedural requirements associated with a reduction and the Veteran has not contended otherwise. See 38 C.F.R. § 3.105(e). The 40 percent disability rating assigned in the January 2015 rating decision was based on a January 2015 VA examination. The January 2015 VA examination showed limitation of forward flexion to 50 degrees, with pain starting at 30 degrees. The examiner stated the Veteran had 15 degrees of additional limitation of function during flare-ups or when the joint is used repeatedly over a period of time. The examiner also noted a diagnosis of IVDS and indicated the Veteran’s symptoms were severe enough to require prescribed bedrest at least 4 weeks, but less than 6 weeks in the past 12 months. After a review of the evidence, the Board concludes that the January 2015 rating decision did not contain CUE. In the January 2015 rating decision, the RO granted an increased 40 percent disability rating based on incapacitating episodes as noted in the January 2015 VA examination. The RO then determined the January 2015 rating decision contained CUE as there was no evidence of “doctor-prescribed” bedrest. Therefore, a disability rating based on incapacitating episodes is not warranted. The Board finds that while the Veteran did not meet the criteria for 40 percent on the basis of disability manifested by incapacitating episodes, he did meet the 40 percent disability rating on the basis of limited lumbar spine motion. As indicated below, a 40 percent disability rating is warranted with forward flexion limited to 30 degrees or less. The Veteran reported painful motion on forward flexion at 30 degrees during the January 2015 VA examination. The record as it stands currently does not provide undebatable evidence that the Veteran’s lumbosacral spine disability does not meet the criteria for a 40 percent disability rating. Therefore, the evidence of record does not clearly and unmistakably show that the award of a 40 percent disability rating for a lumbosacral spine disability was erroneous. In the absence of such a finding, the reduction from 40 percent to 20 percent for a service-connected lumbosacral spine disability was improper. Accordingly, the award of a 40 percent disability rating for a lumbosacral spine disability is restored effective August 29, 2014. The appeal is granted. 14. Increased Rating Given the finding above, the Veteran’s 40 percent rating from August 29, 2014 has been restored. A January 2015 rating decision initially granted the 40 percent disability rating. The Veteran filed a notice of disagreement this rating, but did not perfect the appeal. The Veteran filed a claim for TDIU in January 2018, which includes a claim for an increased rating for the Veteran’s service-connected lumbosacral spine disability in excess of 40 percent. In a January 2015 rating decision, the RO assigned a 40 percent rating for the Veteran’s back disability under 38 C.F.R. § 4.71a, DC 5243 for Intervertebral Disc Syndrome (IVDS). Under DC 5243, intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula for spinal disabilities, or under the Formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula, a 40 percent rating is assigned for a thoracolumbar spine disability characterized by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). For VA purposes, unfavorable ankylosis exists when the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, resulting 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. 38 C.F.R. § 4.71a, Note (5). Under the Formula for rating IVDS based on incapacitating episodes, a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Under the DC, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71, DC 5243, Note (1). The Veteran underwent a VA spine examination in April 2018. The examiner noted diagnoses of lumbar spondylosis, degenerative disc disease with compression fracture, and IVDS. The examiner noted the Veteran rated his daily low back pain as 5-8/10. The Veteran stated prolonged standing and walking increases his low back pain and he tries to avoid stairs as much as possible. He complained he cannot bend or lift anything. He denied any urinary or bowel problems. He complained of flare-ups when he twists wrong, putting his low back into spasm and will last most of the day. He will take a muscle relaxer and rest in bed. This happens about one to two times per month. He feels his range of motion is reduced by 50 percent or more for one to two days. The Veteran reported he cannot use his back in any repetitive use for any physical activity as it is too painful. Upon physical examination, the examiner noted forward flexion to 30 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The examiner noted the Veteran has limited ability to bend and pain on examination caused functional loss. All ranges of motion showed exhibited pain. There was evidence of pain on weight bearing. There was objective evidence of localized tenderness at L4-5 and right S1. Upon repetitive use testing, there was no additional loss of function or range of motion. Pain caused additional loss to include decreased flexion to 15 degrees, extension to 0 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. There was no evidence of ankylosis. The examiner noted the Veteran does not have IVDS. The examiner also noted that there was evidence of pain on passive range of motion and non-weight bearing at the low back. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 40 percent. The evidence indicates forward flexion of 30 degrees or less and no evidence of unfavorable ankylosis of the entire thoracolumbar spine or entire spine to warrant a higher disability rating. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The April 2018 VA examination show that the range of motion of the thoracolumbar spine was additionally limited after repetitive motion and that the Veteran was additionally limited to forward flexion at less than 30 degrees due to pain. Thus, the Board finds the functional loss manifested by pain and additional limited motion after repetitive testing is contemplated in the 40 percent rating. Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. As discussed earlier, IVDS, Diagnostic Code 5243, will be evaluated under the General Rating Formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. If the IVDS is rated under the General Rating Formula for Spine Injuries and Diseases, any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, will be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation for lumbar spondylosis, degenerative disc disease with compression fracture, and IVDS under Diagnostic Code 5243 due to incapacitating episodes. There is no evidence of physician prescribed bed rest or incapacitation. In addition, the April 2018 examination did not reveal any IVDS. In summary, the assignment of a disability rating in excess of 40 percent for a lumbosacral spine disability is not warranted. REASONS FOR REMAND In a January 2015 rating decision, the RO granted an increased 40 percent disability rating for a lumbosacral spine disability and granted a separate disability rating for radiculopathy of the right lower extremity. At that time, the RO assigned effective dates of August 29, 2014. The Veteran appealed this decision in an April 2015 notice of disagreement. The Veteran specifically appealed the assigned ratings as well as the effective dates. A July 2015 SOC only addressed the increased ratings portion of the April 2015 notice of disagreement. As such, a remand for issuance of a SOC is required as to the issues of entitlement to effective dates prior to August 29, 2014 for the assignment of an increased rating for a lumbosacral spine disability and for the grant of service connection of right lower extremity radiculopathy. See Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the claim for service connection for a left knee disorder, no left knee disability was found upon VA examination in December 2010. A subsequent August 2015 DBQ showed a diagnosis of osteochondral fracture; however, the examiner did not provide an opinion as to the etology of the left knee disorder. In an April 2018 VA examination, the examiner indicated the Veteran’s service-connected right knee did not cause or aggravate the Veteran’s left knee; however, the examiner gave no rationale for the opinion. Given these inconsistencies, the Board cannot make a fully-informed decision and additional examination and opinion is required. With respect to the claim for a left ankle disorder, the Veteran underwent a VA examination in August 2015 and the examiner indicated that the Veteran’s osteoarthritis of the ankle was not related to service as the Veteran had no left ankle injury in service. However, service treatment records show the Veteran had an in-service left ankle sprain in August 1983. As such, a supplemental opinion is required. The Veteran asserts service connection is warranted for an acquired psychiatric disorder. The Veteran underwent a VA examination in June 2016. The examiner indicated that the Veteran’s only diagnosed psychiatric disorder was alcohol use disorders, in full remission. The Veteran also submitted an August 2016 private evaluation which indicated the Veteran had depression is more likely than not caused or aggravated by the functional impairments and limitations due to his service-connected disabilities. As such, further examination is required to assist the Board in resolving this question concerning the proper diagnosis and the likely etiology of any psychiatric disability. In light of the remand of the claims herein, the Board finds that the issues of earlier effective date for TDIU and eligibility to Dependent’s Educational Assistance are inextricably intertwined with the issue being remanded and adjudication must be deferred pending the proposed development. The matters are REMANDED for the following action: 1. In response to the Veteran’s April 2015 Notice of Disagreement, take all indicated action pursuant to 38 U.S.C. § 7105 in order to furnish the Veteran and his representative a fully responsive statement of the case relating to the issues of entitlement to effective dates prior to August 29, 2014 for the assignment of a 40 percent disability rating for a lumbosacral spine disability and the grant of service connection of right lower extremity radiculopathy. Only if the Veteran perfects a timely appeal should these matters be certified and returned to the Board and after any necessary development has been completed. 2. Schedule the Veteran for an examination by an appropriate clinician to obtain an opinion as to the nature and etiology of any left knee and left ankle disorders. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. (Continued on the next page)   3. Schedule the Veteran for an examination by an appropriate clinician to obtain findings as to the nature and etiology of any acquired psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service stress. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel