Citation Nr: 18148455 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 09-42 702 DATE: November 8, 2018 ORDER Entitlement to service connection for a knee and leg disability, including as secondary to chronic recurrent low back pain syndrome, is dismissed. Entitlement to a rating in excess of 40 percent as of February 22, 2006, for chronic recurrent low back pain syndrome is denied. Entitlement to a rating in excess of 10 percent prior to August 1, 2013, and in excess of 20 percent from August 1, 2013, to January 27, 2016, for right S1 radiculopathy is denied. Entitlement to a rating of 40 percent, but no higher, for right S1 radiculopathy as of January 28, 2016, is granted. FINDINGS OF FACT 1. On October 19, 2018, prior to the promulgation of a decision in the appeal of entitlement to service connection for a knee and leg disability, including as secondary to chronic recurrent low back pain syndrome, the Board received notification from the Veteran that a withdrawal of this appeal was requested. 2. Throughout the period on appeal, the Veteran’s low back disability did not demonstrate unfavorable ankylosis. 3. For the period prior to August 1, 2013, the Veteran’s right S1 radiculopathy was manifested by mild incomplete paralysis. 4. For the period from August 1, 2013, to January 27, 2016, the Veteran’s right S1 radiculopathy was manifested by moderate incomplete paralysis. 5. For the period beginning January 28, 2016, the Veteran’s right S1 radiculopathy was manifested by moderately-severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran on the issue of entitlement to service connection for a knee a leg disability, including as secondary to chronic recurrent low back pain syndrome, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for chronic recurrent low back pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5237. 3. For the period prior to August 1, 2013, the criteria for a rating in excess of 10 percent for right S1 radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. For the period from August 1, 2013, to January 27, 2016, the criteria for a rating in excess of 20 percent for right S1 radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. As of January 28, 2016, the criteria for a rating of 40 percent, but no higher, for right S1 radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to March 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2006 rating decision. In a subsequent October 2013 rating decision, a 20 percent rating for the Veteran’s right S1 radiculopathy was granted as of August 1, 2013. Additionally, in a subsequent November 2014 rating decision, the Veteran’s low back disability was granted a 40 percent rating as of the February 22, 2006, date of his request for an increase. However, as these awards did not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In his October 2009 VA Form 9 Substantive Appeal, the Veteran requested to appear at a travel board hearing before a member of the Board. In November 2009, however, the appellant withdrew the request for a Board hearing. The Board considers the hearing request withdrawn at this time. See 38 C.F.R. § 20.704(e). As noted in the Board’s numerous prior remands, the issue of entitlement to a compensable rating for perforation, left tympanic membrane, was raised by the record. It has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and again refers it to the AOJ for timely, appropriate action. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in an April 2017 phone call the Veteran indicated that he wished to withdraw his appeal for service connection of a knee and leg disability, including as secondary to his chronic recurrent low back pain syndrome. In September 2018, VA sent the Veteran a letter, requesting clarification and confirmation of the Veteran’s intent to withdraw his claim for service connection for a knee and leg disability, including as secondary to his chronic recurrent low back pain syndrome. On October 19, 2018, VA received written confirmation that the Veteran intended to withdraw his claim for service connection for a knee and leg disability, including as secondary to his chronic recurrent low back pain syndrome. The Veteran’s desire to withdraw these claims were reduced to writing and recorded in his October 2018 letter. The Veteran’s withdrawal of this claim was explicit, unambiguous, and done with a full understanding of the consequence of his actions as evidenced by his statements in his October 2018 letter indicating he wanted to withdraw this claim. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As such, that Board finds that the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration in regard to his claim for entitlement to service connection for a knee and leg disability, including as secondary to his chronic recurrent low back pain syndrome. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of 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 rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Factual Background In February 2006, the Veteran submitted a statement which indicated that his service-connected low back disability and right S1 radiculopathy had increased in severity. In August 2006, a VA examination indicated the Veteran used a cane for support. His trigger points were noted to be L5-S1 bilaterally and L4-L5 bilaterally. The sciatic notch was negative for discomfort. His flexion was 15 degrees; extension was 0 degrees, lateral flexion was 10 degrees to the left and 15 degrees to the right. His straight leg raising was to 20 degrees and radiated down his leg to his right ankle. The diagnosis was degenerative disc disease with right radiculopathy subjective increased. In July 2009, a VA medical center (VAMC) record showed the Veteran to have undergone a nerve conduction study. The examiner noted the Veteran’s examination to be inconclusive due to extensive lower extremity edema which contributed to the relative absence of responses and degree of non-response. EMG needle testing was noted to not have been done due to the Veteran’s status as “easy bleed” and being on anticoagulation medication. In September 2009, a VA examination determined that the Veteran’s range of motion of his lumbar spine was flexion and extension 0 to 60 degrees, later left and right bending was to 20 degrees, and lateral left and right rotation was to 20 degrees. Crepitus was not shown. Sensation on the right leg was normal to touch. The diagnosis was degenerative arthritis of the lumbosacral spine, moderate in character, and mile radiculitis of the lumbosacral spine, intermittent. The Veteran’s spine was noted to have limited movement which was mild to moderate in character, no remarkable pain with left or right lateral rotation, moderate weakness, moderate lack of endurance, and no lack of coordination. In August 2013, a VA examination reported that the Veteran had intermittent numbness and tingling on his right lower extremity since an in-service fall on his right hip. His muscle strength was normal. He did not have muscle atrophy. He was found to have decreased sensation to light touch in his right thigh/knee, lower leg/ankle, and foot/toes. His right lower extremity was found to have moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. His sciatic nerve root was noted to be involved and determined to be moderate in severity. No other neurologic abnormalities were made. In regard to his lumbar spine, the August 2013 VA examination indicated that the Veteran reported painful back spasms over the prior 3-4 months. The pain was noted to be worse with prolonged sitting and lifting and was relieved by physical therapy. He reported severe pains up and down his legs. He was noted to walk with two walking poles. The Veteran reported flare-ups that occurred randomly, which required him to double his pain medication and limited his activity. His flexion was limited by 10 degrees during a flare-up due to more severe pain. His flexion was noted to be to 20 degrees, with objective evidence of pain at 5 degrees. His extension was to 10 degrees, with objective evidence of pain 0 degrees. His right lateral flexion ended at 20 degrees with painful motion at 15 degrees. Left lateral flexion was to 15 degrees with painful motion at 5 degrees. Right and left lateral rotation was to 20 degrees with objective evidence of painful motion at that degree. Repetitive use testing did not change the Veteran’s limitation of motion. His functional loss was less movement than normal, incoordination, pain on movement, disturbance of locomotion, interference with sitting, standing, and/or weightbearing. He was noted to have tenderness over the lower lumbar spine. His muscle strength was normal. He did not have muscle atrophy. In January 2016, a VA examination of the Veteran’s back showed him to have degenerative arthritis of the lumbar spine. The Veteran reported his level of pain at 8 out of 10 on his right-side radiculopathy. He stated that his back was stiff and that his pain was not episodic, but constant. He reported flare-ups in that his back was in a constant flare. He reported he sat all day and was able to ambulate to the bathroom and to the table to eat. His forward extension and flexion was to 30 degrees. His right and left lateral flexion was to 0 degrees and his right lateral rotation was to 10 degrees. Functional loss was noted to be no visible mobility of the back; his back was noted to never reverse and his flattened lordosis kept him bent over to 30 degrees. There was objective evidence of localized tenderness or pain on palpitation to the entirety of the lumbar spine. He was able to perform repetitive use testing without any additional functional limitations. Pain, weakness, fatigability, and lack of endurance was noted to significantly limit his functional ability and the examination was noted to have been conducted during a flare-up. He was noted to have guarding or muscle spasm which resulted in abnormal gait or abnormal spinal contour and the examiner stated that the Veteran had a bent over flattened lumbar lordosis and no reversal. The Veteran did not have muscle atrophy. His reflexes were normal. Ankylosis of the spine was not found. He had constant use of a cane. A concurrent January 2016 VA examination of the Veteran’s peripheral nerves found that the Veteran had moderate pain, moderate paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. His muscle strength testing was normal and he had no muscle atrophy. His right sciatic nerve was found to have moderately severe incomplete paralysis. His common peroneal nerve was found to be normal. All other lower extremity nerves were found to be normal. Chronic Recurrent Low Back Pain Syndrome The Veteran’s low back pain syndrome is currently rated at 40 percent pursuant to DC 5237, since the February 22, 2006, date of his request for an increase. Under Diagnostic Code 5237, a rating of 40 percent is warranted for forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Burton v. Shinseki, 25 Vet. App. 1 (2011). Thus, in order for the Veteran to receive a rating in excess of 40 percent for his low back pain syndrome, unfavorable ankylosis of his spine would have to be shown at some point during the period on appeal. Based on the foregoing, the Board finds that no such evidence has been submitted or provided which would support such a finding. Throughout the period on appeal, none of the medical records or VA examinations indicated that the Veteran’s low back had any degree of unfavorable ankylosis. Indeed, ankylosis was specifically denied in the Veteran’s January 2016 VA examination. The Board is aware that the Veteran’s January 2016 VA examination indicated that his back was in a fixed position of 30 degrees. However, the Board notes that Note (5) of the rating criteria for spinal disabilities requires that for unfavorable ankylosis to be found, the fixation of flexion or extension must also be accompanied by one or more of the following additional conditions: 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. One or more of these additional findings was not noted or recorded to be found in the Veteran’s January 2016 VA examination or in any other evidence of record. As such, a rating in excess of 40 percent for the Veteran’s low back disability based on unfavorable ankylosis is not warranted or supported by the record. The Board also notes that the Veteran has reported flare-ups and/or constant pain associated with his back, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca and Mitchell. The August 2013 VA examiner found that the Veteran’s flexion was limited by 10 degrees during a flare-up due to more severe pain, which limited his flexion to 10 degrees during a flare-up; that limitation is specifically contemplated by the rating criteria for a 40 percent rating. Thus, based on that finding, there is no support in the objective medical evidence of record for an increased rating based on evidence of functional loss. On objective examination, the Veteran’s range of motion limitations are directly reflected in the rating criteria for a 40 percent evaluation, thus even in consideration of reduced motion during flare-ups, such would still constitute a 40 percent rating under the rating criteria. In his January 2016 VA examination, the Veteran did not exhibit any range of motion change from his 30-degree fixed position, but as discussed above, and while acknowledging the Veteran’s functional impairment and limitations due to his low back disability, the Board finds that the 40 percent disability rating adequately compensates him for any pain or functional loss. The 40 percent rating criteria specifically encompasses and contemplate a fixed thoracolumbar spinal position, as favorable ankylosis is an enumerated condition which warrants a 40 percent rating. Thus, even in consideration of the Veteran’s pain, the Board finds that the rating assigned adequately compensates him for such pain. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204 -07. The Board finds the August 2006, September 2009, August 2013, and January 2016 VA examiners’ medical opinions highly probative to the issue of the severity of the Veteran’s low back disability. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board accords the VA examination opinions great probative weight. The Board has considered the statements submitted by the Veteran in support of the claim, specifically that his functional capacity is limited beyond what is set forth in his current rating criteria. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of a spinal disability and the determination of the range of motion of the spine requires medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran’s lower back disability has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran’s statements in support of his claim. Thus, the Board finds that a rating in excess of 40 percent for the Veteran’s chronic, recurrent low back pain syndrome is neither supported by the record or warranted at any time during the period on appeal. In sum, the claims file does not contain competent and credible evidence that the Veteran’s low back disability resulted in unfavorable ankylosis of his spine at any time throughout the period on appeal. Accordingly, as the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right S1 Radiculopathy The Veteran’s right S1 radiculopathy is currently assigned a 10 percent rating for the period prior to August 1, 2013, and a 20 percent rating thereafter under DCs 5237-8261. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As stated above, DC 5237 relates to the limitations of motion of the spine. DC 8621 refers to incomplete paralysis, neuritis or neuralgia of the external popliteal (common peroneal) nerve. In this instance, the Veteran’s radiculopathy is well documented to be of his S1 sciatic nerve. DCs 8520, 8620, and 8720 specifically address paralysis, neuritis, or neuralgia of the sciatic nerve. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and the demonstrated symptomatology. See Id. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Where a different Diagnostic Code more appropriately reflects the nature of the Veteran’s disability picture, and the change does not reduce the Veteran’s level of compensation, the Board has the authority to change the assigned Diagnostic Code. See Butts, 5 Vet. App. at 539. Thus, based on the foregoing, the Board finds that the Veteran’s right S1 sciatic nerve radiculopathy is more accurately reflected by ratings under a Diagnostic Code relating to the sciatic nerve via DCs 8520, 8620, or 8720. The overwhelming evidence of record showed the Veteran does not have any symptomology associated with his right popliteal nerve (e.g. DC 8261). Additionally, the Board finds that DCs 8520, 8620, and 8720 are more appropriate and more favorable for rating the service-connected right S1 radiculopathy because those DCs specifically provides subjective and objective rating criteria for the type of injury, symptomatology, and functional impairment resulting from Veteran’s service connected disability. Additionally, DCs 8520, 8620, or 8720 also offer the possibility of higher ratings, should the Veteran’s symptomology be shown to meet the specific criteria identified in those codes. As indicated in the multiple VA examinations discussed above, the Veteran’s right S1 radiculopathy has been indicated to be an incomplete paralysis throughout the period on appeal. Thus, the Board finds that the Veteran’s right S1 radiculopathy disability picture squarely fits within the criteria under DC 8520 for the entire appeal period as this is the most appropriate diagnostic code under which to rate the right S1 radiculopathy disability on appeal and is more favorable to the Veteran in this case. Accordingly, the Board will address the Veteran’s service-connected right S1 radiculopathy disability pursuant to DC 8520. Diagnostic Code 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term “incomplete paralysis,” with these 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. The words “slight,” “moderate,” 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. Based on the foregoing, the Board does not find that a rating in excess of 10 percent for the period prior to August 1, 2013, and in excess of 20 percent prior to January 28, 2016, is warranted or supported by the record. Prior to his August 2013 VA examination, the Veteran’s S1 radiculopathy was noted to be mild and his symptomology was also indicted to not be more than mild in severity. His August 2006 VA examination found straight-leg raise ability to 20 degrees and his September 2009 VA examination found him to have mild radiculitis with sensation in the right leg normal to light touch. These objective examination findings support that the Veteran’s right S1 radiculopathy prior to August 1, 2013, was mild in nature, warranting a 10 percent rating under DC 8520. Similarly, for the period from August 1, 2013, to January 27, 2016, the Veteran’s VA examination findings support a finding that his right S1 radiculopathy was moderate in severity. His August 2013 VA examination noted the Veteran to have intermittent numbness and tingling and found moderate pain and moderate paresthesias and/or dysesthesias. Though there was a finding of severe numbness, the overall picture presented by the Veteran’s S1 radiculopathy was one of moderate symptomology. Indeed, the August 2013 VA examiner noted the Veteran’s right S1 radiculopathy to be one of moderate severity overall. However, as of the Veteran’s January 28, 2016, VA examination, the Board finds that the Veteran’s right S1 radiculopathy was more closely approximated by a moderately severe symptomology, warranting a 40 percent rating under DC 8520. The January 2016 examination specifically found such severity to be present in the characterization of the Veteran’s right S1 radiculopathy, and, resolving all reasonable doubt in favor of the Veteran, the Board finds that a 40 percent rating as of the January 28, 2016, VA examination is warranted. The Board again finds the August 2006, September 2009, August 2013, and January 2016 VA examiners’ medical opinions highly probative to the issue of the severity of the Veteran’s right S1 radiculopathy. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board accords the VA examination opinions great probative weight. The Board has again considered the statements submitted by the Veteran in support of the claim. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of nerve radiculopathy and the determination of the severity of such radiculopathy requires medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran’s right S1 radiculopathy has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran’s statements in support of his claim. Thus, in sum, the Board finds that the Veteran’s claims file does not contain competent and credible evidence that the Veteran’s right S1 radiculopathy warranted a rating in excess of 10 percent prior to August 1, 2013, or in excess of 20 percent for the period from August 1, 2013, to January 27, 2016, pursuant to DC 8520. Accordingly, as the preponderance of the evidence is against the claim for an increased rating for those periods, the benefit-of-the-doubt rule is not for application, and the claim must be denied. However, resolving all reasonable doubt in favor of the Veteran, the Board does find that as of the January 28, 2016, VA examination the Veteran’s right S1 radiculopathy more closely approximated a moderately severe disability, warranting a 40 percent rating as of that date, pursuant to DC 8520. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel