Citation Nr: 21004107 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-33 347 DATE: January 26, 2021 ORDER Service connection for kidney disease is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for a sleep disorder is denied. Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. An initial rating higher than 10 percent for the lumbar spine disability is denied prior to March 26, 2013. A rating higher than 20 percent for the lumbar spine disability since March 26, 2013, is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding that Veteran’s kidney disease had its onset during active duty service or is related to such service. 2. There is no competent and probative evidence that the Veteran’s peripheral neuropathy of the right and left lower extremities onset during active duty service or is related to such service; that peripheral neuropathy in either lower extremity was manifested within one year of the Veteran’s discharges from active duty service; or that the bilateral lower extremity peripheral neuropathy was caused or aggravated by the Veteran’s service-connected lumbar spine disability. 3. There is no competent and probative evidence that the Veteran’s sleep disorder, diagnosed as obstructive sleep apnea, had its onset during active duty service or is related to such service and service connection as secondary to kidney disease is not warranted since the kidney disease is not service-connected. 4. A current disability involving the right and/or left knees, or evidence of right and/or left knee symptoms that result in functional impairment of earning capacity, is not shown by the evidence of record. 5. The Veteran’s lumbar spine disability has not been manifested by 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; or, incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months at any time prior to March 26, 2013. 6. The Veteran’s lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months at any time since March 26, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). 5. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 6. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 7. The criteria for an initial rating higher than 10 percent for the lumbar spine disability have not been met prior to March 26, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). 8. The criteria for an initial rating higher than 20 percent for the lumbar spine disability have not been met as of March 26, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1979 to October 1987, with additional service following discharge in the National Guard, to include active duty from May 1, 1992 to May 9, 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified on the claims for increased ratings and the claims for service connection for kidney disease, peripheral neuropathy of the right and left lower extremities, and a sleep disorder at a hearing before the undersigned Veterans Law Judge in July 2019. A transcript is of record. Those claims were remanded in December 2019. The Veteran initially requested a hearing on the claims for service connection for disorders of the right and left knees but withdrew that request and indicated that he wanted the Board to adjudicate the matters as early as possible. The Board will address those claims in this decision. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service and arthritis or an organic disease of the nervous system such as peripheral neuropathy becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence showing (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). 1. Service connection for kidney disease The Veteran seeks service connection for kidney disease, asserting that his current condition is related to in-service kidney stones. He testified that he was treated for kidney stones during service around 1983 while stationed at Fort Campbell, Kentucky, and that the doctor told him that if the stone condition continued it was going to affect his kidneys down the road. The Veteran has been diagnosed during the appeal with chronic kidney disease, so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records document that the Veteran was seen on October 30, 1981, with complaint of sharp pain in his left flank. The impression was stone and it was noted that x-ray of his kidney, ureter, and bladder showed a stone density over the left kidney. The opinion attached to the radiographic report indicates that there were densities overlying the left renal shadow that were possibly stones, but most likely debris in the colon. There is no indication that the Veteran received any further treatment related to any kidney problems at any time during service. The Veteran denied kidney stone or blood in urine at the time of an August 1988 enlistment into the National Guard examination. Post-service VA treatment records document that the Veteran had chronic kidney disease in July 2009, which the treating nephrologist indicated was likely secondary to seronegative crescentic glomerulonephritis (GN), though it was also noted to possibly be secondary to chemotherapy in late 2007 for treatment of lymphoma. An April 2014 renal sonogram impression indicated that the appearance of the kidney suggested chronic medical renal disease; there was no hydronephrosis and no solid mass or stone seen in either kidney. A May 2015 VA record contains an assessment provided by a nephrologist that the Veteran had chronic kidney disease secondary to crescentic GN and renal vasculitis. VA obtained an opinion in November 2013 to address the October 30, 1981, in-service findings related to the kidney. It was the VA examiner’s opinion that it is less likely as not the Veteran’s current kidney disease was caused by or the result of service. The examiner explained that the findings of October 30, 1981, resolved and did not produce any lasting kidney complications. The examiner also noted that the Veteran’s current chronic kidney disease was that of a rapid progressive glomerulonephritis, which is defined as a rapid deterioration in kidney function over a short time. The examiner also explained that the condition usually occurs when there is an acute inflammation of the kidneys and that it is linked to an immune reaction against the glomerulus, the filtering unit of the kidney. It was explained that antibodies that form against an infection can become trapped in the glomeruli and the resulting inflammation causes protein and blood to be excreted in the urine and impairs the ability of the kidneys to get rid of toxic waste. Several risk factors for the development of rapid progressive glomerulonephritis were cited by the examiner, to include systemic lupus erythematous, hepatitis, infection such as endocarditis or syphilis, and viral infections such as mumps, measles or mononucleosis. The examiner concluded that the in-service condition of kidney stone and rapid progressive glomerulonephritis are two different and unrelated conditions caused by two different mechanisms with no relationship to each other. This opinion, which stands uncontroverted in the record and is based on review of the medical evidence specific to this Veteran, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The preponderance of the evidence is against the claim for service connection for kidney disease. While the Veteran believes that his kidney disease is related to service, as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of kidney disease are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any kidney disease, to include the assertion that his post-service problems are related to an in-service kidney stone, is not competent medical evidence. The Board finds the November 2013 opinion of the VA examiner and the notations made by VA nephrologists linking the kidney disease to crescentic GN and renal vasculitis to be significantly more probative than the Veteran’s lay assertions. Since the most probative evidence is against a finding that Veteran’s current kidney disease had its onset during active duty service or is related to such service, service connection is not warranted, and the claim is denied. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for peripheral neuropathy of the right lower extremity 3. Service connection for peripheral neuropathy of the left lower extremity The Veteran seeks service connection for peripheral neuropathy of the feet. In addition to seeking service connection for these conditions as directly related to service, the Veteran also testified that his bilateral foot neuropathy is secondary to his service-connected lumbar spine disability. At this juncture, the Board acknowledges assertions raised in a November 2020 brief that the Veteran can have both neuropathy and radiculopathy of the lower extremities. Since the claim for peripheral neuropathy of the right and left lower extremities is distinct from any claim for service connection for radiculopathy, and the issue of whether the Veteran is entitled to a separate rating for any neurological impairment caused by his service-connected lumbar spine disability, to include radiculopathy, will be addressed in the section of this decision that discusses the increased rating claims, this section will only discuss the issue of whether service connection is warranted for the lower extremity peripheral neuropathy. The Veteran has been diagnosed during the appeal with sensorimotor peripheral neuropathy affecting both lower extremities based on diagnostic testing. Since the first criterion for establishing service connection has been met, the question becomes whether the lower extremity neuropathy is related to service or to the service-connected lumbar spine disability. Service treatment records do not document any neurological complaints related to either of the Veteran’s lower extremities, to include his feet. Post-service medical evidence documents that he was seen in May 2007 with complaint of burning pain into his legs and foot joints, which was assessed as HIV neuropathy. The more-recently diagnosed sensorimotor peripheral neuropathy has been described as multifactorial due to end-stage renal disease (ESRD) and HIV versus antiviral HIV medications, but not to service or to the service-connected lumbar spine disability. The preponderance of the evidence is against the claims for service connection for peripheral neuropathy of the right and left lower extremities. While the Veteran believes that his lower extremity neuropathy is related to service or his service-connected lumbar spine disability, as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of peripheral neuropathy are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his neurological disorder is not competent medical evidence. The Board acknowledges that no VA examination was conducted in conjunction with these claims. There is no need to obtain an opinion in this case, however, given that there is no probative evidence linking the bilateral lower extremity peripheral neuropathy to service or the service-connected lumbar spine disability. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s attorney has also acknowledged the prevailing opinion that the Veteran’s pain in his feet is in fact peripheral neuropathy related to his non-service-connected disabilities. In sum, there is no competent and/or probative evidence that the Veteran’s peripheral neuropathy of the right and left lower extremities arose in service or is otherwise related to service and the claim for service connection on a direct basis must be denied. Service connection is also not warranted on a presumptive basis pursuant to 38 C.F.R. §§ 3.307 and 3.309 in the absence of evidence that the Veteran was diagnosed with peripheral neuropathy within one year of his discharges from active duty service. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims for service connection for peripheral neuropathy of the right and left lower extremities, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-56 (1990). 4. Service connection for a sleep disorder The Veteran seeks service connection for a sleep disorder, asserting that his current condition is secondary to his kidney condition. He testified that he went to sick call a lot for being tired and that he was told it could be a symptom of his kidney problems. The Veteran has been seen during the appeal period with complaints related to impaired sleep and has been diagnosed during the appeal with obstructive sleep apnea. Since the first criterion for establishing service connection has been met and service connection for kidney disease has been denied such that service connection for a sleep disorder is not warranted on a secondary basis, the question becomes whether this condition is related to service. No such evidence exists. Service treatment records do not document any complaints related to sleep and the Veteran denied frequent trouble sleeping at the time of an August 1988 enlistment examination into the National Guard. Post-service treatment records indicate that the Veteran reported some interruptions in sleep due to more frequent urination in January 2011. An August 2016 VA record documents the Veteran’s report that he had been having sleeping issues since starting a new regimen of antiretroviral therapy (ART) for the treatment of the HIV virus. During the September 2016 VA back examination, the Veteran reported that he had difficulty sleeping and slept on an old mattress. A February 2019 sleep study contains a diagnosis of obstructive sleep apnea. The preponderance of the evidence is against the claim for service connection for a sleep disorder. While the Veteran believes that he has a sleep disorder that is related to his kidney disease or to service, as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of a sleep disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his claimed sleep disorder is not competent medical evidence. The Board acknowledges that no VA examination was conducted in conjunction with this claim. There is no need to obtain an opinion in this case, however, given that the Veteran has asserted that his sleep disorder is related to his kidney disease and there is no competent evidence even suggesting the condition is directly related to active service. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, there is no competent and/or probative evidence that the Veteran’s sleep disorder, diagnosed as obstructive sleep apnea, arose in service or that it is otherwise related to service, and the claim is denied. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-56 (1990). 5. Service connection for a right knee disorder 6. Service connection for a left knee disorder The Veteran seeks service connection for disorders of the knees. The only argument submitted in support of this claim is his assertion that he injured his knees in service when ammo fell on his back, which was the assertion made to support his claim for service connection for the lumbar spine disability. Service treatment records do not document any complaint of, or treatment for, problems with either knee, to include at the times the Veteran sought treatment for his back in March 1980, November 1980, July 1987 and June 1989. In addition, clinical evaluation of his lower extremities was normal at the time of a November 1983 periodic examination and at the time of an August 1988 enlistment into the National Guard examination. The Veteran also denied “trick” or locked knee at the time of the August 1988 examination. The preponderance of the evidence is against the claims for service connection for disorder of the right and/or left knees. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Review of the medical evidence of record reveals that the Veteran was seen on a few occasions between August 2016, when he complained of bilateral knee pain for the past three months, and October 2017, which is the last reference to any bilateral knee complaints; however, no diagnosis pertaining to either knee was made at that time. Without evidence of a current disability affecting either knee, or evidence of knee symptoms that result in functional impairment of earning capacity, service connection is not warranted, and the claims must be denied. See 38 C.F.R. § 3.303; Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018).   Increased Ratings 7. Entitlement to an initial rating higher than 10 percent for the lumbar spine disability prior to March 26, 2013 8. Entitlement to a rating higher than 20 percent for the lumbar spine disability as of March 26, 2013 Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection for the lumbar spine disability was granted in the January 2013 rating decision that is the subject of this appeal; an initial rating of 10 percent was assigned effective May 8, 2007, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. The rating was increased to 20 percent effective March 26, 2013, in a November 2013 rating decision. The RO noted that the March 26, 2013, effective date was the date on which the Veteran’s formal claim for entitlement to a total disability rating on the basis of individual unemployability was received. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings in excess of 10 percent pertinent to the lumbar spine are provided 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 (20 percent); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides 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. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The Veteran seeks higher initial ratings. He asserts that he has had constant back problems since service, has not been able to do any kind of work without limited mobility, and that he has problems with standing and bending for long periods of time. He testified that he regularly used a cane and constantly used a back brace. He indicated that he had pain during the VA examination after bending to touch his feet twice and that he needs to squat down in order to tie his shoes. He also testified that he does not bend or turn his back side to side. The preponderance of the evidence of record does not support the assignment of an initial rating higher than 10 percent for the lumbar spine disability prior to March 26, 2013. To merit the assignment of the next highest (20 percent) rating under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 60 degrees or less, a combined range of motion of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The evidence in this case does not show any of these manifestations. Rather, the Veteran’s thoracolumbar spine exhibited forward flexion to at least 90 degrees; the combined range of motion of the thoracolumbar spine was at least 240; and there is no evidence of muscle spasm or guarding. See VA treatment records; June 2012 VA examination report. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability prior to March 26, 2013. The Board acknowledges the objective evidence during the June 2012 VA examination of painful motion during flexion and the determination that the lumbar spine condition impacted his ability to work because it was difficult to perform jobs requiring heavy lifting. In this case, the Board does not find any additional functional loss prior to March 26, 2013 that is not contemplated by the currently assigned 10 percent rating. The Veteran has described functional limitations which are contemplated in the rating criteria, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (20 percent) rating. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after repetition. The examiner also noted that there was no functional loss/impairment due to pain, weakness, fatigability and/or incoordination. Considering the foregoing, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran’s lumbar spine disability is not warranted based on functional impairment at any time prior to March 26, 2013. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of a rating higher than 10 percent for the Veteran’s lumbar spine disability warranted under the IVDS Formula at any time prior to March 26, 2013. This is so because there is no evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In fact, the June 2012 VA examiner indicated that the Veteran does not have IVDS involving the lumbar spine. The preponderance of the evidence is also against the assignment of an initial rating higher than 20 percent for the lumbar spine disability as of March 26, 2013. To merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran’s thoracolumbar spine exhibited forward flexion limited to 80 degrees on VA examination in September 2016; to 70 degrees on VA examination in February 2017; and to 60 degrees on VA examinations in October 2013 and September 2019. Therefore, at worst, flexion was limited to 60 degrees during the relevant time frame and there is no evidence of ankylosis. See VA treatment records. Nor is the assignment of an increased rating for the Veteran’s lumbar spine disability warranted under the IVDS Formula. This is so because there is no evidence of incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. In fact, the October 2013, September 2016, February 2017 and September 2019 VA examiners all indicated that the Veteran does not have IVDS involving the lumbar spine. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability as of March 26, 2013. The Board acknowledges the subjective complaints made by the Veteran during his Board hearing and during VA examinations, to include reports of flare-ups during the February 2017 and September 2019 VA examinations. The Board also acknowledges the objective evidence of functional loss and/or functional impairment due to less movement than normal and pain on movement and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine described as mild tenderness to palpation of the bilateral lumbar spine muscles during the October 2013 VA examination; the objective evidence of functional impairment in the form of less movement due to pain, which was found to cause functional loss, and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine described as mild subjective complaints of pain on the lumbar paraspinals during the September 2016 VA examination; the objective evidence during the February 2017 VA examination of pain with all ranges of motion that did not result in or cause functional loss, although the examiner noted that decreased range of motion contributed to a functional loss because the Veteran has difficulty bending to obtain objects from a lower level and difficulty climbing stairs; and the objective evidence during the September 2019 VA examination of pain with weightbearing and non-weight bearing and pain with all motion, to include passive motion, that the examiner found to cause functional loss. The Board also acknowledges that October 2013 VA examiner determined that the Veteran’s lumbar spine condition would moderately impact his ability to work in physical roles secondary to limits of excessive walking, standing, bending, squatting, climbing, driving, lifting, carrying, pushing, and pulling; and that the February 2017 VA examiner concluded that the Veteran’s lumbar spine condition impacts his ability to work because it results in restrictive motion impacting his ability to bend, lift weight and move side to side; it impairs gait speed and walking distances; and chronic pain impacts daily functions, concentration, productivity and overall quality of life. Finally, the Board acknowledges that the September 2019 VA examiner stated that although the Veteran was able to perform repetitive use testing, there was additional loss of function or range of motion with flexion to 55 degrees and all other movements to 15 degrees due to pain and lack of endurance; that pain and lack of endurance would significantly limit functional ability with repeated use over time and with flare up and that there would be an anticipated loss of 10 to 15 degrees of flexion (from 60 degrees noted on that examination) and an anticipated loss of 10 degrees of extension and lateral flexion and lateral extension (from 20 degrees noted on that examination) based on interview. In this case, the Board does not find any additional functional loss that is not contemplated by the currently assigned 20 percent rating as of March 26, 2013. The Veteran has described functional limitations which are contemplated in the schedular criteria and the Veteran himself has not described additional motion loss or functional impairments during flare-ups which meets or more nearly approximates the criteria for the next higher (40 percent) rating. Given the foregoing, the Board finds that an initial rating higher than the 20 percent rating for the Veteran’s lumbar spine disability is not warranted based on functional impairment at any time since March 26, 2013. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has considered whether the Veteran’s service-connected lumbar spine disability manifests any associated objective neurologic abnormalities to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The Veteran has consistently denied any bladder and bladder impairment, though an addendum to an August 2013 VA chiropractic record indicates that the Veteran initially did have loss of bowel/bladder control that was not present at the time of that visit. However, VA examiners have consistently noted that he did not have any bowel or bladder problems/pathologic reflexes related to his lumbar spine condition. The Veteran’s attorney has asserted that while there is no dispute that the Veteran has peripheral neuropathy of the lower extremities, they fail “to see medical rational [sic] as to how he doesn’t have both neuropathy and radiculopathy” and that the Veteran is entitled to separate ratings for radiculopathy of the bilateral lower extremity. The assertion is based on a VA chiropractic record from the Tampa VA Medical Center dated August 12, 2013, which the attorney contends clearly and unmistakably notes “history low back injury and now with left L5-S1 radicular symptoms” with notation of ‘+1 bilateral lower extremity’ for the neurological assessment and ‘limited straight leg raise bilaterally.’ It is also based on the fact that during the most recent examination for the back and radiculopathy, the Veteran clearly relates “now with almost daily shooting and radiating pain down lower back to lower extremities” when asked during the history portion of the examination. The attorney asserts that the presence of bilateral lower extremity radiculopathy is verified from the 2013 record and the Veteran’s choice of the word ‘shooting’ to describe his pain lends credibility to fact that the radicular symptomology remains in the present, as ‘shooting’ would not typically be a descriptive word choice for peripheral neuropathy. The attorney also asserts that the Veteran’s relation that the pain goes ‘down lower back into lower extremities’ is also indicative of radiculopathy as opposed to neuropathy. There is no question that the Veteran has consistently reported bilateral lower extremity symptoms of a neurological nature throughout the appeal period. Review of the record reveals complaint of lower extremity burning pain in May and June 2007 that was attributed to neuropathy caused by the HIV infection. The August 2013 VA chiropractic record cited to by the Veteran’s attorney reveals a consult was scheduled due to “worsening bilateral LEs [lower extremity] neuropathy.” Though the clinical history includes a notation of left L5-S1 radicular symptoms and that an addendum indicates there was radiating pain and numbness in both feet, there is no diagnosis of radiculopathy in this record and nerve conduction study and electromyograph conducted the following month due to the history of paresthesias in the feet (and hands) contained an impression of chronic, length dependent, axonal, sensorimotor peripheral neuropathy without evidence of median mononeuropathy. No diagnosis of radiculopathy was made following this neurological evaluation. The Board also notes that although treatment records and examination reports dated subsequent to the neurological study also contain the Veteran’s complaints related to his lower extremities, and those examining the Veteran have considered his complaints, he has not been found to have radiculopathy. VA treatment records consistently diagnose bilateral lower extremity peripheral neuropathy. And even though sensory examination during the September 2016 VA examination was decreased in the left foot/toes (L5) and straight leg raising test was positive, reflex examination revealed bilateral hypoactive reflexes, and muscle strength was decreased with bilateral hip flexion and bilateral knee extension during the February 2017 VA examination, none of the VA examiners have attributed the complaints or objective manifestations on neurological evaluation to be radiculopathy. Rather, the October 2013, September 2016, February 2017 and September 2019 VA examiners all determined that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy. While the Veteran is competent to report symptoms associated with his lower extremities such as burning and/or shooting pain, he is not competent to assess these symptoms as indicative of radiculopathy. See Jandreau, 492 F.3d at 1376-77. The Board reiterates that the September 2013 neurological testing does not show the presence of lower extremity radiculopathy and the October 2013, September 2016, February 2017 and September 2019 VA examiners’ determination that the Veteran does not have radiculopathy is more probative than Veteran’s assertion that he does. For all these reasons, a separate rating for neurological abnormalities is not warranted at any time during the appeal period. Finally, although the record indicates that the Veteran has not been employed since 2007, the Veteran does not contend and the evidence does not suggest that he is unemployable solely because of his service-connected lumbar spine disability. Indeed, while the June 2012, February 2017 and September 2019 examiners noted symptoms would impact physical activities such as heavy lifting, prolonged standing and bending, the October 2013 VA examiner determined that there would be no impact on sedentary employment and that the Veteran could perform appropriate light duty work and the September 2016 VA examiner noted there would be no sedentary restrictions. Entitlement to TDIU based on all service-connected conditions was denied in a 2017 rating decision that was not appealed, and the Veteran is presently in receipt of a 100 percent combined rating. On his TDIU applications, he indicated he was unemployable due to multiple disabilities, to include his back condition, degenerative bone disease, and kidney disease. The Veteran reported he has 2 years of college education as well as training in medical billing and coding. As the Veteran does not contend and the evidence does not reflect he is unemployable due solely to his back disability, no action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.