Citation Nr: 21064414 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-22 373 DATE: October 20, 2021 ORDER Entitlement to a rating in excess of 20 percent for a back disability is denied. Entitlement to a rating in excess of 10 percent for left elbow lost supination is denied. Entitlement to a rating in excess of 10 percent for left elbow lost flexion is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's back disability is not manifested by adverse symptomatology that equates to at least forward flexion of the thoracolumbar spine being 30 degrees or less nor ankylosis even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups; it is not manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period; it is not manifested by adverse neurological symptomatology in the left lower extremity, and it is not manifested by more than mild incomplete adverse neurological symptomatology in the right lower extremity, at any time during the appeal. 2. The preponderance of the evidence shows that the Veteran's left elbow lost supination is not manifested by adverse symptomatology that equates to the left hand being fixed in full pronation or worse and as to pronation, motion lost beyond last quarter of arc, the hand does not approach full pronation, or worse, even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at any time during the appeal. 3. The preponderance of the evidence shows that the Veteran's left elbow lost flexion is not manifested by adverse symptomatology that equates to at least forward flexion being 90 degrees or less, extension limited to 75 degrees or more, limitation of forearm flexion to 100 degrees and extension to 45 degrees, or ankylosis even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups as shows that it is not manifested by a joint fracture, nonunion of the radius and ulna with flail false join, impairment of the ulna, or impairment of the radius at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a back disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Codes 5235 to 5243, 8520. 2. The criteria for a rating in excess of 10 percent for left elbow lost supination have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5010, 5213. 3. The criteria for a rating in excess of 10 percent for left elbow lost flexion as well as due to any other adverse symptomatology have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5205 to 5212. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the United States Army from October 1989 to March 1994. The Veteran requested a hearing in his June 2014 VA Form 9. In November 2017, the Veteran failed to appear at his Board of Veterans' Appeal (Board) hearing. Shortly, before the Veteran's November 2017 Board hearing, the Veteran requested to reschedule his hearing. A new Board hearing was not rescheduled because good cause for the failure to attend the first hearing was not shown. The Board sent the Veteran a hearing clarification letter in July 2018 to determine if the Veteran still wanted to reschedule his Board hearing. The Board did not receive a response. Therefore, the Board finds that the hearing request is withdrawn. In an October 2018 decision the Board, among other things, denied ratings in excess of 10 percent for back and left elbow disabilities. The Veteran appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's October 2019 decision to the extent that it denied ratings in excess of 10 percent for back and left elbow disabilities. In December 2019, the Board remanded the appeal to address the concerns of the JMPR. Characterization of the Issues on Appeal As to the left elbow disabilities, given the April 2014 statement of the case and the June 2014 VA Form 9, Appeal to Board of Veterans' Appeals, the Board finds that the increased rating claims it has before us includes claims for ratings in excess of 10 percent for left elbow lost supination and left elbow lost flexion. Also, as to the characterization of all the issues on appeal, in an April 2014 rating decision the regional office (RO) granted the Veteran's left elbow lost flexion a 10 percent rating and in an August 2021 rating decision it granted the back disability a 20 percent as well as a separate 10 percent rating for right lower extremity radiculopathy; all effective the date of claim. Therefore, the Board finds that the issues on appeal are as listed above. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board finds that notwithstanding the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the record does not raise a claim for a total rating based on individual unemployability (TDIU) because the Veteran does not claim he is unemployed because of his service-connected back and left elbow disabilities and the record does not show he is unemployed because of them. The Concerns Raised by the JMPR and Post-Remand Compliance As to the concerns raised in the JMPR and post-Remand compliance, the Board finds that the post-Remand development substantially complied with both because it finds that the VA examinations obtained in July 2021 provide all needed information to rate his back and left elbow disabilities under all applicable rating criteria to include range of motion studies that considered his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups as well as which allows the Board to determine if he has any residual adverse neurological symptomatology and, if so, its' severity. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); Sharp v. Shulkin, 29 Vet. App. 26 (2017); and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with new VA examinations or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Increased Rating Claims The Veteran claims, in substance, that he is entitled to higher ratings for his service-connected back and left elbow disabilities at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. The Amended Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, as of February 7, 2021, the only amendment pertinent to the Veteran's back and left elbow claims is a notation to Diagnostic Code 5243 stating that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5010 stating how arthritis is rated. Therefore, the Board finds that the amendments do not change how this Veteran's back and left elbow disabilities are rated. Accordingly, the Board finds that a Remand to provide the Veteran with notice of the new rating criteria and have the claims adjudicating applying then is not required. See Sabonis, supra. ii. Correia, supra, and Sharp, supra. Next, in adjudicating below whether the Veteran meets the criteria for higher evaluations for his back and left elbow, the Board has not overlooked the Court's holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because the July 2021 VA examiners specifically considered the ranges of motion of the back and left elbow taking into account the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion. Moreover, the examiners reported that ranges of motion during flare-ups was not needed because the Veteran denied having flare-ups. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with new VA examinations is not required. See Sabonis, supra. iii. The Merits of the Back Claim The Veteran's back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. a. Musculoskeletal In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. With the above criteria in mind, the Board notes that under the General Rating Formula for Disease and Injuries of the Spine the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 40 percent, rating at any time during the appeal because forward flexion of the thoracolumbar spine was not 30 degrees or less because it was 70 degrees at the July 2012 VA examination and 40 degrees at the July 2021 VA examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also notes that the treatment records do not document flexion being 30 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to limitation of motion at all times during the appeal. See Hart, supra; Fenderson, supra. Similarly, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering his competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 40 percent, rating under the General Rating Formula for Disease and Injuries of the Spine due to adverse symptomatology that equates to ankylosis because the record is uniform in documenting at least some back motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. Moreover, the July 2012 and July 2021 VA examiners specifically opined that the back was not ankylosed, and the Board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also notes that the treatment records do not document ankylosis. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis at all times during the appeal. See Hart, supra; Fenderson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the July 2012 and July 2021 VA examinations as well as the April 2014 addendum, are negative for his having at least 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training. See Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the Formula for Rating Intervertebral Disc Syndrome at all times during the appeal. See Hart, supra; Fenderson, supra. Given the above, the Board also finds that the criteria for a rating in excess of 20 percent for the Veteran's back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a due to musculoskeletal adverse symptomatology. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. b. Neurological Next, the Board notes that under 38 C.F.R. § 4.71a, Note (1), appellants with back disability that also causes residual adverse neurological symptomatology are entitled to a separate rating for that symptomatology. Left Lower Extremity As to a separate compensable rating for any adverse neurological symptomatology in the left lower extremity due to the back disability, the July 2012 and July 2021 VA examiners opined, in substance, that the Veteran did not have left leg radiculopathy. In fact, the neurological portion of the July 2012 and July 2021 VA examinations were unremarkable and/or the appellant did not have any signs or symptoms of left lower extremity radiculopathy with normal muscle strength, reflex, and sensory examinations. The Board also notes that the treatment records do not include a diagnosis of left leg radiculopathy. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing diagnosis because this is a medical finding and he does not have the required training. See Davidson, supra. Therefore, the Board finds that preponderance of the evidence shows that the Veteran's back disability does not cause a neurological disability in the left lower extremity. See Owens, supra. Accordingly, the Board finds that the current decision need not further address whether the Veteran is entitled to a separate rating for residuals adverse neurological symptomatology in the left lower extremity because he does not have any due to his service-connected back disability. See 38 C.F.R. § 4.71a, Note (1). Right Lower Extremity As to the right lower extremity, as noted above, the RO in an August 2021 rating decision granted the Veteran service connection for radiculopathy due to the back disability and awarded a 10 percent disability rating. Moreover, to date, the Veteran has not appealed the August 2021 rating decision and this issue has neither been included in a statement of the case nor supplemental statement of the case. Likewise, this issue has not been certified to the Board. Therefore, the Board finds that it does not have jurisdiction over this rating issue and no further action as to it is needed at this time. See 38 C.F.R. §§ 20.200, 20.302(c) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case); Roy v. Brown, 5 Vet. App. 554, 556 (1993) (if the claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision"). Nonetheless, even if the Board had jurisdiction over this rating issue, it finds that the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy have not been met at any time during the appeal. See Owens, supra. In this regard, the Veteran's right leg radiculopathy is rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity. A 20 percent rating for moderate incomplete paralysis of the sciatic nerve in either lower extremity. A 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. With the above criteria in mind, the Board notes that at the July 2012 VA examination the appellant did not have any signs or symptoms of right lower extremity radiculopathy with normal muscle strength, reflex, and sensory examinations. In fact, the examiner opined that he did not have radiculopathy. However, at the subsequent July 2021 VA examination, it was noted that the Veteran had had a diagnosis of right lower extremity radiculopathy