Citation Nr: 21071105 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 12-16 144 DATE: November 29, 2021 ORDER An effective date of November 1, 2009 for the award of service connection for radiculopathy of the left lower extremity associated with lumbar spondylosis is granted. Service connection for colitis (also diagnosed as irritable bowel syndrome) is denied. An initial rating higher than 10 percent for radiculopathy of the left lower extremity is denied. An initial rating higher than 10 percent for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to an initial rating higher than 10 percent for lumbar spondylosis (low back disability) is remanded. Entitlement to a rating higher than 20 percent for degenerative arthritis of the right acromioclavicular joint (right shoulder disability) since June 17, 2014 is remanded. Entitlement to an initial rating higher than 20 percent for degenerative arthritis of the left acromioclavicular joint (left shoulder disability) since June 17, 2014 is remanded. Entitlement to an initial rating higher than 0 percent for left great toe fracture is remanded. Entitlement to an initial rating higher than 0 percent prior April 14, 2021, and higher than 10 percent since that date, for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The Veteran's service-connected low back disability has been manifested by radiculopathy of the left lower extremity since November 1, 2009, the effective date of service connection. 2. The Veteran has not had colitis, or any other condition of the colon, including irritable bowel disease, diverticulitis, or diverticulosis, during the pendency of this claim. 3. The Veteran's left lower extremity radiculopathy is manifested by mild incomplete paralysis of the nerve involved. 4. The Veteran's right lower extremity radiculopathy is manifested by mild incomplete paralysis of the nerve involved. CONCLUSIONS OF LAW 1. The criteria for an effective date of November 1, 2009 for the award of service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code 5242. 2. The criteria for service connection for colitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial rating higher than 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial rating higher than 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had an honorable career in the U.S. Air Force, serving on active duty from February 1987 to October 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters for further development in May 2014 and June 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2012. A transcript of the hearing is of record. The Board notes that a claim for service connection for a left elbow disability (claimed as tendonitis) was previously before the Board, and remanded for further development. In its June 2020 remand, the Board found that the claim encompassed cubital tunnel syndrome, which was diagnosed based on a February 2015 EMG/NCS study. Service connection for left bicep tendonitis has since been granted. The May 2021 VA medical opinion found that the left ulnar neuropathy (i.e., cubital tunnel syndrome) diagnosed by the February 2015 EMG/NCS was not related anatomically or physiologically "in any way" to the left bicep tendonitis. The October 2021 appellate brief states that the grant of service connection for left bicep tendonitis represents a full grant of the benefits sought on that issue, and makes no arguments regarding the cubital tunnel syndrome. The June 2014 VA examination report reflects that the February 2015 EMG/NCS was ordered "to determine whether or not [the Veteran] has bilateral carpal tunnel syndrome (medial neuropathy at the wrist);" it was not ordered to assess his left elbow tendonitis claim. Service connection for bilateral carpal tunnel syndrome has already been established. The February 2015 VA EMG/NCS report reflects findings of bilateral median nerve compressive neuropathy at the wrists and also "mild slowing of the ulnar conductions across the elbows suggesting ulnar compressive neuropathy at the elbows bilaterally." As already noted, the May 2021 VA medical opinion indicates that the Veteran's claimed disability, including its symptoms and associated functional impairment, is not related "in any way" to the February 2015 diagnosis of ulnar neuropathy. Service treatment records, such as those dated in November 2006 and March 2008, show findings of tendon adhesions of the left proximal biceps. They do not reflect findings of ulnar neuropathy or a neurological condition involving the elbow. Accordingly, when the record is considered as a whole, and in light of the May 2021 VA medical opinion, the Board finds that the grant of service connection for left bicep tendonitis represents a full grant of the claim for tendonitis (service connection for epicondylitis of the right elbow was awarded in the December 2014 rating decision), and that further consideration of the February 2015 diagnosis of ulnar neuropathy (cubital tunnel syndrome) is not warranted at this juncture. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In claims for direct service connection, if the claim is received within one year after separation from active service, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Radiculopathy of Left Lower Extremity A December 2014 rating decision granted service connection for the Veteran's left lower extremity radiculopathy effective June 17, 2014, finding that this was related to his service-connected lumbar spondylosis, the evaluation of which is on appeal. The Board finds that an effective date of November 1, 2009 is warranted, for the reasons discussed below. The Veteran filed a claim for service connection for his low back disability in October 2009. Service connection for that disability has been awarded effective November 1, 2009, the day following his retirement from active service. See 38 C.F.R. § 3.400(b)(2). While he did not separately claim service connection for associated radiculopathy, the record shows that his low back disability has been manifested by radiculopathy affecting the left lower extremity throughout the pendency of the claim, and indeed for years during his period of service. Specifically, service treatment records show that in November 2005, the Veteran complained of low back pain and left leg pain and numbness. A magnetic resonance imaging study (MRI) of the lumbar spine showed findings including disc desiccation, a circumferential disc bulge at L5-S1 and L4-L5, and neural foraminal narrowing at those levels. A January 2006 service treatment record notes a bulging disc and numbness in the left leg. Another January 2006 service treatment record notes findings of "left leg pain/radiculitis" and meralgia paresthetica with regard to the left leg numbness. Peroneal nerve compression was suspected based on the November 2005 MRI findings (however, a February 2006 nerve conduction velocity (NCV) test was normal with regard to the left peroneal nerve). A VA examination of the Veteran's lumbar spine was performed in November 2009. The examination report notes the Veteran's symptoms of intermittent left leg numbness. A sensory examination showed decreased pinprick sensation on the left foot. At the June 2012 hearing, the Veteran testified, in the context of discussing his back disability, that he had numbness on the outside of his left leg going all the way down to his toes. The June 2014 VA spine examination report reflects a finding of radiculopathy, and specifies involvement of the sciatic nerve affecting the left lower extremity. The grant of service connection for the Veteran's left lower extremity radiculopathy in the December 2014 rating decision, with an effective date of June 17, 2014, was based on the findings in the June 2014 VA examination report. As shown above, the Veteran's low back disability, the initial evaluation of which is currently on appeal, has been manifested by left lower extremity radiculopathy that had its onset during active service and has been present ever since. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated neurologic abnormalities are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Accordingly, the Board finds that the Veteran's claim for service connection for his low back disability, and the issue of entitlement to a higher initial rating for that disability, encompasses his associated left lower extremity radiculopathy, which is a complication identified in the rating criteria applicable to disabilities of the spine. As the record establishes that his low back disability has been manifested by left lower extremity radiculopathy since at least November 1, 2009 (and indeed for several years during his military career), which is the effective date of service connection for his back disability and the first day following his separation from service, that effective date is also warranted for the award of service connection for the left lower extremity radiculopathy. See 38 C.F.R. § 3.400. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Colitis The Veteran claims service connection for colitis. See October 2009 VA Form 21-526. As discussed in its prior remand, the Board finds that this claim encompasses other similar conditions raised by the record, including diverticulosis. Cf. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). For the following reasons, the Board finds that service connection is not established. The Board finds that the Veteran does not have a current disability with regard to his claim for colitis. The service treatment records show that the Veteran underwent a colonoscopy in July 2005, which showed findings of colitis. He underwent another colonoscopy in February 2007, which showed mild colitis at the time. The February 2007 colonoscopy report also reflects a finding of mild diverticulosis in the sigmoid colon. In May 2007, the Veteran was seen for follow-up "on surveillance colonoscopy for colitis." The report notes that he had a history of colitis but was asymptomatic. A June 2008 record lists a diagnosis of non-specific colitis, but this was not based on clinical findings of colitis on examination at the time; rather, the record was generated for purposes of a medical clearance for the Veteran to be authorized to continue to work in his duty assignment. A record titled "Adult Preventative and Chronic Care Flowsheet," which reflects that it was updated in April 2009, lists a number of "chronic illnesses," including colitis. Again, this diagnosis does not appear to be based on clinical findings subsequent to the February 2007 colonoscopy. In June 2008, the Veteran was seen for follow-up of his gastrointestinal symptoms. It was noted that he had been last seen in May 2007, at which time he was "doing very well from an upper and lower [gastrointestinal] standpoint, without any symptomatic breakthrough." At the time of this visit, he reported doing "quite well." He denied nausea, vomiting, diarrhea, or constipation. He had regular bowel movements. The assessment was that he was "pretty asymptomatic from a GI standpoint." An April 2009 dental medical history record notes a diagnosis of inflammatory bowel disease, but this was again apparently based on the diagnoses of colitis in February 2007 and July 2005, as it does not refer to more recent examination findings. A follow-up colonoscopy was performed in May 2009. The colonoscopy report reflects a finding of mild diverticulosis in the sigmoid colon. There was no finding of colitis or inflammatory bowel syndrome in this report. A May 2009 record titled "Memorandum for Medical/Dental Care Provider" refers to the surveillance colonoscopy and reflects a diagnosis of diverticulosis and internal hemorrhoids. A May 2009 service treatment record notes that the Veteran was seen for a colonoscopy on May 1, 2009. He was prescribed no mediations to take home. He denied symptoms. A July 2009 medical history at retirement reflects a history of colitis and notes that he was diagnosed with general irritable bowel syndrome. The Veteran has not stated that he has been diagnosed with colitis, or has had symptoms attributed to colitis or irritable bowel syndrome, during the pendency of this claim. The record does not show otherwise. In that regard, the Veteran was seen for a VA examination in November 2009 as part of the development of the claim. The examination report states that he underwent colonoscopies in 2005 (i.e., in July 2005), February 2007, and May 2009. The examiner stated that the colonoscopy report in 2009 showed mild diverticulosis in the sigmoid colon and small grade 1 hemorrhoids in the rectum. It was otherwise normal. The examiner also noted that the service treatment records showed that in 2005 he underwent an esophagogastroduodenoscopy which showed esophagitis, gastritis, hiatal hernia, and minimal bile reflux. The examiner added that the 2005 colonoscopy showed nonspecific colitis. The Veteran stated he "has been treated with Nexium which he continues to take." Regarding his stomach, he stated he has no symptoms as long as he takes his Nexium daily. However, if he missed two or three days of that medication, he felt the onset of epigastric pain. His bowel movements were normal. According to the examination report, he had "no current effects or residuals related to his nonspecific colitis diagnosed in 2005," and that "he has had no recurrence of colitis to date." The report reflects a normal examination of the colon. The examiner noted that the Veteran took daily medication to control his gastroesophageal reflux symptoms. A November 2009 MTF record reflects that the Veteran requested a refill of his Nexium medication. In reference to that medication, a diagnosis of "direct tenderness in the RUQ [right upper quadrant] of the abdomen" is listed. An April 2010 MTF record states with regard to heartburn that the Veteran needed a refill of Nexium. It was noted he was doing well on that medication. A December 2010 MTF record reflects that the Veteran's GERD was controlled with Nexium and diet. At the December 2012 Board hearing, the Veteran stated that he took Nexium for his acid reflux. When asked if he was on medication for his colitis, he again stated that he took Nexium for that condition. When asked, with regard to this claim, whether he was having any spasms or episodes of chronic diarrhea, he replied "No, not really." He added, "I think a lot of that goes in [sic] with the gastric reflux as well." A VA examination as part of the development of this claim was also performed in June 2014. The examination report reflects a diagnosis of "diverticulitis," with a date of diagnosis of May 1, 2009, and "non-specific colitis, resolved," with a date of diagnosis of July 2005 (in reference to the July 2005 in-service colonoscopy). With regard to the diagnosis of "diverticulitis," the examiner stated (incorrectly) that the May 2009 colonoscopy showed mild "diverticulitis" in the sigmoid colon. The examiner noted that the Veteran continued to have upper gastrointestinal symptoms about six times per year, including nausea, abdominal pain, cramping, and diarrhea. A June 2014 VA examination to assess the Veteran's GERD states that the Veteran's upper gastrointestinal symptoms included nausea, mid upper epigastric pain, and occasionally vomiting. When these symptoms occurred, he took a dose of Nexium, and the symptoms resolved in several hours. A January 2015 MTF record states with regard to the diagnosis of esophageal reflux that the Veteran was "doing well" on Nexium. A May 2019 MTF record reflects that the Veteran was seen for a colorectal cancer screening. He denied any active symptoms of colorectal disease, including hematochezia, rectal bleeding, abdominal pain, change in bowel habits, or unintentional weight loss. It was noted that he last had a colonoscopy ten years earlier, which was normal. Under the heading "PMH"past medical historyis listed diverticular disease and colitis, among other diagnoses. A September 2019 colonoscopy report from a private facility reflects findings of a polyp, which was removed, and internal hemorrhoids. It does not mention colitis or other findings. The April 2021 VA examination report states that the Veteran denied having a lower gastrointestinal condition of any type; his only condition was GERD, for which he took Nexium daily. In the May 2021 opinion, the examiner found that review of the record, including the May 2009 colonoscopy, showed that the Veteran's colitis had resolved. The examiner noted that mild "diverticulitis" was found, which the examiner explained is a flare of the colon when a diverticula (pocket) forms off the colon wall and gets infected or inflamed. The examiner observed that diverticulitis can flare in the future, but is dormant at this time. The examiner added that there had been no flare in years, and there were no symptoms. In a July 2021 addendum to the May 2021 opinion, the examiner essentially reiterated the May 2021 opinion, noting that the Veteran, at the April 2021 examination, insisted he had no lower gastrointestinal or colon complaints; his only complaints were related to his GERD diagnosis. Based on the evidence reviewed above, the Board finds that a current disability is not established. The service treatment records show that since the February 2007 colonoscopy, there were no subsequent findings of colitis or irritable bowel syndrome, although that diagnosis was sometimes listed in the Veteran's medical history. As found in the May 2021 VA medical opinion, the May 2009 colonoscopy showed that the Veteran's colitis had resolved. The November 2009 VA examination report states that there were "no current effects or residuals related to his nonspecific colitis diagnosed in 2005," and that "he has had no recurrence of colitis to date." He has not been diagnosed with colitis or irritable bowel syndrome during the pendency of this claim. The May 2019 MTF record reflects that he denied any active symptoms of colorectal disease, including hematochezia, rectal bleeding, abdominal pain, change in bowel habits, or unintentional weight loss. It was noted that he last had a colonoscopy ten years earlier, which was normal. The colonoscopy performed in September 2019 was also negative for findings of colitis, as reflected in the report of that examination. The record does not show that the Veteran's colitis or irritable bowel syndrome is still present, but merely dormant or controlled with medication. While he indicated at the December 2012 Board hearing that he takes Nexium for his colitis, the record otherwise overwhelmingly shows that he takes Nexium solely to treat his GERD symptoms, as shown in the MTF records and VA examination reports. As his hearing testimony is contradicted by that evidence, the Board finds that it does not constitute credible or probative evidence that his Nexium controls symptoms of colitis or irritable bowel syndrome. His colitis was diagnosed on colonoscopy in July 2005 and February 2007, but not found on colonoscopy in May 2009 and September 2019. Based on the May colonoscopy report, the May 2021 VA medical opinion concluded that the Veteran's colitis had resolved. While the May 2019 MTF record reflects a past medical history that lists colitis, that diagnosis pertains to the Veteran's past historyas indicated by the heading and not to present examination findings. The Board further finds that the Veteran has never been diagnosed with diverticulitis. The June 2014 VA examiner's statement that the May 2009 colonoscopy report showed a finding of diverticulitis in the sigmoid colon is clearly incorrect. It showed a finding of diverticulosis, not diverticulitis. The June 2014 examiner apparently misread the word used in that report. The November 2009 VA examiner confirmed that the May 2009 colonoscopy report showed a finding of diverticulosis. That finding is also repeated in the May 2009 "Memorandum for Medical/Dental Care Provider," which was authored by the physician who conducted the May 2009 colonoscopy. The May 2021 VA medical opinion and July 2021 addendum also state that the May 2009 colonoscopy showed diverticulitis, but that statement was based either on a misreading of the word used in the May 2009 report, or on reliance on the June 2014 VA examiner's report, which misread that word. Be that as it may, there is no prejudice to the Veteran's claim, as the record clearly shows he has never been diagnosed with diverticulitis, which is distinct from diverticulosis as explained in the May 2021 opinion. The May 2021 opinion is not otherwise inadequate, as it simply provides a definition of diverticulitis, and explains that the Veteran does not currently have that condition, noting that he denied experiencing lower gastrointestinal, or colon, symptoms. Thus, as the Veteran has never been diagnosed with diverticulitis based on examination, that diagnosis is not established. As just explained, the June 2014 and May 2021 VA examiners simply misread the word "diverticulosis" in the May 2009 colonoscopy report as "diverticulitis." Thus, the statements in the June 2014 VA examination report and May 2021 opinion that the Veteran had a history of diverticulitis are inaccurate, and therefore not afforded any weight in the Board's determination. The Board notes that the May 2019 MTF record lists diverticular disease in the Veteran's past medical history. The record does not show current findings of diverticular disease during the pendency of this claim. Indeed, it is unclear why the diagnosis of "diverticular disease" was listed, unless it was in reference to the diverticulosis noted in the May 2009 colonoscopy report. Accordingly, that record also does not support a finding that the Veteran has had diverticulitis at any point during the pendency of this claim. The record also does not show that the Veteran has had diverticulosis during the pendency of this claim. The in-service February 2007 and May 2009 colonoscopies showed mild diverticulosis in the sigmoid colon; however, the post-service September 2019 colonoscopy report does not list diverticulosis as a finding. The records do not otherwise show findings of diverticulosis during the pendency of this claim. Accordingly, a current diagnosis is not established. Indeed, the September 2019 colonoscopy report constitutes probative evidence that the Veteran does not have diverticulosis, the diagnosis of which had been based on the same diagnostic procedure, namely prior colonoscopies, and not on other types of examination or diagnostic imaging. As a final matter, the Board observes that it is doubtful that diverticulosisas opposed to diverticulitisconstitutes a disability for VA compensation purposes. VA's Schedule for Rating Disabilities contains a diagnostic code applicable to diverticulitis. See 38 C.F.R. § 4.114, Diagnostic Code 7327. However, it does not contain a diagnostic code pertaining to diverticulosis. See 38 C.F.R. Part IV. As explained in the May 2021 and July 2021 addendum, diverticulitis is a flare of the colon when a diverticula (pocket) forms off the colon wall and gets infected or inflamed. Diverticulosis, by contrast, is "the presence of diverticula, particularly of colonic diverticula, in the absence of inflammation." See Stewart v. Nicholson, No. 02-2280, 2005 U.S. App. Vet. Claims LEXIS 75 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 499-500 (28th ed. 1994). The U.S. Court of Appeals for the Federal Circuit defines the term "disability" for VA compensation purposes as functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). When the rating schedulewhich contains a diagnostic code for diverticulitis but not for diverticulosisis considered together with the May 2021 VA medical opinion's definition of "diverticulitis," the definition of "diverticulosis," and the definition of "disability" set forth in Saunders, it becomes doubtful that diverticulosisthe presence of diverticulais in itself a disability for VA compensation purposes. With regard to Saunders, the record does not show findings that the Veteran has had symptoms or functional impairment related to the in-service diagnosis of diverticulosis. Whatever the case, the record shows that the Veteran's diverticulosis has not manifested during the pendency of this claim. In the absence of a current disability, the criteria for service connection for a condition of the colon, including colitis, irritable bowel syndrome, diverticulitis, or diverticulosis, have not been met. See Holton, 557 F.3d at 1366 (holding that evidence of a current disability is an element of service connection that must be satisfied to award benefits); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). As the preponderance of the evidence is against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 999 F.3d at 1395; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. Disability Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Bilateral Lower Extremity Radiculopathy The appeal of the evaluation of the Veteran's low back disability encompasses the evaluation of the associated radiculopathy of the left and right lower extremities. For the following reasons, the Board finds that the criteria for ratings higher than 10 percent have not been met for either lower extremity. The Veteran's lumbar radiculopathy of the bilateral lower extremities is rated under Diagnostic Code (DC) 8520, which pertains to disease of the sciatic nerve. 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent evaluation is assigned for mild incomplete paralysis; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. Id. A maximum 80 percent evaluation is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. 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; Note prefacing DC's 8510 through 8730. The November 2009 VA examination report reflects that the Veteran's radiculopathy of the left lower extremity was manifested by intermittent numbness. The numbness occurred after walking about four hours or after running for about half a mile. A sensory examination showed decreased pinprick sensation on the lateral edge of the left foot. The rest of the foot had normal intact sensation. He had normal musculature of the lower extremities. Deep tendon reflexes and muscle strength was symmetrical and normal. At the June 2012 Board hearing, the Veteran stated he has numbness in the outside of his left leg all the way down to his toes. The June 2014 VA examination report reflects that the Veteran's left lower extremity radiculopathy was manifested by mild numbness. Muscle strength testing was normal (5/5). He had no atrophy. Deep tendon reflexes of the knee and ankle were normal (2+). A sensory examination showed decreased sensation of the left thigh/knee and left foot/toes. There were no trophic changes. The Veteran's gait was normal. Regarding the functional impact, the examiner found that the Veteran's radiculopathy ("peripheral nerve condition") did not affect his ability to work. A May 2019 MTF record states that no lower extremity weakness was observed. His balance, gait, and stance were normal. His deep reflexes were normal. The April 2021 VA examination report reflects that strength testing was normal (5/5) in both lower extremities. The Veteran did not have muscle atrophy. Deep tendon reflexes were normal (2+) in the right and left knees and ankles. A sensory examination was normal for both lower extremities. The Veteran's symptoms of radiculopathy consisted of mild paresthesias and/or dysesthesias in the left and right lower extremities. He had no other signs or symptoms of radiculopathy. The evidence shows that the Veteran's radiculopathy is "wholly sensory" and consists of mild numbness or paresthesias and/or dysesthesias. Apart from decreased sensation, neurological examination of the lower extremities has been normal, including with regard to strength and reflexes. His radiculopathy has not caused functional or occupational impairment. Accordingly, the Board finds that the criteria for a rating higher than 10 percent for radiculopathy of the left lower extremity, or higher than 10 percent for the right lower extremity, have not been met. 38 C.F.R. § 4.124a, DC 8520. As the preponderance of the evidence is against higher ratings for the Veteran's left or right lower extremity radiculopathy, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 999 F.3d at 1395; 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 10 percent for lumbar spondylosis (low back disability) is remanded. 2. Entitlement to an initial rating higher than 0 percent for left great toe fracture is remanded. 3. Entitlement to an initial rating higher than 0 percent prior April 14, 2021, and higher than 10 percent since that date, for GERD is remanded. Since the Board's June 2020 remand, a May 2021 rating decision was issued which, in pertinent part, granted a 10 percent rating for the Veteran's low back disability, and a 10 percent rating for his GERD. As recognized in that decision, these were only partial grants, as they did not grant the maximum benefits available under the rating schedule. Consequently, these issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). However, no supplemental statement of the case (SSOC) has been issued prior to certification of the appeal of these issues to the Board, as required under 38 C.F.R. § 19.31. The Board is aware that October 2021 appellate brief states that the grant of the 10 percent rating effective November 1, 2009 for the Veteran's low back disability "represents a full grant of benefits sought on appeal for this issue." The Board is unconvinced by that statement alone that the Veteran does not seek a higher rating for his low back disability. If he truly wishes to withdraw the appeal, he may do so on remand. With respect to the evaluation of residuals of the Veteran's left great toe fracture, a VA examination was performed in April 2021, pursuant to the Board's remand directives. However, the issue has not since been readjudicated by the agency of original jurisdiction (AOJ). Accordingly, remand is warranted for readjudication by the AOJ andif the maximum benefits sought by the Veteran are not grantedissuance of an SSOC. 4. Entitlement to a rating higher than 20 percent for degenerative arthritis of the right acromioclavicular joint (right shoulder disability) since June 17, 2014 is remanded. 5. Entitlement to a rating higher than 20 percent for degenerative arthritis of the left acromioclavicular joint (right shoulder disability) since June 17, 2014 is remanded. The Board finds that the April 2021 VA examination report is not sufficient to make an informed decision respecting the evaluation of the Veteran's service-connected bilateral shoulder disabilities. In the examination report, the examiner did not provide the results of repetitive range-of-motion testing, or state whether the results were the same as on the initial testing. With regard to flare-ups, the examiner did not indicate whether the examination was being performed during a flare-up. Significantly, the examiner provided an estimate of range-of-motion during flare-ups that is the same as the range-of-motion recorded on initial testing for both shoulders. No explanation is provided. According to the report, the Veteran endorsed flare-ups with activity and general overuse, heavy lifting, especially when overhead, and in cold weather, and stated that the pain "slows him down." It is thus unclear why the estimate of his range of motion of the shoulders during flare-ups is the same as that recorded on initial testing, unless he were experiencing such a flare-up at the time of the examination. The Boards notes that at the bottom of the report, the examiner wrote: "I have no basis to offer additional losses of motion or function related to repetitive use or during a flare-up." If the examiner means that an estimate of additional loss of motion on repetitive use over time or during flare-ups could not be provided without resort to mere speculation, an adequate explanation must be provided, as required under Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). On remand, the examiner who performed the April 2021 examination should be asked to state whether there was additional limitation in range of motion of either shoulder on repetitive testingand if so, to specify the degreeand to state whether or not the Veteran was experiencing a flare-up at the time of that examination. If not, the examiner must explain why the estimate of range of motion of the shoulders during flare-ups is the same as that recorded on initial testing, when the Veteran stated he experiences pain that slows him down during flare-ups. If found to be necessary to provide these answers, a new examination should be performed. The matters are REMANDED for the following action: 1. Issue an SSOC addressing entitlement to higher initial ratings for the Veteran's lumbar spondylosis (low back disability) and GERD. 2. Readjudicate the issue of entitlement to a higher initial rating for the Veteran's left great toe fracture, with consideration of all relevant evidence added to the file since the December 2014 SOC, including the April 2021 VA examination report. If the benefits sought are not granted, the Veteran and his representative must be furnished an SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 3. Regarding entitlement to higher initial ratings for the Veteran's bilateral shoulder disabilities, request the examiner who performed the April 2021 examination to provide an addendum to the examination report, as follows. In the addendum, the examiner is asked to provide responses to the following: (a.) Whether there was additional limitation in range of motion of either shoulder on repetitive-use testing. If so, the examiner must specify the degree of range of motion on repetitive-use testing. (b.) Whether or not the Veteran was experiencing a flare-up at the time of the April 2021 examination. (c.) If he was not experiencing a flare-up at the time, why the estimate of range of motion of the shoulders during flare-ups provided in the report is the same as that recorded on initial testing, when the Veteran stated he experiences pain that slows him down during flare-ups. (d.) An estimate of additional loss (if any) of range of motion of each shoulder with repetitive use over time. (e.) If the examiner is unable to provide such an estimate, the examiner must explain why the available information including the Veteran's statements, medical history, and the examination findings is not sufficient for that purpose. If the April 2021 examiner is not available or cannot provide a response in a reasonable timeframe, or is unable to provide responses to the above questions, a new examination should be arranged. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.