Citation Nr: 21065098 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 09-45 945 DATE: October 25, 2021 ORDER The appeal as to the claim of entitlement to service connection for an acquired psychiatric disorder is dismissed. The appeal as to the claim of entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine disability is denied. REMANDED The appeal as to the claim of entitlement to service connection for Restless leg syndrome (RLS), to include as secondary to the service-connected left lower extremity radiculopathy disability and/or lumbar spine disability, is remanded. The appeal as to the claim of entitlement to a total disability evaluation based upon individual unemployability (TDIU), due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. While in remand status, a March 2021 rating decision granted entitlement to service connection for an acquired psychiatric disorder. 2. Throughout the pendency of the appeal, the Veteran's lumbar spine disability has been manifested by forward flexion limited to no more than 15 degrees; there is no evidence of favorable ankylosis of the entire lumbar spine, or unfavorable ankylosis of the entire lumbar spine. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for an acquired psychiatric disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2020). 2. The criteria for a rating in excess of 40 percent for service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from November 1970 to May 1975. His service was under honorable conditions. The matters are on appeal from an October 2008 rating decision. In January 2012, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). A written transcript of this hearing has been prepared and associated with the evidence of record. In April 2021, the Veteran was informed that the VLJ who held the January 2012 hearing left the Board, and the Veteran did not respond. As per the aforementioned letter, the Board assumes that the Veteran does not want another hearing, and will proceed with adjudication of the case, accordingly. In May 2012, September 2017, November 2019, and November 2020, the Board remanded the issues on appeal for further evidentiary development. The issues have returned to the Board for further appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for an acquired psychiatric disorder. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a March 2021 rating decision granted the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for an acquired psychiatric disorder remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to the matter, and the matter is dismissed. Increased Rating Legal Criteria Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Where there is a question as to which of two evaluations shall 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 (2020). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2020) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and subsequent increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (2020). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2020). 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 (2011), the Court held that, although pain may cause 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 (2020). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2020). In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 2. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine disability. The Veteran also contends that his service-connected lumbar spine disability is more severe than his current 40 percent rating. The Veteran's lumbar spine disability is rated under Diagnostic Code 5237 for a strain of the lumbar spine, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motions 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. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome (IVDS) will be evaluated under the General Rating Formula or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the formula for rating IVDS based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note 1. The Veteran underwent a VA examination in December 2007, during which he reported symptoms of increased back pain, stiffness, and weakness, and radiating pain and numbness down his right and left lower extremities. He reported weekly flare-ups that lasted for several hours due to bending. Physical examination demonstrated no evidence of IVDS. There was evidence of localized tenderness and guarding severe enough to result in abnormal gait or abnormal spinal contour. Range of motion testing of the lumbar spine revealed forward flexion to 30 degrees, extension to 0 degrees, left lateral rotation to 20 degrees. There was evidence of pain during all range of motion testing, but it did not result in further functional loss. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of range of motion or functional loss of the lumbar spine. Motor examination revealed normal muscle tone. There was no evidence of muscle atrophy. Sensory examination of the right and left lower extremities was normal. Reflex examination of the right knee and ankle was normal (2+), left knee jerk was absent (0), left ankle jerk was hypoactive (1+). There was no evidence of ankylosis. X-ray examination revealed degenerative disc disease. Degenerative disc disease was diagnosed. The Veteran underwent a VA examination in January 2009, during which he reported symptoms of decreased range of motion and throbbing pain of his lumbar spine. He reported symptoms of nocturia. The Veteran reported radiation of pain to his right and left lower extremities. The Veteran reported that he lost four weeks of work in the past 12 months due to flare-ups. Physical examination demonstrated evidence of IVDS. The Veteran reported that he missed four weeks of work in the past 12 months due to severe back pain. There was evidence of localized tenderness and guarding severe enough to result in abnormal gait or abnormal spinal contour. Range of motion testing revealed forward flexion to 30 degrees, extension to 5 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. There was evidence of pain during all range of motion testing, but it did not result in further functional loss. Motor examination revealed normal muscle tone. There was no evidence of muscle atrophy. Sensory examination of the right and left lower extremities was normal. Reflex examination of the knee and ankle, bilaterally, was hypoactive (1+). There was no evidence of ankylosis. Degenerative disc disease was diagnosed. A January 2009 private treatment record notes the Veteran's report of increased back pain. Examination revealed spasm and stiffness of the lumbar spine. A June 2009 private treatment record notes the Veteran's report of back pain, spasm, and stiffness. He also reported bilateral lower extremity numbness and weakness, as well as urinary incontinence. A December 2009 Social Security Administration (SSA) examination revealed muscle spasm of the lumbar spine. There was no evidence of bilateral lower extremity weakness. The Veteran underwent a VA examination in January 2010, during which he reported increased low back pain. He reported symptoms of bilateral lower extremity numbness. He denied a history of urinary incontinence. He reported symptoms of urinary frequency and nocturia. The examiner found the Veteran's urinary symptoms to be related to his diabetes, not his service-connected lumbar spine disorder. He denied flare-ups. Physical examination demonstrated evidence of IVDS. There was no evidence of incapacitating episodes in the past 12 months. There was no evidence of muscle spasm, localized tenderness, or guarding severe enough to result in abnormal gait or abnormal spinal contour. Range of motion testing of the lumbar spine revealed forward flexion to 20 degrees, extension to 5 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 20 degrees. There was evidence of pain during all range of motion testing, but it did not result in further functional loss. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of range of motion or functional loss of the lumbar spine. Motor examination revealed normal muscle tone. There was no evidence of muscle atrophy. Sensory examination of the right and left lower extremities was normal. Reflex examination of the knee and ankle, bilaterally, was hypoactive (1+). There was no evidence of ankylosis. X-ray examination revealed mild degenerative disc disease. Degenerative disc disease, degenerative joint disease, and spondylosis were diagnosed. The examiner found that there was no evidence of a nerve condition associated with the Veteran's lumbar spine disability. The Veteran underwent a VA examination in June 2011, during which he reported severe flare-ups every other day, that lasted for three to four days. He denied a history of urinary incontinence, urinary frequency, urinary retention, nocturia, fecal incontinence, erectile dysfunction, and numbness. There Veteran reported three incapacitating episodes, each lasting one week, in the past 12 months. Physical examination demonstrated no evidence of IVDS. There was no evidence of muscle spasm, localized tenderness, or guarding severe enough to result in abnormal gait or abnormal spinal contour. Range of motion testing of the lumbar spine revealed forward flexion to 60 degrees, extension to 10 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees. There was evidence of pain during all range of motion testing, but it did not result in further functional loss. The Veteran performed repetitive-use testing with three repetitions and there was additional loss of range of motion of the lumbar spine; forward flexion was limited to 50 degrees due to pain. Motor examination revealed normal muscle tone. There was no evidence of muscle atrophy. Sensory examination of the right and left lower extremities was normal. Reflex examination of the knee and ankle, bilaterally, was normal (2+). There was no evidence of ankylosis. X-ray examination revealed mild degenerative disc disease. Degenerative disc disease was diagnosed. The Veteran underwent a VA examination in January 2013, during which he reported low back pain and radiating bilateral leg pain. He denied flare-ups. The Veteran denied any incapacitating episodes in the past 12 months. Physical examination demonstrated evidence of IVDS. There was evidence of localized tenderness to palpation, guarding, and muscle spasm, that did not result in abnormal gait or spinal contour. Range of motion testing of the lumbar spine revealed forward flexion to 20 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. There was evidence of pain during all range of motion testing, but it did not result in further functional loss. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of range of motion of the lumbar spine. There was evidence of functional impairment of the lumbar spine after repetitive use, to include, less movement than normal, weakened movement, excess fatigability, pain on movement, and disturbance of locomotion. Motor examination revealed normal muscle tone. There was no evidence of muscle atrophy. Sensory examination of the right and left lower extremities was normal. Reflex examination of the knee and ankle, bilaterally, was hypoactive (1+). Straight leg raising test was negative, bilaterally. There was no evidence of radiculopathy, bilaterally. There was no evidence of neurological abnormalities or findings related to the lumbar spine, to include bowel or bladder problems or pathologic reflexes. EMG/NCV studies were negative for radiculopathy. There was no evidence of ankylosis. Degenerative disc disease was diagnosed. The examiner found that there was no evidence of radiculopathy. A September 2014 VA outpatient treatment record indicates the Veteran is prescribed Percocet for his lumbar spine disability. The Veteran underwent a VA examination in January 2021, during which he reported increased low back pain with radiating pain down his left lower extremity. He reported flare-ups that occurred every other day that lasted for three to four hours. Physical examination did not demonstrate guarding or muscle spasm of the lumbar spine. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine. Range of motion testing of the lumbar spine revealed forward flexion to 75 degrees, extension to 20 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. There was evidence of pain on non-weight bearing. There was objective evidence of pain during range of motion testing, but it did not result in further functional loss. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of range of motion or functional loss of the lumbar spine. With repeated use over time, there was evidence of additional loss of range of motion; specifically, left lateral rotation was limited to 25 degrees and right lateral rotation was limited to 25 degrees. With flare-ups, there was evidence of limited functional ability due to pain, fatigue, and lack of endurance, and there was additional loss of range of motion; forward flexion was limited to 70 degrees, extension to 15 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees. Muscle strength testing was normal (5/5), bilaterally. There was no evidence of muscle atrophy. Reflex examination of the upper anterior thigh, thigh/knee, and lower ankle/ankle was normal bilaterally. Reflex examination of the foot/toes was decreased bilaterally. Straight leg raising test was negative, bilaterally. There was evidence of left lower radiculopathy, to include severe intermittent pain and moderate numbness. The left lower extremity sciatic nerve was mildly affected. There was no evidence of right lower extremity sciatic nerve involvement. There was no evidence of neurological abnormalities or findings related to the lumbar spine, to include bowel or bladder problems or pathologic reflexes. There was no evidence of ankylosis. There was no evidence of IVDS. Degenerative disc disease, spondylosis, and left lower extremity radiculopathy were diagnosed. Upon review of the record, the Board finds that the Veteran's lumbar spine disability does not warrant a rating in excess of 40 percent. On examination in December 2007, range of motion testing of the lumbar spine revealed forward flexion to 30 degrees, extension to 0 degrees, left lateral rotation to 20 degrees. On examination in January 2009, range of motion testing of the lumbar spine revealed forward flexion to 30 degrees, extension to 5 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. On examination in January 2010, range of motion testing of the lumbar spine revealed forward flexion to 20 degrees, extension to 5 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 20 degrees. On examination in June 2011, range of motion testing of the lumbar spine revealed forward flexion to 60 degrees, extension to 10 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees. On examination in January 2013, range of motion testing of the lumbar spine revealed forward flexion to 20 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. On examination in January 2021, range of motion testing revealed forward flexion to 75 degrees, extension to 20 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. In this regard, the aforementioned limitation of range of motion of the lumbar spine is considered under the current 40 percent rating. The Board acknowledges that the June 2011 VA examiner noted the Veteran's additional limitation of range of motion upon repetitive testing, namely, forward flexion to 50 degrees. Likewise, the Board acknowledges that the January 2021 VA examiner noted the Veteran's evidence of pain in non-weight bearing and functional loss due to pain, fatigability, and lack of endurance. With consideration of the Veteran's flare-ups and repeated use over time, there was addition range of motion loss, to include forward flexion of the lumbar spine to 70 degrees, extension to 15 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees; however, such limitation is considered under the current 40 percent rating. 38 C.F.R. §§ 4.71a, 4.40, 4.45, 4.59; see Mitchell, 25 Vet. App. at 32; Deluca, 8 Vet. App. at 202. Moreover, the next higher 50 or 100 percent rating is not warranted, as there is no evidence of unfavorable ankylosis of the entire lumbar spine, or the entire spine, respectively. In reaching the above conclusion, the Board has considered the recent finding in Chavis v. McDonough, 34 Vet. App. 1 (2021). In this case, the United States Court of Appeals for Veterans Claims stated that VA must consider an evaluation based on ankylosis if the evidence shows limitation of motion that is the functional equivalent of ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dorland's Illustrated Medical Dictionary at 94 (31st ed., 2007). While there is evidence of limited motion that increases during flare-ups or due to functional impairment associated with pain, the evidence does not suggest that the Veteran's motion is ever so limited as to be equivalent to immobility. As such, a higher evaluation is not warranted based on the functional equivalent of ankylosis of the spine. Additionally, throughout the period of the appeal, the Veteran denied incapacitating episodes aside from four flare-ups that did not exceed four weeks in 2009, that resulted in the Veteran being bedridden for the day (not prescribed by a physician). In this regard, although he was diagnosed with IVDS on examination in December 2009, January 2010, and January 2013, there is no evidence of episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Further, even if the Veteran's four flare-ups that occurred in 2009 are considered "incapacitating episodes," the Veteran does not warrant the next higher 60 percent evaluation pursuant to Diagnostic Code 5243, as the total duration was four weeks during the 12-month period. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As above, a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Furthermore, the Board finds that there is no evidence that the Veteran has additional neurological deficiency due to his lumbar spine disability. In this regard, the Board notes that the Veteran is currently in receipt of a separate rating for his left lower extremity radiculopathy (sciatic nerve) associated with his lumbar spine disability. Moreover, the January 2009, January 2010, June 2011, January 2013, and January 20201 VA examinations do not demonstrate any evidence of right lower extremity radiculopathy; in fact, the January 2021 VA examination found that there was no evidence of right lower extremity radiculopathy, to include sciatic nerve involvement. In addition, there is no evidence of any additional neurological abnormalities or findings related to the lumbar spine, to include bowel or bladder problems or pathologic reflexes. In this regard, while the Veteran reported that he experienced nocturia during the January 2009 VA examination and June 2009 private treatment, and urinary frequency during the January 2010 VA examination, the January 2010 VA examiner reviewed the evidence of record and found such symptoms due to the Veteran's diabetes. Moreover, the June 2011, January 2013, and January 2021 VA examination reports are negative for complaints of, treatment for, or a finding of bowel or bladder problems to include nocturia, urinary frequency, or urinary incontinence. Further, the Board has considered the lay evidence offered by the Veteran in the form of correspondence, in addition to the medical evidence cited above. In this regard, the Board acknowledges the Veteran's consistent report of pain, stiffness, and difficulty walking, standing, and bending. However, even affording the lay statements full competence and credibility, the evidence simply does not show entitlement to a higher evaluation under any applicable diagnostic code. For these reasons, the Board finds that the Veteran's service-connected lumbar spine disability does not warrant a rating in excess of 40 percent, to include as a "staged" rating(s) pursuant to Fenderson and Hart. REASONS FOR REMAND 1. Entitlement to service connection for RLS, to include as secondary to the service-connected left lower extremity radiculopathy disability and/or lumbar spine disability. The Veteran contends that his current RLS disorder is secondary to his service-connected left lower extremity radiculopathy disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2020). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. Post-service treatment records and examination reports note diagnoses of RLS dated from 2007 to the present. Accordingly, on remand, a VA medical opinion in necessary to address the current etiology of the Veteran's current RLS disorder, to include whether it is caused or aggravated by his service-connected left lower extremity radiculopathy disability. 2. Entitlement to TDIU due to service-connected disabilities. As resolution of the claim of entitlement to service connection for RLS will have an impact on the claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current RLS disorder, manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the RLS disorder was caused or permanently worsened by the service-connected left lower extremity radiculopathy disability. If the physician believes that a RLS disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. CONTINUED ON THE NEXT PAGE 3. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.