since 2019. Moreover, on examination of the right lower extremity, muscle strength was normal at 5/5 and there was no muscle atrophy. Deep tendon reflexes in the right lower extremity were normal at 2+. Sensory examination was decreased in the right thigh, knee, lower leg/ankle, and foot/toes. Straight leg raising on the right was positive. It was thereafter opined that the right lower extremity radiculopathy caused, no constant pain, mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness. Initially, the Board finds that while the Veteran's treatment records document his periodic complaints or treatment for right lower extremity radiculopathy, including, as noted in the JMPR, physical therapy for numbness in his right foot (see, e.g., VA treatment records dated in January 2014), nothing in these records show his adverse symptomatology to be worse than what was reported by the July 2021 VA examiner. See Colvin, supra. The Board also finds the July 2021 VA examiner's opinion as to the severity of the adverse radiculopathy symptomatology more probative than any lay claims from the appellant to the contrary, even though his symptomatology is observable by a lay person, because the examiner has greater medical training. See Black, supra. Therefore, while the term "moderately" incomplete paralysis is not defined by regulation, given the above record the Board finds that it must equate to more serve symptomatology than the decreased sensation in the right thigh, knee, lower leg/ankle, and foot/toes, positive straight leg raising, as well as the mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness reported by the July 2021 VA examiner. See Owens, supra. In this regard, the Board finds it significant that the Veteran had no adverse symptomatology at the 2012 VA examination and the July 2021 VA examiner opined that muscle strength was normal at 5/5 with no muscle atrophy, deep tendon reflexes were normal at 2+, and there was no constant pain as well as only mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness; these findings weigh against finding "moderately" incomplete paralysis. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's right leg radiculopathy is manifested by no more than mild symptoms at any time during the appeal. Id. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's does not meet the criteria for a rating in excess of 10 percent for his right lower extremity radiculopathy under Diagnostic Code 8520 at all times during the appeal. See 38 C.F.R. § 4.124a; Fenderson, supra; Hart, supra. iv. The Merits of the Left Elbow Claims The Veteran's left elbow lost supination is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5213 and left elbow lost flexion is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5206. Old Diagnostic Code 5010 provides, in substance, that traumatic arthritis is rated under Diagnostic Code 5003. 38 C.F.R. § 4.71a. New Diagnostic Code 5010 provides, in substance, that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Under Diagnostic Code 5003 degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Diagnostic Code 5205 provides that ankylosis of the elbow will warrant a 30 percent evaluation (minor elbow) and 40 percent evaluation (major elbow) if it is favorable, at an angle between 90 and 70 degrees; warrant a 40 percent evaluation (minor elbow) and 50 percent evaluation (major elbow) if it is intermediate, at an angle more than 90 degrees or between 70 and 50 degrees; and warrant a 50 percent evaluation (minor elbow) and 60 percent evaluation (major elbow) if it is unfavorable, at an angle of less than 50 degrees or with complete loss of supination or pronation. Id. Diagnostic Code 5206 provides that limitation of flexion warrants a non compensable evaluation (both minor and major elbow) when limited to 110 degrees, warrants a 10 percent evaluation (both minor and major elbow) when limited to 100 degrees, warrants a 20 percent evaluation (both minor and major elbow) when limited to 90 degrees, warrant a 20 percent evaluation (minor elbow) and 30 percent evaluation (major elbow) when limited to 70 degrees, warrant a 30 percent evaluation (minor elbow) and 40 percent evaluation (major elbow) when limited to 55 degrees, and warrant a 40 percent evaluation (minor elbow) and 50 percent evaluation (major elbow) when limited to 45 degrees. Id. Diagnostic Code 5207 provides that limitation of extension warrants a 10 percent evaluation (both minor and major elbow) when limited to either 45 or 60 degrees, warrants a 20 percent evaluation (both minor and major elbow) when limited to 75 degrees, warrant a 20 percent evaluation (minor elbow) and 30 percent evaluation (major elbow) when limited to 90 degrees, warrant a 30 percent evaluation (minor elbow) and 40 percent evaluation (major elbow) when limited to 100 degrees, and warrant a 40 percent evaluation (minor elbow) and 50 percent evaluation (major elbow) when limited to 110 degrees. Id. Diagnostic Code 5208 provides that limitation of forearm flexion to 100 degrees and extension to 45 degrees warrants a 20 percent evaluation (both minor and major ). Id. Under Diagnostic Code 5209 joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, of the major arm warrants a 20 percent rating (both minor and major elbow). Under Diagnostic Code 5210 nonunion of the radius and ulna with flail false joint of the minor arm warrants a 40 percent rating. Id. Under Diagnostic Code 5211 impairment of the ulna of the minor and major arm with malunion and bad alignment warrants a 10 percent rating; with nonunion in lower half of the minor and major arm warrants a 20 percent rating; with nonunion in upper half with false movement without loss of bone substance or deformity warrants a 30 percent rating in the major arm and a 20 percent rating in the minor arm; and with nonunion in upper half with false movement with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity warrants a 40 percent rating in the major arm and a 30 percent rating in the minor arm. Id. Under Diagnostic Code 5212 impairment of the radius of the major and minor arm with malunion and bad alignment warrants a 10 percent rating; with nonunion in upper half of the major and minor arm warrants a 20 percent rating; with nonunion in lower half with false movement without loss of bone substance or deformity warrants a 30 percent rating in the major arm and a 20 percent rating in the minor arm; and nonunion in lower half with false movement with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity warrants a 40 percent rating in the major arm and a 30 percent rating in the minor arm. Id. Under Diagnostic Code 5213, limitation of supination of the major and minor arm to 30 degrees or less warrants a 10 percent rating; limitation of pronation of the major and minor arm with motion lost beyond last quarter of arc, the hand does not approach full pronation, warrants a 20 percent rating; with motion lost beyond middle of arc warrants a 30 percent rating in the major arm and a 20 percent rating in the minor arm; and with the hand fixed near the middle of the arc or moderate pronation of the major and minor arm warrants a 20 percent rating; with the hand fixed in full pronation in the major arm warrants a 30 percent rating and a 20 percent rating in the minor arm; and with the hand fixed in supination or hyperpronation in the major arm warrants a 40 percent rating and a 30 percent rating in the minor arm. Under 38 C.F.R. § 4.71a, Plate I, normal flexion of the elbow is 0 to 145 degrees, normal forearm pronation is 0 to 80 degrees, and normal forearm supination is 0 to 80 degrees. Initially, the Board finds that when rating the service connected left elbow disabilities it will apply the criteria for rating the minor hand because the record is uniform in reporting that the Veteran is right handed. See, e.g., VA examinations dated in July 2012 and July 2021. a. Left elbow lost supination/pronation As to a rating in excess of 10 percent for left elbow lost supination under Diagnostic Code 5213, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating at any time during the appeal because, as to supination, the left hand was not fixed in full pronation or worse nor was, as to pronation, motion lost beyond last quarter of arc, the hand does not approach full pronation, or worse, because at the July 2012 and July 2021 VA examinations it was opined that supination was limited to 30 degrees or less and no lost pronation was reported. See 38 C.F.R. § 4.71a, Diagnostic Code 5213; Fenderson, supra; Hart, supra. The Board also notes that the treatment records do not document the required lost supination and/or pronation as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left elbow lost supination under Diagnostic Code 5213 at all times during the appeal. See Hart, supra; Fenderson, supra. b. Left elbow lost flexion As to a rating in excess of 10 percent for left elbow lost flexion under Diagnostic Code 5206, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating at any time during the appeal because left elbow flexion was not 90 degrees or less because it was 125 degrees at the July 2012 VA examination and 135 degrees at the July 2021 VA examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5206; Fenderson, supra; Hart, supra. The Board also notes that the treatment records do not document flexion being 90 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left elbow lost flexion under Diagnostic Code 5206 at all times during the appeal. See Hart, supra; Fenderson, supra. c. The left elbow and all other Diagnostic Codes As to a rating in excess of 10 percent for the left elbow disabilities under Diagnostic Code 5205 due to ankylosis, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering his competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 30 percent, rating due to adverse symptomatology that equates to ankylosis because the record is uniform in documenting at least some left elbow motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. Moreover, the July 2012 and July 2021 VA examiners specifically opined that the left elbow was not ankylosed and the Board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Additionally, the Board finds the VA examiners' opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black, supra. The Board also notes that the treatment records do not document ankylosis. See Colvin, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left elbow disabilities under Diagnostic Code 5205 due to ankylosis at all times during the appeal. See Hart, supra; Fenderson, supra. As to as to a rating in excess of 10 percent for the left elbow disabilities under Diagnostic Codes 5207 and/or 5208, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating at any time during the appeal because extension of the left elbow was not 75 degrees or more and because flexion of the left elbow was not limited to 100 degrees when extension was limited to 45 degrees because flexion was 125 degrees and extension was 0 degrees at the July 2012 VA examination and flexion was 135 degrees and extension was 0 degrees at the July 2021 VA examination. See 38 C.F.R. § 4.71a, Diagnostic Codes 5207, 5208. The Board also notes that the treatment records do not document flexion being 75 degrees or more and/or flexion of the left elbow being limited to 100 degrees when extension was limited to 45 degrees as well as finds that the Veteran is not competent to provide such findings because it is medical in nature. See Colvin, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left elbow disabilities under Diagnostic Codes 5207 and 5208 at all times during the appeal. See Hart, supra; Fenderson, supra. As to a rating in excess of 10 percent for the left elbow disabilities under Diagnostic Code 5209 for joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, under Diagnostic Code 5210 for nonunion of the radius and ulna with flail false joint, under Diagnostic Code 5211 for impairment of the ulna, and under Diagnostic Code 5212 for impairment of the radius, the Board notes that the record on appeal, including the findings at the July 2012 and July 2021 VA examinations, are negative for a diagnosis of any of the above disorders. The Board also finds that the Veteran is not competent to provide such findings because it is medical in nature. See Davidson, supra. Therefore, in the absence of the required adverse symptomatology, the Board finds that it will not rate the Veteran's left elbow disorders under either Diagnostic Code 5209, 5210, 5211, or 5212 at all times during the appeal. See Fenderson, supra; Butts, supra. Conclusion In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.