Citation Nr: 21065078
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 16-05 626
DATE: October 25, 2021

ORDER

A rating in excess of 20 percent for intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD) of the lumbar spine with scoliosis is denied.

The assignment of a separate rating for radiculopathy of the right lower extremity (RLE), evaluated as 10 percent disabling as of September 11, 2020, is proper; the appeal is denied.

The assignment of a separate rating for radiculopathy of the left lower extremity (LLE), evaluated as 10 percent disabling as of September 11, 2020, is proper; the appeal is denied.

An initial rating in excess of 10 percent left peroneal nerve impairment is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. For the entire appeal period, the Veteran's IVDS and DDD of the lumbar spine with scoliosis is manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, IVDS with incapacitating episodes, or associated objective neurological abnormalities other than radiculopathy of the bilateral lower extremities (BLE) as of September 11, 2020, and left peroneal nerve impairment.

2. As of September 11, 2020, but no earlier, the Veteran's IVDS and DDD of the lumbar spine with scoliosis is manifested by radiculopathy of the RLE that resulted in no more than incomplete paralysis of the sciatic nerve.

3. As of September 11, 2020, but no earlier, the Veteran's IVDS and DDD of the lumbar spine with scoliosis is manifested by radiculopathy of the LLE that resulted in no more than incomplete paralysis of the sciatic nerve.

4. For the entire appeal period, the Veteran's left peroneal nerve impairment resulted in no more than incomplete paralysis of the external popliteal (common peroneal) nerve.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for IVDS and DDD of the lumbar spine with scoliosis have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2., 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242-5243.

2. The assignment of a separate rating for radiculopathy of the RLE, evaluated as 10 percent disabling as of September 11, 2020, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8520.

3. The assignment of a separate rating for radiculopathy of the LLE, evaluated as 10 percent disabling as of September 11, 2020, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8520.

4. The criteria for an initial rating in excess of 10 percent for left peroneal nerve impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124a, DC 8521.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 2007 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

In November 2019, the Board remanded the Veteran's claims for increased ratings for his back disability and left peroneal nerve impairment for additional development. While on remand, a September 2020 rating decision awarded separate ratings for radiculopathy of the BLE associated with the Veteran's back disability, each evaluated as 10 percent disabling as of September 11, 2020. The Board notes that the Veteran did not appeal with respect to the propriety of the assigned ratings or effective dates for such disabilities; however, these issues are part and parcel of his claim for an increased rating for his back disability as the rating criteria governing the evaluation of such disability specifically indicates that any associated objective neurologic abnormalities be separately evaluated under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1); Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, such issues have been included in the decision and will be addressed herein.

Additionally, as the Veteran has alleged that his back disability has rendered him unemployable, the Board has assumed jurisdiction over a claim of entitlement to a TDIU based on such disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The case now returns to the Board for further appellate review.

As a final preliminary matter, the Board notes that additional evidence, to include updated VA treatment records and unrelated VA examination reports, was associated with the record since the issuance of the September 2020 supplemental statement of the case. However, as such are irrelevant or contain findings duplicative to those previously considered by the Agency of Original Jurisdiction, the Board finds that no prejudice results to the Veteran in the Board proceeding with a decision at the present time. 38 C.F.R. § 20.1305(c).

Increased Rating Claims

The Veteran contends his back and left leg nerve disabilities are more severe than as reflected by the currently assigned ratings. In this regard, at his September 2019 hearing, the Veteran testified that his back disability has worsened, resulting in a further reduction in his range of motion, incapacitating episodes several times a year where he is unable to work, and an inability to participate in sports or sit for prolonged periods of time. He further testified that his left leg nerve disability had also increased in severity in that he has lost feeling in his left leg, noting that his foot sometimes drags, causing an abnormal gait. The Veteran also reported that he experiences nerve sensations in his arms, fingers, and face, numbness in the right lower extremity, and bowel incontinence.  

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

The appeal period before the Board begins on October 27, 2010, the date VA received the Veteran's claim for an increased rating for his back disability, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d. 979, 982 (Fed. Cir. 2010).

1. Entitlement to a rating in excess of 20 percent for IVDS and DDD of the lumbar spine with scoliosis.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

For the entire appeal period, the Veteran's IVDS and DDD of the lumbar spine with scoliosis has been rated as 20 percent disabling pursuant to DC 5242-5243, which is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). 

Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 20 percent rating where there is 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): 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 (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. 

As noted above, IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table).

The IVDS Rating Formula provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a.

As of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020).  In this regard, while such did not amend the General Rating Formula or IVDS Rating Formula, DC 5243 now includes the following notation: assign this DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. Thus, such changes do not affect the criteria under which the Veteran's back disability is rated.

As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that he ever had an incapacitating episode of IVDS as defined by VA regulations, i.e., required physician prescribed bed rest. In this regard, the May 2015 VA examiner found that the Veteran did not have IVDS, and, while the December 2010 and September 2020 VA examiners found that he did have such diagnosis, such did not result in any incapacitating episodes as defined by VA regulations. Therefore, an increased rating under the IVDS Rating Formula is not warranted at any point pertinent to the appeal.

In regard to the General Rating Formula, the evidence must show that the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or results in ankylosis, in order to warrant a rating in excess of the currently assigned 20 percent rating. However, at a December 2010 VA examination, while the Veteran reported constant severe radiating pain, stiffness, and weakness, his forward flexion was limited to, at most, 35 degrees, with pain, muscle spasms, and tenderness, without additional loss following repetitive use testing despite the presence of additional symptoms of fatigue, weakness, and lack of endurance.   He denied flare-ups, and there was no ankylosis or neurologic abnormalities of bladder or bowel impairment, or erectile dysfunction.

Additionally, at a May 2015 VA examination, while the Veteran reported flare-ups anytime he lifted greater than 12.5 pounds, his forward flexion was limited to, at most, 60 degrees, with pain, without additional loss following repetitive use testing. There was no pain on weight-bearing, and the examiner indicated that he could not offer an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time or during a flare-up as the estimated range of motion is highly variable due to multiple subjective and unmeasurable factors such as the severity of pain, weakness, repetitive use, pain medication usage, psychological factors, and individual pain tolerance. Sharp v. Shulkin, 29 Vet. App. 26, 23 (2017); Jones v. Shinseki, 23 Vet. App. 382 (2010) (a medical opinion that cannot be provided without resort to speculation is adequate only when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner). There was no evidence of ankylosis, or neurologic abnormalities of bladder or bowel impairment.

At a September 2020 VA examination, the Veteran reported that he cannot run, sit, or stand for more than 20 minutes, and indicated that he experienced flare-ups based on his activity level. Such were described as moderate to severe, and lasted 30 to 90 days. Range of motion revealed forward flexion to 55 degrees with pain. There was no pain on passive motion, weight-bearing, and nonweight-bearing, and no additional loss of range of motion following repetitive use testing. However, the examiner found that the Veteran's forward flexion was further limited to 50 degrees following repeated use over time and 45 degrees during flare-ups. There was no evidence of ankylosis, or neurologic abnormalities of bladder or bowel impairment.

The Veteran's VA treatment records dated throughout the appeal period document his reports of lower back pain, achiness, and stiffness, but do not include specific ranges of motion for his lumbar spine, with the exception of a notation of full range of motion in March 2020. Such also reflect his denial of bladder or bowel incontinence. See January 2010, June 2014, May 2016, February 2020, March 2020, and August 2020 VA treatment records. 

Consequently, based on the foregoing, the Board finds that the Veteran's forward flexion was limited to, at most 35 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, during the appeal period. Furthermore, there was no evidence of ankylosis, to include in consideration of such factors. See Chavis, supra. Therefore, the Board finds that a rating in excess of 20 percent for the Veteran's back disability is not warranted under the General Rating Formula.

Finally, in regard to Note (1), which provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate DC, the Board finds that record fails to demonstrate the presence of such impairments other than radiculopathy of the BLE and left peroneal nerve impairment, which will be addressed in the next section. In this regard, the December 2010, May 2015, and September 2020 VA examinations and the Veteran's VA treatment records show no evidence of any associated objective neurologic abnormalities other than those already separately rated, to include bladder or bowel impairment, or erectile dysfunction. Thus, no further separate ratings pursuant to Note (1) are warranted.

2. Propriety of the assignment of a separate rating for radiculopathy of the RLE, evaluated as 10 percent disabling as of September 11, 2020.

3. Propriety of the assignment of a separate rating for radiculopathy of the LLE, evaluated as 10 percent disabling as of September 11, 2020.

4. Entitlement to an initial rating in excess of 10 percent left peroneal nerve impairment.

For the entire appeal period, the Veteran has been in receipt of a 10 percent rating for left peroneal nerve impairment pursuant to DC 8521 and, since September 11, 2020, he has also been in receipt of separate 10 percent ratings for radiculopathy of the BLE affecting the sciatic nerves pursuant to DC 8520 associated with his back disability.

In is regard, in peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

DC 8521 pertains to the external popliteal (common peroneal) nerve and provides that mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, and severe incomplete paralysis is rated 30 percent disabling.  Complete paralysis, described as foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling.  

DC 8520 pertains to the sciatic nerve and provides that mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated as 40 percent disabling, and severe incomplete paralysis is rated 60 percent disabling. Complete paralysis, described as the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee wakened or (vary rarely) lost is rated 80 percent disabling. 

Although the words "mild," "moderate" and "severe" are not defined in the VA rating schedule the Board must evaluate all the evidence in order to render a decision that is "equitable and just." 38 C.F.R. § 4.6. However, regulations specifically state that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. 

Turning to the evidence of record, at the December 2010 VA examination, the Veteran reported severe constant pain and numbness radiating into his bilateral legs, which was constant on the left and occasional on the right. However, straight leg raise test was only positive on the left with pain radiating into the left lateral calf. Muscle strength testing was decreased with bilateral thigh abduction due to bilateral superior gluteal nerve involvement and extension of left great toe due to peroneal nerve involvement. Reflex testing was normal in the BLE. Sensory testing revealed abnormal pinprick sensation with no sensation in the L5 dorsum of the left foot, but was otherwise normal in the LLE and RLE.  

At the May 2015 VA back examination, muscle strength was normal at 5/5 bilaterally, reflexes were normal at +2 bilaterally, and sensation was normal bilaterally, with the exception of decreased sensation in the left foot/toes (L5). Straight leg raising test was positive on the left, but negative on the right. It was noted that the Veteran had the following symptoms of radiculopathy: mild constant pain, paresthesias and/or dysesthesias, and numbness of the LLE, and the examiner diagnosed mild radiculopathy of the LLE affecting the sciatic nerve. At a May 2015 VA peripheral nerves examination conducted the same day, the examiner indicated that the Veteran did not have any symptoms attributable to any peripheral nerve condition; rather, he had radiculopathy as assessed on the contemporaneous VA back examination.

During a March 2020 VA rehabilitation consultation, the Veteran described radiation, which traveled from left to right in the low back, and at times he has a "weird nerve sensation" with his legs feeling "hot," with the left leg mostly impacted. He further stated his legs feel strong but numb, at times causing him to drag his foot unconsciously, although if he thinks about it, he can bring it up. This has happened rarely, a few times a year at most.

At the September 11, 2020, VA back examination, muscle strength was normal at 5/5 bilaterally, reflexes were normal at +2 bilaterally, and sensation was normal bilaterally. Straight leg raising test was positive bilaterally. It was noted that the Veteran had the following symptoms of radiculopathy: mild intermittent pain in the BLE and mild numbness in the LLE, and the examiner diagnosed mild radiculopathy of the BLE affecting the sciatic nerve and LLE affecting the peroneal nerve. At a September 2020 VA peripheral nerves examination conducted the same day, the same findings were rendered.

Based on the foregoing, the Board finds that, for the entire appeal period, a rating in excess of 10 percent is not warranted for the Veteran's left peroneal nerve impairment. In this regard, the evidence of record reflects that such disability is manifested by subjective symptoms of pain, paresthesias and/or dysesthesias, and numbness, with objective of decreased muscle strength with extension of the great toe, decreased sensation in the left foot/toes, and no sensation in the L5 dorsum of the left foot. Moreover, in consideration of such subjective symptoms and objective findings, the December 2010, May 2015, and September 2020 VA examiners found that the Veteran's left peroneal nerve impairment resulted in, at most, mild incomplete paralysis of the affected nerve. Thus, a rating in excess of 10 percent for such disability is not warranted under DC 8521.

The Board further finds that the assignment of separate ratings for radiculopathy of the RLE and LLE, each evaluated as 10 percent disabling as of September 11, 2020, is proper. In this regard, the Board notes that, at the May 2015 VA examination, the examiner attributed the aforementioned subjective symptoms and objective findings to a diagnosis of radiculopathy of the LLE affecting the sciatic nerve without noting the presence of left peroneal nerve impairment. Nonetheless, as the totality of the Veteran's reported symptoms and functional impairment were attributed to a single diagnosed nerve condition affecting the LLE, which was assessed as mild in severity, and he is currently in receipt of a 10 percent rating under DC 8521 based on such symptomatology, it would be tantamount to pyramiding to assign another 10 percent rating based on the same symptomatology under DC 8520. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Moreover, while the Veteran reported radiating pain in the RLE prior to September 11, 2020, such is contemplated in the currently assigned 20 percent rating for his back disability under the General Rating Formula, and there is no objective evidence of such neurologic abnormality, as is required by Note (1), prior to such date. Rather, all straight leg raise testing was normal prior to such date.

Furthermore, as of September 11, 2020, the Veteran's radiculopathy of the BLE was manifested by subjective symptoms of mild intermittent pain in the BLE and mild numbness in the LLE without any objective findings. Specifically, muscle strength was normal at 5/5 bilaterally, reflexes were normal at +2 bilaterally, and sensation was normal bilaterally. Moreover, in consideration of such subjective symptoms and objective findings, the VA examiners found that the Veteran's radiculopathy of the BLE resulted in, at most, mild incomplete paralysis of the sciatic nerves. Thus, ratings in excess of 10 percent for such disabilities as of September 11, 2020, is not warranted under DC 8520.

Other Considerations

In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his back and left peroneal nerve impairment disabilities are more severe than as reflected by the current assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his back and left peroneal nerve impairment disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities.

The Board has considered whether staged ratings under Hart, supra, and Fenderson, supra, are appropriate for the Veteran's service-connected back and left peroneal nerve impairment disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, other than his claim for a TDIU, which is addressed below, and no other issues been reasonably raised by the record, in regard to the increased rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching the foregoing determinations, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against of the Veteran's claims for increased ratings for his back and left peroneal nerve impairment disabilities. Therefore, the benefit of the doubt doctrine is not applicable and such increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

5. Entitlement to a TDIU.

As indicated in the Introduction, the issue of entitlement to TDIU has been raised by the record in connection with the Veteran's claim for an increased rating for his back disability.  Specifically, in a January 2011 statement and a February 2012 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran indicated that he had not been able to work since October 2009 due to his back disability. However, during his Board hearing, the Veteran testified that he had to miss work due to his back disability, indicating he was employed again. More recently, during a February 2020 social work appointment, he stated that he cannot find employment due to being unable to sit or stand for a long period of time. As such, on remand, the Veteran should be requested to complete and return an updated VA Form 21-8940, listing his employment history, to include any part-time and seasonal employment, from October 2010 to the present. Thereafter, if a response is received, the AOJ should contact the employers identified by the Veteran and ask them to complete VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), or other appropriate form, detailing the dates of his employment and the reasons that he stopped working.

The matter is REMANDED for the following action:

1. Contact the Veteran and request that he complete and return a VA Form 21-8940, listing his complete employment history, to include any part-time and seasonal employment, from October 2010 to the present.

2. After receiving a response from the Veteran in connection with the directive in the first paragraph, the AOJ should contact his employers and ask them to complete and return VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran's employment and the reasons that he stopped working.

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. M. Kelly, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.