Citation Nr: 21073807 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-20 173 DATE: December 10, 2021 ORDER The claim of entitlement to an evaluation of 60 percent, but no higher, as of August 5, 2011, for pericarditis is granted. The claim of entitlement to a rating in excess of 10 percent prior to April 28, 2015, for lumbar spine spondylolisthesis (hereinafter a lumbar condition) is denied. The claim of entitlement to a rating in excess of 20 percent as of April 28, 2015, for a lumbar condition is denied. The claim of entitlement to an initial evaluation in excess of 20 percent for left lower extremity (LLE) radiculopathy is denied. The claim of entitlement to an initial evaluation in excess of 20 percent for right lower extremity (RLE) radiculopathy is denied. FINDINGS OF FACT 1. Throughout the entire rating period on appeal, the Veteran's pericarditis produced metabolic equivalents (METs) greater than 3, but not greater than 5, and left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 2. Prior to April 28, 2015, the Veteran's lumbar disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 3. As of April 28, 2015, the Veteran's lumbar was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 4. During the period on appeal the Veteran's LLE radiculopathy was characterized by moderate intermittent pain, mild constant pain and numbness, some loss of sensation, and occasional impairment of reflexes, without loss of muscle strength, and resulted overall in moderate impairment. 5. During the period on appeal the Veteran's RLE radiculopathy was characterized by mild intermittent pain and numbness, and some loss of sensation, without loss of muscle strength or reflexes, and resulted overall in moderate impairment. CONCLUSIONS OF LAW 1. The criteria to establish an evaluation of 60 percent disabling, but no higher, as of August 5, 2011, for pericarditis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7002. 2. The criteria to establish entitlement to an evaluation in excess of 20 percent as of April 28, 2015, for a lumbar condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5239. 3. The criteria to establish entitlement to an initial evaluation in excess of 20 percent for LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. 4. The criteria to establish entitlement to an initial evaluation in excess of 20 percent for RLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Air Force from February 1970 to December 1973. These matters are before the Board of Veteran's Appeals (Board) from the January 2013, June 2015, and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the RO increased the Veteran's lumbar condition to 10 percent disabling as of September 22, 2011; granted service connection for RLE and LLE radiculopathy at 20 percent disabling; and continued a noncompensable rating for pericarditis. In a June 2015 rating decision, the RO granted service connection for lumbar spondylolisthesis, recharacterized the spine disability as spondylolisthesis of L5 over S1 associated with severe degenerative disc disease at L5/S1, and increased the disability to 20 percent, effective April 28, 2015. The RO also continued the LLE radiculopathy disability rating at 20 percent disabling. In December 2015 rating, the RO reduced the RLE radiculopathy rating from 20 percent to a non-compensable rating as of March 1, 2016. The Board then issued a decision in May 2019 reinstating the 20 percent disability rating for the Veteran's RLE radiculopathy as of March 1, 2016. The Board remanded the Veteran's claims of increased rating for a lumbar condition, RLE and LLE radiculopathy, and increased rating for pericarditis for new VA examinations. The Board notes the Veteran received new VA examinations in November 2020. Accordingly, there has been substantial compliance with the May 2019 Remand. Additionally, in the January 2021 rating decision, the Veteran's pericarditis was found to be 10 percent disabling as of February 20, 2015, and then 60 percent disabling as of November 10, 2020. The Board also notes the Veteran received an award of a total disability rating for individual unemployability due to his service-connected disabilities (TDIU) as of September 22, 2011. This award is for the whole period on appeal and therefore is no longer at issue and will not be addressed herein. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an evaluation of 60 percent disabling, but no higher, as of August 5, 2011, for pericarditis The Veteran contends that he is entitled to a compensable rating prior to February 20, 2015, in excess of 10 percent disabling as of February 20, 2015, and in excess of 60 percent as of November 10, 2020. The Board in this opinion is granting the Veteran a 60 percent disability rating as of August 5, 2011 for his pericarditis. The Veteran's pericarditis is governed by 38 C.F.R. § 4.104 DC 7002 which for a 10 percent disability rating requires a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or requires continuous medication. A 30 percent disability rating requires a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent disability rating requires more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A total disability rating of 100 percent, and the maximum rating requires chronic congestive heart failure, or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. For rating diseases of the heart, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. The Veteran's VA treatment records noted an echocardiogram from August 2011 that found the left ventricular size was normal, with a normal systolic function. The Veteran's LVEF was found to be 55 to 65 percent with mild concentric left ventricular hypertrophy. In an August 2012 VA examination for heart conditions the Veteran's history of pericarditis was noted. The Veteran reported he was not on any treatment and denied any acute symptoms. The Veteran was noted as not using any medications for his heart condition, had no indications of a myocardial infarction or congestive heart failure. The examiner documented the Veteran's mild mitral regurgitation and the Veteran had an infectious heart condition but was not currently undergoing any treatment for active infection. The Veteran's physical examination was normal with no cardiac hypertrophy, and the examiner noted the August 2011 echocardiogram with a LVEF of 55 to 65 percent. The examiner provided interview-based METs testing of 1-3, which included symptoms of dyspnea and fatigue, but the limitations were noted not to be solely due to the heart condition and was based on multiple factors and it was not possible to accurately estimate the percentage. The examiner noted that other medical conditions such as his musculoskeletal conditions, specifically his left knee and lumbar spine conditions contributed to his low METs level. In January 2013, the August 2012 examiner provided an addendum medical opinion to clarify and provide a METs estimate specific to the Veteran's cardiac function. The examiner was unable to separate the METs level solely on the heart. The METs level was estimated to be 1-3 and was found to be most likely due to the Veteran's musculoskeletal conditions and complaints. The examiner also noted that the Veteran's weight could impact his METs level. Another echocardiogram in September 2015 noted LVEF at 60 to 65 percent, with no wall abnormalities, no effusion, and an exercise tolerance test (ETT) METs of 4 to 6, which the provider found was limited due to knee pain. In July 2018 the Veteran received another echocardiogram which noted mildly decreased left ventricular systolic function with LVEF at 45 percent. A review of cardiac systems noted 4 to 6 ETT METs that was limited due to osteoarthritis, degenerative joint disease of his bilateral knees and spine. In July 2019 the Veteran's VA treatment records noted an abnormal echocardiogram that showed LVEF 55 to 60 percent with severe calcification on aortic valves with moderate to severe aortic stenosis and moderate concentric left ventricular hypertrophy. In January 2020, the Veteran reported shortness of breath with exertion and dyspnea of moderate exertion. An August 2020 echocardiogram summary noted a normal left ventricular chamber, moderate concentric left ventricular hypertrophy, with an LVEF at 60 to 65 percent and moderate to severe aortic stenosis. The Veteran received another VA examination in November 2020 with an addendum in December 2020. The examiner noted the Veteran's status post pericarditis and left ventricular hypertrophy and the onset of the heart conditions in 2018. The examiner documented the Veteran's medication for his heart condition, no myocardial infarction, no congestive heart failure, no arrhythmia, no pericardial adhesions, no heart valve conditions, and no procedures. The examiner found the Veteran's pericarditis had resolved. The examiner noted there was cardiac hypertrophy in an echocardiogram from November 2020 and his LVEF was noted as 55 percent. The Veteran received an interview-based METs test with noted dyspnea, fatigue, syncope, and chest pain with 3 to 5 METs and the examiner found that the METs level was due solely to his heart condition. It was noted that an exercise stress test was not performed because "exercise stress testing is not required as part of the Veteran's current treatment plan and that this test is not without significant risk." The December 2020 medical opinion confirmed diagnoses of post pericarditis with residuals and left ventricular hypertrophy. The examiner found continuous medication and interview-based METs score of 3 to 5 METs was associated with the Veteran's pericarditis residuals. The Board finds that throughout the appeal period the Veteran's service-connected heart disability was manifested by a workload of greater than 3 METs, but not greater than 5 METs, which warrants a 60 percent rating under DC 7002. A higher rating is not warranted at any time during the appeal period. The Board acknowledges the August 2012 METs of 1-3. However, the examiner was unable to distinguish the Veteran's METs due solely to his pericarditis from that of other disabilities. Indeed, the January 2013 addendum opinion noted that the low METs level was "most likely due to [the Veteran's] musculoskeletal conditions." Subsequently, the November 2020 VA examination showed an interview-based METs of greater than 3 METs, but not greater than 5. In a December 2020 addendum opinion, the examiner stated that this METs score was solely based on the Veteran's cardiac disability. The Board acknowledges there is some subjectivity to the testing when it is based upon interview-based METs testing. However, the one isolated interview-based METs of 1-3 is inconsistent with the other interview-based METs levels of record, which are no less than 3. As such, the finding of a METs less than 3 cannot be said to warrant a 100 percent disability rating. The 100 percent disability rating requires chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran has not met any of these requirements during the appeal period. The Board can point to no other diagnostic code that would provide a basis for the assignment of a rating in excess of 60 percent for the Veteran's pericarditis. Many of the diagnostic codes pertaining to the heart contain overlapping rating criteria. To the extent there are codes with different criteria, the record does not raise the presence of those disabilities or the symptomatology contemplated by those codes. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran's claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a rating in excess of 10 percent prior to April 28, 2015, for a lumbar condition Entitlement to a rating in excess of 20 percent beginning April 28, 2015, for a lumbar condition The Veteran contends that he is entitled to an evaluation in excess of 10 percent prior to April 28, 2015, and in excess of 20 percent as of April 28, 2015, for a lumbar condition. In addition to regular claims for an increased rating, a claim to increased rating for a disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that during the pendency of the appeal some rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board notes that none of the regulations that address the lumbar condition of the Veteran herein were amended. The Veteran's lumbar condition is currently rated under 38 C.F.R. § 4.71a DCs 5242-5239. Diagnostic Code 5242 pertains to rating degenerative arthritis of the spine and Diagnostic Code 5239 pertains to rating spondylolisthesis or segmental instability of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5239. Both diagnostic codes reference the same rating criteria under the General Rating Formula for Diseases and Injuries of the Spine. The general rating formula indicates that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent disability rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. IVDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based Incapacitating episodes, the highest rating of 60 percent requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1): For purposes of evaluations 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. The Veteran was afforded VA examinations in August 2012, May 2015, and November 2020. However, the Board notes that the November 2020 examination is the only examination that is compliant with the requirements set forth by Correia V. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, since the August 2012 and May 2015 VA examination reports show range of motion findings equal to or more favorable than the November 2020 VA examination report, all reports will be utilized for evaluation of the Veteran's back disability as to not prejudice the Veteran. Prior to April 28, 2015 The Veteran received a VA examination for his back in August 2012 which noted a diagnosis of moderate to severe spondylolisthesis with the Veteran reporting symptoms of low back pain radiating down his left leg and numbness to both feet. The Veteran described his flare ups as requiring him to walk sideways. The Veteran's active range of motion (ROM) was measured with forward flexion at 0 to 75 degrees, with pain at 75 degrees, his extension was 0 to 20 degrees with pain at 20 degrees, his left lateral flexion was noted at 0 to 25 degrees with pain at 25 degrees, and his right lateral flexion, and right and left lateral rotation were all noted at 0 to 30 degrees with no pain. His ROM for repetitive use was the same as his active ROM, with functional loss noted with less movement than normal, incoordination, and pain on movement. The examiner found the Veteran had tenderness on palpation and guarding or muscle spasms with no abnormal gait or spinal contour. The Veteran was noted as having IVDS, but no incapacitating episodes. His occasional use of braces, a cane, and a walker was documented. The functional impact on the Veteran was noted as most likely impairing in his ability to bend, pull, push, lift, stoop, and clerical tasks such as required in a physical and/or sedentary employment. The Veteran's VA treatment records in August 2012 noted a magnetic resonance imaging (MRI) that indicated full ROM but with pain and the findings had worsened since 2008. Additionally, a chiropractic consultation in January 2013 noted the Veteran had forward flexion of his lumbar within normal limits and his extension was limited with axial back pain, but no measurements were noted. The Veteran received epidural steroid shots for spinal stenosis and sciatica in March 2014. The Board finds that prior to April 28, 2015, there is no evidence to indicate the Veteran's lumbar condition met the rating criteria in excess of 10 percent disabling. The preponderance of the evidence indicates the Veteran's lumbar condition more closely resembles a 10 percent disability rating. The Veteran's forward flexion of the lumbar spine was greater than 60 degrees, but not greater than 85 degrees, and his combined ROM of the lumbar spine was greater than 120 degrees, but not greater than 235. The Veteran was found to have muscle spasm or guarding that did not result in abnormal gait or abnormal spinal contour. Similarly, the Veteran's VA treatment records are devoid of any indication of a worsening of the Veteran's lumbar condition above a 10 percent disability rating as there are no ROM measurements indicating an increase in his lumbar condition disability and no finding of muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. Prior to April 28, 2015, the Veteran's lumbar condition does not meet the next highest rating of 20 percent as his forward flexion was not greater than 30 degrees but less than 60 degrees, nor was his combined ROM of his lumbar spine less than 120 degrees, nor were there any findings of muscle spasm or guarding to affect the Veteran's gait or result in abnormal spinal contour. The Board has considered whether the Veteran's back disability results in functional loss. It is not disputed that he had limitation of motion of the lumbar spine and chronic back pain. Even considering the Veteran's reports of pain, the fact remains he had motion in his lumbar spine up to 75 degrees flexion, which is greater than the required finding for a 20 percent rating based on limitation of motion. There is no objective evidence to demonstrate that pain on use resulted in additional functional limitation to the extent that the symptoms more nearly approximate the disability picture of favorable ankylosis of the thoracolumbar spine or forward flexion to 60 degrees or less. Therefore, the Board finds that even when considering any functional limitations due to pain identified in 38 C.F.R. §§ 4.40, 4.45, and 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran's functional loss does not equate to the criteria required for a 20 percent rating prior to April 28, 2015. The Board also notes the Veteran's diagnosis of IVDS, but he was found to have no incapacitating episodes. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against finding that the Veteran's lumbar condition, prior to April 28, 2015, met a higher rating than 10 percent disabling. Thus, the claim is denied. As of April 28, 2015 The Veteran received a VA examination in May 2015 that noted the Veteran's lumbar sacral strain, his degenerative disc disease, and spondylolisthesis. The Veteran's active ROM was noted as forward flexion at 0 to 60 degrees, extension, right lateral flexion, and right lateral rotation all at 0 to 15 degrees, and left lateral flexion and rotation both at 0 to 20 degrees, with pain on all ROM, with pain on weight bearing, and tenderness on palpation. The Veteran was noted as being too unsteady to perform repetitive use testing. The examiner noted that during repetitive use over time and flare ups the examination was medically consistent with the Veteran's statements and his functional ability was significantly limited due to pain, fatigue, and weakness. However, the examiner could not describe these instances in ROM as the Veteran was not examined during these times. The examiner noted the Veteran had muscle spasms, guarding, and localized tenderness which resulted in abnormal gait or abnormal spinal contour as his back pain caused the Veteran to limp. The examiner noted no ankylosis of the Veteran's spine, no neurologic abnormalities, and no IVDS. The examiner noted the Veteran's constant use of a brace and cane and his arthritis of the lumbar spine but found no vertebral fracture with loss of height. The examiner found the functional impact of the Veteran's lumbar condition was that he was unsteady on his feet and would be unable to do manual labor or standing. The Veteran's VA treatment records noted his lumbar forward flexion was reduced, but provided no measurements in September 2018, and his lumbar forward flexion was noted at 90 degrees in January 2020. The Veteran received a back VA examination in November 2020 that noted the Veteran's lumbar spine spondylolisthesis and his bilateral lower extremity radiculopathy. The Veteran reported his current symptoms of shooting pain, stiffness, and limited ROM. He reported his flare ups as severe and happened intermittently throughout the day, lasting up to a few minutes. He indicated they occurred when he would go from sitting to standing, lifting heavy objects, bend, and stand or walk for long periods of time. The Veteran's active ROM was measured with forward flexion at 0 to 75 degrees, and all other ROM measurements were found to be 0 to 25 degrees. The examiner found the Veteran had pain during the examination that caused functional loss with pain on all ROM measurements, with tenderness and pain on weight bearing. The Veteran's repetitive use ROM was measured at forward flexion at 0 to 70 degrees and all other ROM measured at 0 to 20 degrees, due to pain and lack of endurance. The examiner found the examination was medically consistent with the Veteran's description of repetitive use over time and had functional loss due to pain and lack of endurance. In evaluating repetitive use over time his ROM was estimated with forward flexion at 0 to 60 degrees and all other measurements at 0 to 15 degrees. The examiner also found the Veteran's statements as to his flare ups were medically consistent with the examination, and pain and lack of endurance caused limitations to his functional ability. The Veteran's ROM measurements were estimated during flare ups to be forward flexion at 0 to 50 degrees, with all other measurements at 0 to 10 degrees. The examiner found no guarding or muscle spasms. The examiner noted the regular use of braces and a cane, found no diagnosis of IVDS, and found no vertebral fracture with loss of height. The examiner found the Veteran's lumbar had a functional impact by impacting his ability to work with difficulty bending over, lifting heavy things, walking more than 20 minutes, and standing for prolonged periods. The examiner found there was no change in the Veteran's bilateral lower extremity radiculopathy and in his lumbar condition. The Board finds as of April 28, 2015, and no earlier, the Veteran's lumbar condition is entitled to a 20 percent disability rating. The Veteran's ROM of forward flexion, noted as low as 0 to 50 degrees, meets the 20 percent disability rating but was found in the November 2020 VA examination. Additionally, the Board notes the finding of the Veteran's guarding and muscle spasms causing abnormal gait as noted in the May 2015 VA examination. These findings indicated the Veteran's disability picture more closely resembled a 20 percent disability rating for his lumbar condition and was found as of April 28, 2015. The Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent. The 40 percent disability rating as to the lumbar spine requires forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Veteran's lowest forward flexion measured 50 degrees, and the Veteran during the appeal period has never been diagnosed with ankylosis, neither favorable nor unfavorable. The Veteran's back disability has not resulted in forward flexion 30 degrees less, even when considering additional functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or as a result of repetitive motion and flare-ups. In this regard, even when considering DeLuca factors, the Veteran's back motion was, at its worst, manifested by flexion to 50 degrees. See November 2020 VA examination report. Furthermore, while the Board acknowledges that the Veteran reported functional impairments, such as difficulty with prolonged standing or walking and difficulty with standing up from a seated position, heavy lifting, and bending, the competent evidence does not show that such symptoms cause further functional loss that more nearly approximates forward flexion to 30 degrees. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claim of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against finding that the Veteran's lumbar condition, from April 28, 2015, met a higher rating than 20 percent disabling. Thus, the claim is denied. Entitlement to an initial evaluation in excess of 20 percent for a LLE and RLE radiculopathy The Veteran contends that he is entitled to an initial evaluation in excess of 20 percent disabling for his LLE and RLE radiculopathy. The Veteran's radiculopathy is governed by 38 C.F.R. § 4.124a DC 8520 which covers the paralysis of the sciatic nerve, an 80 percent disability rating requires complete paralysis where the foot dangles and drops, with no active movement possible of the muscles below the knee, flexion of the knee is weakened or (very rarely) lost. A 60 percent disability rating requires severe incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating requires moderately severe incomplete paralysis. A 20 percent disability rating requires moderate incomplete paralysis. A 10 percent disability rating requires mild incomplete paralysis. Id. The terms "slight," "moderate" and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. 38 C.F.R. § 4.6. The use of such terminology by VA examiners and others, although an element 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. The Veteran received a VA examination for his back in August 2012 which evaluated the Veteran's RLE and LLE radiculopathy and noted his complaints of radiating pain down his left leg to his calf, and bilateral feet numbness. The Veteran's muscle strength was noted as normal and was found to have no muscle atrophy. The Veteran's deep tendon reflexes were found to be hypoactive in his knees and absent in his ankles. The examiner noted the Veteran's sensory examination and found his right foot and toes had decreased sensation, but all other testing was normal. The Veteran's signs and symptoms of his radiculopathy was noted with no constant pain, no intermittent pain in his RLE, but moderate in his LLE. The examiner documented moderate paresthesias and numbness for both lower extremities, with no other signs or symptoms of radiculopathy. The examiner determined the Veteran's severity of his bilateral radiculopathy to be moderate. The Veteran received another VA examination for his back in May 2015 which discussed the Veteran's radiculopathy. The Veteran's muscle strength was noted at 4 out of 5, but with no muscle atrophy. The examiner found the Veteran's deep tendon reflexes to be hypoactive in his left knee and ankle, but normal for the Veteran's right knee and ankle. The examiner documented the Veteran's sensory examination to be decreased in the Veteran's left upper anterior thigh, and knee, but normal for his lower leg, ankle, foot, and toes. The examiner noted the Veteran's right leg to be normal in the sensory examination. In evaluating the Veteran's radicular symptoms, the examiner found the Veteran's RLE showed no constant pain, intermittent pain, paresthesias, or numbness. While the Veteran's LLE was found to have mild constant pain, mild paresthesias and numbness, with moderate intermittent pain. The examiner found only the Veteran's left sciatic nerve was affected and found his LLE radiculopathy to be moderate, with his RLE unaffected. The Board notes the Board decision issued May 2019 found the May 2015 back VA examination to be inadequate for the Veteran's lumbar conditions, as discussed above. However, the Board decision of May 2019 found the reduction of the Veteran's disability rating for his RLE radiculopathy was not appropriate as the examiner did not comment on whether the Veteran experienced radicular symptoms during flare ups or during other conditions of life and work. Additionally, the Board noted the Veteran's VA treatment records continued to report pain, weakness, and decreased range of motion in his RLE and found the May 2015 VA examination did not show actual improvement under ordinary conditions of life and work. Ultimately determining the reduction was improper. As such the Board herein finds the VA examination as to the Veteran's RLE radiculopathy is not adequate. However, as to the Veteran's LLE radiculopathy the VA examination is competent, credible, and with significant probative weight. The Veteran received a VA examination for his back in November 2020. The examiner noted the Veteran's bilateral radiculopathy with current symptoms of shooting pain and stiffness. The examiner documented the Veteran's muscle strength as normal with no muscle atrophy with normal tendon reflexes and decreased sensory examination in all parts of both legs. The Veteran's signs and symptoms of radiculopathy were noted as mild for all symptoms of intermittent pain, paresthesias, and numbness for both legs. However, no constant pain was noted in either lower extremity. The Veteran's sciatic nerve involvement was noted on both sides but the overall severity of the Veteran's bilateral lower extremity radiculopathy was noted as mild. The Veteran's VA treatment records noted in December 2014 and June 2016 continued right lower extremity weakness. The Veteran in October 2019 noted new medications for his neuropathic pain. While in January 2020 the Veteran received epidural steroid injections due to his lumbar radiculopathy. The Board finds the Veteran's disability picture of his RLE and LLE radiculopathy is met by the 20 percent, or moderate, disability rating. The Veteran's radiculopathy does not meet the next highest rating of moderately severe paralysis. The Veteran's bilateral radiculopathy was noted throughout the appeal period as mild, as moderate, as normal, and as his sciatic nerve not being affected at all. The Board finds that the preponderance of the evidence of record indicates that moderate is the most appropriate description of the Veteran's RLE and LLE radiculopathy. The Veteran's medical treatment records and VA examinations have not shown an increase in the severity of the Veteran's disability. The Veteran has continued to maintain that he has pain, requires medications for both his lumbar and radicular pain, and has weakness. However, the Veteran's RLE and LLE radiculopathy has not been shown to increase in its severity, in fact it has shown to be less severe. As the Veteran's most recent VA examination has indicated a mild severity for the Veteran's RLE and LLE radiculopathy and in reviewing the totality of the evidence of record the Board finds the Veteran's disability picture to more accurately reflect the 20 percent disability rating of moderate, but no higher. Therefore, the Veteran's claims for entitlement to an initial evaluation in excess of 20 percent disabling for his RLE and LLE radiculopathy is not warranted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.