Citation Nr: 21072577 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-23 962 DATE: December 3, 2021 ORDER Entitlement to an increased rating in excess of 20 percent disabling for cervical degenerative disc disease (neck disability) is denied. Entitlement to an increased rating in excess of 20 percent disabling for lumbar spine degenerative disc disease (low back disability) is denied. Entitlement to a 20 percent, but no higher, disability evaluation for service-connected left lower extremity radiculopathy is granted. Entitlement to a 20 percent, but no higher, disability evaluation for service-connected right lower extremity radiculopathy is granted. Entitlement to an increased rating in excess of 30 percent disabling for granulomatous disease from histoplasmosis is denied. FINDINGS OF FACT 1. The Veteran's neck disability did not more nearly approximate forward flexion of 15 degrees or less, was not manifested by favorable or unfavorable ankylosis of the entire cervical spine, and did not result in physician prescribed bed rest having a total duration of at least four weeks over a 12 month period at any time during the appeal period. 2. The Veteran's low back disability has not manifested with forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire spine, or incapacitating episodes. 3. The Veteran's left lower extremity radiculopathy was manifested by moderate incomplete paralysis. 4. The Veteran's right lower extremity radiculopathy was manifested by moderate incomplete paralysis. 5. The Veteran's granulomatous disease is not manifested by an FEV-1 of 55-percent predicted or less; an FEV-1/FVC of 55 percent or less; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the Veteran's neck disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for an increased disability rating in excess of 20 percent for the Veteran's lumbar back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5242. 3. The criteria for entitlement to a 20 percent rating for service-connected left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a 20 percent rating for service-connected right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. 5. The criteria for an increased rating in excess of 30 percent disabling have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, DC 6820-6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1978 to December 1995. In a March 2018 Board decision, these issues were remanded for further development, specifically new VA examinations and the most recent medical treatment records for each disorder. The Board finds that VA is in substantial compliance with the remand instructions and thus the issues are properly before the Board for adjudication. Increased Rating A disability rating is determined by the application of VA's Schedule Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 1. Entitlement to an increased rating in excess of 20 percent disabling for cervical degenerative disc disease 2. Entitlement to an increased rating in excess of 20 percent disabling for lumbar spine degenerative disc disease Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. 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; or, unfavorable ankylosis of the entire cervical spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Additionally, if there is evidence of intervertebral disc syndrome (IVDS), Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6; Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The rating criteria for IVDS were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (February 7, 2021) (codified at 38 C.F.R. § 4.71a). The revised criteria provide that a rating under DC 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 be assigned for all other disc diagnoses. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as the amendment discussed above has a specified effective date without provision for retroactive application, the amendment may not be applied prior to its effective date. As of the effective date, February 7, 2021, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran's low back disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, Diagnostic Code 5242 sets forth the criteria for degenerative arthritis of the spine. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5242 were amended. However, the amendment changed only the title of the regulation from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome." No changes were made to the General Rating Formula. The Veteran's low back disability is currently evaluated as 20 percent disabling from May 6, 1998 and the Veteran's neck disability is currently evaluated as 20 percent disabling from November 18, 2003. The Veteran essentially contends that his low back disability and neck disability have been more disabling than contemplated by the assigned evaluation. The question for the Board, therefore, is whether the Veteran's disability picture more nearly approximated the criteria for a higher evaluation. In a September 2009 private treatment record, the examiner noted that the Veteran had residual mechanical low back pain and that the Veteran reported that his low back pain did tend to wax and wane. The examiner also explained that the Veteran also had a history of neck pain with radiation into the left shoulder. He furthered that the Veteran denied any bowel or bladder incontinence. Upon physical examination, the examiner noted that the Veteran had paralumbar tenderness extending into the superior gluteal region with palpable muscle spasms in the erector spinae area. He furthered that the Veteran had limited range of motion (ROM) with flexion, extension, and rotation of the lumbar spine which exacerbated his pain. In a November 2009 statement, the Veteran reported that his lumbar spine and cervical spine disabilities had worsened over the years and that he had more pain which was triggered by prolonged standing, driving, or sitting. In a December 2009 statement, the Veteran reported that his low back pain had increased and that he had outpatient surgery in April 2009 for a ruptured disc. In February 2010, the Veteran submitted multiple statements by friends, co-workers, and family explaining that he had been suffering from back and neck problems for a very long time. In May 2010, the Veteran was afforded a VA examination where he reported that he had a chronic level of three out of ten pain which flares up to six out of ten when standing for 45 minutes, walking a half mile, or doing any bending, stooping, or lifting. The examiner explained that the Veteran did not have any weight loss, falls, unsteady gait. The examiner also noted that the Veteran did not have any incapacitating episodes requiring bed rest or treatment by a physician in the last 12 months. The examiner furthered that the Veteran did not have limitations on standing or walking and that he had normal curvatures of the cervical, thoracic and lumbar spine. The examiner furthered that forward cervical flexion is 45 degrees without limitation by pain and stiffness. Extension was to 45 degrees with flare of pain at level six out of ten at the end of ROM. Right and left later flexion was to 45 degrees with pain at the end of ROM flaring to pain level six. Right and left lateral rotation was to 80 degrees with flares of pain to level six at the end of ROM. The Veteran performed three reptations of flexion and extension of the cervical spine following no change in ROM to the cervical spine and there was also no evidence of increased weakness, pain, fatigability, or incoordination of the cervical spine after repetitive motion. The examiner noted that to state what ROM would occur of the cervical spine after repetitive motion would be speculative. The examiner continued with the lumbar spine and reported that forward flexion was limited to 80 degrees with pain and stiffness, extension was limited to 20 degrees with pain and stiffness, right and left lateral flexion and right and left lateral rotation were both limited to 30 degrees. The examiner furthered that the Veteran performed three toe touches following which there was no change in ROM of the thoracolumbar spine and noted that to state what ROM would occur after repetitive motion would be speculative. The Veteran was afforded a VA cervical spine examination in December 2011 where he was diagnosed with degenerative disc disease and spondylosis of the cervical spine. The Veteran reported that the pain in his neck was progressively worse, especially on the right side with spasms and occasional pain, numbness, and tingling in the right arm. The Veteran reported that he experienced flare-ups that impacted the function of his neck every week to the point that he could not turn his head. He furthered that he drove to work and the pain would flare when he would bee driving for 30 to 40 minutes. He would experience occasional radiation to the right shoulder, arm, and to the hand. The flare would last up to two to three days. Initial ROM measurements reflected forward flexion limited to 40 degrees with no objective evidence of painful motion, extension was limited to 15 degrees with objective evidence of painful motion beginning at 5 degrees; right lateral flexion was limited to 15 degrees with objective evidence of painful motion beginning at 10 degrees; left lateral flexion was limited to 20 degrees with objective evidence of painful motion beginning at 20 degrees; right lateral rotation was limited to 40 degrees with objective evidence of painful motion beginning at 30 degrees; and left lateral rotation was limited to 50 degrees with objective evidence of painful motion beginning at 50 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with post-test forward flexion limited to 40 degrees, extension limited to 15 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 40 degrees, and left lateral rotation limited to 50 degrees. The examiner furthered that the Veteran did not have additional limitation in ROM of the cervical spine following repetitive-use testing but that he did experience less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, deformity, interference with sitting, standing, and/or weight-bearing, and pain and stiffness at night and in the morning when lying in bed. The Veteran did have localized tenderness or pain to palpation for the joints/soft tissue of the cervical spine and he had abnormal spinal contour. He had normal muscle strength and no muscle atrophy. The examiner noted that the Veteran did not have any other neurologic abnormalities other than the radiculopathy. The examiner furthered that the Veteran did have IVDS of the cervical spine but that he did not have any incapacitating episodes over the past 12 months due to IVDS. The examiner noted that according to imaging results, arthritis was documented. The examiner opined that the Veteran's neck disability impacted his ability to work since his job duties include a significant amount of driving which aggravated his neck due to the frequent turns of the head that were required with driving. He also needed to lift, carry, push, pull weight at times which would also aggravate the pain and spasms in his neck. In a May 2014 treatment record, the Veteran was seen for his neck pain that had increased in severity. The examiner noted that for the cervical spine the paraspinal musculature was tender to palpation, but that no subluxations were present. The examiner furthered that ROM was normal. For the lumbosacral spine, the paraspinal musculature was tender to palpation and there were no subluxations present. The examiner furthered that the ROM was normal. The Veteran appeared before the Board in a hearing in July 2017. He explained that his neck had gotten worse and that when he drove he had to be cautious the way he would turn his head because he would sometimes pinch a nerve. The Veteran was afforded a VA cervical spine examination in September 2020 where he was diagnosed with degenerative arthritis of the spine, degenerative disc disease, and bilateral upper extremity radiculopathy of the upper and lower radicular groups. The Veteran reported that his neck pain has progressed and worsened now with pain, numbness, and tingling down both arms to his hands. The examiner noted that the Veteran's dominant hand was his right hand and that he did report flare-ups of the cervical spine. The Veteran also reported that he had difficulty to turn his head and neck and difficulty in lifting and carrying with both arms. Initial ROM measurements reflected forward flexion limited to 35 degrees, extension limited to 35 degrees, right and left lateral flexion limited to 35 degrees, right lateral rotation limited to 50 degrees, and left lateral rotation limited to 60 degrees. The ROM itself did not contribute to a functional loss but that pain was noted on all ROMs but it did not result in or cause a functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the neck nor was there evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time or during a flare- up, but the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during a flare-up. The examiner noted that pain significantly limited the Veteran's functional ability with repeated use over a period of time and during a flare up and was able to describe it in terms of ROM. Forward flexion, extension, and right and left lateral flexion were all limited to 35 degrees, right lateral rotation was limited to 50 degrees, and left lateral rotation was limited to 60 degrees. The Veteran had muscle spasms, but it did not result in abnormal gait or abnormal spinal contour. Less movement than normal was an additional contributing factor of the Veteran's disability. The Veteran had normal muscle strength and no muscle atrophy. There was also no ankylosis of the spine nor any other neurologic abnormalities related to the cervical spine. The examiner noted that the Veteran did not have IVDS of the cervical spine. The examiner noted that the Veteran's cervical spine disability impacted his ability to work since he had difficulty in lifting and carrying with both arms and in turning his head and neck. The examiner noted that there was no objective evidence of pain on non-weight bearing and that passive ROM testing could not be performed. The Veteran was also afforded a VA thoracolumbar spine examination in September 2020 where he was diagnosed with degenerative arthritis of the spine, degenerative disc disease, and bilateral lower extremity radiculopathy of the femoral and sciatic nerves. The Veteran reported that his low back pain had progressed and worsened since he had lower back pain, numbness, and tingling down both legs to his feet. The Veteran reported that he experienced flare-ups in his back and that he also experienced functional impairment of the back since he had difficulty in running, squatting, climbing ladders and stairs, sleeping due to back pain, sitting, standing, and walking long periods of time, and bending, lifting, and carrying. Initial ROM measurements reflected forward flexion limited to 50 degrees, extension limited to 20 degrees, and right and left lateral flexion and right and left lateral rotation all limited to 25 degrees. The ROM itself did not contribute to a functional loss. Pain was noted with all ROMs but did not result in or cause any functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the back nor was there evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of ROM. The Veteran was not examined immediately after repetitive use over time or during a flare up, but the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare up. Pain significantly limited the Veteran's functional ability with repeated use over a period of time and during a flare up and the examiner was able to describe it in terms of ROM. Forward flexion was limited to 50 degrees, extension was limite4d to 20 degrees, and right and left lateral flexion and right and left lateral rotation were all limited to 25 degrees. The Veteran had muscle spasms, but they did not result in abnormal gait or abnormal spinal contour. The Veteran had normal muscle strength and no muscle atrophy. The Veteran did not have any ankylosis nor any other neurologic abnormalities or findings related to the thoracolumbar spine. The Veteran did not have IVDS of the thoracolumbar spine, but did use a brace regularly due to the pain. The examiner opined that the Veteran's low back disability impacted his ability to work since he had difficulty to run, squat, climb ladders or stairs, sleep, sit, stand, walk, bend, lift, or carry. There was no objective evidence of pain on non-weight bearing and passive ROM testing could not be performed. The preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's cervical spine and lumbar spine disabilities. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's lay statements would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; favorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes of a duration of at least one week. Specifically, the evidence shows that the Veteran's forward flexion of the cervical spine was limited the most to 35 degrees and forward flexion for the thoracolumbar spine was limited the most to 50 degrees. Additionally, there is no evidence that the Veteran has ankylosis of either cervical or lumbar spine. This does not meet the criteria for a higher disability rating for the Veteran's cervical spine or lumbar spine disabilities. Consideration has also been given to assigning a rating under IVDS, but the evidence does not show that the Veteran has IVDS of the cervical spine and the medical evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Additionally, while in the December 2011 VA examination, the examiner found that the Veteran had IVDS due to the lumbar spine disability, it was not for a duration that met the criteria for a higher rating. In addition to the schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The probative evidence, bot medical and lay, establishes that the Veteran has reported painful motion with his cervical and lumbar spine disabilities. But the pain itself did not cause additional limitation of ROM. The Board has also considered whether separate neurological evaluations are warranted in this case. However, the record does not show any neurologic or radicular abnormalities in connection to the low back or neck disability that has not already been service-connected. As the preponderance of the evidence is against the claim for higher ratings, there is no doubt to be resolved, and ratings greater than those currently assigned for the Veteran's service-connected disabilities are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to a 20 percent, but no higher, disability evaluation for service-connected left lower extremity radiculopathy 4. Entitlement to a 20 percent, but no higher, disability evaluation for service-connected right lower extremity radiculopathy The Veteran generally asserts that his service-connected radiculopathy of the right and left lower extremities is more severe than the current evaluation reflects. The Veteran currently is evaluated at 10 percent disabling for left and right lower extremity radiculopathy with an effective date of September 18, 2020. His bilateral lower radiculopathy disabilities are both rated separately under Diagnostic Code 8520. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." Id. A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating is assigned for moderately severe, incomplete paralysis. A 20 percent disability rating is assigned for moderate, incomplete paralysis. 38 C.F.R. § 4.124a , Diagnostic Code 8620. The Rating Schedule further clarifies that "when the [neural] involvement is wholly sensory, the rating should be for mild, or at most, [ ] moderate," incomplete paralysis. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran was afforded a VA thoracolumbar spine examination in September 2020 where he was diagnosed with bilateral lower extremity radiculopathy of the femoral and sciatic nerves. The Veteran reported that his pain had progressed and worsened and that he had lower back pain with pain, numbness, and tingling down both legs to his feet. Upon a sensory examination there was decreased sensation to light touch in both left and right upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). The examiner noted that the Veteran had mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the bilateral lower extremities. The examiner furthered that the Veteran did not have any other signs or symptoms of radiculopathy. The examiner also explained that the femoral and sciatic nerve were both involved. The examiner indicated that the severity of the radiculopathy was moderate for both sides. VA treatment records also show treatment for and complaint of radicular pain in the bilateral lower extremities. They report that the Veteran has constant pain, but do not report the severity of the pain. The records also show that the Veteran was prescribed medications to manage the symptoms of his bilateral lower extremity radiculopathy. Based on a review of the evidence, the Board finds that a disability rating of 20 percent, but no higher, for the Veteran's right and left lower extremity radiculopathy is warranted during the entire period on appeal. In making this finding, the Board finds persuasive the VA examinations and medical treatment records reflecting persistent pain, paresthesia, and numbness in the left and right lower extremities. Moreover, the VA examination also reported that the Veteran consistently endorsed constant pain and decreased sensation in both lower extremities. The VA examiner found that the Veteran's overall symptoms manifested as moderate incomplete paralysis at worst. In light of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating for the left and right lower extremity radiculopathy disabilities is warranted. The Board finds that a rating in excess of 20 percent is not warranted. The Veteran has reported experiencing pain, paresthesia, and numbness in both lower extremities. However, medical evidence of record does not reflect that he experiences weakness, muscle atrophy, other neurological impairments, or other indicia of more than moderate paralysis in either lower extremity. The VA examination report of record has noted normal motor strength, and the Veteran's reflex examinations were overwhelmingly normal. The VA examiner also noted the absence of other neurologic impairment related to the service-connected radiculopathy disability. In light of the above, the Board finds that the Veteran's symptoms are primarily sensory in nature with limited loss of function. As noted, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his bilateral radiculopathy of the lower extremities. 5. Entitlement to an increased rating in excess of 30 percent disabling for granulomatous disease from histoplasmosis The Veteran contends that his granulomatous disease is more disabling than currently rated. The Veteran is in receipt of a 30 percent rating under DC 6820 using the rating schedule for asthma. Under DC 6602, a 10 percent rating is warranted for an FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for an FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A maximum, 100 percent rating is warranted for an FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Turning to the relevant evidence, VA and private treatment records indicate ongoing treatment and complaints of breathing problems. The Veteran was afforded a VA examination in June 2010 where the examiner noted that the Veteran used an over-the-counter albuterol inhaler two puffs four times a day as needed and a formoterol fumarate inhaler two puffs of dry powder twice a day. The examiner furthered that the Veteran had no attacks causing complete incapacitation or bed rest. The examiner noted that spirometry and diffusion studies from March 2010 were normal. The Veteran was afforded another VA examination in September 2020 where the Veteran reported that he took albuterol daily and that he experienced shortness of breath during rest and with physical activities. The Veteran was also diagnosed with asthma. The examiner noted that the Veteran's respiratory disorder did not require the use of oral or parenteral corticosteroid medications, but that he required daily inhalational bronchodilator therapy. The examiner furthered that the Veteran did not require the use of oral bronchodilators, the use of antibiotics, or outpatient oxygen therapy. PFT results reflected FVC at 74 percent predicted, FEV-1 at 83 percent predicted, and FEV-1/FVC at 78 percent all at pre-bronchodilator. Post-bronchodilator showed FVC at 79 percent predicted, FEV-1 at 93 percent predicted, and FEV-1/FVC at 81 percent. The examiner noted that FEV-1 percent predicted most accurately reflected the Veteran's level of disability. Based on the evidence above, the Board finds that a rating in excess of 30 percent for the Veteran's respiratory disorder is not warranted. The evidence shows that the Veteran used daily inhalational therapy which warrants a 30 percent rating under DC 6602. However, at no point during the appeal period is a 60 percent rating warranted for the Veteran's respiratory disorder. None of the Veteran's PFT results revealed an FEV-1 of 55-percent predicted or less, or an FEV-1/FVC of 55 percent or less. At worst, the Veteran's March 2019 PFT revealed, FEV-1 at 83 percent predicted. Moreover, the evidence does not show that the Veteran requires at least monthly visits to a physician for required care of exacerbations or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Thus, a 60 percent rating is not warranted. Additionally, the Veteran is also not entitled to a 100 percent rating under DC 6602. AT no point in time does the Veteran's PFT results indicate a value of 40 percent for less for FEV-1 or FEV-1/FVC. None of the medical records or lay statements indicate a weekly incidence of attacks with respiratory failure or daily use of systemic corticosteroids or immuno-suppressive medications. For these reasons, the preponderance of the evidence is against a rating of 100 percent. (Continued on the next page) Given the above, a rating in excess of 30 percent is not warranted for the Veteran's respiratory disorder. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.