Citation Nr: 21062271 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-23 363 DATE: October 6, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for a skin disability is denied. The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability is denied. Entitlement to service connection for arthritis is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for diabetes is denied. Entitlement to service connection for hypertension is denied. Entitlement to ratings in excess of 20 percent prior to March 15, 2019, and 40 percent from that date for intervertebral disc syndrome (IVDS), previously rated as lumbosacral strain, is denied. Entitlement to ratings in excess of 10 percent prior to December 22, 2016, and 40 percent from that date for left lumbar radiculopathy is denied. REMANDED Entitlement to a rating in excess of 50 percent for mood disorder with depressive features is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 9, 2014, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal an August 1991 rating decision that denied his original claim for entitlement to service connection for a skin disability. 2. New and material evidence has not been received since the August 1991 rating decision as to the claim for entitlement to service connection for a skin disability. 3. The Veteran did not appeal a March 2011 rating decision that denied his original claim for entitlement to service connection for a left knee disability. 4. New and material evidence has not been received since the March 2011 rating decision as to the claim for entitlement to service connection for a left knee disability. 5. There is no probative evidence of record that the Veteran's arthritis, right knee disability, diabetes, and hypertension began during active service or are otherwise related to an in-service injury or disease. 6. During the relevant period prior to March 15, 2019, the Veteran's IVDS did not manifest in forward flexion of the thoracolumbar spine to 30 degrees or less; favorable or unfavorable ankylosis of the thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 7. During the relevant period beginning March 15, 2019, the Veteran's IVDS did not manifest in unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 8. The Veteran's left lumbar radiculopathy was no worse than moderate in severity during the relevant period prior to December 22, 2016, and was severe but did not manifest in marked muscular atrophy during the relevant period beginning December 22, 2016. CONCLUSIONS OF LAW 1. The August 1991 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1103. 2. The criteria for reopening the previously denied claim for entitlement to service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156, 3.303 3. The March 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1103. 4. The criteria for reopening the previously denied claim for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156, 3.303 5. The criteria for entitlement to service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 6. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 7. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 8. The criteria for entitlement to service connection hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 9. The criteria for entitlement to ratings in excess of 20 percent prior to March 15, 2019, and 40 percent from that date for intervertebral disc syndrome (IVDS), previously rated as lumbosacral strain, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Codes 5237 and 5242-5243. 10. The criteria for entitlement to ratings in excess of 10 percent prior to December 22, 2016, and 40 percent from that date for left lumbar radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1990 to March 1991. The Board remanded this case in February 2019. The remand directed the Agency of Original Jurisdiction (AOJ) to clarify whether service connection has been granted for psoriasis; seek clarification from the Veteran as to whether he received treatment from the VA medical facility in West Palm Beach at any time other than in August 2011; associate with the record the Veteran's outstanding VA treatment records, specifically to include those prior to September 2010, from November 2010 to January 2011, from March 2011 to July 2013, from April 2014 to March 2015, and those after November 2016; obtain the Veteran's Social Security Administration records; and provide the Veteran a VA examination as to his service-connected IVDS. Pursuant to the remand, the AOJ obtained the Veteran's outstanding VA treatment records, including those specifically described in the February 2019 remand; obtained the Veteran's Social Security Administration records; and provided the Veteran VA examinations in March 2019 and December 2020 as to his service-connected IVDS. The March 2019 and December 2020 VA examinations are responsive to the February 2019 remand directives and provide the information required to render a decision as to the claim for higher ratings for IVDS. In addition, the Veteran indicated in March 2019 that he has not received treatment at the West Palm Beach VA medical facility other than in August 2011. Finally, the AOJ clarified in a January 2021 rating decision codesheet that the notation in previous codesheets indicating that psoriasis had been service connected was a clear and unmistakable error, that the condition is not currently service connected, that the Veteran was never advised that the condition had been service connected, that the condition has been removed from the service connection portion of the codesheet, and that the action would result in no change to the Veteran's compensation pay or combined rating. Accordingly, the Board finds that VA at least substantially complied with the February 2019 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran raised the issue of entitlement to a TDIU as part of his appeals for higher ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ granted the Veteran entitlement to a TDIU effective May 9, 2014, in a November 2019 rating decision. The issue of entitlement to a TDIU during the relevant rating period for the increased rating issues on appeal prior to May 9, 2014, remains on appeal despite the AOJ's finding in the November 2019 rating decision that the grant of a TDIU therein represented a full grant of the issue sought on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In March 2020, while the case was still in remanded status, the Veteran's representative withdrew from the case. The Veteran has not appointed a new representative. The Veteran has not raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Reopening Issues In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist for consideration of a new theory of entitlement. Id. at 118. 1. The petition to reopen the previously denied claim for entitlement to service connection for a skin disability The Veteran seeks to reopen his previously denied claim for entitlement to service connection for a skin disability. VA received the Veteran's original claim for entitlement to service connection for a skin disability in April 1991. In that claim, the Veteran identified the claimed skin condition as psoriasis, which he said had an onset date of March 20, 1990. The August 1991 rating decision indicates that the Veteran did not report for a scheduled VA examination as to the claim, and that the only evidence available at the time for consideration was the Veteran's service treatment records. In denying the Veteran's claim in the August 1991 rating decision, the AOJ acknowledged that the Veteran's service treatment records showed treatment for psoriasis on multiple dates, and that psoriasis of the elbows, knees, and scalp was present at the time of a November 1990 Medical Evaluation Board examination. The AOJ explained, however, that the Veteran had a positive family history for psoriasis and a past history significant for psoriasis, which existed prior to enlistment. The Veteran did not timely appeal the August 1991 rating decision. In addition, a March 1992 VA examination received during the one-year appeal period following notice of the decision was not material because it merely showed continued complaints of psoriasis and was therefore cumulative of other evidence previously considered by the AOJ. As such, new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. See 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52. The August 1991 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence that has been associated with the record since issuance of the final August 1991 rating decision and that is relevant to the issues of entitlement to service connection for a skin disability includes additional VA treatment records and a January 2017 VA skin diseases examination. The Board finds that the evidence received since the final August 1991 rating decision is not new and material as to the previously denied claim for entitlement to service connection for a skin disability. To the extent that the Veteran has asserted that his current psoriasis began during his active service, such assertions are the same as those he made in support of his original claim denied in the final August 1991 rating decision. Those assertions are therefore redundant of evidence previously considered and are not considered to be new evidence. The additional medical treatment records and the January 2017 VA examination merely show continued complaints of and treatment for psoriasis and document the Veteran's previously considered reports that his psoriasis began during his active service. Thus, the medical treatment records and VA examination are new in the sense that they were not previously considered by VA. However, they are not material because they do not relate to an unestablished fact necessary to substantiate the previously denied claim and/or do not raise a reasonable possibility of substantiating the previously denied claim, as they are cumulative of evidence previously considered. 38 C.F.R. § 3.156. The Board notes that VA's duty to assist in providing an examination for requests to reopen a finally adjudicated claim applies only if new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). In this case, the Board finds that no new and material evidence has not been received as to the Veteran's previously denied claim for entitlement to service connection hypertension. Therefore, any question as to the adequacy of the January 2017 VA examination is not a viable issue. See also Woehlaert v. Nicholson, 21 Vet. App. 456, 461 (2007). In view of the foregoing, the Board finds that the evidence of record contains no new and material evidence received since the final August 1991 rating decision as to the previously denied claim for entitlement to service connection for a skin disability. Therefore, new and material evidence to reopen that finally denied claim has not been received, the doctrine of reasonable doubt is not for application, and the claim for entitlement to service connection for a skin disability is not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability The Veteran seeks to reopen his previously denied claim for entitlement to service connection for a left knee disability. VA received the Veteran's original claim for entitlement to service connection for a left knee disability in November 2010. In that claim, the Veteran asserted that his left knee disability was secondary to his service-connected low back disability and that he had an operation on the knee in 1992. The Veteran was afforded a VA examination in December 2010. The examiner noted the Veteran's reports of left knee pain since 1989 and in-service treatment for left knee pain. She noted that she could not find any documented injury or treatment for the Veteran's claimed knee condition in the record. She diagnosed the Veteran with left knee degenerative joint disease and opined that the disability is not secondary to the Veteran's service-connected low back disability, but that aging and being overweight play a role in causing degenerative changes in the left knee. In a December 2010 statement, the Veteran asserted that his left knee would hurt during basic training when he would have to sit cross-legged. When he told his drill instructors about the knee pain they would tell him to "suck it up" or, "No pain, no gain." Medical treatment records obtained in relation to the claim showed that in January and February 2011 the Veteran reported a history of left knee pain for many years, but that the pain increased in June 2010 when he hit the knee as he was getting out of a van. In denying the Veteran's claim in the March 2011 rating decision, the AOJ found that the evidence did not show that the Veteran's left knee degenerative joint disease was related to his service-connected low back disability, nor was there evidence of the disability during military service. The AOJ acknowledged that the Veteran's reports of left knee pain since 1989 and that he underwent surgery on the knee for a meniscus tear in 1991. The AOJ found, however, that that medical evidence of record, to include the December 2010 VA examination, did not support the claim. The Veteran did not timely appeal the March 2011 rating decision. In addition, medical treatment records received in April 2011 during the one-year appeal period following notice of the decision were not material because they merely showed continued complaints of left knee pain and degenerative joint disease and were therefore cumulative of other evidence previously considered by the AOJ. As such, new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. See 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52. The March 2011 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence that has been associated with the record since issuance of the final March 2011 rating decision and that is relevant to the issues of entitlement to service connection for a left knee disability includes additional VA treatment records. The Board finds that the evidence received since the final March 2011 rating decision is not new and material as to the previously denied claim for entitlement to service connection for a left knee disability. To the extent that the Veteran has asserted that his current left knee disability began during his active service or is secondary to the service-connected lumbar spine disability, those assertions are the same as those he made in support of his original claim denied in the final March 2011 rating decision. Those assertions are therefore redundant of evidence previously considered and are not considered to be new evidence. The additional medical treatment records merely show continued complaints of and treatment for left knee conditions and provide some further details on the Veteran's post-service left knee injury in 2010. The medical treatment records are new in the sense that they were not previously considered by VA. However, they are not material because they do not relate to an unestablished fact necessary to substantiate the previously denied claims and/or do not raise a reasonable possibility of substantiating the previously denied claims, as they are cumulative of evidence previously considered. 38 C.F.R. § 3.156. In view of the foregoing, the Board finds that the evidence of record contains no new and material evidence received since the final March 2011 rating decision as to the previously denied claim for entitlement to service connection for a left knee disability. Therefore, new and material evidence to reopen that finally denied claim has not been received, the doctrine of reasonable doubt is not for application, and the claim for entitlement to service connection for a left knee disability is not reopened. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Issues Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 3. Entitlement to service connection for arthritis 4. Entitlement to service connection for a right knee disability 5. Entitlement to service connection for diabetes 6. Entitlement to service connection for hypertension The Veteran seeks entitlement to service connection for arthritis, a right knee disability, diabetes, and hypertension. He has not identified which joints are affected by the claimed arthritis. He also has not presented any particular theory as to how the disabilities are related to his active service. The question for the Board in each claim is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the record shows the Veteran may have had arthritis, a right knee disability, diabetes, and hypertension during or in temporal proximity to the appeal period, the preponderance of the evidence weighs against finding that those current disabilities began during the Veteran's active service or are otherwise related to an in-service injury, event, or disease. The service treatment records do not show a diagnosis of arthritis, a right knee disability, diabetes, or hypertension. The service treatment records also do not show in-service blood pressure readings in the hypertensive range, as defined in Note (1) for 38 C.F.R. § 4.104, Diagnostic Code 7101. To the contrary, the only reading in that range in the service treatment records is the reading of 150/90 taken at the time of the Veteran's July 1989 medical examination for entrance into active service. The medical treatment evidence of record shows that the Veteran was not diagnosed with arthritis, a right knee disability, diabetes, or hypertension until many years after his separation from active service. They also indicate that the Veteran's diabetes may be secondary to hemochromatosis, which has not been service connected. Furthermore, as noted above, the Veteran has not presented any particular theory as to how the claimed arthritis, right knee disability, diabetes, and hypertension are related to his active service. In summary, there is no probative evidence of record showing that the Veteran's arthritis, right knee disability, diabetes, and hypertension during his active service or is otherwise related to an in-service event, injury, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for arthritis, a right knee disability, diabetes, and hypertension. Because the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. Increased Rating Issues Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 7. Entitlement to ratings in excess of 20 percent prior to March 15, 2019, and 40 percent from that date for intervertebral disc syndrome (IVDS), previously rated as lumbosacral strain The Veteran seeks an increased rating for IVDS, which was rated as lumbosacral strain prior to May 9, 2014. The applicable rating period is from May 9, 2013, one year prior to receipt of the claim for an increased rating, through the present. See 38 C.F.R. § 3.400(o)(2). The Veteran's IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional diagnostic code is shown after the hyphen. In this case, the Veteran's IVDS is rated under Diagnostic Code 5242, which pertains to degenerative arthritis of the spine, and Diagnostic Code 5243, which pertains to IVDS. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent rating is warranted 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 is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic 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 1 under Diagnostic Code 5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Note 1 under Diagnostic Code 5242. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). 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. Note 5 Under Diagnostic Code 5242. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against higher ratings for IVDS. Specifically, in regard to the relevant period prior to March 15, 2019, the medical treatment records do not show that the Veteran required bed rest prescribed by a physician and treatment by a physician. They also do not show that the Veteran had ankylosis of the thoracolumbar spine or that he had forward flexion of the lumbar spine to 30 degrees or less. An August 2014 VA examination shows that the Veteran had lumbar spine forward flexion to 45 degrees on initial testing and following repetitive-use testing. The Veteran did not have ankylosis of the thoracolumbar spine or incapacitating episodes due to IVDS. He denied flare-ups in his lumbar spine symptoms at the examination. However, the examiner nevertheless opined that the Veteran would have no additional loss of range of motion or joint function in the lumbar spine when there are flare-ups and when there is repetitive motion or frequent use of the lumbar spine. At a January 2015 consultative examination provided in relation to the Veteran's application for Social Security Administration disability benefits, the Veteran had forward flexion of the lumbar spine to 50 degrees. A December 2016 VA examination shows that the Veteran had lumbar spine forward flexion to 40 degrees on initial testing. The Veteran declined to perform repetitive-use testing due to "too much pain". The Veteran did not have ankylosis of the thoracolumbar spine or incapacitating episodes due to IVDS. He denied flare-ups in his lumbar spine symptoms at the examination. Thus, the evidence of record shows that during the relevant period prior to March 15, 2019, the Veteran's lumbar spine forward flexion was limited to no worse than 40 degrees. The evidence of record also shows that during that period the Veteran had favorable or unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, a rating in excess of 20 percent for the Veteran's IVDS was not warranted prior to March 15, 2019, under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes. In regard to the period beginning March 15, 2019, the relevant medical treatment records do not show that the Veteran required bed rest prescribed by a physician and treatment by a physician. They also do not show that the Veteran had ankylosis of the thoracolumbar spine. The Veteran did not have ankylosis of the thoracolumbar spine or incapacitating episodes due to IVDS at the March 2019 and December 2020 VA examinations. In addition, although the Veteran's lumbar spine range of motion was limited at both of those VA examinations, particularly on repeated use over time at the December 2020 VA examination, he did have motion nonetheless, and did not have the functional equivalent to ankylosis at that time. Specifically, he did not have the functional equivalent of immobility and consolidation of a joint due in the lumbar spine and did not have the factors described in Note 5 under Diagnostic Code 5242. Therefore, a rating in in excess of 40 percent for the Veteran's IVDS was not warranted during the period beginning March 15, 2019, under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his service-connected IVDS. The Veteran has not raised any other issues with regard to the rating for the service-connected IVDS, nor have any other such issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. The Board therefore finds that the criteria for entitlement to ratings in excess of 20 percent prior to March 15, 2019, and 40 percent from that date for IVDS, which was previously rated as lumbosacral strain, have not been met. As the preponderance of the evidence is against the assignment of higher ratings, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. 8. Entitlement to ratings in excess of 10 percent prior to December 22, 2016, and 40 percent from that date for left lumbar radiculopathy The Veteran seeks increased ratings for left lumbar radiculopathy. The applicable rating period is from May 9, 2013, one year prior to receipt of the claim for increase, through the present. See 38 C.F.R. § 3.400(o)(2). The Veteran's left lumbar radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost, is rated as 80 percent disabling. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (11th Ed. 2007), "mild" means temperate, not severe, or not being or involving what is extreme. "Moderate" means tending toward the mean or average amount, or not violent, severe, or intense. "Severe" means very painful or harmful or of a great degree. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board finds that the preponderance of the evidence is against higher ratings for IVDS. Specifically, in regard to the relevant period prior to December 22, 2016, the Veteran's medical treatment records reflect that he has had reduced muscle strength and reflexes in the left lower extremities due to his left lumbar radiculopathy. They do not otherwise include descriptions from medical sources of the relative severity of the left lumbar radiculopathy and do not reflect that the Veteran has experienced the sort of symptoms indicative of complete paralysis of the sciatic nerve, as described under Diagnostic Code 8520. At an August 2014 VA peripheral nerves conditions examination, the Veteran had 5 out of 5 muscle strength, normal reflexes, and normal sensation throughout the left lower extremity. He did not have atrophy or trophic changes in the left lower extremity. He reported mild intermittent pain and paresthesias and/or dysesthesias in the left lower extremity. The examiner indicated that the Veteran had mild incomplete paralysis of the left sciatic nerve. Thus, for the period prior to December 22, 2016, the medical treatment records show that the Veteran reported radiating pain and had reduced muscle strength in the left lower extremity. The August 2014 VA examination shows that the Veteran's muscle strength, reflexes, and sensation were not impaired in the left lower extremity and that the symptoms attributable to his lumbar radiculopathy of the left lower extremity were mild in severity and were recurrent but not continuous prior to December 22, 2016. The Board notes that the terms "mild", "moderate", and "severe" are relative in nature and that the VA examiner, as a medical professional, is competent to assess the severity of the Veteran's service-connected left lower extremity radiculopathy relative to the potential severity of the disability as it generally occurs. Although the August 2014 VA examiner's use of the term "mild" is not dispositive of the issue, his use of that term is persuasive in view of the other evidence of record and his expertise as a medical professional. In addition, peripheral neurological disorders are rated based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Given the objective findings at the August 2014 VA examination, the Board finds that the Veteran's symptoms, as documented in the record, were mild prior to December 22, 2016, because they were temperate, not intense, and not involving extremes as to impairment in motor function, trophic changes, and sensory disturbances. The Board concludes that the Veteran's left lumbar radiculopathy was most appropriately characterized as mild in severity during the relevant period prior to December 22, 2016. In regard to the period beginning December 22, 2016, at a December 2016 VA peripheral nerves conditions examination, the Veteran had 5 out of 5 muscle strength, normal reflexes, and normal sensation throughout the left lower extremity. He did not have atrophy or trophic changes in the lower extremities. The examiner indicated that the Veteran had normal functioning of the left sciatic nerve. However, at a December 2016 VA back conditions examination conducted on the same day, the Veteran had 4 out of 5 muscle strength, hypoactive reflexes, and decreased sensation throughout the left lower extremity. He did not have atrophy in the left lower extremity. He reported mild paresthesias and/or dysesthesias, moderate constant pain and numbness, and severe intermittent pain in the left lower extremity. The examiner indicated that the Veteran had severe incomplete paralysis of the left sciatic nerve. At the March 2019 VA back conditions examination, the Veteran had 4 out of 5 muscle strength, hypoactive reflexes, and decreased sensation throughout the left lower extremity. He did not have atrophy in the left lower extremity. He reported severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. The examiner indicated that the Veteran had severe incomplete paralysis of the left sciatic nerve. At the December 2020 VA back conditions examination, the Veteran had 4 out of 5 muscle strength, normal reflexes, and decreased sensation throughout the left lower extremity. He did not have atrophy in the left lower extremity. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Thus, for the period beginning December 22, 2016, the evidence of record shows that the Veteran had severe incomplete paralysis of the left sciatic nerve, but it does not show that his left lumbar radiculopathy manifested in marked muscular atrophy, as is required for a higher rating of 60 percent under Diagnostic Code 8520. The evidence of record also does not show that the left lumbar radiculopathy manifested in symptoms comparable to complete paralysis of the sciatic nerve in either lower extremity, as is required for a higher rating of 80 percent under Diagnostic Code 8520. Diagnostic Code 8520 specifies that complete paralysis of the sciatic nerve is manifested by the foot dangling and dropping, a lack of active movement below the knee, and weakened or (very rarely) lost flexion of the knee. The record does not show such symptoms. The Veteran has not raised any other issues with regard to the ratings for the service-connected left lumbar radiculopathy, nor have any other such issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. The Board therefore finds that the criteria for entitlement to ratings in excess of 10 percent prior to December 22, 2016, and 40 percent from that date for left lumbar radiculopathy have not been met. As the preponderance of the evidence is against the assignment of higher ratings, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for mood disorder with depressive features is remanded. The Veteran seeks entitlement to a higher rating for mood disorder with depressive features. His medical treatment records show that he has been diagnosed with psychiatric disabilities other than mood disorder with depressive features, to include bipolar disorder and generalized anxiety disorder. His medical treatment records also show that he has reported to his psychiatric care providers a wide variety of symptoms, including feeling down, anxious, tense, easily tired, unable to concentrate, and irritable; being preoccupied with orderliness, perfectionism, and interpersonal control; having mood problems and mood swings; feeling hyperactive with episodes of racing thoughts, impulsivity, and hypersexuality; aversion to being around others; and anger, fear, and contempt toward authority figures. He has also reported a variety of symptoms to VA examiners, to a February 2015 Social Security Administration consultative examiner, and to a September 2017 private examiner. Additionally, in August 2017, the Veteran's girlfriend provided a statement in which she also describes a variety of symptoms she has witnessed the Veteran exhibit. However, the competent evidence of record, to include the multiple VA examination reports, do not differentiate the Veteran's symptoms between his service-connected mood disorder with depressive features and his nonservice-connected psychiatric disabilities. The Board therefore finds that the issue must be remanded so that the Veteran may be provided a VA examination to assess the current severity of his service-connected mood disorder with depressive features and to differentiate his psychiatric symptomsboth as reported on examination and as shown in the recordas related to the service-connected disability versus to the diagnosed nonservice-connected psychiatric disabilities. 2. Entitlement to a TDIU prior to May 9, 2014, is remanded. Because a decision on the remanded issue of entitlement to a higher rating for mood disorder with depressive features could significantly impact a decision on the issue of entitlement to a TDIU prior to May 9, 2014, the issues are inextricably intertwined. A remand of the claim for a TDIU prior to May 9, 2014, is therefore required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mood disorder with depressive features. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran's mood disorder with depressive features alone. The examiner must identify the Veteran's psychiatric disabilities that are diagnosed on examination and that have been diagnosed in the record, to include bipolar disorder and generalized anxiety disorder. The examiner must then differentiate the Veteran's psychiatric symptomsboth as reported on examination and as shown in the recordthat are caused by the service-connected mood disorder with depressive features from those that are caused by the diagnosed nonservice-connected psychiatric disabilities. Although not an exhaustive list of the symptoms reported in the medical treatment records, the Veteran has reported to his psychiatric care providers a wide variety of symptoms, including feeling down, anxious, tense, easily tired, unable to concentrate, and irritable; being preoccupied with orderliness, perfectionism, and interpersonal control; having mood problems and mood swings; feeling hyperactive with episodes of racing thoughts, impulsivity, and hypersexuality; aversion to being around others; and anger, fear, and contempt toward authority figures. The examiner must discuss those symptoms, as well as other symptoms the Veteran reported in the medical treatment records, to previous VA examiners, to a February 2015 Social Security Administration consultative examiner, and to a September 2017 private examiner. The examiner must also discuss the symptoms reported by the Veteran's girlfriend in her August 2017 statement. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue entitlement to a TDIU prior to May 9, 2014. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.