Citation Nr: 21004774 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-16 396 DATE: January 28, 2021 ORDERS A 20 percent evaluation for lumbar spine intervertebral disc syndrome (IVDS) for the period prior to November 17, 2016, is denied. A 40 percent evaluation, but no higher, for the period beginning November 17, 2016, for lumbar spine IVDS is granted. An initial evaluation in excess of 10 percent for the period prior to August 15, 2019, and in excess of 20 percent thereafter, for sciatic radiculopathy of the left lower extremity is denied. An initial compensable evaluation for the period prior to August 15, 2019, and in excess of 10 percent thereafter, for sciatic radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. For the period prior to November 17, 2016, the Veteran’s thoracolumbar spine is not shown to have 30 degrees or less of flexion, nor is there any evidence of ankylosis, either favorable or unfavorable of the thoracolumbar spine, nor is there evidence of 4 weeks of incapacitating episodes due to his lumbar spine IVDS. 2. For the period beginning November 17, 2016, the Veteran’s thoracolumbar spine is shown to have 30 degrees of flexion, although there is no ankylosis of the thoracolumbar spine, either favorable or unfavorable; nor is there any evidence of 6 weeks or more of incapacitating episodes due to his lumbar spine IVDS. 3. For the period prior to August 15, 2019, the evidence demonstrates that the Veteran’s sciatic radiculopathy of the left lower extremity was more closely approximate to mild incomplete paralysis of the left sciatic nerve. However, beginning August 15, 2019, the evidence more closely approximated moderate incomplete paralysis of the left sciatic nerve. 4. The first evidence of any sciatic radiculopathy of the right lower extremity in the record was in the August 15, 2019, VA examination; the evidence of record demonstrated that such was more closely approximate to a mild incomplete paralysis of the right sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the period prior to November 17, 2016, for lumbar spine IVDS are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 2. The criteria for a 40 percent evaluation, but no higher, for the period beginning November 17, 2016, for lumbar spine IVDS are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 3. The criteria for an initial evaluation in excess of 10 percent for sciatic radiculopathy of the left lower extremity for the period prior to August 15, 2019, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial compensable evaluation for sciatic radiculopathy of the right lower extremity prior to August 15, 2019, and in excess of 10 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to September 1999. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge in April 2014; that Veterans Law Judge has since left the Board and is no longer available to participate in this case. In an October 2020 letter, the Board informed the Veteran of this fact and also informed him of his right to another hearing before another Veterans Law Judge. As of this decision, the Veteran has not responded to that October 2020 letter and the Board will proceed with adjudication of his claim at this time. The Board notes that this matter was previously remanded by the Board for additional development in August 2014 and September 2016 and denied by a Board decision in June 2017. The Veteran appealed the June 2017 denial to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Court issued an order granting a Joint Motion for Remand (JMR). The order served to vacate the June 2017 Board decision and remand of the appeal. The Board again remanded this appeal in October 2018 for new examinations and re-adjudication of the claim. As a final initial matter, in a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 40 percent evaluation for the Veteran's lumbar spine disability, effective August 15, 2019. Accordingly, the Board has recharacterized the issues on appeal as above in order to comport with that award of benefits. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Initially, the Board reflects that the Veteran filed claim for increased evaluation of his lumbar spine disability on March 3, 2009. The Board, in conjunction with adjudication of this claim, has therefore reviewed the evidence of record since March 3, 2008. See 38 C.F.R. § 3.400(o). Furthermore, during the appeal period, the AOJ awarded the Veteran a 20 percent evaluation, effective March 3, 2009, in an August 2012 rating decision; the Codesheet indicates that award of benefits was under Diagnostic Code 5243, although the AOJ specifically indicated in the August 2012 rating decision that the basis of the 20 percent award of benefits was due to pain and muscle spasms associated with his lumbar spine disability. The Board notes, as discussed below, that such rating criteria is associated with Diagnostic Code 5242 (General Rating Formula for Diseases and Injuries of the Spine) rather than Diagnostic Code 5243 (Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Likewise, as noted above, in the May 2019 rating decision, the AOJ increased the Veteran’s evaluation for his lumbar spine disability to 40 percent disabling, effective August 15, 2019; the Board again notes that the basis of that award is the Veteran’s limitation of motion, which is the criteria for Diagnostic Code 5242, not Diagnostic Code 5243. Accordingly, insofar as the Codesheets in this case list the Veteran’s evaluations as under Diagnostic Code 5243, the Board notes that such characterization is incomplete and that the correct characterization is that the Veteran’s evaluation throughout the appeal period is under Diagnostic Code 5243-5242. See 38 C.F.R §§ 4.20, 4.27. As discussed below, however, the Board will consider both General Formulas in evaluation of the Veteran’s lumbar spine disability. The Board further note that the Veteran has been assigned a separate 10 percent evaluation for sciatic radiculopathy of the left lower extremity for the period of March 3, 2009 through August 14, 2019, and 20 percent for the period beginning August 15, 2019. The Veteran also has a separate 10 percent evaluation for his sciatic radiculopathy of the right lower extremity for the period beginning August 15, 2019. Those evaluations have been assigned under Diagnostic Code 8520. Diagnostic Code 5242 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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). Alternatively, the Veteran’s lumbar spine disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which assigns a 10 percent evaluation 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 evaluation may be assigned 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 evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Finally, under Diagnostic Code 8520, which rates injuries to the sciatic nerve, a 10 percent rating is warranted for a mild incomplete paralysis. Moderate incomplete paralysis warrants a rating of 20 percent. Moderately severe incomplete paralysis warrants a 40 percent evaluation. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent evaluation. And finally, complete paralysis, defined as: the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, warrants an 80 percent evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Turning to the evidence of record, in the May 2009 VA examination, the Veteran reported subjective complaints of moderate to severe low back/lumbar pain, which was constant. He denied any radiation of pain to his lower extremities at that time. The Veteran had a mild to moderate antalgic gait; he denied any use of assistive devices (canes, walkers, crutches, wheelchair, or braces) for ambulation. The Veteran, a sheet metal worker, reported functional impairments in his occupation and activities of daily living as difficulty in prolonged sitting for more than 15 minutes, standing for more than 10 minutes, walking for more than 25 minutes, and bending and lifting more than 50 pounds due to low back pain. The Veteran denied any genitourinary or gastrointestinal complaints or impairments. The Veteran relieved his symptoms with Advil, taking one pill three times a day; he expressed relief of his symptoms without any side effects. On examination, the Veteran had flexion to 90 degrees with pain at 80 degrees, and even factoring in pain, the Veteran’s combined range of motion for his thoracolumbar spine exceeded 120 degrees. The Veteran’s range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance after repetitive motion testing. The Veteran denied any flare-ups at that time. The examiner noted mild to moderate spasm and mild to moderate tenderness of the thoracolumbar spine, although there was no weakness. No ankylosis was noted by the examiner. Neurologically, the Veteran’s lower extremities were normal with regards to both sensory and motor functions; straight-leg raising testing was negative. The Veteran denied any incapacitating episodes over the last 12-month period. The examiner noted that the Veteran’s 2006 radiographs were not available for review at that time. The examiner reiterated the Veteran’s impairments with regards to occupational and daily activity impairments as noted above. In the October 2011 VA examination, the Veteran reported worsening moderate to severe back pain that was a constant 7 out of 10 in intensity. His pain radiated down his left buttock to his left thigh. He denied flare-ups and also denied taking anything for his pain. He further denied any incapacitating episodes, or bowel or bladder problems. The Veteran’s posture was erect and balanced, and he did not use any assistive devices or ambulation. The Veteran worked full time as a sheet metal operator; he indicated that he worked through the pain of his lumbar spine disability. Functionally, the Veteran indicated he could only sit for 15 minutes, stand for 15 minutes, or walk for 1 to 2 city blocks before he needs to change positions or stop and rest due to his lower back pain. On examination, the Veteran had flexion to 90 degrees with pain beginning at 80 degrees; he had a combined range of motion greater than 120 degrees, even after factoring in pain. The Veteran did not have any further functional impairment due to pain, weakness, fatigue or lack of endurance, including after repetitive testing. There was no neurological testing performed and no ankylosis was noted at that time. In the November 2012 examination, the Veteran reported continuing to have back pain; he stated that he has back pain that comes from the neck down to the left middle back to the left hip, with numbness and tingling down to the foot. The Veteran denied taking any medication for his pain, which he described as constant with moderate flare-ups after prolonged standing, bending, looking up and down, and lifting heavy objects. The Veteran was treated with chiropractic treatment. The Veteran’s gait was normal at that time, without an antalgic gait, and he did not use any assistive devices for ambulation. On examination, the Veteran had flexion to 60 degrees with pain at that endpoint; his combined range of motion was greater than 120 degrees when factoring for pain. The Veteran was able to perform repetitive motion testing, and the examiner noted that there was no additional limitation of motion or functional loss. He had normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Likewise, there was no evidence of swelling, deformity or instability of station. The Veteran had mild tenderness to palpitation but did not have any guarding or muscle spasms of his thoracolumbar spine. No ankylosis of the thoracolumbar spine was noted. Muscle strength testing was normal, without any evidence of atrophy. Neurologically, the Veteran’s lower extremities showed no evidence of decreased sensation, radicular pain or any other signs or symptoms of radiculopathy; he did not have any bowel or bladder problems, or any other neurological abnormalities at that time. The examiner reiterated the functional impairments occupationally and in his activities of daily living, as noted above. In April 2014, the Veteran testified that his work in construction requires weightbearing activity. He reported that he experienced pain in his lower back that radiated mainly down the left side, sometimes down to his toes, and he cannot stand or sit for a long period of time because of the pain. Neither the Veteran nor his representative mentioned incapacitating episodes or physician-prescribed bedrest. In a November 2014 VA examination, the Veteran reported having exertional 2-8 out of 10 back pain, which was aggravated by turning, bending and twisting. He treated is pain with NSAIDs and muscle relaxants as necessary. The examiner noted that the Veteran had lumbosacral strain with IVDS and left lower extremity radiculopathy. The Veteran reported flare-ups, which occurred multiple times a month. During flare-ups he had increased pain but minimal functional loss. The flare-ups lasted approximately 20 minutes. On examination, the Veteran had flexion to 45 degrees with pain beginning at 40 degrees; his combined range of motion, when factoring in pain, was 90 degrees. Range of motion testing was unchanged after repetitive motion testing. The examiner found that there was no additional limitation of motion or functional loss as a result of his lumbar spine disability after repetitive motion testing; the examiner found that the Veteran did not have any additional functional limitation due to pain, weakness, fatiguability, and incoordination, during flare-ups, repetitive use or repeated use over time. There was no evidence of ankylosis noted. The Veteran did not have any muscle spasms or guarding of his thoracolumbar spine. Muscle strength testing was normal without evidence of muscle atrophy. Reflex, straight leg raising, and sensory examinations were also normal, bilaterally. Neurologically, the Veteran was noted to have mild sciatic left lower extremity radiculopathy; he reported mild intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness of the left lower extremity. The examiner noted that the Veteran’s right lower extremity was unaffected and did not have any radiculopathy at that time. The examiner also noted that the Veteran did not have any other neurological abnormalities, including bowel or bladder problems, as a result of his lumbar spine disability. Although the Veteran was noted to have IVDS, the examiner noted that the Veteran did not have any incapacitating episodes within the last 12-month period. The Veteran did not need any assistive devices for ambulation. The examiner finally found that the Veteran did not have any impact in his occupational functioning as a result of his thoracolumbar spine disability. In the November 2016 examination, the Veteran reported increasing back pain that was sharp, dull, constant and worse with prolonged activity. He treated his back pain with chiropractic treatment and Aleve as needed. The Veteran reported flare-ups at that time that required him to lie down, and ice or heat his back; he also needed to lie down after repetitive use. On examination, the Veteran had forward flexion to 70 degrees with pain beginning at 45 degrees; he had a combined range of motion greater than 105 degrees when factoring in pain. The examiner noted that the Veteran had pain on examination that did not result in or cause functional loss. The Veteran did not have evidence of pain with weightbearing, although he had tenderness over his bilateral mid- and lower-lumbar paraspinals. The examiner noted that the Veteran was able to perform repetitive testing and that there was no additional functional loss due to repetitive testing. The Veteran was not examined after repeated use over time or during flare-up, although the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repeated use over time and during flare-ups. Finally, although the Veteran was noted to have pain, weakness, fatiguability or incoordination after repeated use over time and flare-up, the examiner was not able to describe such functional loss because it required speculation since he was not present with the Veteran. The Veteran did not have any guarding or muscle spasms of his thoracolumbar spine; his gait was normal. There was no evidence of ankylosis. Muscle strength, reflex and sensory testing was normal, bilaterally. Straight leg raising was negative. The examiner noted that the Veteran had mild sciatic radiculopathy of the left lower extremity; the Veteran reported moderate intermittent pain (usually dull) and mild paresthesias and/or dysesthesias and numbness of the left lower extremity. The Veteran’s right lower extremity was unaffected and did not have any radiculopathy at that time. The Veteran did not have any other neurological abnormalities, to include bowel or bladder problems, as a result of his thoracolumbar spine disability. The examiner incorrectly noted that the Veteran did not have IVDS. The Veteran did not use any assistive devices for ambulation. Finally, the examiner noted that the Veteran was a construction worker and that he had pain with heavy lifting, repetitive bending and prolonged walking. In a January 2017 letter, the Veteran’s private physician reported that his condition had improved over the past two years, although it continued to be unstable from time to time. The physician described the Veteran’s presentation when unstable as temporary mild to moderate disability, typically resulting in antalgic posture with muscle spasm and mild to moderate loss of range of motion of the lumbo-dorsal spine, which impairs or prevents normal activities of daily living. The intervals of these flare-ups lasted one day to two weeks, and these intervals are reduced in time and frequency by chiropractic spinal manipulation. In an August 2019 VA examination, the examiner noted that the Veteran had IVDS. The Veteran reported that he gets sciatic pain after sitting for more than 30 minutes and that his low back pain is constant. The Veteran denied taking any medications and was treated with chiropractic care. The Veteran stated that it was frustrating and that he was limited in walking more than a block, climbing stairs without a hand rail and that he cannot run due to his pain He further reported having flare-ups approximately 7 times a year, lasting 1 to 4 days, where he has to stay in bed until the pain lessens. The flare-ups are usually precipitated by highly variable activities such as twisting and are alleviated by rest and chiropractic treatment. The Veteran also reported increased pain and range of motion with walking, climbing stairs and raising from a sitting position. On examination, the Veteran had flexion to 30 degrees with pain at that endpoint; the examiner noted that there was increased pain and decreased range of motion with walking, climbing stairs and raising from a sitting position. There was evidence of pain with weightbearing and non-weightbearing, although there was no evidence of localized pain or tenderness with palpitation. The Veteran was able to perform repetitive testing and there was no change in range of motion. The examiner noted that the Veteran was not tested after repeated use over time or during flare-up, although the examination was medically consistent with the Veteran’s description of functional loss with repeated use over time. The examiner noted that the Veteran has additional functional loss of 15 degrees (from 30 to 15 degrees) in flexion as an estimation of his functional loss during repeated use over time and during flare-up. The Veteran did have spasms and guarding, although such did not result in abnormal gait or spinal contour. The examiner noted that the Veteran also had disturbance of locomotion, interference with sitting and interference with standing as a result of his thoracolumbar spine disability, again noting the Veteran’s reported functional impairments with walking, climbing stairs and raising from the sitting position. No ankylosis was noted on examination. Muscle strength, reflex and sensory testing was normal and the Veteran did not have muscle atrophy. Straight leg raising testing was negative bilaterally. Neurologically, the Veteran reported moderate constant pain (can be excruciating at times), intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness in the left lower extremity, and mild in the right lower extremity. The examiner found that the Veteran had bilateral sciatic radiculopathy of the lower extremities, which was mild on the right side and moderate on the left side. The Veteran did not have any other neurological abnormalities, including bowel or bladder problems, as a result of his thoracolumbar spine disability. The examiner, however, noted that the Veteran had IVDS, although he did not have any episodes of physician-prescribed bedrest in the last 12-month period. The Veteran did not need any assistive devices for ambulation. The examiner found that the Veteran’s thoracolumbar spine disability did not impact his ability to work. In a July 2020 informal hearing presentation, the Veteran’s representative stated that the Veteran’s incapacitating episodes are in excess of the 6-week requirement but the Veteran has not kept a detailed calendar of exactly when each one started. Based on the foregoing evidence, beginning November 17, 2016—the date of the Veteran’s November 2016 VA examination—the Board finds that a 40 percent evaluation for the Veteran’s lumbar IVDS is warranted. During that examination, the Veteran’s flexion was shown to be to 45 degrees. The Veteran additionally complained of flare-ups that were substantially similar to those made in the August 2019 VA examination. Although the November 2016 VA examiner indicated that he could not estimate additional functional loss during repeated use over time and flare-ups, the August 2019 VA examiner indicated—based on substantially similar reports—that an additional 15-degree loss occurred during repeated use and flare-up. The Board finds this opinion probative and, when applying it to the November 2016 examination findings, finds that flare-ups and repeated use at that time resulted in a limitation of motion to 30 degrees of flexion, which is commensurate to a 40 percent evaluation. Prior to November 17, 2016, however, either the Veteran did not report having flare-up or the Veteran reported minimal to no functional impairments in range of motion during flare-up. Likewise, the Veteran’s range of motion during that period was not to 30 degrees or less, nor was there any evidence of ankylosis at any time during the appeal period. Accordingly, the Board finds that a 40 percent evaluation, but no higher, is warranted beginning November 17, 2016, but no earlier, for the Veteran’s lumbar IVDS based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. Turning to the Veteran’s sciatic radiculopathy, the Board finds that the Veteran’s claim for increased evaluation for his left sciatic radiculopathy must be denied. For the appeal period prior to August 15, 2019, the evidence demonstrates that the Veteran’s left sciatic radiculopathy is no more than mild. Generally, throughout that period, the Veteran motor, reflex and sensory examination of his left lower extremity was normal. The Veteran’s own reports prior to the November 2016 VA examination indicate no more than mild reports of symptomatology. Although the Board acknowledges that the Veteran reported moderate symptomatology in left lower extremity in the November 2016 examination, the VA examiner considered his lay reports of symptomatology along with the physical examination findings and found the Veteran’s radiculopathy of the left lower extremity to be mild. The Board finds this evidence to be the most probative evidence, as the Veteran lacks the requisite medical expertise to render an opinion as to whether his radiculopathy is more closely analogous to mild versus moderately incomplete paralysis. 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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Likewise, for the period beginning August 15, 2019, the evidence does not demonstrate any evidence that the Veteran’s left lower extremity radiculopathy is any more than moderate. Accordingly, based on the evidence of record, the Board finds that for the period prior to August 15, 2019, the Veteran’s sciatic radiculopathy of the left lower extremity is no more than 10 percent disabling, and for the period beginning August 15, 2019, that disability is no more than 20 percent disabling. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. Regarding the Veteran’s radiculopathy of the right lower extremity, for the period prior to August 15, 2019, the Board reflects that the evidence does not demonstrate the existence of any radicular symptomatology of the right lower extremity. Although the Veteran’s lay reports appear to indicate—with phrases such as “mostly on the left”—that his radicular symptoms may have been bilateral, physical examinations by VA examiners do not find any manifestations of radiculopathy of the right lower extremity—nor does the Veteran report any right-sided symptomatology—prior to the August 2019 VA examination. The Board finds the VA examiners’ findings to be the most probative evidence of record with regards to whether right lower extremity radiculopathy was present, and those findings are mostly confirmed by the Veteran’s own lay statements. Accordingly, as the evidence is not factually ascertainable as to the presence of a right lower extremity radiculopathy disability prior to August 15, 2019, a separate compensable evaluation for that disability prior to that date is not warranted based on the evidence of record. Additionally, the Board reflects that the Veteran’s own statements with regards to the severity of his right lower extremity radiculopathy are corroborated by the August 2019 VA examiner’s medical findings. Accordingly, for the period beginning August 15, 2019, the Board finds that the Veteran’s sciatic radiculopathy of the right lower extremity is no more than mild and therefore the claim for increased evaluation is not warranted based on the evidence of record at this time. See Id. Finally, turning to the IVDS criteria, the Board reflects that such criteria contemplates the musculoskeletal and neurological manifestations of the Veteran’s lumbar spine disability in the aggregate as opposed to separately. The Board therefore notes that the combined evaluation of the Veteran’s lumbar spine and bilateral radiculopathy disabilities under Diagnostic Code 5242 throughout the appeal period are as follows: For the period of March 3, 2009 through November 16, 2016, the combined evaluation is 30 percent; for the period November 17, 2016 through August 14, 2019, is 50 percent disabling; and, for the period beginning August 15, 2019, the combined evaluation is 60 percent disabling. See 38 C.F.R. § 4.25, Table I. Thus, in evaluating under Diagnostic Code 5243, the Board notes that the combined evaluation under Diagnostic Code 5242 for the period beginning August 15, 2019, is more advantageous as a higher evaluation than 60 percent is not available under Diagnostic Code 5243. Likewise, for the period prior to August 15, 2019, the Board finds that evidence does not warrant an evaluation under Diagnostic Code 5243 that is higher than already assigned under Diagnostic Code 5242. Specifically, for the period prior to November 17, 2016, the evidence routinely demonstrates and the Veteran’s lay evidence corroborates that there is no evidence of incapacitating episodes. In fact, throughout the entirety of the appeal period, the Veteran has never submitted any evidence to demonstrate that he has ever been prescribed bedrest by his physician for his lumbar spine disability. Moreover, although in the November 2014 examination shows that the Veteran needed to lie down during flare-ups, those flare-ups would last only 20 minutes or so. The Veteran furthermore did not document the frequency and duration of these episodes. Likewise, in November 2016, the Veteran indicated that he needed to lie down during flare-ups, although the frequency and duration of those episodes is not documented. Rather, the first evidence of any significant period of “bedrest” was in the January 2017 private physician’s letter, in which the Veteran was noted to be in bed for a day to two weeks, although the frequency and number of weeks needed in the last 12-month period was not provided by that physician, nor does it appear that such was ordered by that physician. Significantly, the Board notes that the private physician stated that the Veteran’s condition was significantly improving as a result of treatment and the number of instances of “bedrest” was reducing. Finally, the Veteran’s reports in the August 2019 examination indicate 7 total episodes in the last 12-month period in which he was in bed 1 to 4 days. At most, this puts the Veteran at 4 weeks of bedrest, not the 6 weeks or more than he would need for a 60 percent evaluation under Diagnostic Code 5243. Thus, the Board cannot find that there is any documentation of any physician-prescribed bedrest at any time during the appeal period, nor is there any episodes of staying in bed due to his lumbar spine disability that is shown to 4 weeks or more prior to November 17, 2016, or 6 weeks or more after that date. Accordingly, the Board has contemplated whether a higher evaluation under Diagnostic Code 5243 would be more advantageous to the Veteran in this case. However, the Board finds that the evidence with regards to incapacitating episodes would not warrant a higher evaluation than already assigned under Diagnostic Code 5242 for the applicable periods. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. In short, insofar as the Veteran has claimed an increased evaluation for his lumbar spine IVDS, the Board finds that a 40 percent evaluation for that disability is warranted beginning November 17, 2016—the date of his VA examination. However, an evaluation in excess of 20 percent for the period prior to November 17, 2016 and in excess of 40 percent thereafter, for lumbar spine IVDS, as well as increased evaluations for his bilateral lower extremity radiculopathy are denied in this case. See 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Diagnostic Codes 5242, 5243, 8520. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. Smith, Associate 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.