Citation Nr: 18148046 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-40 775 DATE: November 6, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for cervical strain prior to June 15, 2017, is denied. Entitlement to a disability rating in excess of 20 percent for cervical strain on and after June 15, 2017, is denied. Entitlement to an initial disability rating in excess of 20 percent for arthritis of the lumbar spine is denied. Entitlement to a disability rating of 10 percent for gastroesophageal reflux disease (GERD) throughout the appeal period is granted. Entitlement to a disability rating of 20 percent for radiculopathy of the left lower extremity throughout the appeal period is granted. Entitlement to a disability rating of 20 percent for radiculopathy of the right lower extremity throughout the appeal period is granted. FINDINGS OF FACT 1. Prior to June 15, 2017, the Veteran’s cervical spine disability manifested in flexion of the cervical spine of 45 degrees and combined range of motion of 340 degrees with no ankylosis of either the cervical or entire spine; there is no evidence of IVDS during this period of the appeal. 2. From June 15, 2017, the Veteran’s cervical spine disability manifested in flexion of the cervical spine of 45 degrees and combined range of motion of 155 degrees during flare-ups but with no ankylosis of either the cervical or entire spine; there is evidence of IVDS but no incapacitating episodes lasting 4-6 weeks during a 12 months period. 3. Throughout the appeal period, the Veteran’s lumbar spine disability manifested in forward flexion of the thoracolumbar spine between 40 and 50 degrees, combined range of motion between 160 and 180 degrees and no ankylosis of either the thoracolumbar or entire spine; there is evidence of IVDS but no incapacitating episodes lasting 4-6 weeks during a 12 months period. 4. Throughout the appeal period, the Veteran’s GERD has manifested in heartburn, reflux and regurgitation. 5. Throughout the appeal period, the Veteran’s radiculopathy of the left lower extremity manifested in numbness and constant pain. 6. Throughout the appeal period, the Veteran’s radiculopathy of the right lower extremity manifested in numbness and constant pain. CONCLUSIONS OF LAW 1. Prior to June 15, 2017, the criteria for an initial rating in excess of 10 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2017). 2. From June 15, 2017, the criteria for a rating in excess of 20 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2017). 3. Throughout the appeal period, the criteria for a rating in excess of 20 percent for lumbar spine arthritis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2017). 4. Throughout the appeal period, the criteria for a 10 percent rating for GERD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7399-7346 (2017). 5. Throughout the appeal period, the criteria for a rating of 20 percent for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2017). 6. Throughout the appeal period, the criteria for a rating of 20 percent for radiculopathy of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1990 to August 2013. Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. At the outset, the Board acknowledges the assertions in the July 2017 Appellant’s Brief that the Veteran is seeking higher ratings based on the belief that his conditions (all the conditions on appeal) have worsened and should be awarded higher percentages. The Board notes that while the representative stated that the conditions have worsened, the Veteran was afforded VA examinations for the conditions on appeal the month prior to the brief, in June 2017. There is no indication from the representative or the Veteran that his conditions have worsened since the June 2017 examinations. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate). As the record does not suggest a worsening of the Veteran’s conditions since the latest VA examinations, those examinations (June 2017 VA examinations) are adequate for rating purposes. Musculoskeletal Disabilities With regard to the Veteran’s ratings for musculoskeletal disabilities, his neck (cervical) and back (lumbar) disabilities, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court has held that an adequate VA examination for the joints must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. Painful motion is an important factor of disability, and actually painful, unstable, or maligned joints are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to increased ratings for cervical strain The Veteran’s cervical strain has been evaluated under Diagnostic Code 5237. 38 C.F.R. § 4.71a. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. The provisions referring to the cervical spine provide that forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height is rated at 10 percent. Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 is rated at 20 percent. For the cervical spine, forward flexion of 15 degrees or less or favourable ankylosis of the entire cervical spine is rated at 30 percent. Unfavourable ankylosis of the entire cervical spine is rated at 40 percent. A maximum 100 percent rating requires unfavourable ankylosis of the entire spine. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine indicates to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Alternatively, disabilities of the spine may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under this rating formula, incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months is rated 20 percent disabling. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is rated 40 percent disabling. Incapacitating episodes having a total duration of at least six weeks during the past 12 months is rated 60 percent disabling. Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes explains that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) that require bed rest prescribed by a physician and treatment by a physician. Note (2) explains that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Prior to June 15, 2017 Turning to the medical evidence during this period of the appeal, the Board notes that private treatment reports of record reflect complaints of neck pain but do not assess additional rating criteria. In April 2013, the Veteran underwent a VA examination for cervical spine conditions. The examiner indicated a diagnosis for cervical strain. The examiner noted that the Veteran reports flare-ups, which he described as impacting the ability to sleep due to neck pain. His initial range of motion measured at forward flexion of 45 degrees with no objective evidence of painful motion. His combined range of motion was 340 degrees. He was able to perform repetitive use testing with three repetitions. There was no additional limitation in range of motion following repetitive-use testing. The examiner indicated that there was functional loss/impairment of the cervical spine due to pain on movement. There was no localized tenderness or pain to palpation for the joint/soft tissue of the cervical spine. There were no muscle spasms. Muscle strength testing was all normal, and there was no muscle atrophy. Reflexes were all normal. The sensory exam was normal, and the examiner indicated that there is no radiculopathy associated with the cervical condition. There were no neurologic abnormalities related to the cervical spine condition (such as bowel or bladder problems due to cervical myelopathy). There was no intervertebral disc syndrome (IVDS) due to the cervical spine condition. There was no use of assistive devices. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis (noting that functions of the upper extremity include grasping, manipulation, etc.). The examiner indicated that there were no other pertinent findings and no associated scars. As to lay statements, the Veteran stated in his May 2014 notice of disagreement and August 2016 Form 9 that he believes this condition should be rated at 20 percent. He stated that he has constant pain in his “c-spine [and] neck,” especially when he moves his neck from side to side. He also stated that his range of motion is limited due to the constant pain he experiences. Having reviewed the evidence of record, the Board finds that a rating of 10 percent is warranted prior to June 15, 2017. During this period of the appeal, the Veteran’s cervical spine disability did not result in limitation of motion sufficient to meet the criteria for a compensable rating. The Veteran had flexion of 45 degrees and combined range of motion of 340 degrees. A compensable rating based on limitation of motion requires flexion limited to at least 40 degrees or combined range of motion no greater than 335 degrees. The April 2013 VA examiner also indicated that there was no localized tenderness, guarding or spasms. Nor does the record indicate vertebral body fracture with loss of 50 percent height. As the April 2013 VA examiner reviewed the record, considered the Veteran’s lay statements and addressed rating criteria in place at the time of the examination, the Board finds the assessment probative. Given the probative evidence, a compensable rating cannot be established based on the criteria set forth in the General Rating Formula for Disease and Injuries of the Spine. Instead, as the record reflects painful motion of the cervical spine, the Veteran has been assigned a 10 percent rating under 38 C.F.R. § 4.59, which allows for the minimum rating for limitation of motion of a joint where there is evidence of painful motion. However, 38 C.F.R. § 4.59 only provides for a minimum rating due to painful motion. Any rating in excess of the minimum is determined based on the actual range of motion for the joint. With flexion of the cervical spine of 45 degrees and combined range of motion totaling 340 degrees, the Veteran does not meet the criteria for 20 or 30 percent ratings based on limitation of motion, which require at least forward flexion limited to 30 degrees or combined range of motion no greater than 170 degrees. Additionally, as noted, there were no muscle spasms and guarding. Nor is there any evidence of spinal contour. As such, those provisions of the 20 percent rating referring to muscle spasms, guarding and spinal contour are not met. Nor does the record reflect favorable ankylosis of the cervical spine, as required for a rating of 30 percent. To the contrary, the record does not reflect any form of ankylosis of the cervical or entire spine. The April 2013 VA examiner indicated that there is no ankylosis of the Veteran’s spine; nor has the Veteran alleged that his spine is ankylosed. Lacking evidence of ankylosis, the Veteran also does not meet the criteria for a rating of 40 percent or higher as those ratings require some form of ankylosis. Nor is a higher rating warranted for functional loss. The Board acknowledges the Veteran’s reports that his neck condition impacts his ability to sleep due to pain and that pain also limits his range of motion. However, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. at 32 (2011). Moreover, the Veteran is also already compensated for painful motion in the 10 percent rating assigned as he is rated 10 percent for painful motion. Nor is a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warranted as the record does not reflect that the Veteran had IVDS during this period of the appeal. The Board has also considered whether a separate evaluation is warranted for associated conditions. However, the medical evidence is consistent that the Veteran did not have any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. Nor does the Veteran suggest that he has bowel or bladder problems. The record also does not reflect any sensory impairment related to the Veteran’s neck disability during this period of the appeal. As such, a separate rating for sensory impairment is not warranted. 38 C.F.R. § 4.124a. A separate rating for associated scars is also not warranted as the medical evidence indicates the Veteran does not have any scars associated with his neck condition. Nor has he asserted as such. Therefore, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118. In light of the evidence, the Board finds that a 10 percent rating, but no higher, is warranted for the cervical spine disability prior to June 15, 2017. From June 15, 2017 On June 15, 2017, the Veteran underwent another VA examination for cervical spine conditions. The examiner indicated diagnoses for cervical strain, IVDS, and cervical radiculopathy. At the outset, the Board notes that the Veteran is already separately rated for cervical radiculopathy of the right and left upper extremities, and neither rating is currently on appeal before the Board. As such, the Board will not discuss evidence or provide an assessment pertaining to the Veteran’s cervical radiculopathy of the right or left upper extremities. During the June 2017 VA examination, the Veteran reported flare-ups, described as stiffness and limited range of motion. He also reported functional impairment/loss, described as limited range of motion. His initial range of motion was indicated as abnormal and measured forward flexion to 45 degrees with no objective evidence of painful motion. His combined range of motion totaled 215 degrees. As to observed repetitive use, the Veteran was able to perform repetitive use testing with three repetitions. There was no additional limitation in range of motion following repetitive-use testing. As to repeated use over time, the Veteran was being examined immediately after repetitive use over time. The examiner indicated that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. The exam was not conducted during a flare-up, but the examiner indicated that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-up. As to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the examiner indicated that pain does. The examiner was able to describe in terms of degrees and indicated forward flexion of 45 degrees and combined range of motion of 155 degrees. There was no localized tenderness or pain to palpation for the joint/soft tissue of the cervical spine. There were no muscle spasms or guarding. Muscle strength testing was all normal, and there was no muscle atrophy. Reflexes were all normal. The examiner indicated there is no ankylosis of the spine. The examiner indicated there were no neurologic abnormalities related to a cervical spine condition (such as bowel or bladder problems due to cervical myelopathy). The examiner indicated that there is IVDS due to the cervical condition. The examiner indicated that there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There was no use of assistive devices indicated. The examiner indicated there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that there were no other pertinent findings and no associated scars. Having reviewed the evidence of record, the Board finds that a rating of 20 percent is warranted on and after June 15, 2017. The RO assigned the Veteran a 20 percent rating during this period of the appeal based on combined range of motion less than 170 degrees. See June 2017 Rating Decision. The June 2017 VA examiner indicated combined range of motion of 155 degrees during flare-ups. As discussed, the Veteran was rated 10 percent for painful motion. Based on the combined range of motion during flare-ups, the RO increased the rating to 20 percent based on additional limitation of motion per DeLuca v. Brown. However, a higher rating is not warranted. A rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees. Here, the Veteran’s flexion was limited at most to 45 degrees. The record also does not reflect favorable ankylosis of the cervical spine, as required for a rating of 30 percent. To the contrary, the record does not reflect any form of ankylosis of the cervical or entire spine during this period of the appeal. The June 2017 VA examiner indicated that there is no ankylosis of the Veteran’s spine; nor has the Veteran alleged that his spine is ankylosed. Lacking evidence of ankylosis, the Veteran also does not meet the criteria for a rating of 40 percent or higher as those ratings require some form of ankylosis. Additionally, as the Veteran has already been granted a higher rating based on additional limitation of motion, and the Board finds that the 20 percent rating assigned compensates the Veteran for any functional loss he experiences under the criteria set forth in DeLuca v. Brown. There is no indication that a higher rating for functional loss due to pain is warranted. Nor is a higher rating warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. While the Veteran had IVDS associated with his cervical spine condition during this period of the appeal, there were no incapacitating episodes in a 12 months period. See June 2017 Cervical Spine VA Examination Report. As such, the Veteran does not meet the criteria for a higher rating of 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which requires incapacitating episodes lasting at least four weeks in a 12 months period. Nor has the Veteran suggested incapacitating episodes due to IVDS. The Board has also considered whether a separate evaluation is warranted for associated conditions. However, the medical evidence is consistent that the Veteran did not have any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. Nor does the Veteran suggest that he has bowel or bladder problems. A separate rating for associated scars is also not warranted as the medical evidence indicates the Veteran does not have any scars associated with his neck condition. Nor has he asserted as such. Therefore, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118. In light of the evidence, the Board finds that a 20 percent rating, but no higher, is granted for the cervical spine disability on and after June 15, 2017. 2. Entitlement to a higher rating for arthritis of the lumbar spine The Veteran has degenerative arthritis of the lumbar spine. Diagnostic Code 5003 provides that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 38 C.F.R. § 4.71a. Limitation of motion of the lumbar spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which covers Diagnostic Codes 5235-5243. Here, the Veteran’s lumbar disability has been evaluated specifically under Diagnostic Code 5242. Id. Under the General Rating Formula for Diseases and Injuries of the Spine referring to the thoracolumbar spine, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 is rated at 20 percent. Forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is rated at 40 percent. 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, unfavorable ankylosis of the entire thoracolumbar spine is rated at 50 percent. A maximum 100 percent rating is reserved for unfavorable ankylosis of the entire spine. As discussed, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine indicates to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Turning to the medical evidence, the Board notes that private treatment reports of record reflect complaints of back pain but do not assess additional rating criteria. In April 2013, the Veteran underwent a VA examination for lumbar spine conditions. The examiner provided diagnoses for arthritis of the lumbar spine and lumbar radiculopathy. The examiner noted the Veteran’s reports of flare-ups, described by the Veteran as limitation with prolonged standing and walking when pain has flared up. His initial range of motion measured at flexion of 50 degrees with evidence of painful motion at 40 degrees. His combined range of motion totaled to 185 degrees. He was able to perform repetitive use testing with three repetitions. There was no additional limitation in range of motion following repetitive-use testing. The examiner indicated that there was functional loss/impairment of the lumbar spine, described as pain on movement and disturbance of locomotion. There was no localized tenderness or pain to palpation for the joint/soft tissue of the lumbar spine. There were no muscle spasms or guarding. Muscle strength testing was all normal, and there was no muscle atrophy. Reflexes were all normal. The sensory exam was normal, and the examiner indicated that there is no radiculopathy associated with the lumbar condition. There were no neurologic abnormalities related to the lumbar spine condition (such as bowel or bladder problems due to cervical myelopathy). There was no IVDS due to the lumbar condition. There was no use of assistive devices. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis (noting that functions of the lower extremity include balance and propulsion). The examiner indicated that there were no other pertinent findings and no associated scars. In June 2017, the Veteran underwent another VA examination for lumbar spine conditions. The examiner indicated diagnoses for arthritis of the spine, IVDS, and lumbar radiculopathy. The Veteran did not report flare-ups during this examination. He reported that he has functional loss/impairment due to lumbar spine, which he described as being unable to stand to conduct daily functions. His initial range of motion was indicated as abnormal and measured flexion to 40 degrees. His combined range of motion measured 160 degrees. The examiner indicated that range of motion contributes to functional loss due to limited flexion. There was no pain noted on examination. As to observed repetitive use, the Veteran was able to perform repetitive use testing with three repetitions. There was no additional limitation in range of motion following repetitive-use testing. As to repeated use over time, he was being examined immediately after repetitive use over time. The examiner indicated that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. The examiner did not assess flare-ups, which, as noted, the Veteran did not report. The examiner indicated that there was no localized tenderness or pain to palpation for the joint/soft tissue of the lumbar spine. There were no muscle spasms or guarding. Muscle strength testing was all normal, and there was no muscle atrophy. Reflexes were all normal. The Veteran’s sensory exam was abnormal. The examiner indicated that his senses were decreased for the right and left foot and toes. The straight leg test was negative. The examiner noted radiculopathy associated with lumbar condition. However, as the Veteran is separately rated for lumbar radiculopathy and that matter is on appeal before the Board, the Board will assess the Veteran’s lumbar radiculopathy symptoms in the portion of the decision referring to the claims for radiculopathy. The examiner indicated there was no ankylosis of spine. The examiner indicated there were no neurologic abnormalities related to a lumbar spine condition (such as bowel or bladder problems due to cervical myelopathy). The examiner indicated that the Veteran has IVDS due to lumbar condition. The examiner indicated that there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There was no use of assistive devices indicated. The examiner indicated there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner indicated there were no other pertinent findings. The examiner noted associated scars and indicated they are not painful or unstable, do not have a total area equal to or greater than 39 square cm, and are not located on the Veteran’s face, head, or neck As to lay statements, the Veteran stated in his May 2014 notice of disagreement that he should be rated 40 percent for this condition. He stated that after prolonged standing, his lower back becomes very stiff, which limits his ability to bend (which he specified as limiting his range of motion) and increases his pain. In his August 2016 Form 9, he again stated that he should be rated 40 percent for his lumbar arthritis. He stated that his forward flexion is much less than the 30 percent. He stated that he has difficulty standing or walking for more than 10 minutes. He stated that he can hardly walk a fourth of a mile without stopping and sitting. He stated that after prolonged standing, his lower back becomes very stiff, which limits his ability to bend (which he explained as limiting his range of motion) and increases his pain. He stated that he takes pain pills daily to help control the pain. Having reviewed the evidence of record, the Board finds that a rating of 20 percent is warranted for the Veteran’s lumbar disability throughout the appeal period. The Veteran’s flexion of the lumbar spine measured between 40 and 50 degrees during the appeal period, which is commensurate with the criteria for a rating of 20 percent. A rating of 40 percent requires forward flexion of the lumbar spine limited to 30 degrees. However, the competent medical evidence does not reflect forward flexion limited to 30 degrees. The Board acknowledges the Veteran’s assertions that his forward flexion is much less than that required for the 30 percent rating. The Veteran is competent to attest to observable symptoms, such as pain or recognizing that his neck does not move as far. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). However, the assessment of measured range of motion is not subject to lay determination. It requires precise testing and medical training to apply and read those measurements. There is no evidence of record to suggest that the Veteran has such training. Nor is there any additional medical evidence of record to reflect that the Veteran’s forward flexion for the lumbar spine was 30 degrees or less. Lacking competent evidence of forward lumbar flexion limited to 30 degrees or less, a 40 percent rating is not warranted. Additionally, a rating of 40 percent or higher requires some form of ankylosis of the lumbar or entire spine. Here, the medical evidence is consistent that the Veteran does not have ankylosis of the spine. Nor has the Veteran alleged that his spine is ankylosed. Lacking competent evidence of ankylosis, a rating of 40 percent or higher is not warranted. Nor is a higher rating warranted for additional functional loss. The Board acknowledges the Veteran’s reports that his back condition affects his ability to bend and also weakens his ability to sit, stand or walk for prolonged periods of time. However, as discussed, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell v. Shinseki. While he also reports stiffness, physical examination of the Veteran has consistently indicated no additional limitation of motion due to weakness, fatigability, or incoordination. As such, a higher rating for additional limitation of motion is not warranted. See DeLuca v. Brown. Nor is a higher rating warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. While the Veteran had IVDS associated with his lumbar spine condition during this period of the appeal, there were no incapacitating episodes in a 12 months period. See June 2017 Thoracolumbar Spine VA Examination Report. As such, the Veteran does not meet the criteria for a higher rating of 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which requires incapacitating episodes lasting at least four weeks in a 12 months period. Nor has the Veteran suggested incapacitating episodes due to IVDS. The Board has also considered whether a separate evaluation is warranted for associated conditions. The Veteran is already service-connected for radiculopathy of the right and left lower extremities, which are discussed below, and the medical evidence is consistent that the Veteran did not have any other associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. Nor does the Veteran suggest that he has bowel or bladder problems. A separate rating for associated scars is also not warranted. While the medical evidence indicates the Veteran has scars associated with his back disability, the Veteran is already rated for scars associated with his lumbar disability, and that rating is not before the Board. Nor are staged ratings warranted. Fenderson v. West, 12 Vet. App. at 119. At no point during the appeal has the Veteran’s back disability manifested in symptoms commensurate with a higher rating than 20 percent. In light of the evidence, the Board finds that a 20 percent rating, but no higher, is granted for the Veteran’s lumbar disability. 3. Entitlement to increased ratings for GERD The Veteran’s GERD has been evaluated under Diagnostic Code 7399-7346. A diagnostic code ending in “99” and followed by a hyphen connotes a disability which does not exist in the rating schedule and instead has been rated as analogous to a different disability which does exist in the rating schedule. 38 C.F.R. § 4.20. As such, the Veteran’s GERD has been rated as analogous to Diagnostic Code 7346 for hiatal hernia. Diagnostic Code 7346 provides a 10 percent rating for two or more of the symptoms listed for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. A 30 percent rating is provided for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. Turning to the medical evidence, in April 2013, the Veteran was provided a VA examination for esophageal conditions (including GERD). As to medical history, the Veteran reported gradual onset of heartburn and soreness in throat after lying supine. The examiner indicated that the current symptoms were intermittent pharyngitis and heartburn. The examination report indicates continuous use of medication for the condition. As to signs and symptoms, the examiner indicated that the Veteran has reflux. The examiner indicated that there was no esophageal stricture, spasm and diverticula. The examiner also indicated that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms. In June 2017, the Veteran was afforded another VA examination relating to his GERD. The examiner noted the Veteran’s use of continuous medication for this condition. As to signs and symptoms, the examiner indicated that the Veteran experiences reflux and regurgitation. The examiner indicated that there is no esophageal stricture, spasm and diverticula. The examiner also indicated that there are no other pertinent physical findings, complications, conditions, signs and/or symptoms. As to lay statements, the Veteran stated in his May 2014 notice of disagreement and August 2016 Form 9 that he believes he should be rated at least 10 percent for this condition, which is diagnosed as being chronic. He stated that he has a lot of acidity pain with many types of food that he eats. He stated that he has this problem almost daily and even while he is sleeping. He stated that the acid seems to persistently regurgitate, which causes unbearable heartburn, which he stated “comes back up my throat.” He also stated that he takes prilosec for this condition. Having reviewed the evidence of record, the Board finds that a 10 percent rating is warranted for the Veteran’s GERD throughout the appeal period. The RO increased the Veteran’s rating to 10 percent based on there being two of the symptoms listed in the 30 percent rating. Specifically, the RO found that the June 2017 examination indicated pyrosis (heartburn and/or reflux) and regurgitation. See June 2017 Rating Decision. However, the Board finds that the record reflects these symptoms throughout the appeal period. While the April 2013 VA examination indicates only heartburn and reflux, in May 2014, the Veteran reported symptoms of heartburn and regurgitation. As symptoms fluctuate, the Board does not find that the April 2013 examination inadequate. However, as discussed, the Veteran is competent to report lay observable symptoms. Jandreau v. Nicholson, 492 F.3d at 1377. Nor does the Board have any reason to doubt the credibility of his assertions, which are also in line with the symptoms indicated in the June 2017 examination. The Veteran is already in receipt of a 10 percent rating from June 15, 2017, for GERD based on the findings of the June 2017 VA examination. Given the presence of heartburn and regurgitation throughout the appeal period, the Board finds that a 10 percent rating is now warranted for the Veteran’s GERD throughout the appeal period. However, a higher rating is not warranted. The 30 percent rating refers to regurgitation that is associated with persistent recurrent epigastric distress with dysphagia and pyrosis. The use of the word “and” indicates that the criteria are conjunctive. In other words, all symptoms must be present to warrant the applicable rating. Here, the record does not support that the Veteran has persistent recurrent epigastric distress or that he has dysphagia or pyrosis. As such, the Veteran does not meet that provision of the 30 percent rating. Moreover, those symptoms must be accompanied by substernal, arm or shoulder pain, which the Veteran has not exhibited or alleged. Nor is there any evidence of record to support that his GERD has manifested in considerable impairment of health. As such, the record does not support the assignment of a 30 percent rating. Nor is a 60 percent rating warranted, which requires pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. As discussed, the use of the word “and” indicates that the criteria are conjunctive. As such, while the Veteran reports acidity pain and that his food comes back up his throat, which may be suggestive of vomiting, there is no indication that he also has weight loss, hematemesis or melena associated with her GERD or otherwise. Nor is there any indication of record that the Veteran has anemia. There is also no evidence suggestive of severe health impairment. For example, there have been no reports of incapacitation or hospitalization due to GERD. Lacking competent evidence of these conditions, a 60 percent rating is not warranted. Nor does the record support the assignment of a separate rating for associated conditions. The evidence does not reflect any associated abdominal conditions. Diagnostic Code 7323 is not applicable as there is no showing of ulcerative colitis. Nor does the evidence reflect that the Veteran has adhesions of the peritoneum, an ulcer, or gastritis. See 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7304, 7305, 7306, 7307. Consideration has also been given to assigning staged ratings. Fenderson v. West. However, the Board finds that at no time during the appeal period did the Veteran demonstrate symptoms other than reflux, regurgitation and pain. As such, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. In light of the evidence, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran’s GERD throughout the appeal period. 4. Entitlement to increased ratings for radiculopathy of the left and right lower extremities For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Veteran’s radiculopathy of the left and right lower extremities has been evaluated under Diagnostic Code 8520 separately. 38 C.F.R. 4.124a. Diagnostic Code 8520 provides that moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve; where the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of knee is weakened or (very rarely) lost, is rated 80 percent disabling. While the rating schedule does not define terms such as “mild,” “moderate,” or “severe,” it does provide some guidance regarding neurological disabilities. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The rating schedule provides that cranial or peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. In the case at hand, the Veteran contends that he is entitled to a higher rating for his radiculopathy of the left and right lower extremities. As the record reflects identical symptomatology for the Veteran’s radiculopathy of the left and right lower extremities, the Board will discuss the claims together. The Board notes that doing so does not impact the Veteran’s assignment of a separate rating for each condition. Turning to the medical evidence, the April 2013 VA examination for lumbar spine conditions discusses the Veteran’s lumbar radiculopathy. The examiner noted that the Veteran had lumbar radiculopathy with symptoms onset in 2009. Upon physical examination, the examiner indicated that the Veteran’s sensory exam was normal and that there was no radiculopathy or symptoms of radiculopathy associated with the Veteran’s lumbar condition at that time. Specifically, the examiner indicated that there was no pain, paresthesias, dysesthesias or numbness of either the right or left lower extremity. The June 2017 VA examination for lumbar spine conditions also discusses the Veteran’s lumbar radiculopathy. The Veteran’s sensory exam was abnormal, and the examiner indicated that he had decreased senses for the right and left foot and toes. As to his radiculopathy symptoms, the examiner indicated moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness for the right and left lower extremities. The examiner indicated that there were no other signs or symptoms of radiculopathy. As to the severity of the Veteran’s radiculopathy, the examiner indicated that it is moderate. As to lay statements, the Veteran stated in his May 2014 notice of disagreement and August 2016 Form 9 that he has constant pain and numbness in both his right and left lower extremities. He stated that his feet are always cold even when it is warm or hot outside. He also stated that the results of an electro-myogram showed that he has some nerve damage in the extremities. Having reviewed the evidence of record, the Board finds that a separate 20 percent rating is warranted for the Veteran’s radiculopathy of the left and right lower extremities throughout the appeal period. The competent evidence reflects that the Veteran’s radiculopathy of the lower extremities was manifested by wholly sensory symptoms of numbness and pain throughout the appeal period. While the April 2013 VA examiner did not find any physical symptoms upon examination, following this examination, the Veteran reported pain and numbness in his May 2014 notice of disagreement. The Veteran is competent to report wholly sensory symptoms. The Board also has no reason to doubt the credibility of the Veteran’s assertions and therefore finds them probative as well. As the Veteran’s symptoms were wholly sensory, his rating is limited to mild or moderate at most. Given that he has pain, the Board finds that the Veteran’s symptoms warrant the maximum rating for wholly sensory symptoms, moderate, which is commensurate with a 20 percent rating under Diagnostic Code 8520. The Veteran is already in receipt of separate 20 percent ratings from June 15, 2017, based on the findings of the June 2017 lumbar spine VA examination of moderate symptoms. The Board finds that separate 20 percent ratings are now warranted throughout the appeal period. However, a higher rating is not warranted. The record does not support that the Veteran’s symptoms were moderately severe, as they were manifested predominantly by numbness and pain, which are wholly sensory symptoms. As discussed, the maximum rating for wholly sensory symptoms is that for moderate symptoms. As such, a 40 percent rating is not warranted. Nor does the record support that the Veteran’s symptoms were severe with marked muscular atrophy. To the contrary, the medical evidence is consistent that the Veteran does not have any muscle atrophy. See April 2013 and June 2017 Lumbar Spine VA Examination Reports. Nor has he asserted that he has muscle atrophy of the left or right lower extremities. Lacking competent medical evidence of marked muscle atrophy, a rating of 60 percent for severe symptoms is not warranted. Nor does the record indicate that the Veteran suffered from complete paralysis of the right or left lower extremity. While the Veteran reports that his feet are cold even when it is warm or hot outside and the record reflects decreased sensation for his feet and toes, the record does not suggest, nor has the Veteran indicated, that his foot dangles or drops, that there is no active movement below his knee or that his flexion is weakened. To the contrary, his reflex exams throughout the appeal period were consistently normal for his lower extremities. Lacking competent medical evidence of complete paralysis, an 80 percent rating is not warranted. Given the evidence, the Board finds that a separate rating of 20 percent, but no higher, is warranted for the Veteran’s radiculopathy of the left and right lower extremities throughout the appeal period. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel