Citation Nr: 20043593 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 19-03 703 DATE: June 29, 2020 ORDER New and material evidence having not been received, reopening of the claim for service connection for hemorrhoids (including as secondary to service-connected disabilities) is denied. New and material evidence having not been received, reopening of the claim for service connection for microscopic hematuria (including as secondary to service-connected disabilities) is denied. New and material having not been received, reopening of the claim of service connection for obesity/weight gain (including as secondary to service-connected disabilities) is denied. Service connection for a bilateral knee disability is granted. Service connection for hypothyroidism and nodular disease (including as secondary to service-connected disabilities) is denied. Service connection for chronic fatigue syndrome (CFS) and residuals (including as secondary to service-connected disabilities) is denied. Service connection for hypertension (including as secondary to service-connected disabilities) is denied. Service connection for gastrointestinal disability claimed as gastritis, hiatal hernia, and irritable bowel syndrome (including as secondary to service-connected disabilities) is denied. Service connection for a kidney disability (including as secondary to service-connected disabilities) is denied. An effective date prior to November 23, 2016 for the grant of service connection for sinusitis is denied. From July 9, 2018, a 40 percent disability rating (but not higher) is granted for a lumbar spine disability. FINDINGS OF FACT 1. An unappealed April 2010 Board decision denied service connection for hemorrhoids; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 2. An unappealed April 2009 rating decision denied service connection for hematuria; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claims. 3. An unappealed April 2009 rating decision denied service connection for obesity; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claims. 4. The Veteran has a current diagnosis of bilateral knee arthritis; service treatment records indicate that he experienced knee pain during service; and a May 2018 private medical examiner opined that the current bilateral knee condition is related to service because there are no other potential causes (and there are no negative opinions of record). 5. The probative evidence of record does not show the Veteran’s hypothyroidism disability was caused or aggravated by his service-connected disabilities. 6. The Veteran has not had a current CFS disability at any time during the appeal period. 7. The probative evidence of record does not show the Veteran’s hypertension was caused or aggravated by his service-connected disabilities. 8. The probative evidence of record does not show any additional gastrointestinal disability claimed as gastritis, hiatal hernia, or irritable bowel syndrome, was caused or aggravated by his service-connected disabilities. 9. The probative evidence of record does not show a kidney disability that was caused or aggravated by his service-connected disabilities. 10. VA received the Veteran’s “intent to file a claim for service connection” form for sinusitis on November 23, 2016, and service connection for sinusitis was subsequently awarded as of that date. 11. As of July 9, 2018, the Veteran’s lumbar spine disability has resulted in flexion limited to 20 degrees or less. CONCLUSIONS OF LAW 1. The April 2010 Board decision denying the claim for service connection for hemorrhoids is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. § §§ 5103, 5103A, 5108, 7104, 7105(c); 38 C.F.R. § §§ 3.102, 3.156(a), 20.1103. 2. The April 2009 rating decision denying the claim for service connection for hematuria is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. § §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. § §§ 3.102, 3.156(a), 20.1103. 3. The April 2009 rating decision denying the claim for service connection for obesity is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. § §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. § §§ 3.102, 3.156(a), 20.1103. 4. The criteria for service connection for bilateral knee disability have been met. 38 U.S.C. § §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303. 5. The criteria for service connection for hypothyroidism and nodular disease have not been met. 38 U.S.C. § §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for CFS have not been met. 38 U.S.C. § §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for hypertension have not been met. 38 U.S.C. § §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for a gastrointestinal disability (claimed as gastritis, hiatal hernia, and irritable bowel syndrome) have not been met. 38 U.S.C. § §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.310. 9. The criteria for service connection for a kidney disability have not been met. 38 U.S.C. § §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.310. 10. The criteria have not been met for an effective date prior to November 23, 2016 for the grant of service connection for sinusitis. 38 U.S.C. § §§ 5107, 5110; 38 C.F.R. § §§ 3.102, 3.155, 3.400. 11. From July 9, 2018, the criteria have been met for an increased disability rating of 40 percent (but not higher) for a lumbar spine disability. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1990, with additional prior inactive service. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January 2017 and March 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). Given the complex procedural history and voluminous evidence of record, the Board will provide a brief overview of the salient information prior to addressing the factual elements of the case. The Veteran currently has several active appeal streams at various stages in the appellate process. The Board observes that the Veteran submitted two separate notices of disagreement (NOD) in August 2017 that referenced issues that have been already addressed in an April 2019 Board remand and a June 2019 Board decision and remand. Consequently, this decision will address the remaining issues under the docket number noted on the initial page of this decision. Finally, in January 2020 correspondence, the attorney withdrew his representation from all issues. As such, the Veteran is not represented by counsel with respect to the issues under the current docket number. New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § § 7105 (c). The exception to this rule is 38 U.S.C. § § 5108, which provides that if new and material evidence is obtained with respect to a claim which has been disallowed, then VA will reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156 (a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. New and material evidence having not been received, reopening of the claim for service connection for hemorrhoids to include as secondary to service-connected disabilities An April 2010 Board decision denied service connection for hemorrhoids. VA notified the Veteran of this decision in an April 2010 letter and included information about how to appeal. The Veteran did not timely appeal or request reconsideration and, as such, the decision became final. The claim was originally denied because there was no competent (that is, qualified) evidence showing that the Veteran’s current hemorrhoids were causally connected to a disease or disability in service. The evidence considered by the Board at that time included the Veteran’s active duty service treatment records (STRs) as well as VA and private medical treatment records. Evidence received since the April 2010 prior final denial includes VA and private treatment records as well as lay statements by the Veteran. This evidence, while new, is not “material” because, even when considered with the previous evidence of record, it does not “relate to an unestablished fact necessary to substantiate the claim.” That is, the new evidence does not relate to whether there is a causal connection between the Veteran’s current hemorrhoid condition and service. Therefore, reopening must be denied. 2. New and material evidence having not been received, reopening of the claim for service connection for microscopic hematuria (including as secondary to service-connected disabilities) must be denied 3. New and material evidence having not been received, reopening of the claim for service connection for obesity and weight gain (including as secondary to service-connected disabilities) must be denied An April 2009 rating decision denied service connection for hematuria and for obesity and weight gain. VA notified the Veteran of this decision in an April 2009 letter and included information about how to appeal. The Veteran did not timely appeal or request reconsideration and, as such, the decision became final. The claim was originally denied because the claimed conditions are not defined as disabilities for VA compensation purposes. There was also no evidence that there are any underlying disabilities associated with these symptoms that might be eligible for service connection. The evidence considered at the time included the Veteran’s active duty STRs as well as VA and private medical treatment records. Evidence received since the prior final denial includes VA and private treatment records as well as lay statements by the Veteran. This evidence, while new, is not “material” because, even when considered with the previous evidence of record, it does not “relate to an unestablished fact necessary to substantiate the claim.” That is, the new evidence does not relate to whether hematuria and obesity can be considered disabilities for VA compensation purposes. Therefore, reopening must be denied. Service Connection Compensation may be awarded for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1131. This basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was caused by, or began during, military service or (if the disability pre-existed service) that it was aggravated by service. 38 C.F.R. § § 3.303. There are multiple ways that service connection can be established. In general, establishing service connection on a direct basis requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus (causal connection) between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An alternative method of establishing the second and third elements of service connection is by establishing continuous symptoms since service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus (causal connection) between the present disability and the post-service symptoms. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § § 3.303 (b). However, the theory of continuity of symptoms can only be used in cases involving those medical conditions explicitly recognized as “chronic” under 38 C.F.R. § § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 4. Service connection for a bilateral knee disability The Veteran contends in various statements that his current bilateral knee disability is due to service. The Veteran has been diagnosed with degenerative arthritis of the knees. See January 2017 VA X-ray report; May 2018 private examination report from C.N.B., M.D. However, the evidence does not establish that this condition manifested to a compensable degree within one year of the Veteran’s separation from service in July 1990, nor does the evidence show that he has exhibited continuous symptoms of this condition since that time. The STRs show the Veteran was seen during service for pain in his knees. A physical examination was unremarkable. No diagnosis was provided. STRs document no further complaints of or treatment for a chronic bilateral knee disability. On the July 1990 separation examination report, clinical evaluation of the knees was normal. During a May 2018 private examination, Dr. C.N.B. noted the Veteran’s in-service treatment for the knees, diagnosed bilateral knee arthritis, and opined that the knee disability was due to the Veteran’s military service, stating that there is no other explanation for the cause of the current knee disability. There is no conflicting medical evidence in the record; a June 2017 VA examination report noted the in-service knee problems but did not provide an opinion about nexus (a causal connection to service) because there was no current knee disability found during that examination. Because the Veteran has a current medical condition, an in-service injury, and the medical evidence indicates that there is a causal connection between the two, service connection for a bilateral knee disability is warranted. 5. Service connection for CFS and residuals (including as secondary to service-connected disabilities) The Veteran contends that he has chronic fatigue syndrome that is related to his service-connected disabilities. There is, however, no evidence in the record indicating that the Veteran has been diagnosed with chronic fatigue syndrome. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (without a current disability, there can be no valid claim for service connection). At the Veteran’s VA examination for CFS, the examiner noted that the Veteran's symptoms caused some impairment but that the Veteran did not have a CFS disability. The Board understands that the Veteran may sincerely believe he has CFS. However, while he is entirely qualified (competent) to report observable symptoms, he is not qualified to offer an opinion about the diagnosis and cause or causes of CFS because it is a complex medical condition and identifying and diagnosing it requires specific medical training beyond the qualifications of a lay person. That is because there are many possible causes for the symptoms of CFS and is not possible to distinguish between the potential causes by observation alone. Therefore, the Board cannot assign significant probative weight to the Veteran’s statements that he has CFS because there is no evidence indicating that the Veteran has the required medical training to provide a qualified medical opinion about a diagnosis of CFS. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that lay persons are qualified to report observable symptoms and medical events). Accordingly, any statements offered by the Veteran cannot be considered as evidence to support of the claim for service connection. 6. Service connection for hypothyroidism and nodular disease (including as secondary to service-connected disabilities) 7. Service connection for hypertension (including as secondary to service-connected disabilities) 8. Service connection for a gastrointestinal disability (to include gastritis, hiatal hernia, and irritable bowel syndrome) (including as secondary to service-connected disabilities) 9. Service connection for a kidney disability (including as secondary to service-connected disabilities) As an initial matter, the Board notes that there is no medical evidence in favor of direct service connection. STRs are devoid of any complaints or diagnoses of hypothyroidism, a kidney disorder, gastrointestinal disorders, or hypertension, and treatment records show that the Veteran was diagnosed with his claimed disabilities well after he separated from service. The Veteran asserts that his hypothyroidism, kidney disorder, gastrointestinal disorders, and hypertension diagnoses were caused by his service-connected disabilities. There is no dispute that the Veteran suffers from hypothyroidism, a kidney disorder and hypertension. See January 2017 VA examination reports. However, there is no indication that any of these disorders are secondary to any of the Veteran’s service-connected disabilities. Indeed, the VA examiner opined as such. See January 2017 VA examination opinions. Regarding the claim for gastritis, the Board observes that the Veteran is service connected for gastroesophageal reflux disease. There is no evidence of record, however, suggesting that any additional gastrointestinal symptoms such as hiatal hernia or irritable bowel syndrome, that are caused or aggravated by the Veteran’s service-connected disabilities. See July 2017 VA examination reports. To the extent that the Veteran believes that his disabilities are related to service or his service-connected disabilities, as a lay person, he has not shown that he has specialized training enough to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and cause of a disability is a matter not capable of lay observation and requires medical expertise to determine. Thus, the opinion of the Veteran regarding the cause of hypothyroidism, a kidney disorder, hypertension, or any additional gastrointestinal disorders is not evidence the Board can use in support of the claims. In sum, the preponderance of the competent, credible, and probative evidence is against the claims, and service connection for the above disabilities is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 10. Entitlement to an effective date prior to November 23, 2016 for the grant of service connection for sinusitis The Veteran maintains that he is entitled to an effective date prior to November 23, 2016, for the grant of service connection for sinusitis. The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.400 (r). A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1 (p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). VA received the Veteran’s formal claim for service connection for sinusitis on May 17, 2017. He had submitted a notice of his intent to file a claim on November 23, 2016. Here, a July 2017 rating decision granted service connection for sinusitis with the date of November 23, 2016, because the Veteran’s formal claim was received within a year of his intent to file. There is no basis for assignment of an earlier effective date for the grant of service connection for the sinusitis. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 11. Entitlement to a rating higher than 10 percent for a lumbar spine disability from November 12, 2016 Legal Criteria for Increased Ratings (General) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § § 4.7. Otherwise, the lower rating will be assigned. Id. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § § 4.1. VA is required to interpret reports of examination considering the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § § 4.2. VA is also required to evaluate functional impairment based on lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. §§ 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 4.3. Legal Criteria for Spine Disabilities Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula include vertebral fracture or dislocation (Code 5235), sacroiliac injury and weakness (Code 5236), lumbosacral or cervical strain (Code 5237), spinal stenosis (Code 5238), unfavorable or segmental instability (Code 5239), ankylosing spondylitis (Code 5240), spinal fusion (Code 5241), and degenerative arthritis of the spine (Code 5242) (for degenerative arthritis of the spine, see also Code 5003). The General Rating Formula provides 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 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. §§ 4.25. The IVDS Formula provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. And a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated based on incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § § 4.71a. Factual Background In this case, a November 2016 VA examination reported that range of motion revealed flexion to 80 degrees with pain observed at 70 degrees. Except for severe lower extremity radiculopathy (which service connection has been granted for at 40 percent rating for each extremity), the remaining back examination was unremarkable. Subsequently, the Veteran’s lumbar spine disability rating was decreased to 10 percent, effective November 12, 2016, the date of the VA exam that showed an improvement in his back condition. Although the VA exam results showed improvement in the Veteran’s back condition and symptoms, it also showed bilateral lower extremity radiculopathy that was ultimately found to be service connected. Because of these findings, the reduction in the evaluation for the Veteran’s back did not impact his overall combined rating evaluation. The Veteran was examined again on July 9, 2018. Range of motion revealed flexion to 20 degrees. The remaining examination was unremarkable. Analysis Upon review of all the evidence of record, the Board finds that the 10 percent rating is appropriate prior to July 9, 2018. The Board finds, however, that effective July 9, 2018, the criteria for a 40 percent rating are more nearly approximated for the Veteran’s lumbar spine disability, based on evidence of forward flexion of the thoracolumbar spine limited to 20 degrees with pain. As there is no evidence of ankylosis or physician prescribed bedrest, a rating higher than 40 percent is not warranted. The Board also observes that he has no additional neurological disability other than the bilateral lower extremity radiculopathy that is already service connected at 40 percent disability rating for each extremity. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a disability rating of 40 percent (but not higher) is warranted for a lumbar spine disability, effective July 9, 2018. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.