Citation Nr: 20032909 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 19-29 028A DATE: May 12, 2020 ORDER Service connection for bilateral knee disabilities is denied. Service connection for bilateral hip disabilities is denied. An effective date earlier than October 2, 2007 for the award of service connection for degenerative arthritis of the lumbar spine is denied. An effective date earlier than March 24, 2008 for the award of service connection for a neck strain with degenerative changes is denied. An effective date earlier than February 20, 2014 for the award of service connection for right lower extremity radiculopathy is denied. An effective date earlier than February 20, 2014 for the award of service connection for left lower extremity radiculopathy is denied. A rating higher than 20 percent prior to February 20, 2014, and higher than 40 percent as of that date, for degenerative arthritis of the lumbar spine is denied. A rating higher than 10 percent prior to February 20, 2014, and higher than 30 percent as of that date, for a neck strain with degenerative changes is denied. A rating higher than 20 percent for right lower extremity radiculopathy is denied. A rating higher than 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s bilateral knee disabilities have not been linked to disease or injury incurred or aggravated in active service, and were not caused or aggravated by his service-connected low back disability. 2. The Veteran’s bilateral hip disabilities were caused by an altered gait due to his bilateral knee disabilities, for which service connection has not been established; they have not been linked to disease or injury incurred or aggravated in active service. 3. The Board of Veterans’ Appeals denied reopening the claim for a back disorder in a July 2005 decision. 4. The Veteran filed an informal claim for service connection for a low back disability on October 2, 2007. 5. The Veteran first filed an informal claim for a neck condition on March 24, 2008. 6. The earliest evidence of left or right lower extremity radiculopathy is a February 20, 2014 VA examination report. 7. Prior to February 20, 2014, the Veteran’s lumbar spine disability was not manifested by forward flexion of 30 degrees or less, and was not manifested by favorable or unfavorable ankylosis at any point during the period under review. 8. Prior to February 20, 2014, the Veteran’s cervical spine disability was not manifested by forward flexion of 30 degrees or less, a combined range of motion of 170 degrees or less, or guarding or spasm severe enough to result in an abnormal gait or abnormal spinal contour; it was not manifested by favorable or unfavorable ankylosis at any point during the period under review. 9. The Veteran’s radiculopathy of the bilateral lower extremities was not manifested by moderately severe or severe incomplete paralysis of the sciatic nerve, or by complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee disabilities are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for bilateral hip disabilities are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for an effective date earlier than October 2, 2007 for the award of service connection for a lumbar spine disability are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date earlier than March 24, 2008 for the award of service connection for a cervical spine disability are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date earlier than February 20, 2014 for the award of service connection for right lower extremity radiculopathy are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date earlier than February 20, 2014 for the award of service connection for left lower extremity radiculopathy are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for a rating higher than 20 percent prior to February 20, 2014, and higher than 40 percent as of that date, for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242. 8. The criteria for a rating higher than 10 percent prior to February 20, 2014, and higher than 30 percent as of that date, for a neck strain with degenerative changes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242. 9. The criteria for a rating higher than 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8520. 10. The criteria for a rating higher than 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to March 1971. The appellant is his surviving spouse, and has been substituted as the claimant in this case. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in November 2008, August 2013, and November 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the service connection claims for disabilities of the bilateral knees and hips in February 2012, November 2015, and June 2017. The Board remanded the remaining issues in June 2017 for the purpose of furnishing a Statement of the Case. See 38 C.F.R. § 19.9(c). The Veteran and the appellant testified at a hearing before the undersigned in August 2011 regarding the claims for service connection for disabilities of the bilateral hips and knees. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection on a secondary basis may be granted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Bilateral Knee and Hip Disabilities The Veteran testified at the August 2011 hearing that he believed his bilateral knee and hip disabilities were related to a diving accident in active service. He also claimed service connection for these disabilities as secondary to his service-connected low back disability. See March 2008 VA Form 21-0820 (Report of General Information). Alternatively, he stated that his hip condition was due to a shot he received for his service-connected low back disability. See March 2008 VA Form 21-0820. For the following reasons, the Board finds that service connection for disabilities of the knees or hips is not established. Private treatment records show that the Veteran sustained an injury to the left knee in April 1967, prior to his period of active service, as a result of an automobile accident. The injury was described as a severe contusion. A May 1967 x-ray study showed degeneration of the lateral meniscus with slight narrowing of the joint space. A February 1968 letter from the Veteran’s physician stated that the Veteran incurred a left torn medial meniscus from an automobile accident in 1967, and that he might need a left medial meniscectomy in the future. The Veteran’s June 1968 entrance examination report shows that at entry onto active duty, the Veteran’s lower extremities were evaluated as normal. A handwritten notation on the form states that the Veteran’s knees were normal. The service treatment records do not show complaints or treatment respecting the knees, although they show treatment for a number of other conditions, including ongoing back pain stemming from the same April 1967 motor vehicle accident. The March 1971 separation examination report reflects that the Veteran’s lower extremities were evaluated as normal. The Veteran does not state that he experienced left or right knee pain during active service, and the record does not show complaints of knee pain until the 1990’s. The Veteran’s testimony at the August 2011 hearing that he believed his knees were injured from diving into a pool does not indicate that he actually experienced knee pain at the time. Because a left knee condition was not noted at entry, the presumption of aggravation does not apply. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Further, because a left knee condition did not manifest during service, there is no need for the Board to determine whether the presumption of soundness has been rebutted by clear and unmistakable evidence, which only applies when a disease or injury occurs during service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). Thus, there is no need to determine whether the clear and unmistakable evidence shows that Veteran had a pre-existing left knee condition that was not aggravated beyond its normal progression by active service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The issue with respect to direct service connection is simply whether the Veteran had a current left or right knee disability during the pendency of the claim that may be linked to his active service. The preponderance of the evidence weighs against such a relationship. An April 2012 VA x-ray study was interpreted as showing a well-defined calcification adjacent to the medial femoral condyle which was probably due to old trauma or “nonfused ossification.” An April 2012 x-ray study of the right knee showed a small exostosis involving the proximal medial tibia. There was no evidence of a fracture or dislocation. There were no significant degenerative changes present. In the April 2012 VA examination report, the examiner listed diagnoses of a fracture of the left tibial plateau with a date of 1967, and a right knee strain with a date of 2000. A VA medical opinion was obtained in June 2017. Preliminarily, the Board notes that the examiner seems to have misinterpreted the Board’s remand directives. Specifically, the examiner stated that the Board had instructed that the examiner must accept as true that the Veteran did not have a pre-existing left knee condition. The Board included that instruction regarding the issue of whether a left knee condition was incurred in service, which was one of the issues the examiner was requested to address; it did not govern all the issues the examiner was asked to address. That instruction was included because the Veteran’s left knee is presumed sound at entry, regardless of whether there was a pre-service injury. The Board also notes that it did not instruct the examiner to assume that there was no history of a pre-service left knee injury, which is distinct from the issue of whether the Veteran had a pre-existing left knee condition at the time of entrance. For example, and solely for the purpose of illustrating the issue, an injury incurred prior to service may have fully resolved by the time of entrance. Moreover, the Board did not include that instruction regarding the issue of whether the presumption of soundness had been rebutted by clear and unmistakable evidence. Regarding that issue, the examiner of course was required to address the history of a pre-service left knee injury. Nevertheless, the Board finds this misinterpretation did not affect the adequacy of the opinion or prejudice the claim, since to the extent the examiner did assume that the Veteran’s left knee was normal at entrance and disregarded the pre-service injury, that was favorable to the claim. As explained above, the Board finds that a left knee condition did not manifest in service, and thus the issue of whether there was a pre-service left knee injury, which clearly there was, does not affect the outcome of the claim in this case. In the June 2017 opinion, the examiner opined that the Veteran’s bilateral knee disabilities were not related to diving, as the dynamics of diving head-first into a pool of water would not affect the knees. The examiner further found that the Veteran’s knee conditions did not have their onset in active service and were not related to any incident of service, including when considering the impacts from walking, marching, stooping, bending, crawling, and the physical rigors of combat service in Vietnam, as no knee conditions were recorded in the service treatment records. The examiner’s conclusion is consistent with the Board’s finding that left or right knee conditions did not manifest in service. As to the issue of secondary service connection, the June 2017 VA medical opinion found that the Veteran’s left or right knee disabilities were not caused or aggravated beyond their natural progression by the Veteran’s service-connected low back disability, including any altered gait associated with that disability. The examiner found that the Veteran’s altered gait was rather due to his knee disabilities. Regarding the claims for bilateral hip disabilities, a VA examination was performed in April 2012. The Veteran was diagnosed with mild degenerative arthritis of the bilateral hips. The examiner opined that it was unlikely the Veteran’s hip conditions were related to diving, and found that they were more likely related to the Veteran’s bilateral knee condition. In the June 2017 opinion, the VA examiner opined that the Veteran’s degenerative arthritis of the bilateral hips was not caused or aggravated by his service-connected low back disability, but rather was more likely due to the alteration in gait caused by the Veteran’s bilateral knee conditions. The VA medical opinions outweigh the bare and unsupported statements asserting that the Veteran’s knee or back conditions were related to diving. The Veteran never stated that he knowingly injured his knees or hips when diving or experienced hip or knee pain at the time. The Board thus gives more weight to the VA medical opinions on these issues. Regarding the Veteran’s theory (according to the March 2008 notes of a telephone conversation with him) that his hip conditions were due to a shot he received for his back condition, no explanation for this theory has been provided, and there is no indication in the record that an injection to treat the Veteran’s back condition affected his hips. Accordingly, the Board finds that the Veteran’s hip conditions were not caused or aggravated by a shot for his back condition. In sum, the criteria for service connection, either on a direct or secondary basis, for the Veteran’s bilateral knee and hip disabilities have not been satisfied. See 38 C.F.R. §§ 3.303, 3.310; Holton, 557 F.3d at 1366. Because the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Effective Date Under VA’s legacy appeal system, which is applicable in this case, the relevant effective date provisions are as follows. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In claims for direct service connection, if the claim is received within one year after separation from active service, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. Id. For reopened claims, the effective date is the date of the receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). With respect to the date of claim, a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Lumbar Spine Disability The Board denied reopening the claim for a low back disorder in a July 2005 decision. That decision is final. 38 U.S.C. §§ 511, 7103, 7104; 38 C.F.R. § 20.1100. Thereafter, the Veteran filed an informal petition to reopen the claim for service connection for a back condition in October 2007. See October 2007 VA Form 21-4138; October 2007 VA Form 119 Report of Contact. Service connection for the Veteran’s low back disability was awarded effective October 2, 2007, the date of the Veteran’s petition to reopen the claim. The record does not show that a formal or informal claim for a back condition was filed between the Board’s July 2005 decision and the October 2, 2007 informal claim. Accordingly, the effective date of October 2, 2007 is proper, and an earlier effective date must be denied as a matter of law. See 38 C.F.R. § 3.400(r).   Cervical Spine Disability The Veteran first filed an informal claim for a neck condition on March 24, 2008. See March 2008 VA Form 21-0820, Report of General Information. The record does not show that a formal or informal claim for a neck condition was filed prior to that date. An award of service connection cannot be earlier than the date of the original claim, unless the claim is received within one year after separation from active service. 38 C.F.R. § 3.400(b)(2). As the Veteran’s claim was filed more than one year after his separation from service, the March 24, 2008 effective date is proper, and an earlier effective date must be denied as a matter of law. See id. Radiculopathy of the Bilateral Lower Extremities Service connection for radiculopathy of the bilateral lower extremities was awarded effective February 20, 2014, the date of a VA examination showing that the Veteran had radiculopathy associated with his service-connected lumbar spine disability. See 38 C.F.R. §§ 3.310; 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The record does not show that the Veteran had radiculopathy of either extremity prior to the February 20, 2014 VA examination report. In this regard, an April 2012 VA examination report reflects the examiner’s finding that the Veteran did not have radiculopathy of either lower extremity. An August 2012 VA treatment record states that the Veteran complained of low back pain, but denied radiation or any numbness, tingling, or weakness of the legs. The evidence does not otherwise show radiculopathy of either lower extremity prior to the February 2014 VA examination report. The criteria for establishing service connection require, among other things, evidence of a current disability. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Accordingly, as the February 2014 VA examination report is the earliest evidence showing that the Veteran had radiculopathy, it constitutes the earliest evidence of the date entitlement arose. See 38 C.F.R. § 3.400(b)(2). Therefore, the effective date of February 20, 2014 for the award of service connection for radiculopathy of the bilateral lower extremities is proper, as that is the earliest date that entitlement arose based on the evidence of record. See id. Consequently, an earlier effective date must be denied as a matter of law. See id. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Lumbar Spine Disability A. Rating Criteria The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. B. Analysis The April 2012 VA examination report reflects that the Veteran had forward flexion of the lumbar spine to 40 degrees, with objective evidence of painful motion beginning at that point, including after repetitive testing. The examiner indicated that there was no additional loss of range of motion after repetitive testing. The examiner found that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine or ankylosis. The February 2014 VA examination report states that the Veteran had forward flexion of the lumbar spine to 30 degrees, with objective evidence of painful motion beginning at 5 degrees. After repetitive testing, forward flexion was to 20 degrees. The examiner found that the Veteran did not have intervertebral disc syndrome or ankylosis of the spine. Prior to the February 2014 VA examination report, the Veteran’s lumbar spine disability is not shown to have been manifested by forward flexion limited to 30 degrees or less, or by ankylosis. The April 2012 VA examination report shows forward flexion in excess of 30 degrees, including after repetitive testing. Accordingly, the criteria for a rating higher than 20 percent were not satisfied prior to February 2014. See 38 C.F.R. § 4.71a, General Rating Formula. The evidence does not show that flare-ups or repeated use of the Veteran’s lumbar spine over time caused additional functional loss satisfying the criteria for a rating higher than 20 percent prior to February 2014. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. §§ 4.40, 4.45. As of February 20, 2014—the date of the VA examination—the Veteran’s lumbar spine disability was assigned a 40 percent rating, which is the maximum rating based on limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula. Because the Veteran did not have favorable or unfavorable ankylosis of the lumbar spine, the criteria for a rating higher than 40 percent are not satisfied. See id. The VA examination reports show that the Veteran was not diagnosed with intervertebral disc syndrome of the lumbar spine. Accordingly, the formula for rating IVDS based on incapacitating episodes under DC 5243 does not apply. See id. Moreover, the record shows that the Veteran’s low back disability has not been manifested by acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Because the preponderance of the evidence weighs against higher ratings, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cervical Spine Disability A. Rating Criteria The Veteran’s cervical spine disability is evaluated under the General Rating Formula. See 38 C.F.R. § 4.71a. Under the General Rating Formula, evaluations for disabilities of the cervical spine are assigned as follows: A 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine of 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as a condition in which the entire cervical spine is fixed in flexion or extension. Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. B. Analysis The April 2012 VA examination report reflects that the Veteran had forward flexion of the cervical spine to 40 degrees, with objective evidence of painful motion beginning at that point. The range of forward flexion continued to be to 40 degrees after repetitive use testing. The combined range of motion of the cervical spine was to 275 degrees, including when considering at which point there was objective evidence of painful motion for each plane of movement. Following repetitive-use testing, the Veteran continued to have a combined range of motion of the cervical spine of 275 degrees. The examiner found that the Veteran had guarding or muscle spasm of the cervical spine, but that it did not result in an abnormal gait or spinal contour. The examiner indicated that the Veteran did not have intervertebral disc syndrome of the cervical spine or ankylosis. The February 2014 VA examination report reflects that the Veteran had forward flexion of the cervical spine to 20 degrees, with objective evidence of painful motion beginning at that point. After repetitive-use testing, forward flexion was reduced to 15 degrees. The examiner found that the Veteran did not have ankylosis of the cervical spine. The examiner found that the Veteran had intervertebral disc syndrome of the cervical spine, but that there were no incapacitating episodes over the past twelve months. Prior to the February 2014 VA examination report, the Veteran’s cervical spine disability is not shown to be manifested by forward flexion limited to 30 degrees or less, a combined range of motion of 170 degrees or less, or guarding severe enough to result in an abnormal gait or spinal contour. It was not manifested by ankylosis. Accordingly, the criteria for a rating higher than 10 percent were not satisfied prior to February 2014. See 38 C.F.R. § 4.71a, General Rating Formula. The evidence does not show that flare-ups or repeated use of the Veteran’s cervical over time caused additional functional loss satisfying the criteria for a rating higher than 10 percent prior to February 2014. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. §§ 4.40, 4.45. As of February 20, 2014—the date of the VA examination showing forward flexion limited to 15 degrees after repetitive testing—the Veteran’s cervical spine disability was assigned a 30 percent rating, which is the maximum rating that may be assigned based on limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula. The February 2014 examiner found that the Veteran did not have ankylosis of the cervical spine. Thus, the criteria for a rating higher than 30 percent are not satisfied. See id. As the Veteran’s intervertebral disc syndrome—as diagnosed in the February 2014 VA examination report—was not manifested by incapacitating episodes, a higher rating cannot be assigned under the formula for rating IVDS based on incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Because the preponderance of the evidence weighs against higher ratings, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Radiculopathy of the Bilateral Lower Extremities The rating criteria for diseases of the sciatic nerve are as follows. A 10 percent evaluation is assigned for mild incomplete paralysis; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. Id. A maximum 80 percent evaluation requires complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; Note prefacing DC’s 8510 through 8730. In the February 2014 VA examination report, the examiner found that the Veteran’s lumbar spine disability was also manifested by radiculopathy, with involvement of the sciatic nerve affecting both lower extremities. The Veteran’s symptoms due to radiculopathy were described as moderate constant pain and moderate paresthesias and/or dysesthesias. He did not have numbness of either lower extremity. On examination, muscle strength testing was 4/5 with regard to hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension for both lower extremities. The designation “4/5” indicates some reduced strength, which is described in the examination template as active movement against some resistance. By comparison, 5/5 represents normal strength, according to the examination report. The examiner found that the Veteran did not have muscle atrophy. Reflex testing of the bilateral knees and ankles was normal (2+). A sensory examination using light touch testing showed normal sensation in the bilateral upper anterior thighs, thighs, and knees, and decreased sensation in the bilateral lower legs, ankles, and feet. The examiner characterized the Veteran’s radiculopathy as moderate with respect to both lower extremities. The findings in the February 2014 VA examination report weigh against assigment of a rating higher than 20 percent for radiculopathy of either lower extremity. The Veteran’s muscle strength was diminished by only one level—i.e. 4/5 rather than 5/5— and his reflexes of the lower extremities were normal. He had no muscle atrophy. The reduced, but not absent, sensation, and the Veteran’s subjective symptoms of moderate constant pain and moderate paresthesias and/or dysesthesias support assigment of the 20-percent ratings, but do not support assignment of higher ratings based on moderately severe or severe incomplete paralysis. Indeed, these same findings weigh against assignment of a rating higher than 20 percent for either lower extremity. Likewise, the criteria for a rating of 80-percent are not satisfied, as the February 2014 VA examination report shows that the manifestations associated with that rating, as described in the rating criteria, were not present. The examiner’s characterization of the Veteran’s radiculopathy as moderate, rather than severe, also weighs against assignment of higher ratings. Because the preponderance of the evidence weighs against higher ratings, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.