Citation Nr: 18152615 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 17-44 484 DATE: November 23, 2018 ORDER The application to reopen a previously denied service-connection claim for a left knee disorder is granted. The application to reopen a previously denied service-connection claim for a right knee disorder is granted. Entitlement to a rating in excess of 40 percent for service-connected spondylolysis L-5/S-1 with X-ray evidence of degenerative joint disease (lumbar spine disability) is denied. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy is denied. Entitlement to a rating in excess of 20 percent for service-connected right lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, effective August 22, 2016. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar spine disability is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected lumbar spine disability is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected lumbar spine disability is remanded. FINDINGS OF FACT 1. In an October 2013 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s service-connection claims for a right knee disorder and a left knee disorder; although he filed a notice of disagreement with respect to that decision, he did not file a timely substantive appeal following the issuance of the February 2015 statement of the case. 2. Additional evidence associated with the claims file since the October 2013 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, and it relates to unestablished facts necessary to substantiate the claims for service connection for a right knee disorder and a left knee disorder. 3. At no point during the appeal period has the Veteran’s service-connected lumbar spine disability been manifested by unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or intervertebral disc syndrome (IVDS) of the thoracolumbar spine resulting in incapacitating episodes with a duration of at least 6 weeks during a 12-month period. 4. Throughout the appeal period, the Veteran’s service-connected left lower extremity radiculopathy has been manifested only by wholly sensory involvement. 5. Throughout the appeal period, the Veteran’s service-connected right lower extremity radiculopathy has been manifested only by wholly sensory involvement. 6. The evidence of record is at least in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, effective August 22, 2016. CONCLUSIONS OF LAW 1. The October 2013 rating decision that denied the Veteran’s claims for service connection for a right knee disorder and a left knee disorder is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2018). 2. As evidence received since the October 2013 rating decision is new and material, the criteria for reopening the claim for service connection for a right knee disorder are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. As evidence received since the October 2013 rating decision is new and material, the criteria for reopening the claim for service connection for a left knee disorder are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (2018). 4. The criteria for a rating in excess of 40 percent for service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242 (2018). 5. The criteria for a rating in excess of 20 percent for service-connected left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2018). 6. The criteria for a rating in excess of 20 percent for service-connected right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2018). 7. Resolving all doubt in the Veteran’s favor, the criteria for a TDIU are met, effective August 22, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1973. I. Petitions to Reopen Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an AOJ decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2018). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In July 2012, the Veteran filed claims for service connection for a right knee disorder and a left knee disorder. In an October 2013 rating decision, the AOJ denied the Veteran’s claims for service connection for a right knee disorder and a left knee disorder, finding that the evidence of record failed to demonstrate that his right knee and left knee disorders were a result of his active duty service or secondary to his service-connected lumbar spine disability. Evidence of record included the Veteran’s service treatment records, his lay statements, VA and private treatment records, and an August 2013 VA examination report. After he was notified of the decision and his appellate rights, he expressed timely disagreement with that decision in November 2013. In February 2015, a statement of the case was issued that considered additional VA and private treatment records; however, he did not file a timely substantive appeal thereafter. The Board notes that, in July 2015, the Veteran’s attorney filed a VA Form 9, Appeal to the Board of Veterans’ Appeals, in response to the February 2015 statement of the case, and requested that the timeliness of the substantive appeal be waived because he did not receive a copy of the statement of the case, and there was no record showing that the Veteran received a copy. For background purposes, in July 2012, the Veteran filed a VA Form 21-22a, Appointment of Individual as Claimant’s Representative, appointing his current attorney, John S. Berry, as his representative. In November 2014, however, the Veteran filed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, appointing Paralyzed Veterans of America (PVA) as his representative. Because of the new appointment, the February 2015 statement of the case was appropriately sent to the Veteran and the PVA, and not to his former attorney. (Parenthetically, the Board notes that, in July 2016, the Veteran submitted another new VA Form 21-22a, once again appointing John S. Berry as his current representative). In September 2015, the AOJ sent a letter to the Veteran informing him that it could not accept the July 2015 VA Form 9 as timely. The Veteran was informed that, if he disagreed with the AOJ’s decision, he could submit a VA Form 21-0958, Notice of Disagreement, to initiate an appeal of its decision; however, a timely VA Form 21-0958 was not received. The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). Here, the Board finds that a timely substantive appeal was not received following the February 2015 statement of the case, and that the October 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. With regard to the attorney’s argument that he never received proper notice of the February 2015, because he was not the Veteran’s representative at that time, he was not entitled to a copy. See 38 C.F.R. § 19.30(a) (2018). With regard to the argument that the Veteran did not receive a copy of the February 2015 statement of the case, the Board notes that it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). Here, the February 2015 statement of the case was addressed to the same mailing address identified in the Veteran’s July 2012 claim and the same mailing address used since that time. See July 2012 VA Form 21-4138, Statement in Support of Claim; June 2018 VA Form 9. Because the February 2015 statement of the case was sent to his address of record at the time, with a copy to PVA [his representative at the time] and no mail was returned, the Board finds that the claim that the Veteran did not receive a copy of the February 2015 statement of the case, in and of itself, is insufficient to rebut the presumption of regularity in the administrative process. See Mason v. Brown, 8 Vet. App. 44, 55 (1995) (“appellant’s statement of nonreceipt, standing alone, is not the type of ‘clear evidence to the contrary’ which is sufficient to rebut the presumption”); see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (“Government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost irrefutable to overcome that presumption.”). Thus, without clear evidence to the contrary to rebut the presumption of regularity, the Board must conclude that the AOJ mailed a copy of the February 2015 statement of the case to the Veteran. Finally, the Board recognizes that the Court has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). However, the VA has not waived this requirement in this claim and the Board declines to do so. In Percy, by treating a disability rating matter as if it were part of the Veteran’s timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. In this case, unlike in Percy, the AOJ did not treat the Veteran’s substantive appeal as if it were timely. In fact, as noted above, after receiving the Veteran’s July 2015 VA Form 9, the AOJ informed him that his substantive appeal was not timely in September 2015, and again in a December 2016 letter. The Veteran was informed of his right to appeal the AOJ’s decision, but he did not do so by filing the standardized Notice of Disagreement form. As such, the Board finds that the issue of timeliness of the substantive appeal has not been waived at any time, either explicitly or implicitly. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, such regulation is inapplicable here, as there is no indication that new and material evidence was received prior to the expiration of the appeal period associated with the October 2013 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable, as the Veteran’s service treatment records were of record at the time of the October 2013 rating decision. As noted above, in October 2013 rating decision, the AOJ concluded that the evidence of record failed to demonstrate that his right knee and left knee disorders were a result of his active duty service or secondary to his service-connected lumbar spine disability. Evidence added to the record since the October 2013 rating decision includes updated VA treatment records, and VA examinations from August 2016 and March 2017. Additionally, in the August 2018 appellate brief, the Veteran’s attorney cited three Internet articles which purported to support an association between lumbar spine disorders and knee disorders; however, the attorney did not submit the articles themselves. The Board finds that the additionally received evidence is new because it was not before the AOJ at the time of the October 2013 rating decision. Furthermore, the Board finds that this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran’s claims for service connection for a right knee disorder and a left knee disorder. Because the evidence submitted is both new and material, his claims for service connection for a right knee disorder and a left knee disorder are reopened. To this extent only, the appeals are granted. II. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). A. Lumbar Spine Disability Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.40. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. (quoting 38 C.F.R. § 4.40). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran’s lumbar spine disability is currently rated as 40 percent disabling under Diagnostic Code 5242. Nevertheless, all spine disabilities are rated, primarily, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 50 percent rating is warranted when unfavorable ankylosis of the entire thoracolumbar spine is present. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 94 (32th ed. 2012); see also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of a joint in a particular position). The Notes following the General Rating Formula provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, the Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. Id. Pertinent evidence of record includes VA treatment records, an August 2016 VA examination report, and a March 2017 VA examination report. The August 2016 VA examination report reflects that the Veteran has diagnoses of degenerative arthritis of the lumbar spine and IVDS. The Veteran reported that his lumbar spine disability had worsened, and that he experienced flare-ups if he walked or sat too much. He stated that his pain would increase to an eight or nine out of ten, rather than his normal four to five out of ten. He stated that he could not walk more than a block without resting, and that he was unable to bend over to put his socks and shoes on. He also indicated that he could not wipe himself following a bowel movement. Upon examination, his range of motion was as follows: flexion to 30 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees. The examiner noted that there was objective evidence of pain during range-of-motion testing, pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. The was no evidence of guarding or muscle spasm. The examiner also noted that there was no evidence of ankylosis of the spine and, although the Veteran was diagnosed with IVDS, he did not experience episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the previous 12-month period. The Veteran was noted to use a cane on a constant basis. Finally, the examiner noted that his lumbar spine impacted his ability to work because he was unable to walk very much, lift, or climb. In February 2017, the Veteran underwent another VA examination, and the examination report reflects diagnoses of degenerative arthritis of the lumbar spine, IVDS, thoracic spine osteoarthritis, and bilateral spondylosis. The Veteran stated that he experienced flare-ups that started in his lower back and caused his muscles to get so sore that he experienced unbearable pain. Upon examination, his range of motion was as follows: flexion to 40 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner noted that there was objective evidence of pain during range-of-motion testing, but that is did not result in additional functional loss. There was no additional loss of range of motion following repetitive-use testing. The was evidence of muscle spasm, localized tenderness, and guarding, but they did not result in abnormal gait or spinal contour. Additional contributing factors to the Veteran’s disability included disturbance in locomotion, interference with sitting, and interference with standing. Specifically, the examiner noted that he had problems lifting anything greater than fifty pounds, as well as problems with prolonged standing, witting, and walking. The examiner also noted that there was no evidence of ankylosis of the spine and, although the Veteran was diagnosed with IVDS, he did not experience episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the previous 12-month period. The Veteran was noted to use a cane on a constant basis. Finally, the examiner noted that his lumbar spine did not impact his ability to work. Although the Veteran’s VA treatment records reflect treatment for his lumbar spine disability, there is no evidence that ankylosis was assessed or that his IVDS required bed rest prescribed and treated by a physician. After a careful review of all the evidence, the Board finds that at no time during the pendency of the appeal has the Veteran’s service-connected lumbar spine disability more nearly approximated the criteria for a higher rating under any applicable diagnostic codes. With regard to the General Rating Formula, at no time during the pendency of the appeal has the evidence demonstrated that he suffers from ankylosis, favorable or unfavorable, of his thoracolumbar spine or the entire spine. As such, he is not entitled to a disability rating in excess of 40 percent for his lumbar spine disability under the General Rating Formula. The Board also finds that, at no time during the appeal period has his lumbar spine disability resulted in any neurological manifestations, such as a bowel or bladder impairment, for which service connection has not already been granted. Finally, with regard to the Formula for Rating IVDS, while both examiners noted the presence of IVDS, both concluded that such did not result in incapacitating episodes. Moreover, there is nothing in the medical that suggests that the Veteran’s IVDS resulted in incapacitating episodes requiring bed rest prescribed by a physician. Thus, at no point during the pendency of the appeal has IVDS of the lumbar spine disability resulted in incapacitating episodes have a total duration of at least six weeks, the criteria for a higher rating under Diagnostic Code 5243. The Board notes the argument put forth by the Veteran’s attorney in his August 2018 appellate brief that the examination reports of record do not accurately reflect the extent of the Veteran’s disability during flare ups. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018), this rule does not apply when, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Moreover, in this case, further development to obtain additional range of motion testing and/or estimations of what additional limitation of motion might exist during flare-ups would not avail the Veteran, as the medical assessments already of record demonstrate that the Veteran can in fact move his lumbar spine. The Veteran has not asserted that his flare-ups of the lumbar spine are of such frequency, duration and severity to cause immobility (ankylosis) of either the thoracolumbar spine in an unfavorable position, or the entire spine in an unfavorable position, and the medical evidence includes no suggestion that unfavorable ankylosis has ever existed. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his service-connected lumbar spine disability. Because the preponderance of the evidence is against a higher rating, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. B. Lower Extremity Radiculopathy By way of background, an October 2013 rating decision granted service connection for right lower extremity radiculopathy and left lower extremity radiculopathy effective July 19, 2012, and assigned 10 percent evaluations for each lower extremity under Diagnostic Code 8526 which pertains to the anterior crural nerve (femoral). See 38 C.F.R. § 4.124a. Although the Veteran expressed disagreement with the initially assigned rating, he did not perfect his appeal following the issuance of the February 2015 statement of the case. (See discussion above with respect to the Veteran’s petition to reopen his previously denied claims for service connection for a right knee disorder and a left knee disorder and the finality of the October 2013 rating decision). As such, the October 2013 rating decision is final. In August 2016, the AOJ scheduled the Veteran for an examination of his lumbar spine. Based on the findings in that examination report, in an October 2016 rating decision, the AOJ increased the Veteran’s disability ratings to 20 percent, effective August 22, 2016 for each lower extremity under Diagnostic Code 8520, pertaining to the sciatic nerve. In awarding the increase, the AOJ changed the Veteran’s diagnostic code from Diagnostic Code 8526 to 8520. The Veteran disagreed with the rating assigned and perfected this appeal. Before assessing the severity of the Veteran’s lower extremity radiculopathy, the Board will address the Veteran’s assertion that in changing the Veteran’s Diagnostic Code from 8526 (femoral nerve) to 8520 (sciatic nerve), the AOJ effectively severed service connection for bilateral lower extremity radiculopathy of the femoral nerve. See November 2016 Addendum to VA Form 21-0958, Notice of Disagreement. The Board recognizes that any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). While service connection for the Veteran’s lower extremity radiculopathy has not been in effect for 10 years, the Board finds the relevant case law pertaining to rating disabilities for which service-connection is protected to be informative. According to 38 U.S.C. § 1159 (2012), service connection for any disability, which has been in force for ten or more years shall not be severed . . . except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. See also 38 C.F.R. §§ 3.105(d) and 3.957 (2018). Nevertheless, a protection afforded under 38 U.S.C. § 1159 is to the disability and not the diagnostic code used to rate the disability. See VAOPGCPREC 13-92 (modifications of the diagnostic code did not change the protected status of the disability). Recognizing instances where the Board has rated a veteran’s disability under a different diagnostic code than previously rated, the Court has indicated that there may be times when a change in diagnostic code is not equivalent to a severance. See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (a simple, non-substantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating did not result in a new rating or the severance of the old rating). In June 2011, both the Veterans Court (Court) and the Federal Circuit Court considered the issue of whether severance of a particular Diagnostic Code was indeed severance of a service-connected disability. Murray v. Shinseki, 24 Vet. App. 420 (2011); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011). In Murray, the Veteran had initially been assigned a compensable rating for a left knee disability under the Diagnostic Code for instability for more than 10 years. Subsequently, the RO changed the Diagnostic Code to more accurately reflect the limitation of motion related to the Veteran’s arthritis. The Court determined that because the instability code did not involve arthritis symptoms, the protected disability had been impermissibly severed despite the application of a new Diagnostic Code. However, days after the Murray decision, the Federal Circuit Court addressed a similar issue in Read. In Read, the Veteran had been service-connected for the residuals of a gunshot wound and a compensable rating had been assigned regarding a particular muscle group. Over 10 years after the initial assignment of the rating, a VA examiner determined that, in fact, a different muscle group had been affected by the gunshot wound and not the muscle group to which the initial diagnostic code applied. Following the more recent VA examiner’s report, the Diagnostic Code was changed to reflect the affected muscle group. The Veteran appealed and the Board denied the appeal finding that the diagnostic codes contained the same criteria and that because the disability still enjoyed the same rating, there had been no harm in changing the Diagnostic Code. The Court affirmed the Board and the Veteran appealed to the Federal Circuit. The Federal Circuit identified the issue on appeal as whether service connection for a disability protected under 38 U.S.C. § 1159 is severed when VA assigns to an injury a different Diagnostic Code than originally noted. In reaching its conclusion that the protected disability is not severed, the Federal Circuit considered the rationale behind 38 U.S.C. § 1159, as well as other relevant statutory definitions, and determined that 38 U.S.C. § 1159 only protects service connection of the disability, not the specific Diagnostic Code. Upon review of the definition of service connection under 38 U.S.C. § 101(16), the Federal Circuit determined that “to sever service connection is to conclude that a particular disability previously determined to have been incurred in the line of duty was incurred otherwise.” Id. at 7-8. The Federal Circuit noted that § 1159 “does not protect the fact of a disability, and therefore, the change in the determination of the applicable Diagnostic Code likewise is unprotected.” Id. at 8. Specifically regarding the facts in Read, the Federal Circuit agreed with VA’s argument that because the same disability was involved in both the initial disability determination and the later specific identification of the particular muscle group that was affected, the change in the Diagnostic Code did not sever anything and the Veteran’s disability was still service-connected even though the Diagnostic Code may have changed. Id. at 9. The Federal Circuit found that the purpose of 38 U.S.C. § 1159 was to “protect Veterans with long-standing determinations of service connection from suddenly having the determination of service connection stripped.” Id. at 10. The Federal Circuit noted that “there is nothing in the legislative history that manifests any concern about the situs of the disability or the Diagnostic Code associated with it, and expanding the protection of § 1159 to such situs determinations or Diagnostic Codes does nothing to advance Congress’ intention.” Id. citing VAOPGCPREC 50-91 (Mar. 29, 1991) (precedential opinion of the VA General Counsel) (noting that it would be “beyond the legislative purpose” to allow a Veteran to be service-connected for two disabilities because of the protection of the statute where only one is shown by the medical evidence). Further, the Federal Circuit noted that VA had not changed its determination that the Veteran’s gunshot wound was incurred in connection with his military service, or that he was entitled to compensation for the disability he incurred as a result. Thus, the Federal Circuit found that “to determine that the change of the situs of the disability—or the Diagnostic Code associated with it—was a severance of one service-connected disability and an establishment of another, where the cause of the disability and the resultant functional impairment are the same, would ill-serve the purpose of the statute.” Here, the AOJ’s change in the applicable diagnostic code from 8526 (femoral nerve) to 8520 (sciatic nerve) in awarding increased ratings for the Veteran’s bilateral lower extremity radiculopathy does not constitute a severance. Rather, it is a change made to accurately reflect the origin of the Veteran’s lower extremity radiculopathy disabilities, which were service connected in 2013 and remain service connected to this day. Upon examination in October 2013, the VA examiner noted that the Veteran’s left and right lower extremity neurological impairment stemmed from L2/L3L/L4 nerve roots (femoral nerve). As such, the initial rating was assigned compensating the Veteran’s symptoms of pain and decreased sensation down the lower extremities under Diagnostic Code 8526 (femoral nerve). Subsequently, upon examination in August 2016 and May 2017, the respective VA examiners noted that the Veteran’s lower extremity neurological impairment stemmed from L4/L5/S1/S2/S3 nerve roots (sciatic nerve). No femoral nerve involvement was separately identified. Thus, when assessing the severity of the symptoms, which again included pain and decreased sensation down the lower extremities, the AOJ changed the code to Diagnostic Code 8520 to more accurately reflect the condition upon which the service connection award was based. Indeed, there is no dispute that the Veteran’s bilateral lower extremity radiculopathies are manifestations of his service-connected lumbar spine disability. The Veteran’s service-connected lumbar spine disability is specifically coded as “spondylolysis L-5/S-1 with x-ray evidence of degenerative joint disease.” It stands to reason that neurological impairment stemming from the Veteran’s service-connected L-5/S-1 disability would affect the sciatic nerve roots (identified on examination as L4/L5/S1/S2/S3) as opposed to the femoral nerve roots (identified on examination L2/L3L/L4). There is no indication in either the August 2016 or May 2017 VA examination that any impairment of the femoral nerve exists, which is consistent with the fact that the Veteran is service-connected for an L-5/S-1 spine disability, and not a disability affecting femoral nerve roots. The Board finds the AOJ’s change in diagnostic code from 8526 to 8520 to reflect the Veteran’s affected nerves to be akin to the change in diagnostic code at issue in Read, which was made to reflect the affected muscle group. The Board finds that the same disability (radiculopathy) was involved in both the initial disability determination and the later identification of the proper nerve root group that was affected, and the AOJ’s change in the Diagnostic Code did not sever anything. Indeed, the Veteran’s lower extremity radiculopathy disability was still service-connected even though the Diagnostic Code may have changed. Moreover, the same neurologic symptoms rated initially under the femoral nerve code, were similarly rated under the sciatic nerve code. This scenario is distinguishable from the facts in Murray, where changing a protected rating based on knee instability to one involving different knee arthritis symptoms was deemed an inappropriate severance. The Board adds that rating the Veteran under Diagnostic Code 8520 is more advantageous to the Veteran, as it allows for a maximum rating of 80 percent, as opposed to a maximum 40 percent rating under Diagnostic Code 8526. Insofar as the Veteran’s attorney argues that it is unclear whether femoral nerve involvement remains, and that a new examination should be ordered to determine whether separate ratings under both Diagnostic Code 8520 and 8526 can be awarded, the Board finds the objective test results identifying impairment of the sciatic nerve alone at the two most recent VA examinations in 2016 and 2017 to be highly probative evidence that service-connected lumbar spine femoral nerve impairment is not present. As noted above, the Veteran’s service-connected spine disability affects L-5/S-1 vertebrae, and both examination reports indicated that impairment of the sciatic nerve stems from corresponding L-5/S-1 nerve roots. The Veteran has not presented any medical evidence that would call into question the findings of the 2016 and 2017 VA examiners. Having decided that the award of an increased rating for bilateral lower extremity radiculopathy under Diagnostic Code 8520 did not constitute a severance of service connection, but rather a maximization of benefits under a more appropriate diagnostic code, the Board will now turn to the propriety of the 20 percent ratings currently in effect. As noted above, an initial rating is not at issue, as the Veteran did not perfect an appeal for a higher initial rating. This inquiry stems from the results of an August 22, 2016 VA spine examination, which triggered reevaluation of the Veteran’s back and radiculopathy disabilities. The AOJ assigned a 20 percent disability rating from this date, under Diagnostic Code 8520 for moderate incomplete paralysis of the sciatic nerve. A 40 percent disability rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. At the August 2016 VA examination, the Veteran’s deep tendon reflexes were noted to be hypoactive, and his lower leg/ankle sensation to light touch was decreased. The Veteran was unable to perform straight leg raise testing. The examiner noted that the Veteran’s radiculopathy resulted in mild constant pain in both extremities; moderate intermittent pain in both extremities; mild paresthesias and/or dysesthesias in the right lower extremity, and moderate paresthesias and/or dysesthesias in the left lower extremity. There was no evidence of numbness or muscular atrophy. There were no additional signs or symptoms associated with the Veteran’s radiculopathy, and the examiner indicated that the only nerve roots involved were the sciatic nerves. Overall, the examiner concluded that the Veteran’s right lower extremity radiculopathy resulted in mild incomplete paralysis of the sciatic nerve, and his left lower extremity radiculopathy moderate incomplete paralysis of the sciatic nerve. In February 2017, the Veteran underwent another VA examination. Upon examination, his muscle strength testing was normal, and his deep tendon reflexes and sensory examination was normal. Straight leg raise testing was negative. The examiner noted that the Veteran’s radiculopathy resulted in severe intermittent pain and paresthesias and/or dysesthesias in both extremities; however, there was no evidence of constant pain or numbness. There were no additional signs or symptoms associated with the Veteran’s radiculopathy, and the examiner indicated that the only nerve roots involved were the sciatic nerves. Overall, the examiner concluded that the Veteran’s bilateral lower extremity radiculopathy resulted in moderate incomplete paralysis of the sciatic nerves. After a careful review of all the evidence, the Board finds that at no time during the pendency of the appeal has the Veteran’s service-connected bilateral lower extremity radiculopathy more nearly approximated the criteria for a higher rating under Diagnostic Code 8520. Throughout the entire appeal period, the Veteran’s disabilities have been manifested by pain and paresthesias and/or dysesthesias. As noted above, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. There is no competent and credible evidence of record that the Veteran has any symptoms that are more than wholly sensory. Rather, aside from pain and paresthesias and/or dysesthesias, the August 2016 and February 2017 VA examiners both indicated that there were no additional signs or symptoms associated with the Veteran’s bilateral lower extremity radiculopathy. Furthermore, both examiners indicated that he did not experience muscle atrophy. There is no competent and credible evidence of record that the Veteran has complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Therefore, the Board finds that the Veteran’s symptoms did not more closely approximate a higher rating at any time during the appeal period, and his disabilities are already rated at the maximum level—moderate—as limited by regulation. In assessing the severity of the Veteran’s service-connected bilateral lower extremity radiculopathy, the Board has considered the lay assertions of record concerning his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, he has not alleged that he suffers from any additional symptoms other than those noted during the August 2016 and February 2017 VA examinations reports. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for rating in excess of 20 percent for his service-connected bilateral lower extremity radiculopathy. Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. III. TDIU A claim for TDIU is considered part and parcel of an increased rating claim, when such a claim is raised by the appellant or the record. See Rice v. Shinseki, App. 447 (2009). In this case, the AOJ denied entitlement to a TDIU in an October 2013 rating decision. The Veteran appealed, noting in a December 2013 application that he last worked full time in 2006. The AOJ continued to deny entitlement to a TDIU in a February 2015 statement of the case, citing to recent medical evidence in the record indicating that the Veteran still worked as a farmer, and in breaking and training horses. The Veteran did not file a timely substantive appeal. [The Board incorporates by reference the analysis above regarding the finality of the October 2013 rating decision, as the Veteran’s TDIU claim was part of the same appeal stream that included the above-referenced right and left knee disability claims.] Although the Veteran does not specifically re-raise the issue of entitlement to a TDIU with VA, and his attorney merely cites to the general principles as to when TDIU is raised without re-raising the issue in specific terms or argument, upon review of the August 22, 2016 VA spine examination, the Board believes the issue is in fact reasonably raised by the record. Indeed, the August 2016 VA examiner noted that the Veteran cannot walk more than a block without rest due to back pain and lower extremity pain, he must constantly use a cane, he cannot put on his socks and shoes, and he cannot clean himself after a bowel movement without use of an orthotic hand. When asked if his back disability had an impact on his ability to work, the examiner stated, “yes,” and noted that the Veteran is unable to walk much, lift or climb. During the period under review [August 22, 2016 to the present], the Veteran has been service-connected for the following disabilities: lumbar spine disability, rated as 40 percent disabling; mixed musculovascular headaches, rated as 30 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; and left lower extremity radiculopathy, rated as 20 percent disabling. His combined disability rating was 80 percent. Thus, since August 22, 2016, the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Although service-connected headaches have not been assessed during the period under review, the Veteran’s 30 percent disability rating has remained constant since he was last examined in 2013. An August 2013 VA headaches examiner noted that the Veteran cannot perform any tasks during a headache, and that he gets headaches about twice a week, lasting between 2 to 6 hours, which would result in increased absenteeism. The Board finds no reason to doubt that the same level of impairment exists through the present day. The Veteran’s prior work experience includes construction work, with duties including welding and carpentry. The Veteran also worked in the steel industry. Since stopping construction work in 2006, treatment records dated through 2014 show the Veteran has worked in farming and training horses. The Veteran has had three years of college experience, two in mechanical drafting, and one in autobody work. There is no indication that since August 22, 2016, the Veteran has been employed in any capacity, to include working in farming or training horses. Indeed, he reported on August 22, 2016 that his back disability was much worse, and as noted above, functional impairment identified at the time showed more serious restrictions on locomotion, stooping, sitting, twisting, standing and climbing. Based on this demonstrated physical impairment, the identified occupational impairment caused by his service-connected headache disability up to 12 hours a week (at worst), and the fact that the Veteran’s prior work experience is almost exclusively in labor-intensive jobs, the Board will resolve all doubt in the Veteran’s favor and find that, his service-connected disabilities at least as likely as not render him unable to secure or follow gainful employment as of August 22, 2016. REASONS FOR REMAND Entitlement to service connection for erectile dysfunction is remanded. The Veteran claims entitlement to service connection for erectile dysfunction. He has generally asserted that his erectile dysfunction is due to any medication prescribed in the treatment of his service-connected disabilities. See October 2016 VA Form 21-526b. In his January 2018 notice of disagreement, the Veteran’s attorney more specifically argued that the Veteran’s erectile dysfunction was secondary to the neurological impairment associated with his service-connected lumbar spine disability. His attorney stated that the vertebral levels of L5 and S1 are the levels which innervate the reproductive organs. In the August 2018 appellate brief, the Veteran’s attorney argued that he erectile dysfunction could also be secondary to his diabetes mellitus. As noted above, the Veteran is currently in receipt of service connection for a lumbar spine disability, mixed musculovascular headaches, and right and left lower extremity radiculopathy. At this time, the Veteran is not service-connected for diabetes, nor is there a pending service-connection claim or appeal for diabetes with VA. The Board believes that a medical opinion should be obtained on remand addressing the etiology of the Veteran’s erectile dysfunction that addresses the Veteran’s contentions. Entitlement to service connection for a left knee disorder and a right knee disorder, to include as secondary to service-connected lumbar spine disability is remanded. The Veteran claims entitlement to service connection for a left knee disorder and a right knee disorder on both a direct basis and as secondary to his service-connected lumbar spine disability. See August 2018 Appellate Brief. In August 2013, the Veteran underwent a VA examination and, he was diagnosed with bilateral knee degenerative arthritis. Ultimately, the examiner opined that his bilateral knee disorders were less likely than not proximately due to or a result of his service-connected lumbar spine disability. After discussing radiographic imaging of his knees, the examiner reasoned that there was no established causal relationship between his service-connected lumbar spine disability and his degenerative arthritis of the bilateral knees. Unfortunately, however, the examiner failed to address whether that Veteran’s bilateral knee disorders were aggravated by his service-connected lumbar spine disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Furthermore, the Board finds that the examiner’s rationale as to whether his bilateral knee disorders were proximately due to or a result of his service-connected lumbar spine disability is insufficient, as it merely reiterates the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clearly conclusions with supporting data, but also a reasonable medical explanation connecting the two). Thus, to ensure that an opinion is obtained that adequately considers all pertinent evidence of record as well as all theories of entitlement, the Veteran should be scheduled for new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). On remand, any outstanding VA treatment records should be associated with the claims file. Additionally, the Veteran should be given the opportunity to identify or submit any outstanding evidence pertinent to the claims remaining on appeal, to include the articles referenced in the August 2018 appellate brief. The matters are REMANDED for the following action: 1. Give the Veteran an additional opportunity to identify and/or submit any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 2. Ask the Veteran’s attorney to submit printed or electronic copies of all medical treatise evidence and/or Internet research articles he wishes VA to consider in support of the Veteran’s claim, as identified in hyperlinks in his August 22, 2018 Brief. 3. Obtain a medical opinion addressing the etiology of the Veteran’s erectile dysfunction. Upon review of the file, the reviewing physician should address each of the following question: Is it at least as likely as not that the Veteran’s erectile dysfunction was caused or aggravated beyond its natural progression by his service-connected headaches, back disability, or lower extremity radiculopathies, to include by any medication taken to treat those disabilities? In providing a response, please address the Veteran’s attorney’s specific contention that the L5-S1 vertebral levels are the levels which innervate the reproductive organs. If the question above cannot be answered without an in-person examination, such should be scheduled. All opinions should be supported by a clinical explanation or rationale. 4. Schedule the Veteran for a VA examination to determine whether his bilateral knee disorders are related to his military service, or secondary to his service-connected lumbar spine disability. The entire claims file must be made available to, and reviewed by the examiner, and the examination report should include discussion of the Veteran’s pertinent health history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Following a review of the record, to include the Veteran’s lay statements, the examiner should answer the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee disorders had their onset in, or are otherwise related to his period of active duty service? b) Regardless of the answers provided to the question above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee disorders was caused or aggravated beyond their natural progression by his service-connected lumbar spine disability? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. A complete rationale must be provided for all opinions provided. 5. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel