Citation Nr: 1808084 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 238A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right knee arthritis, claimed as secondary to service-connected intervertebral disc syndrome, status-post lumbar fusion L4-L5 and laminectomy (back disability). 2. Service connection for degenerative disc disease and disc bulge of the cervical spine. 3. Entitlement to an increased rating in excess of 0 percent prior to August 25, 2015, and in excess of 10 percent thereafter, for right lower extremity sciatica (previously evaluated as radiculopathy) associated with service-connected back disability. 4. Entitlement to an increased rating in excess of 0 percent prior to August 25, 2015, and in excess of 10 percent thereafter, for left lower extremity sciatica (previously evaluated as radiculopathy) associated with service-connected back disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 6. Entitlement to service connection for right hip condition. 7. Entitlement to service connection for left hip condition. 8. Entitlement to service connection for sleep apnea. 9. Entitlement to an increased rating in excess of 10 percent for medial meniscus tear, status post-surgical repair, left knee with degenerative joint disease (left knee disability). 10. Entitlement to an increased rating in excess of 10 percent prior to June 29, 2014, and in excess of 10 percent from September 1, 2014, for vasopressor syncope with implanted pacemaker. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to November 2002. These matters come before the Board of Veterans' Appeals (Board) from December 2011, June 2012, and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2011 rating decision, the RO denied increasing ratings in excess of 0 percent for sciatica of the right and left lower extremities, and denied service connection for right knee, right hip, and left hip conditions, all claimed as secondary to service-connected back disability (see December 2011 rating code sheet and simplified notification letter (SNL). The RO also proposed reduction of the left knee disability from 10 to 0 percent. In the June 2012 rating decision, the RO denied service connection for a neck disability (rating code sheet and SNL). In the November 2012 rating decision, the RO continued a 10 percent rating and denied an increased rating in excess of 10 percent for left knee disability. The appeals have been merged. Subsequently, in a March 2016 rating decision, the RO granted 10 percent ratings for right and left leg sciatica from August 25, 2015. As the increased ratings awarded does not represent the maximum ratings available, the Veteran's claims remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran filed a notice of disagreement with the October 2014 rating decision, which denied service connection for sleep apnea and continued a 10 percent rating for vasopressor syncope prior to June 29, 2014, and assigned a 100 percent temporary rating from June 29, 2014, through September 1, 2014, and 10 percent thereafter. The Veteran filed a notice of disagreement (NOD) in December 2014. To date, the RO has not issued a development letter or a statement of the cause, thus, these issues have been added and are addressed in the remand section below. See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). Although the Veteran's attorney indicated in the NOD that an earlier effective date and extension of the 100 percent rating, as well as higher ratings are warranted, in light of the procedural history set forth above, these claims are ultimately "staged" increased rating claims, as characterized on the title page. With regard to the increased rating for back disability, the Board notes that in October 2016, the Veteran filed a NOD with the June 2016 rating decision, which denied an increased rating in excess of 20 percent, although issuance of a statement of the case is required in response to a notice of disagreement, here, the evidence reflects that the AOJ is in the process of developing the claim in order to do so, and a remand for this action is, therefore, not required. Cf. 38 C.F.R. § 19.9(c), codifying Manlincon, 12 Vet. App. 238. As the claim is still in the development stage, it is not in appellate status and will not be considered by the Board at this time. The Board notes that after RO's last adjudication of the case, prior to and after certification of the appeal to the Board, updated VA treatment records were associated with the record without waiver of initial RO review. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2017). The Veteran also submitted VA treatment records with a waiver in September 2017. Although the Veteran's substantive appeal as to the increased rating claims was filed after February 2, 2013, the automatic waiver only applies to evidence submitted by the Veteran. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e), which provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests RO consideration). However, the evidence is cumulative of the multiple VA examinations of record, as well as treatment records, and the Board has found consistent symptoms throughout the entire appeal period. As such, the Veteran is not prejudiced by the Board reviewing such evidence in the first instance in granting him a uniform 60 percent rating for sciatica of the right lower extremity and 20 percent for the left lower extremity for the entire appeal period. Therefore, a waiver is not necessary and a remand of these issues for the issuance of a supplemental statement of the case would constitute adherence to a procedural requirement that has no impact on the adjudication of the claim, and would merely delay resolution of the claim with no benefit flowing to the Veteran. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Thus, the Veteran is not prejudiced and the Board will therefore adjudicate, rather than remand, the claim for higher ratings for sciatica of the right and left lower extremities. As to the remaining issues, given the Board has remanded the claims, the RO will have an opportunity to review such evidence. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2017. A transcript of the hearing is associated with the record. Finally, the Board notes that the RO indicated in November 16, 2017, correspondence that the Veteran's Privacy Act request dated November 2, 2017, was being processed. However, it appears the RO misinterpreted the correspondence received on November 2, 2017, from the Veteran's attorney, as it is a waiver of initial RO review pertaining to medical evidence submitted, and not a Privacy Act request. Notably, the Veteran and his attorney's Privacy Act request was already completed in June 2016. The Board has recharacterized the claim for service connection for a cervical spine disability, consistent with the opinion of record, which provided the basis for the grant. In addition, as indicated during the Board hearing, the Veteran seeks increased ratings and there is evidence of unemployability due to the disabilities for which he seeks increased ratings. Therefore, the issue of entitlement to a TDIU has been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The matters of the higher ratings for sciatica of the right and left lower extremities, TDIU, and service connection claims for cervical spine and right knee disabilities are addressed in the decision below, and the matters of a higher rating for left knee disability and vasopressor syncope, and service connection for bilateral hip disability and sleep apnea, are addressed in the remand; these matters are being remanded to the RO. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's right knee arthritis was caused by his service-connected back disability. 2. The evidence is at least evenly balanced as to whether the Veteran's degenerative disc disease and disc bulge of the cervical spine was caused by his service-connected back disability. 3. Throughout the entire rating period on appeal, the evidence shows that the Veteran's sciatica of the right lower extremity more closely approximates severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, but it did not more nearly approximate complete paralysis. 4. Throughout the entire rating period on appeal, the evidence shows that the Veteran's sciatica of the left lower extremity more closely approximates moderate incomplete paralysis of the sciatic nerve, but it did not more nearly approximate moderately severe incomplete paralysis. 5. The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, his right knee arthritis is the result of his service-connected back disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. Resolving reasonable doubt in the Veteran's favor, his degenerative disc disease and disc bulge of the cervical spine is the result of his service-connected back disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 60 percent rating, but no higher, for sciatica of the right lower extremity for the entire appeal period are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating, but no higher, for sciatica of the left lower extremity for the entire appeal period are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA Pertaining to the increased rating claims for sciatica of the lower extremities, neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Analysis I. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection is also warranted for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a),(b). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen, 7 Vet. App. 439. When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. For the following reasons, the Board finds that service connection for the Veteran's cervical spine disability and right knee disability, on a secondary basis, is warranted. At the outset, the Board notes that the Veteran does not contend, and the evidence does not suggest, that his right knee arthritis and cervical spine disability are related to service. Rather, in his November 2010 and April 2011 applications for compensation and thereafter, the Veteran has specifically contended that his right knee and cervical spine disabilities are due to his service-connected back disability. A. Facts The Board notes service treatment records show reports of neck/cervical spine spasms in December 1991 and October 2002. An October 2008 private treatment record notes while in the military, the Veteran had knee injuries which required surgery on the left knee, but due to a six-month delay he was ambulating with an antalgic gait secondary to right knee. This caused him to develop back pain and it became worse during his rehab for the right knee and aggravated further when he resumed his running career. A magnetic resonance imaging (MRI) scan performed in 1994 demonstrated a right-sided herniated nucleus pulpous at L5-S1. In an April 2010 private opinion, Dr. R.S. indicated that the Veteran is suffering from chronic back pain and left knee pain with worsening symptoms and pain radiating to left side and weakness in the left knee with increasing pain. Due to the above, he was using a cane and had multiple MRIs. He opined he cannot be gainfully employed due to the nature of his back problem, as well as his knee pain. In November 2010, Dr. R.S. explained that due to the Veteran's back pain since 1994 in service, with worsening symptoms, to include disc herniation, degenerative changes, and surgery, has caused pain in his back, hip, and calf. He also has spinal stenosis due to pain and weight distribution due to chronic spinal problem, which is developing arthritis in his hip and knee. He is restricted from lifting any weight and no bending and cannot be gainfully employed. A May 2010 private treatment record notes a slight elevated hip on the right compared to the left and increased valgus angle in left knee with lateral trunk lean to the left. A March 2011 private MRI revealed significant abnormalities noted at C5-C6 with moderate to marked right-sided neuro foraminal stenosis, which should be correlated with a right C6 radiculopathy; moderate to marked degenerative disc disease at C5-C6 and C6-C7. No significant central canal encroachment was seen; mild posterior disc bulging at C3-C4 disc, however is preserved and no central or neuroforaminal encroachment was seen at this level; C4-C6, there was minor predominantly left-sided facet degenerative change without significant central canal encroachment or significant neuroforaminal encroachment. In an April 2011 private treatment record, the Veteran reported that his left knee almost gave out, making functional mobility more challenging. In an April 2011 private medical opinion, Dr. R.S., indicates that the Veteran has had a back issue since 1994 while on active duty and that his symptoms have progressively worsened in the lower back and also cause pain the hips and knees. It was a deteriorating condition as evidenced by disc herniation/degenerative changes and surgery. Due to his chronic back condition and kinetics, he also developed pain in the hips and knees, as well as cervical pain and shoulder pain. A recent MRI of the neck revealed disc degeneration and disc bulge at multiple levels, which is also a result of long term lower back pain. In his opinion, the Veteran cannot be gainfully employed. An April 2011 VA examination report reflects the Veteran reported his right knee conditions occurred when the left knee started to hurt while on active duty and both knees became worse in August2008. After back surgery, both knees gave way when walking and especially when climbing stairs. The right showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness heat, deformity, malalignment, drainage subluxation, or guarding of movement. An x-ray revealed no abnormalities. An opinion was not provided as to the right knee, as there was no diagnosis because there was no pathology to render a diagnosis. With regard to the left knee, the examiner opined it is at least as likely as not that the left knee condition is related to the low back condition, as chronic back pain can cause poor posture and unbalanced compensation between extremities and that the medical records showed the Veteran had knee surgery and back surgery within the same year. The Veteran reported difficulty performing normal daily functions or work because of standing limitations. The examiner concluded the Veteran did not have any work limitations and stated he should be able to bend, crawl, stoop, crouch, pull, and lift. The Veteran underwent a VA examination in March 2012. The examiner indicated the Veteran had mild cervicothoracic scoliosis with marked degenerative disc disease at C5-C6. The examiner opined that the Veteran's claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. A rationale was not provided. With regard to functional impact on his ability to work, the examiner indicated the Veteran is limited, as he has pain turning his neck from left to right. In a May 2012 addendum opinion, a different VA physician opined it is less likely as not that the Veteran's cervical spine condition and IVDS status-post lumbar fusion and laminectomy are related, as there is no pathophysiological relationship between the two conditions or any medical records showing such relationship. He opined the cervical spine condition is less likely as not a result of the lumbar fusion and laminectomy with IVDS lumbar fusion, as laminectomy with IVDS more likely affects the lower portion of the spine, rather than the upper portion, i.e., cervical spine. Thus, there is no direct correlation between cervical spine condition and IVDS s/p lumbar fusion and laminectomy as there is no medical physiology to explain such a relationship. In the November 2012 VA examination report related to his left knee disability, the examiner indicated the Veteran was unemployed since 2002 after working in computer maintenance and the Veteran's report of left knee giving away with climbing stairs, prolonged walking and standing would impact his ability to work. An April 2013 private treatment record notes mild degenerative changes of the right knee. In an October 2013 private treatment record, the Veteran reported his right knee gives way causing him to almost fall. A May 2014 VA examination report reflects the Veteran reported a neck surgery in 2010 and that he did not have neck problems until the second surgery for the lower back and that he started having pains radiating down his arms. The Veteran claimed the neck problems are related to his back problems. He denied any neck pain or injury while on active duty. The Veteran reported flare ups with rotating his neck. The examiner noted the Veteran demonstrated rotation of neck without incurring any major function ability of weakness or fatigability. His functional ability with repetitive motion could be as much as 50 percent decreased; however, the examiner notes there are few jobs which would require repetitive rotation of neck. With regard to service connection on a direct basis, the examiner opined that cervical spine stenosis and C5-7 disc desiccation and degeneration was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service cervical spasm that occurred in October 2002. The rationale was that cervical stenosis and C5-7 disc degeneration are a result of the aging process of the spinal column and muscle spasm are involuntary contractions of the muscle, which resolve quickly. The deterioration or degeneration of the spinal column has no relationship to the contraction or spasm of a muscle. In addition, the Veteran's major complaint on that ER visit in October 2002, was of left side of "CP" and upper body pain, as neck pain was not the focus of his visit. He was not diagnosed with neck muscle spasms until his follow up clinical visit a couple of weeks later, at which time he stated spasm were resolving. With regard to service connection on a secondary basis, the examiner opined that cervical spine stenosis and C5-7 disc desiccation and degeneration was less likely than not (less than 50% probability) caused by the service-connected back disability, IVDS status post lumbar fusion L4-5 and laminectomy, as cervical spine stenosis and C5-7disc degeneration are a result of the aging process of the spinal column. Cervical degeneration and resulting stenosis do not suddenly appear because of a surgery to a completely different section of the spine. B. Right knee Upon review of the evidence of record, the Board finds that service connection for right knee arthritis, on a secondary basis, is warranted. At the outset, the Board notes that the Veteran does not contend, and the evidence does not suggest, that his right knee arthritis is related to service. Rather, in his November 2010 application for compensation and thereafter, the Veteran has specifically contended that his right knee arthritis is due to his service-connected back disability. Here, the only medical opinions of record are provided by Dr. R.S. Further, although the April 2011 VA examiner did not provide an opinion as to the right knee arthritis, the examiner provided a positive nexus as to the degenerative joint disease of the left knee based on the rationale that the back pain causes poor posture and unbalanced compensation between extremities, which is consistent with Dr. R.S,'s opinions that his service-connected back disability caused his right knee arthritis. Dr. R.S.'s medical opinions are based on the record; the physician had been treating the Veteran since 2004, and, thus, was fully informed of the Veteran's medical history and his contentions in providing the positive opinion. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, there is no contrary medical opinion in the evidence of record. Given the only record of opinion is in favor of service connection, a remand for another VA examination could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). Further, the Veteran's competent, credible, and consistent report of right knee pain as his back pain worsened is credible. The Veteran reported during his Board hearing, as well as in the medical treatment records that it worsened as his back pain worsened. Thus, the Board finds the evidence regarding the claim for service connection for right knee arthritis is in at least relative equipoise and, as such, reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Thus, service connection for right knee arthritis is warranted, secondary to service-connected back disability. C. Cervical spine Upon review of the evidence of record, the Board finds that service connection for degenerative disc disease and disc bulge of the cervical spine, on a secondary basis, is warranted. There are conflicting medical opinions regarding a nexus between the Veteran's current neck disability and his service-connected back disability. Significantly, the May 2012 and May 2014 VA physicians did not fully take into consideration the Veteran's statements and medical evidence of record. Specifically, the physicians did not address Dr. R.S.'s opinions that the kinetics and many years of severe chronic low back pain caused his neck disability, as well as the Veteran's report that he developed pain in the neck as his back pain worsened, to include after surgery, as the Veteran indicated in the medical treatment records. To be adequate, an examination must take into account an accurate history. Nieves-Rodrigues, 22 Vet. App. 295. As the May 2012 VA physician and May 2014 VA examiner based their opinions without full consideration of the Veteran's medical history, these opinions are inadequate. Although Dr. R.S.'s rationale was not extensive, reading his opinion as a whole and in context of the evidence of record, to include his familiarity with the Veteran's medical history, as well as the consistency of the Veteran's statements, the Board finds that his positive opinion is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The positive opinion took into account the Veteran's statements and was by a physician that treated the Veteran both before and after his operations for his service-connected back disability. Here, the Board has found the Veteran's statements to be credible as to the onset of his neck pain. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's current disc degeneration and disc bulge of the cervical spine is related to his service-connected back disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for disc degeneration and disc bulge in the cervical spine on a secondary basis is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. II. Increased rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue as is the case for sinusitis, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in connection with a claim for an initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart and Fenderson, supra. The Veteran's sciatica of the right and left lower extremities is currently rated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520 for impairment of the sciatic nerve. The Veteran was assigned a 10 percent rating prior to March 1, 2015, and rated as noncompensable from that date. Under Diagnostic Code 8520, 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 , Diagnostic Code 8520. Under 38 C.F.R. § 4.124a, the term "incomplete paralysis" 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 ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The note preceding § 4.124a provides that when the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. In Miller v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) interpreted that note preceding § 4.124a, as providing for "a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve[.]" No. 15-2904, 2017 WL 877336 (Vet. App. Mar. 6, 2017). The Court further added that the "note contains no mention of non-sensory manifestations," and "decline[d] to read into the regulation a corresponding minimum disability rating for non-sensory manifestations[.]" Id. The words "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. At the Board hearing, the Veteran's representative indicated that the Veteran right and left leg sciatica is at least moderate in nature, and warrants at least a 20 percent rating for the right leg, and at least a 10 percent rating for the left lower extremity for the entire appeal period. An October 2010 private treatment record notes numbness and tingling sensation involving the right foot and right leg tightness. He had occasional left leg pain. The pain gets better with ambulation. His leg seizes up, especially with bending and stooping maneuvers. These new leg symptoms started following aggressive physical therapy. Motor strength was intact against resistance at 5/5. There was no sensory deficit or light touch or pinpricks. Deep tendon patella reflexes were 2 on the left and right and Achilles tendon were 1 on the right and 2 on the left. A myelogram reflects two facet screws at bilateral L4-5; however, the physician noted no significant symptoms. A myelogram revealed right L5 nerve root compression. A January 2011 private treatment record reflects the Veteran reported numbness and tingling in his right foot and thigh with a severity of 6/10 at its worst and 3/10 on better days. There was sensory impairment of right and left lower extremities. He also had numbness and tingling sensation involving two fingers on the left side on the ulnar side. There was hypoesthesia involving the right s1 dermatome. Motor examination was normal. A March 2011 private treatment record notes normal motor examination and decreases sensation along right C6 dermatome. Deep tendon reflexes were 1 and 2 in the right and left legs. An April 2011 VA examination report reflects the Veteran's report of right extremity pain described as moderate and exacerbated by physical activity. The part(s) of the body affected were right hamstring, thigh, and left foot due to the nerve disease. There was tingling and numbness (severity level is 8), abnormal sensation (severity level is 6), pain (seventy level is 6), anesthesia (severity level is 6), weakness of the affected parts (seventy level is 6), and burning (severity level is 9). There was no paralysis of the affected parts. The symptoms occurred constantly on the right side and the left side flares up when the left hip starts to hurt. The symptoms described occurred constantly. He stated that he could not hold a job or perform any physical activities. The right and left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The lower extremities showed no signs of pathologic reflexes. The most likely peripheral nerve affected was the sciatic nerve. 2011 private physical therapy record indicates the Veteran met 50 percent of lower extremities radiculopathy goals. The Veteran reported that his left knee almost gave out, making functional mobility more challenging. They also reflect normal flexion and extension of the knees. A May 2011 private treatment record reflects the Veteran was now five months post-op from posterior lumbar interbody fusion of L4-S1. The Veteran still had significant radiculopathy of the cervical spine. A March 2012 private treatment record reflects the Veteran reported neck pain and right leg/foot pain. There was decreased sensation to touch along the L5-S1 innervation of the right left. Patellar and Achilles reflex were diminished (1+) on right side, and full on left DF/PF intact bilaterally. Distal pedal pulses were 2+ bilaterally. In an April 2012 functional capacity questionnaire, the physician indicated the Veteran's radiculopathy of the lower extremities resulted in right foot leg pain after standing for prolonged periods. The physician concluded the Veteran was capable of low stress jobs with no prolonged sitting. An April 2012 private treatment record notes right lower extremity pain with tingling and numbness radiating to the foot. There were left extremity sensory deficits and deep tendon reflexes were decreased in the right Achilles. There were sensory deficits in the right lower extremity and lower foot. The electro-diagnostic study revealed evidence of severe chronic L4, L5, and S1 radiculopathy on the right side with significant chronic degenerative features throughout distribution. Another record indicates the Veteran reported right leg extremity pain/burning with sitting and lying. The physician indicated that he cannot appreciate much nerve root impingement, but certainly there was enough to give nerve root irritation. In May 2012 private treatment records, the Veteran noted no longer having continuous lower extremity pain, but with periodic pain with continued weakness and numbness in the lower right extremity. He reported some weakness and pain in the left calf, but it was improving. A September 2012 functional capacity questionnaire indicated the Veteran's medications for radiculopathy may cause drowsiness, unsteady gait, or tremor. The physician concluded that the Veteran was unable to sustain competitive full time work. The diagnoses included lumbar spondylosis with myelopathy, bradycardia, and thoracic aortic ectasia. Symptoms included severe pain in right thigh, back, weakness in right distal left extremity, tingling, numbness, weakness in hands and right foot. It also indicates that the Veteran is limited in that he can only stand and sit for fifteen to thirty minutes, can stand for less than two hours and sit for about four hours, must walk every ninety minutes for five minutes, and will need a job switching from standing to sitting with frequent breaks every thirty minutes. He can only occasionally move his neck in different positions and can never or rarely climb stairs, stoop, crouch, and climb ladders or stairs. 2013 VA treatment records note report of right leg pain, numbness, and tingling. Range of motion of both lower extremities was normal with functional strength. A January 2014 private treatment record reflects reports of pain and weakness in the nerve root distribution documented by physical examination. It notes the pain and weakness had not responded to conservative treatment that included at least a three week trial of NSAIDs modification of activity and physical therapy. The clinician indicated the Veteran's radiculopathy caused mild to moderate pain in a nerve root distribution. The Veteran was recommended for injections. A February 2014 private treatment record decreased (right lower extremity distally) and deep tendon reflexes overall. There was lower back pain radiating to the right leg, mild headaches and numbing sensation in right leg, worsening off and on during flare ups. A March 2014 private treatment record reflects the Veteran had epidurals with some help with Gabapentin. He still had weakness in the right leg with mild muscle atrophy. The August 2015 VA examination report reflects right and left lower extremity sciatica associated with IVDS. The date of onset of the symptoms is October 1993 after he had arthroscopic surgery of his left knee in 1993. He stated that since then he started to have back pain with numbness and tingling that radiates to his upper and lower extremities. Over the years, he progressively got worse and developed arthritis and bulging disc on lumbar spine. He underwent L4-L5-S1 disc removal in May 2010. After a month, the screws got loose and he had another surgery in November 2010. The condition had gotten worse. He has dull sharp pain with numbness and tingling down his upper and lower extremities. Intensity of pain was 8/10. He was taking Gabapentin and Diclofenac. Additionally, he indicated having weakness on his right leg and swelling of right foot after prolonged walking and standing. The examiner indicated that the Veteran experienced moderate constant pain, paresthesia and/or dysesthesias, and numbness in the right extremity and mild intermittent pain, paresthesia and/or dysesthesias, and numbness in the left lower extremity. The Veteran had muscle atrophy in the right leg at 32 cm. The left leg was 33 cm. Reflexes were normal and sensory was decreased in the lower leg/ankle/foot/toe. Flexion and extension of the knees were within normal limits. There were no trophic changes. The examiner indicated that the incomplete paralysis of the sciatic nerve was affected to a mild degree in both lower extremities. The impact of the sciatica on the Veteran's daily activities includes limitation in long distance driving, prolonged walking, and standing during flare-ups. A January 2016 VA examination conducted for purposes of evaluating his service-connected back disability reflects the Veteran noted atrophy in his right leg prior to his surgery in 2010. He reported swelling of his right foot and also complained of right foot cramps. He reported pain especially in the calf and hamstring (a sharp pain) with associated right foot tingling and numbness. He stated that the symptoms in the left leg occur about twice a week from his knee to his hip area. He stated that he avoids bending and lifting at all, no more than getting groceries out of the car. The examiner noted muscle atrophy in the right leg at 34 cm and the normal left leg measured at 38 cm. Reflex examination revealed 2+ in the right and left knees and 2+ in the left ankle and 0 in the right ankle. Sensory was decreased in the right lower ankle/leg and absent in the foot and toes. Sensory was normal in the left lower leg/ankle and decreased in the left foot/toes. The Veteran experienced moderate constant pain, paresthesia and/or dysesthesias, and numbness in the right extremity and mild intermittent pain, paresthesia and/or dysesthesias, and no numbness in the left lower extremity. The examiner indicated that the incomplete paralysis of the sciatic nerve was affected to a moderate degree in the right lower extremity and mild in the left. The examiner explained that it is documented that the Veteran has evidence of a severe right leg radiculopathy both subjectively and objectively as noted on the EMG study. Physiologically, when an individual has nerve compression that is present with a radiculopathy condition, as the nerve compression worsens, it causes muscles atrophy. Therefore, the examiner opined the Veteran's right leg muscle atrophy is at least as likely as not the result of his service connected IVDS with radiculopathy. With regard to the functional impact of this disability, the Veteran stated that he is unable to bend and avoids lifting anything at all, other than small bags of groceries from the car. A May 2016 private treatment record reflects motor was normal, knee flexion and extension was normal. A June 2016 private treatment record notes severe right leg radiculopathy and weakness and seems to have muscle wasting. He had attempted conservative treatment since 2010. Based on the evidence of record, the most pertinent of which is discussed above, the Board finds that the evidence of record indicates the Veteran's right leg sciatica more closely approximates severe incomplete paralysis of the sciatic nerve involving severe symptomatology, including pain and numbness with reduced muscle strength and muscle atrophy, as noted throughout the treatment records, and as described by the multiple healthcare professionals and examiners. As such, the disability more nearly approximates a 60 percent disability level under DC 8520 for the entire appeal period. With regard to the left leg sciatica, the evidence more closely approximates moderate incomplete paralysis of the sciatic nerve throughout the rating period on appeal. In this regard, the evidence shows that the Veteran had diminished sensation in the left lower extremity. The Veteran has also reported weakness or tiredness of his legs, especially after walking or standing for long periods of time. He also reported numbness and tingling, such symptoms of a mild to moderate degree were noted throughout the records. Here, the VA examiners described the Veteran's disability as mild or moderate. In light of the foregoing, the Board concludes that the Veteran's sciatica of the lower left extremity more closely approximates a 20 percent disability rating for entire appeal period. The Board also finds that the evidence does not more nearly approximate severe complete paralysis of the right leg or moderately severe incomplete paralysis of the left leg and the evidence was not approximately evenly balanced on these points at any time during the appeal period. Although there were abnormal findings of decreased sensations, as well as a finding of absent sensation in the right foot/toe, reports of tingling, numbness and pain, the Veteran demonstrated near normal reflex testing throughout the relevant time period with normal motor and strength testing. Furthermore, the records do not indicate that he experiences "foot drop," (the foot dangles and drops, no active movement possible of muscles below the knee) and the Veteran's symptoms do not reflect flexion of knee that is weakened or (very rarely) lost. Accordingly, the evidence does not reflect that the nature and severity of the right leg sciatica more nearly approximated severe complete paralysis or that the evidence is in relative equipoise on this point. With regard to the left leg sciatica, the evidence reflects that the Veteran experiences wholly sensory manifestations of incomplete paralysis of a sciatic nerve and there have been no objective findings of muscle atrophy or trophic changes. Based on the lay statements and objective findings, the Veteran's sciatica of the left lower extremity do not meet or nearly approximate the criteria for a disability rating in excess of 20 percent and the evidence is not in relative equipoise on this point. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. See also Miller, supra (providing only a maximum disability rating of 20 percent for wholly sensory manifestations of incomplete paralysis of a peripheral nerve). As sciatica of the right lower extremity results in severe incomplete paralysis with marked muscular atrophy, a rating of 60 percent, but no higher, is warranted for the entire appeal period. With regard to sciatica of the left lower extremity, the Board finds that the Veteran's disability more nearly approximates moderate incomplete paralysis, thus a rating of 20 percent, but no higher, is warranted for the entire appeal period. The benefit of the doubt doctrine has been resolved in favor of the Veteran with regard to the higher ratings, and is otherwise inapplicable because the preponderance of the evidence is against any higher ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). III. TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). In this case, the Veteran's service-connected right leg sciatica is now rated as 60 percent disabling for the entire appeal period. Thus, the Veteran has had one disability rated as 60 percent disabling. Thus, he met the minimum schedular requirements for TDIU benefits for the entire appeal period. 38 C.F.R. § 4.16(a)(3). During the August 2017 Board hearing, the Veteran indicated he retired from the Air Force in December 2002 and he worked probably about three months as an instructor at Fort Gordon after retiring in 2003. He has not worked since about April to May 2003. He stated his job in the Air Force was computer maintenance, including on different equipment and networking. It required a lot of bending and cabling under the floor or in the ceiling, and a lot of bending over servicing the equipment. He had problems when he got out of the Air Force doing that, so he tried the instructor route, but he could not stand long periods of time, which he explained caused him to stop working and he had not pursued any other work because of his physical limitations. He reported he had a Bachelor's degree in physical education before he went to the Air Force. He also got a community college of the Air Force degree and an Associate's degree in electronics technology. He was an instructor in technology, as he was an instructor in the Air Force for a while as well. As these jobs required standing and bending, as he was teaching electronic equipment demonstration, he reported it was too challenging for him. Although the April 2011 VA medical opinion determined that the Veteran's service-connected disabilities do not cause any work limitations, "the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Notably, the examiner did not address the Veteran's current report of functional effects of his service-connected disabilities and did not discuss any of the lay or medical evidence that indicate that the Veteran experiences work limitations as a result of his service-connected disabilities, as noted in Dr. R.S.'s private opinions, as well as the September 2012 functional capacity assessment, which found the Veteran was unable to sustain competitive full time work, as detailed above. Also, the examiner did not address the finding in that assessment that medications taken for radiculopathy causes drowsiness, unsteady gait, and tremors, as well as his inability to stoop, crouch, crawl, or climb stairs. Additionally, the other VA examination reports also note difficulty and limitations caused by his service-connected disabilities, to include difficulty in moving his neck constantly, as well as limitations in walking and standing. Thus, the Board assigns little probative value to this opinion. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (Board charged with assessing the probative value of all evidence of record). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to probative weight). Based upon the above, the severity of the Veteran's service-connected disabilities, and the Veteran's limited educational and occupational history, the Board finds that the Veteran is unemployable due to his service-connected disabilities. Here, Dr. R.S., as well as the functional limitations noted by the medical professionals, collectively indicate that the Veteran's service-connected disabilities, renders him unemployable. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(a). The Board notes that VA's Adjudication Manual, M21-1, IV.ii.2.F.2.b, provides that if the issue of entitlement to a TDIU is raised and the Veteran fails to complete and return VA Form 21-8940, VA must make a decision on the issue of IU based on the available evidence of record. Thus, although the Veteran has not submitted a VA Form 21-8940, the Board has decided the issue based on the evidence of record. ORDER Entitlement to service connection for right knee arthritis as secondary to service-connected back disability is granted. Entitlement to service connection for degenerative disc disease and disc bulge of the cervical spine as secondary to service-connected back disability is granted. Entitlement to a 60 percent rating, but no higher, for sciatica of the right lower extremity is granted, subject to the applicable criteria governing the payment of monetary benefits. Entitlement to a 20 percent rating, but no higher, for sciatica of the left lower extremity is granted, subject to the applicable criteria governing the payment of monetary benefits. Entitlement to a TDIU is granted, subject to the regulations governing the award of monetary benefits. REMAND Regarding the Veteran's claim for an increased rating for left knee disability, the Veteran was last afforded a VA examination in November 2012. The Veteran's representative indicated in the hearing that he may submit a disability benefits questionnaire, but if not, he requested a remand so that updated range of motion testing could be obtained. As the Veteran has not submitted an additional examination, the Board will, therefore, grant the request for a remand for a new VA examination to address the current severity of the Veteran's left knee disability, to include the severity of his instability, and to obtain testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing pursuant to 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). See Snuffer v. Gober, 10 Vet. App. 400 (1997). With regard to the Veteran's claim for service connection for a bilateral hip disability, the Board notes that the April 2011 VA examination report indicates that the Veteran did not have a hip condition, as the x-rays were within normal limits. However, Dr. R.S.'s November 2010 opinion indicates that the Veteran is developing arthritis in hip due to his back disability and his April 2011 opinion indicates that the Veteran's back pain has caused pain in his hips. The Board also notes that an October 2010 private treatment record provides a diagnosis of osteopenia of the left hip. Given that the Veteran's current bilateral hip disability is unclear, a new VA examination should be afforded to address this question and provide an etiology as to all bilateral hip disabilities found. Finally, as noted in the introduction, the RO has not yet issued a SOC with respect to the claims for service connection for sleep apnea and an increased rating for vasopressor syncope with implanted pacemaker, the next step in the appellate process. See 38 C.F.R. § 19.9(c); Manlincon, 12 Vet. App. at 240-41; Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C. § 7105; 38 C.F.R §§ 20.200, 20.201, 20.202. Accordingly, the remaining issues on appeal are REMANDED for the following action: 1. Issue an SOC addressing the issues service connection for sleep apnea and entitlement to an increased rating for vasopressor syncope with implanted pacemaker in excess of 10 percent prior to June 29, 2014, and in excess of 10 percent from September 1, 2014. Do not return the issues to the Board unless a timely substantive appeal has been filed in response to the SOC 2. Obtain any outstanding updated VA treatment records. 3. The Veteran should be afforded a VA orthopedic examination to determine the current severity of his service-connected left knee disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. The examiner should specifically report the results (in degrees) of active, passive, weight-bearing, and non-weight bearing range-of-motion testing of the Veteran's left knee. 4. Schedule the Veteran for a VA examination, with a qualified VA physician to determine the etiology of any bilateral hip disability, to include arthritis and osteopenia. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. Based on the examination and review of the record, the examiner should clearly identify all bilateral hip disabilities and determine: i) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's bilateral hip disability is proximately due to, or caused by, the Veteran's service-connected back disability or other service-connected orthopedic disability. ii) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's bilateral hip disability has been aggravated by the Veteran's service-connected back disability or other service-connected orthopedic disability. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 5. After completing the above action, and any other development deemed necessary, readjudicate the claims. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs