Citation Nr: 21073824
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 15-03 680
DATE: December 10, 2021

ORDER

Service connection for erectile dysfunction is denied.

An initial rating in excess of 20 percent prior to August 29, 2008, in excess of 40 percent from August 29, 2008, to June 3, 2017, in excess of 20 percent from June 3, 2017, to January 8, 2021, and in excess of 40 percent thereafter for degenerative disk disease of L5-S1 with associated facet arthropathy is denied.

An effective date of November 4, 2008, but no earlier, for the award of a separate rating for sciatic neuritis left lower extremity (LLE) is granted, subject to the laws and regulations governing the payment of monetary awards.

An effective date of April 13, 2005, but no earlier, for the award of a separate rating for sciatic neuropathy right lower extremity (RLE) is granted, subject to the laws and regulations governing the payment of monetary awards.

From November 4, 2008, to January 8, 2021, an initial rating of 10 percent, but no higher, for sciatic neuritis LLE is granted, subject to the laws and regulations governing the payment of monetary awards.

As of January 8, 2021, a rating of 20 percent, but no higher, for sciatic neuritis LLE is granted, subject to the laws and regulations governing the payment of monetary awards.

From April 13, 2005, to January 8, 2021, an initial rating of 10 percent, but no higher, for sciatic neuropathy RLE is granted, subject to the laws and regulations governing the payment of monetary awards.

As of January 8, 2021, a rating of 20 percent, but no higher, for sciatic neuropathy RLE is granted, subject to the laws and regulations governing the payment of monetary awards. 

An initial rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter for traumatic arthritis of the left knee with painful motion is denied.

An initial rating in excess of 20 percent prior to June 3, 2017, and a compensable rating thereafter for moderate instability of the left knee is denied.

An initial rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter for osteoarthritis of the right knee based on limitation of flexion is denied.

As of September 10, 2010, but no earlier, a separate rating of 10 percent, but no higher, for osteoarthritis of the right knee based on limitation of extension is granted, subject to the laws and regulations governing the payment of monetary benefits.

Special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(k) based on loss of use of a creative organ is denied.

Prior to September 14, 1999, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

An effective date prior to September 14, 1999, for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied.

REMANDED

Entitlement to service connection for digestive disorder, claimed as diarrhea, to include as secondary to service-connected disabilities and the medications prescribed therefor, is remanded.

FINDINGS OF FACT

1. Erectile dysfunction is not shown to be causally or etiologically related to any disease, injury, or incident during service and is not caused or aggravated by a service-connected disability, to include the medications prescribed therefor.

2. Prior to September 26, 2003, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy was manifested by no more than moderate limitation of motion of the lumbar spine, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

3. From September 26, 2003, to August 29, 2008, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy was manifested by no more than moderate limitation of motion of the lumbar spine with forward flexion limited to, at most, 50 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least four weeks during a 12-month period.

4. From August 29, 2008, to June 3, 2017, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy was manifested by forward flexion was manifested by severe limitation of motion of the lumbar spine with flexion limited to 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis or IVDS with incapacitating episodes having a total duration of at least six weeks during a 12-month period.

5. From June 3, 2017, to January 8, 2021, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy was manifested by no more than moderate limitation of motion of the lumbar spine with forward flexion limited to, at most, 50 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis or IVDS with incapacitating episodes having a total duration of at least four weeks during a 12-month period.

6. As of January 8, 2021, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy was manifested by severe limitation of motion of the lumbar spine with forward flexion limited to, at most, 20 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis or IVDS with incapacitating episodes having a total duration of at least six weeks during a 12-month period.

7. From November 4, 2008, to January 8, 2021, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy resulted in no more than mild incomplete neuritis of the sciatic nerve in the LLE.

8. As of January 8, 2021, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy resulted in no more than moderate incomplete neuritis of the sciatic nerve in the LLE.

9. From April 13, 2005, to January 8, 2021, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy resulted in no more than mild incomplete neuropathy of the sciatic nerve in the RLE.

10. As of January 8, 2021, the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy resulted in no more than moderate incomplete neuropathy of the sciatic nerve in the RLE.

11. Prior to January 8, 2021, the Veteran's traumatic arthritis of the left knee was manifested by painful motion, with flexion limited to, at most, 60 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

12. As of January 8, 2021, the Veteran's traumatic arthritis of the left knee was manifested by flexion limited to, at most, 20 degrees, and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

13. Prior to June 3, 2017, the Veteran's traumatic arthritis of the left knee resulted in no more than moderate lateral instability, without severe recurrent subluxation or lateral instability.

14. As of June 3, 2017, the Veteran's traumatic arthritis left knee did not result in mild recurrent subluxation, lateral instability, or patellar instability.

15. Prior to January 8, 2021, the Veteran's osteoarthritis of the right knee was manifested by flexion limited to, at most, 45 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral or patellar instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

16. As of January 8, 2021, the Veteran's osteoarthritis of the right knee was manifested by flexion limited to, at most, 20 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral or patellar instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

17. Prior to September 10, 2010, the Veteran's osteoarthritis of the right knee was manifested by full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

18. As of September 10, 2010, the Veteran's osteoarthritis of the right knee was manifested by extension limited to, at most, 10 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

19. The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history prior to September 14, 1999.

20. The Veteran did not have a permanent and total service-connected disability prior to September 14, 1999.

CONCLUSIONS OF LAW

1. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for an initial rating in excess of 20 percent prior to August 29, 2008, in excess of 40 percent from August 29, 2008, to June 3, 2017, in excess of 20 percent from June 3, 2017, to January 8, 2021, and in excess of 40 percent thereafter for degenerative disk disease of L5-S1 with associated facet arthropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes 5237, 5243, 5292, 5293 (2002), (2003), (2021).

3. From November 4, 2008, to January 8, 2021, the criteria for a separate 10 percent rating, but no higher, for sciatic neuritis LLE have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124A, Diagnostic Code 8620.

4. As of January 8, 2021, the criteria for a 20 percent rating, but no higher, for sciatic neuritis LLE have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124A, Diagnostic Code 8620.

5. From April 13, 2005, to January 8, 2021, the criteria for a separate 10 percent rating, but no higher, for sciatic neuropathy RLE have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124A, Diagnostic Code 8620.

6. As of January 8, 2021, the criteria for a 20 percent rating, but no higher, for sciatic neuropathy RLE have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124A, Diagnostic Code 8620.

7. The criteria for an initial rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter for traumatic arthritis of the left knee with painful motion have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5010-5260.

8. The criteria for an initial rating in excess of 20 percent prior to June 3, 2017, and a compensable rating thereafter for left knee instability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5257.

9. The criteria for an initial rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter for osteoarthritis of the right knee have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5260-5010.

10. As of September 10, 2010, the criteria for a separate rating of 10 percent, but no higher, for osteoarthritis of the right knee based on limitation of extension have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5261.

11. The criteria for SMC under 38 U.S.C. § 1114(k) based on loss of use of a creative organ have not been met.  38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. §§ 3.102, 3.350.

12. Prior to September 14, 1999, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

13. Prior to September 14, 1999, the criteria for DEA have not been met.  38 U.S.C. §§ 3500, 3501, 5110; 38 C.F.R. §§ 3.400, 3.807, 21.3020, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1961 to December 1963.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2000 (left knee disability), March 2005 (back and right knee disabilities), June 2009 (TDIU and DEA), and August 2014 (erectile dysfunction, SMC, digestive disorder, and radiculopathy of the LLE and RLE) by a Department of Veterans Affairs (VA) Regional Office.

In August 2004 and July 2005, the Board, in pertinent part, remanded the claims for increased ratings for the Veteran's left knee disabilities.  In May 2010, the Board, in relevant part, remanded the claims for increased ratings claims for his right knee and back disabilities. While on remand, an August 2014 rating decision awarded separate ratings for sciatic neuritis of LLE and sciatic neuropathy RLE, evaluated as 10 percent disabling as of February 15, 2013.  As such separate ratings were assigned pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine under which the Veteran's back disability is rated, the propriety of the assigned effective dates and ratings for sciatic neuritis of the bilateral lower extremities is properly before the Board and will be addressed herein.

In December 2016, the Board, in pertinent part, remanded the claims for increased ratings for left knee, right knee, and back disabilities, and entitlement to earlier effective dates for the awards of a TDIU and DEA.  In November 2018, the Board remanded the claims for increased ratings for left knee, right knee, and back disabilities, entitlement to earlier effective dates for the awards of a TDIU and DEA, and entitlement to service connection claim for a digestive disorder.  The Board also denied service connection for erectile dysfunction and entitlement to SMC based on loss of use of a creative organ.  Thereafter, the Veteran appealed such denials to the United States Court of Appeals for Veterans Claims (Court).  In August 2020, the Court granted a Joint Motion for Remand (JMR), which vacated the August 2020 decision with respect to those issues and remanded the matters for further appellate review.  In January 2021 and July 2021, the Board remanded those issues for additional development.  

Notably, multiple rating decisions have awarded increased ratings for the Veteran's service-connected disabilities throughout the course of the appeal.  However, as the Veteran is presumed to be seeking the maximum available benefit for a disability, his claims for higher ratings remain on appeal and the Board has characterized the issues to reflect the assignment of such staged ratings.  AB v. Brown, 6 Vet. App. 35, 38 (1993); Fenderson v. West, 12 Vet. App. 119 (1999).  The case now returns for further appellate review.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability.  38 C.F.R. § 3.310(b).  

1. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected disabilities and the medications prescribed therefor.

As an initial matter, the Board notes that the Veteran does not allege, and the record does not show, that his erectile dysfunction is directly related to his military service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis of such disorder and erectile dysfunction was not diagnosed until many years after service. Specifically, an April 2014 Male Reproductive System Conditions Disability Benefits Questionnaire (DBQ) reflects a diagnosis of erectile dysfunction and indicates the Veteran first started experiencing associated symptoms in 1998.  Rather, as noted in the August 2020 JMR, the Veteran alleges he has erectile dysfunction secondary to his service-connected disabilities and the medications prescribed therefor. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory).  

In this regard, as indicated previously, the record reflects that the Veteran has a current diagnosis of erectile dysfunction. Additionally, he is service-connected for multiple disabilities, and his treatment records confirm that clinicians have prescribed multiple medications for such disabilities during the pendency of the appeal.

With respect to a nexus between the Veteran's currently diagnosed erectile dysfunction and his service-connected disabilities, to include the medications prescribed therefor, a November 2008 VA examination report reflects the finding that intervertebral disc syndrome causes erectile dysfunction and notes that the Veteran could not achieve and maintain an erection.  However, in January 2014, a VA physician opined that the Veteran's back disability was not the cause of his erectile dysfunction.  In this regard, he explained that the only way the Veteran could have erectile dysfunction caused by his back disability would be if there was a disruption of the autonomic nerve system, which controlled the ability to obtain an erection.  If so, he would also have issues with bowel and bladder control.  In this regard, there was an entry in his record showing that he did not have bowel or bladder symptoms related to his back disability.  Rather, his urinary symptoms were related to his benign prostatic hypertrophy.  In addition, the VA physician observed that 15 to 25 percent of men over the age of 65 have some degree of erectile dysfunction caused by the aging process.  He further noted that chronic illness also contributes to the problem, and the Veteran had chronic obstructive pulmonary disease (COPD), pulmonary fibrosis, sleep apnea, severe gastroesophageal reflux disease (GERD), and rheumatoid arthritis.

In March 2014, another VA physician opined it was not possible to connect the Veteran's erectile dysfunction to his back disability as opposed to his age, history of chronic illness, or medications without resorting to mere speculation.  

In May 2021, a third VA physician noted there was no medications noted in the Veteran's treatment records that commonly caused erectile dysfunction.  He further explained that erectile dysfunction as a side effect of a medication is not the same condition as a primary diagnosis of erectile dysfunction alone.  According to the VA physician, erectile dysfunction is caused by abnormalities of the nerves, blood vessels, and tissues of the penis, which is not the same mechanism by which medications may cause erectile dysfunction as a side effect.  Further, the DSM-5 diagnostic criteria for erectile dysfunction specifies that the dysfunction cannot be better explained by a nonsexual mental disorder, a medical condition, the effects of a drug or medication, or severe relationship distress or other significant stressors.  Thus, the VA physician determined the Veteran's erectile dysfunction was less likely than not caused by medications for his service-connected disabilities.  In a separate opinion, the same physician opined the Veteran's COPD, pulmonary fibrosis, sleep apnea, gastritis, severe GERD, and rheumatoid arthritis were separate disease entities that did not typically affect genital functioning.  He explained that erectile dysfunction involves a vascular and/or peripheral nerve pathology and stated it is not accepted in the general medical community that such service-connected disabilities can cause penile vascular or peripheral nerve dysfunction.

In a separate May 2021 opinion, an additional VA physician opined the Veteran's erectile dysfunction was less likely than not proximately due to or the result of his service-connected disabilities.  Specifically, he explained that erectile dysfunction was most often due to circulation problems, and such was not caused by respiratory conditions such as COPD, pulmonary fibrosis, or asthma or a gastrointestinal condition, such as gastritis, which are separate and unrelated conditions.  Additionally, the VA physician noted that studies have shown that Finasteride, prescribed for the Veteran's nonservice-connected benign prostatic hypertrophy, can cause erectile dysfunction. 

In an August 2021 addendum opinion, the May 2021 VA physician further stated there was no research or medical documentation that showed the Veteran's COPD, asthma, hiatal hernia, Barrett's esophagus, gastritis, osteoarthritis of the right knee, traumatic arthritis left knee, toxic maculopathy of the bilateral eyes, degenerative disc disease of the L5-S1 with associated facet arthroplasty, sciatic neuritis of the LLE, sciatic neuropathy of the RLE, or residuals of a left kneecap laceration, to include the medications prescribed therefor, caused or aggravated erectile dysfunction.  According to the VA physician, common causes of erectile dysfunction that could apply to the Veteran included age, hypertension, and low testosterone.

Upon review, the Board affords no probative weight to the January 2014 VA examiner's comment that chronic illnesses, such as the Veteran's service-connected COPD and GERD, "contribute to the problem."  Without any further rationale or explanation, the Board finds such statement too general to support a finding of service connection on a secondary basis.  Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  Conversely, the Board finds the January 2014 VA examiner's explanation regarding the absence of a connection between the Veteran's back disability and his erectile dysfunction, and the May 2021 and August 2021 VA opinions that specifically address a possible relationship between the Veteran's erectile dysfunction and his service-connected disabilities and associated medications, are entitled to great probative weight.  In particular, such opinions include clear conclusions with supporting data and reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

The Board has also considered the Veteran's lay assertions addressing the etiology of his erectile dysfunction; however, as a lay person, he does not possess the requisite training and experience necessary to address such a complex medical matter.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the etiology of erectile dysfunction involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  Specifically, such requires knowledge of the vascular and peripheral nerve systems and the impact medications and other bodily systems have on such systems.  Therefore, such matter may not be competently addressed by lay statements.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinions as to the etiology of his erectile dysfunction is not competent evidence and, consequently, is afforded no probative weight.

In conclusion, the Board finds that the Veteran's erectile dysfunction is not shown to be causally or etiologically related to any disease, injury, or incident during service and is not caused or aggravated by a service-connected disability, to include the medications prescribed therefor.  Consequently, service connection for such disorder is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for erectile dysfunction, such doctrine is inapplicable and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

Increased Ratings

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

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

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

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

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

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

Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the Diagnostic Code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part or system of the body involved, and the last two digits will be "99" for all unlisted conditions.  Then, the disability is rated by analogy under a Diagnostic Code to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology.  38 C.F.R. §§ 4.20, 4.27.  In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  38 C.F.R. § 4.27.

During the pendency of the appeal, the rating criteria for evaluating musculo-skeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021.  83 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.  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110(g).  If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.  38 U.S.C. § 5110.  Therefore, the Board will consider the Veteran's relevant claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, applying the criteria that is more favorable to the Veteran.

2. Entitlement to an initial rating in excess of 20 percent prior to August 29, 2008, in excess of 40 percent from August 29, 2008, to June 3, 2017, in excess of 20 percent from June 3, 2017, to January 8, 2021, and in excess of 40 percent thereafter for degenerative disk disease of L5-S1 with associated facet arthropathy.

The instant appeal stems from September 14, 1999, the date service connection was awarded for the Veteran's degenerative disk disease of L5-S1 with associated facet arthropathy. 

Prior to September 26, 2003, the Veteran's back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293-5292.  Before such date, Diagnostic Code 5292 provided a 10 percent rating for slight limitation of motion, a 20 percent rating for moderate limitation, and a 40 percent rating for severe limitation of motion of the lumbar spine.  The words "slight," "moderate," and "severe" are not further defined in that provision or in the current VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, 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.

The Veteran's back disability is rated as 20 percent disabling from September 26, 2003, to August 29, 2008, and as 40 percent disabling from August 29, 2008, to June 3, 2017, under Diagnostic Code 5237, which addresses lumbosacral or cervical strains.  Diagnostic Codes 5235 to 5243 are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  In pertinent part, such provides for a 20 percent rating where forward flexion of the thoracolumbar spine is greater than 30 degrees but no greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71A.  Such criteria also include the following Notes:

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

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

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

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

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

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

The Veteran's back disability is evaluated as 20 percent disabling from June 3, 2017, to January 8, 2021, and as 40 percent disabling thereafter under Diagnostic Code 5243, which pertains to IVDS, and provides that such disability is evaluated under either the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).  

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

Prior to September 26, 2003

A December 1999 VA treatment record indicates the Veteran had ongoing complaints of back pain, and a July 2000 VA treatment record shows that he experienced lower back pain.  In January 2001, the Veteran reported chronic back pain rated as a severity of seven to eight on a scale of 10, and VA treatment records dated in August 2001 reflect his reports of back pain, but his denial of weakness and loss of function.  A February 2002 VA treatment record indicates the Veteran had the same pain in his lower back, rated as a six out of 10 in severity, and records dated that same month show the Veteran was undergoing physical therapy for his low back pain.  In December 2002, a VA physician found the Veteran's low back pain appeared to be "mostly muscular back pain."  He also had bilateral paraspinal muscle tenderness in his low back.  

A January 2003 VA treatment record indicates the Veteran's low back pain had its onset two months prior after ambulation on an incline and had progressed since that time.  He could not get comfortable in bed, but activity occasionally improved the pain.  The pain did not radiate, but the record shows he had "limited range of motion" of the back.  The VA clinician found such was not clearly sciatic and did not seem to be due to stenosis.  The record indicated the Veteran should continue with activity as tolerated and perform back exercises.  In this regard, a July 2003 VA treatment record shows the Veteran exercised in a swimming pool.

Upon review, the Board finds the aforementioned evidence does not reflect severe limitation of motion of the lumbar spine.  Although the records demonstrate consistent reports of moderate to severe pain, the Board finds pertinent that the Veteran was able to under physical therapy and exercise in a swimming pool, and clinicians encouraged him to continue activities, as possible, which occasionally aided in the relief of his symptoms.  Moreover, the evidence does not indicate that the Veteran experienced ankylosis or periods where motion was limited to the functional equivalent thereof.  Consequently, a rating in excess of 20 percent is not warranted prior to September 26, 2003, pursuant to Diagnostic Code 5292.  

From September 26, 2003, to August 29, 2008

As noted above, the Veteran's back disability is rated as 20 percent disabling from September 26, 2003, to August 29, 2008.  

On VA examination in November 2004, flexion was to 50 degrees, extension to 20 degrees, right rotation to 20 degrees, left rotation to 30 degrees, right lateral bending to 5 degrees, and left lateral bending to 10 degrees, for a combined total of 135 degrees.  A June 2005 VA treatment record shows the Veteran was ambulating with a cane mostly because of low back and knee pain, and was undergoing physical therapy.  A July 2005 magnetic resonance imaging (MRI) scan demonstrated multilevel chronic degenerative disc disease, bilateral chronic facet arthropathy, and multilevel chronic disc degeneration with disc desiccation and multiple Schmorl's nodes.

Here, the evidence does not demonstrate severe limitation of motion of the lumbar spine, forward flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis, or the functional equivalent thereof, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.  Thus, a rating in excess of 20 percent pursuant to Diagnostic Code 5292 as in effect prior to September 26, 2003, or the General Rating Formula as in effect thereafter is not warranted.  Moreover, the evidence, to include the Veteran's own lay statements, does not reflect incapacitating episodes that required bed rest prescribed by a physician.  Therefore, the criteria for a higher rating under the IVDS Rating Formula have not been met during this period.  Id.

From August 29, 2008, to June 3, 2017

From August 29, 2008, to June 3, 2017, the Veteran's back disability is rated as 40 percent disabling pursuant to Diagnostic Code 5237.  Such is also the maximum rating under Diagnostic Code 5292 as in effect prior to September 26, 2003. Therefore, to warrant a higher rating during this period, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months.

On VA examination in November 2008, the Veteran reported constant middle and lower back pain elicited by physical activity and relieved by rest and medications.  He reported that his back disability prevented him from performing house and yard work.  Physical examination revealed flexion limited to 45 degrees and a total combined range of motion of 145 degrees, without additional limitation of motion following repetitive use.  The VA examiner found the Veteran had signs of lumbar IVDS involving sensory deficit of the bilateral lateral legs, most likely related to the sciatic nerve, but such did not cause bowel or bladder dysfunction.  

Physical examination in March 2009 demonstrated flexion limited to 30 degrees and a total combined range of motion of 90 degrees, with no additional limitation of motion following repetitive use.  In addition, the VA examiner found there were no signs of lumbar IVDS with chronic and permanent nerve root involvement.  The Veteran reported constant pain, pain radiating down the inside of his leg, loss of bladder control, and loss of bowel control, but denied any incapacitation.

According to a September 2010 VA examination report, the Veteran had pain in the middle of the back that radiated to the left buttock and down the back of the left leg.  Forward flexion was limited to 60 degrees, extension, right lateral flexion, and left lateral flexion were to zero degrees, and lateral rotation to the right and the left were to 10 degrees with pain throughout motion.  There was no fatigue, weakness, lack of endurance, incoordination, or additional loss of joint function or motion with repetitive testing.  X-ray examination revealed loss of disk space at the L4-5 and L5-S1 levels and some osteophytes in those areas and other levels.  The VA examiner found the Veteran did have some functional limitation due to his back pain, but there was no evidence of flare-ups.  Although he had incapacitating episodes, the VA examiner determined it was difficult to gauge the length of time of such because the Veteran had continued pain and some incapacity at all times.  However, he had no specific neurological impairment, although straight leg raising was limited.

An April 2011 VA treatment record indicates the Veteran had normal flexion, but was limited to less than 10 degrees in extension and right and left lateral flexion.  A May 2011 VA treatment record reflects findings of forward flexion to 30 degrees and a combined total range of motion of 80 degrees.  A January 2015 VA examination report shows the Veteran treated his back pain with injections two to three times per year and experienced flare-ups two to three times per month that caused stiffness and pain.  He denied any functional loss or functional impairment of the back.  Initial range of motion testing was normal, and there was no additional loss of function or range of motion after three repetitions.  The VA examiner reportedly could not determine or accurately estimate the degree of limitation of motion during flare-ups without resorting to mere speculation.  Strength, reflex, and sensory examinations were all normal, and the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy.  The VA examiner specifically found the Veteran did not have ankylosis or IVDS of the spine and determined there had been no significant worsening changes in his condition since 2010.  A July 2015 VA treatment record indicates the Veteran's lumbar spine had limited flexion.

In sum, the aforementioned evidence does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine or spine, or incapacitating episodes with prescribed bed rest from August 29, 2008, to June 3, 2017.  Consequently, a rating in excess of 40 percent for the Veteran's back disability is not warranted during this period.  

From June 3, 2017, to January 8, 2021

From June 3, 2017, to January 8, 2021, the Veteran's back disability is rated as 20 percent disabling pursuant to Diagnostic Code 5243.  In order to warrant a higher rating, therefore, the evidence must demonstrate incapacitating episodes having a total duration of at least 4 weeks or more, severe limitation of the lumbar spine, forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

A June 2017 VA examination report reflects a diagnosis of IVDS and the Veteran's reports of flare-ups involving an occasional increase in severity of back pain, without particular aggravating factors, and functional impairment of difficulty walking, lifting, and bending.  Initial range of motion testing demonstrated flexion limited to 50 degrees and an overall combined range of motion of 180 degrees.  There was no additional loss of function or range of motion after three repetitions, and the VA examiner determined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time.  Although such factors would significantly limit functional ability with flare-ups, there was no additional loss of range of motion on examination during a flare-up.  The Veteran did not have any guarding or muscle spasm, muscle strength was normal, and he did not have any muscle atrophy.  Additionally, although the Veteran had IVDS of the thoracolumbar spine, he had not experienced any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  A December 2018 VA treatment record indicates flexion and lateral flexion were within normal limits with pain.

Here, the evidence does not demonstrate severe limitation of motion of the lumbar spine, forward flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis, or the functional equivalent thereof, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.  Thus, a rating in excess of 20 percent pursuant to Diagnostic Code 5292 as in effect prior to September 26, 2003, or the General Rating Formula as in effect thereafter is not warranted.  Moreover, the evidence reflects that the Veteran did not experience incapacitating episodes having a total duration of at least four weeks in the past 12 months.  Therefore, the criteria for a higher rating under the IVDS Rating Formula have not been met during this period.  Id.

As of January 8, 2021

As of January 8, 2021, the Veteran's back disability is rated as 40 percent disabling pursuant to Diagnostic Code 5243. Such is also the maximum rating under Diagnostic Code 5292 as in effect prior to September 26, 2003.  Therefore, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine or entire spine or incapacitating episodes having a total duration of at least six weeks in the past 12 months.

The January 2021 VA examiner, in pertinent part, estimated forward flexion would be limited to, at most, 20 degrees, following repetitive use over time and during flare-ups based on the Veteran's reported symptomatology.  The VA examiner also reported that passive range of motion would be the same as active range of motion.  There was no muscle atrophy or ankylosis, and the VA examiner specifically found the Veteran did not have IVDS of the thoracolumbar spine.  The Veteran occasionally used a wheelchair or a walker and constantly used a cane for his back disability and radiculopathy.  Thus, the record does not reflect unfavorable ankylosis or incapacitating episodes having a total duration of at least six weeks as of January 8, 2021.  As such, the criteria for a rating in excess of 40 percent is not warranted as of such date.  

Other Considerations

In February 2021, pursuant to the Board's Remand directives, a VA clinician found the record did not reflect the severity of the Veteran's back disability for the periods prior to August 29, 2008, from August 29, 2008, to June 3, 2017, and from June 3, 2017, to the present.  Similarly, the same clinician could only report in a June 2021 opinion the Veteran's complaints of pain as demonstrated in the record.  Here, the Board finds the aforementioned medical evidence, as detailed, is sufficient to properly assess the severity of the Veteran's service-connected back disability during the periods on appeal.  Thus, remand for further clarification is not necessary.

As for objective neurologic abnormalities, the Board notes the issue of entitlement to service connection for a genitourinary disorder will be addressed in a separate decision issued at a later date, and the assignment of separate ratings for sciatic neuritis LLE and sciatic neuropathy RLE and entitlement to service connection for erectile dysfunction are addressed separately herein.  In addition, the issue of entitlement to service connection for a digestive disorder, to include as secondary to service-connected back disability, is remanded below.  Further, the evidence does not demonstrate any additional objective neurologic abnormalities associated with the Veteran's back disability during the pendency of the appeal.  

3. Propriety of the assignment of a separate rating for sciatic neuritis LLE, evaluated as 10 percent disabling as of February 15, 2013.

4. Propriety of the assignment of a separate rating for sciatic neuropathy RLE, evaluated as 10 percent disabling as of February 15, 2013.

As noted above, the August 2014 rating decision awarded separate 10 percent ratings for sciatic neuritis LLE and sciatic neuropathy RLE as of February 15, 2013, pursuant to Diagnostic Code 8620.  38 C.F.R. § 4.124A.  Notably, the AOJ indicated the effective date was based on the date of receipt of the Veteran's claim.  However, as noted above, his sciatic neuritis LLE and sciatic neuropathy RLE are part and parcel of his service-connected back disability, the appeal for which stems back to September 14, 1999.  Consequently, the issues regarding the date entitlement arose for the Veteran's secondary disabilities and the propriety of the assigned ratings are properly on appeal before the Board.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

According to the November 2004 VA examination report, straight leg raises were negative bilaterally, and the Veteran had normal reflexes and sensation.  However, an April 13, 2005, VA treatment record shows an assessment of RLE radiculopathy, and a July 2005 VA treatment record similarly demonstrates a finding of radiculitis of the RLE.  Additionally, a January 2006 private treatment record reflects the Veteran's complaint of low back pain radiating into the right lower extremity and an impression of "chronic severe low back pain with radiation to right lower extremity, lumbar spondylosis and facet arthritis, L5-S1 degenerative disc disease, and T12/L1 old appearing vertebral compression fractures."  Further, a November 4, 2008, VA examination report reflects the specific finding of L5-S1 sensory deficit of the bilateral lateral legs, with the sciatic nerve identified as the most likely peripheral nerve affected.  In addition, the VA examiner provided an updated diagnosis of degenerative disk disease of L5-S1 with associated facet arthropathy and sciatic nerve IVDS. He further found that the Veteran had positive straight leg tests and diminished sensory sensation along the sciatic nerve roots of L5 and S1.  Further, although VA examiners in March 2009 and September 2010 did not find any specific neurological impairment, the Veteran had diminished reflexes in March 2009 and limited straight leg raising in September 2010.  Moreover, the June 2014 VA examiner confirmed the presence of incomplete paralysis of the sciatic nerve bilaterally.  Consequently, the Board finds effective dates of April 13, 2005, and November 4, 2008, but no earlier, for the assignment of separate ratings for sciatic neuropathy RLE and sciatic neuritis LLE, respectively, is warranted.

With respect to the proper ratings for such, Diagnostic Code 8620 provides a 10 percent rating for mild incomplete neuritis and a 20 percent rating for moderate incomplete neuritis.  Id.  Moderately severe incomplete neuritis warrants a 40 percent rating, and severe incomplete neuritis, with marked muscular atrophy, warrants a 60 percent rating.  When there is complete neuritis, the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost, an 80 percent rating is assigned.  Id.

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 November 2008 VA examination report reflects the Veteran's report of pain traveling down to the right leg that was crushing, aching, and sharp; however, he denied any incapacitation and numbness.  However, examination did not reveal any evidence of radiating pain on movement and, although the Veteran had diminished sensory sensation along the sciatic nerve roots L5 and S1, there was no lumbosacral motor weakness.  On VA examination in March 2009, he again reported pain traveling down the inside of the leg without any incapacitation, and he denied numbness.  Physical examination did not reveal any signs of lumbar IVDS with chronic and permanent nerve root involvement.  Motor function and sensory function were within normal limits, while knee jerk and ankle jerk reflexes were hypoactive bilaterally.  Similarly, although the September 2010 VA examiner determined there was no specific neurological impairment, straight leg raising was limited and caused back pain.  Additionally, there was no evidence of paralysis.

A June 2014 Peripheral Nerves Conditions DBQ, however, reflects findings of moderately severe incomplete paralysis of the sciatic nerve RLE and mild incomplete paralysis of the sciatic nerve LLE, while a VA examiner in February 2015 found the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy.  Private treatment records dated in April 2015 and December 2015 show diagnoses of lumbar radiculopathy with bilateral leg pain, and treatment records dated in September 2016 and February 2017 reflect the Veteran's complaints of radiating pain to both legs.  In addition, a March 2017 private treatment record shows reports of numbness, weakness, and radiating pain to the RLE.  The June 2017 Back Conditions DBQ demonstrates the Veteran's reports of severe intermittent radicular pain but also reflects the VA examiner's findings of only mild radiculopathy affecting the sciatic nerve on both lower extremities.  Following the Veteran's reports of moderate constant pain and moderate numbness in January 2021, the VA examiner determined the Veteran's radiculopathy of the RLE and LLE were moderate in severity.

Based on the aforementioned evidence, the Board finds the evidence demonstrates an overall disability picture of no more than mild sciatic neuritis LLE and mild sciatic neuropathy RLE prior to January 8, 2021.  In this regard, although the June 2014 VA examiner identified "moderately severe" incomplete paralysis of the sciatic nerve RLE and a single March 2017 private treatment record reflects a report of numbness and weakness, the remainder of the medical evidence dated during this period describes only sensory symptoms of bilateral radicular pain, without paresthesias, dysesthesias, or numbness, and, at times, no specific neurological impairment at all.  As such, the Board finds the criteria for ratings of 10 percent, but no higher, have been met for sciatic neuritis LLE and sciatic neuropathy RLE prior to January 8, 2021.  

However, the January 2021 VA examiner recorded the Veteran's reports of moderate constant pain and moderate numbness in the bilateral lower extremities associated with radiculopathy and specifically determined his bilateral lower extremity radiculopathy, which involved the sciatic nerve, was moderate in severity.  Based on this evidence, and resolving all doubt in the Veteran's favor, the Board finds ratings of 20 percent, but no higher, for moderate sciatic neuritis LLE and moderate sciatic neuropathy RLE are warranted as of January 8, 2021, the date of the examination demonstrating such severity.  

Knee Disabilities

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II.

Prior to February 7, 2021, Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability.  

As of February 7, 2021, Diagnostic Code 5257 provides ratings for patellar instability and recurrent subluxation or lateral instability.  For the former, a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.  A 20 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker.  A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.  

With regard to recurrent subluxation or lateral instability under the amended Diagnostic Code 5257, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistance device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.  

Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

The substance of Diagnostic Codes 5003, 5010, 5260, and 5261 were not affected by the amendments.  Diagnostic Code 5010, which addresses arthritis due to trauma, provides that such shall be rated as degenerative arthritis under Diagnostic Code 5003.  Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation.  X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation.  For the purpose of rating disability from arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45.

Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees.  For a 10 percent rating, flexion must be limited to 45 degrees.  For a 20 percent rating is warranted where flexion is limited to 30 degrees.  A 30 percent rating may be assigned where flexion is limited to 15 degrees.  Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees.  A 10 percent rating requires extension limited to 10 degrees.  A 20 percent rating is warranted where extension is limited to 15 degrees.  A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees.  For a 40 percent rating, extension must be limited to 30 degrees.  Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned.  

VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). 

With respect to the Veteran's reported knee symptoms, an August 1999 private treatment record reflects his reports of chronic pain and unpredictable flare-ups that could occur six to seven times per year, while an October 1999 private treatment record shows he reported symptoms of pain, weakness, and stiffness that occurred at least once per month, lasted for two to three days, were aggravated by walking and squatting, and were alleviated by cortisone injections and rest.  He stated such symptoms limited his ability to perform normal daily activities.  A January 2001 private treatment record indicates the Veteran had a significant amount of crepitus upon flexion and extension, but his knee was otherwise unremarkable.  A November 2003 VA treatment record reflects the Veteran's reports of some instability in both knees, greater in the right, and daily morning stiffness and pain.  The November 2004 VA examination report shows his statement that his knees moderately inhibited his ability to perform his activities of daily living and that he experienced flare-ups involving increased pain, fatigue, and some incoordination.  

On VA examination in July 2006, the Veteran reported pain, weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, and fatigability.  X-ray examination in July 2006 revealed mild to moderate degenerative joint disease of the right knee and patella, and a November 2008 VA examination report shows the Veteran's reports of right knee pain and giving way.  In March 2009, the Veteran complained of weakness, swelling, heat, redness, giving way, lack of endurance, and fatigability, but he denied stiffness, locking, and dislocation.  The September 2010 VA examination report reflects his reports of pain and giving way on multiple occasions.  In January 2015, the Veteran denied flare-ups and functional loss, and while he denied flare-ups in June 2017, he did report functional impairment that involved difficulty standing and walking.  According to the January 2021 VA examination report, the Veteran described symptoms of aching and stiffness that prevented prolonged walking, running, and standing, and the May 2021 VA examination report indicates the Veteran had daily, bilateral knee pain with kneeling, squatting, standing, and walking, but he denied flare-ups.

5. Entitlement to an initial rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 thereafter for traumatic arthritis of the left knee with painful motion.

6. Entitlement to an initial rating in excess of 20 percent prior to June 3, 2017, and a compensable rating thereafter for left knee instability.

The instant appeal stems from August 27, 1999, the date service connection was awarded for the Veteran's left knee disability.  His traumatic arthritis of the left knee is rated as 10 percent disabling prior to January 8, 2021, and as 20 percent disabling based on painful limited motion thereafter pursuant to Diagnostic Code 5010-5260.  The Veteran is also in receipt of a separate 20 percent rating prior to June 3, 2017, and a noncompensable rating thereafter for left knee instability.

With respect to a higher rating under Diagnostic Code 5260, a private physician's letter dated in August 1999 indicates the Veteran had flexion up to 90 degrees, whereas an October 1999 private treatment record reflects flexion to 140 degrees, with pain starting at 100 degrees.  A November 2003 VA treatment record indicates the Veteran had limited range of motion.  The November 2004 VA examination report demonstrates flexion limited to, at most, 60 degrees, even following repetitive use and during flare-ups, and the July 2006 VA examination report shows flexion limited to 135 degrees.  In November 2008, left knee flexion was limited to 135 degrees, with no additional loss after repetitive use, and left knee flexion was limited to, at most, 60 degrees in April 2009.  VA examination in January 2015 revealed left knee flexion limited to 135 degrees, whereas a December 2016 private treatment record indicates the Veteran's left knee flexion was to 70 degrees, and the June 2017 VA examination report demonstrates left knee flexion limited to, at most, 90 degrees.  

Based on these findings, the Veteran's left knee flexion was limited to, at most, 60 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, prior to January 8, 2021.  Consequently, a higher rating under Diagnostic Code 5260 is not warranted for this period.  

As of January 8, 2021, a January 2021 VA examination report demonstrates left knee flexion limited to, at most, 20 degrees, with repetitive use after time and during flare-ups, whereas VA examination in May 2021 revealed left knee flexion to 95 degrees.  Based on this evidence, the criteria for a rating in excess of 20 percent pursuant to Diagnostic Code 5260 have not been met for this period.

As for a separate rating under Diagnostic Code 5261, an August 1999 private treatment record shows extension up to 175 degrees, and although the Veteran had a significant amount of crepitus with extension, the left knee was unremarkable otherwise.  VA examination in November 2004, July 2006, November 2008, March 2009, January 2015, June 2017, January 2021, and May 2021 demonstrated normal extension.  Thus, the Board finds a separate rating for limitation of extension pursuant to Diagnostic Code 5261 is not warranted at any time during the appeal period.

With respect to the separate ratings assigned under Diagnostic Code 5257, such Diagnostic Code notably does not require objective medical evidence of lateral instability for a rating to be assigned.  English v. Wilkie, 30 Vet. App. 347 (2018).  However, while the Veteran is competent to describe feelings of giving way, he is not competent as a lay person to diagnose lateral instability or recurrent subluxation as such requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. Woehlaert, 21 Vet. App. 456. 

As pertinent to the medical findings, in October 1999, drawer and McMurray's tests were slightly abnormal, indicating "mild-to-moderate" instability of the left knee.  A November 2003 VA treatment record indicates the Veteran had some instability in both knees, more severe in the right knee than in the left knee, and an April 2005 VA treatment record reflects the report that sometimes the Veteran's knees gave out.  VA examination reports dated in November 2004, July 2006, November 2008, and January 2015, however, show the Veteran did not have any instability or subluxation of the left knee.  A July 2015 VA treatment record indicates that while the Veteran had crepitus, he did not have any instability.  As the scant evidence of instability prior to June 3, 2017, describes such as no more than moderate in nature, the Board finds a rating in excess of 20 percent for recurrent subluxation or lateral instability is not warranted prior to June 3, 2017.

As for the following period, the Veteran did not have any left knee instability or subluxation on VA examination in June 2017.  According to the January 2021 and May 2021 VA examination reports, the Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability testing did not reveal any joint instability.  Additionally, the May 2021 VA examiner found that, although the Veteran required a prescription for a walker and brace, there was no left knee ligament tear or recurrent patellar instability and opined the Veteran did not have instability of the left knee based on a review of the record and physical examination.  Consequently, a compensable rating is not warranted under either the old or new criteria pursuant to Diagnostic Code 5257 as of June 3, 2017.

Additionally, as the evidence of record does not demonstrate ankylosis, dislocated or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application in the instant case.

7. Entitlement to an initial rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter for osteoarthritis of the right knee.

The instant appeal stems from September 14, 1999, the date service connection was awarded for the Veteran's osteoarthritis of the right knee. Such disability is rated as 10 percent disabling prior to January 8, 2021, and in excess of 20 percent thereafter based on painful limited motion pursuant to Diagnostic Code 5260-5010.  

With respect to higher ratings under Diagnostic Code 5260, a December 2002 VA treatment record shows the Veteran had full flexion in the right knee, while a November 2003 VA treatment record indicates the Veteran had limited range of motion.  The November 2004 VA examination report reflects right knee flexion to 90 degrees, without additional decrease in range of motion following repetition or flare-ups.  In July 2006, right knee flexion was limited to 120 degrees, and although the Veteran had complaints of knee pain and stiffness in November 2008, right knee flexion was limited to no more than 70 degrees.  Right knee flexion was limited to 45 degrees on VA examination in April 2009, while the September 2010 VA examination report demonstrates flexion to 80 degrees with pain commencing at 50 degrees and no additional loss of joint function or motion with use due to pain on repeated testing.  A May 2011 VA treatment record demonstrates right knee flexion limited to 75 degrees.  In January 2015, the Veteran had normal range of motion in the right knee, whereas right knee flexion was limited to 90 degrees on VA examination in June 2017.  A July 2015 VA treatment record indicates the Veteran had limited right knee flexion.  

Here, the evidence of record dated prior to January 8, 2021, reflects right knee flexion limited to, at most, 45 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, and, as such, an initial rating in excess of 10 percent is not warranted for this period under Diagnostic Code 5260.  Thereafter, the January 2021 VA examination report indicates right knee flexion was limited to 20 degrees with repetitive use and during flare-ups, whereas right knee flexion was limited to, at most, 110 degrees on examination in May 2021.  As right knee flexion was not limited to 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the criteria for a rating in excess of 20 percent have not been warranted pursuant to Diagnostic Code 5260 as of January 8, 2021.

With respect to a separate rating under Diagnostic Code 5261, a January 2001 private treatment record indicates the Veteran had a significant amount of crepitus with flexion and extension, but no other findings.  Right knee extension was also normal on VA examinations conducted in November 2004, July 2006, November 2008, and April 2009.  The September 2010 VA examination report, however, shows extension limited to 10 degrees, while a May 2011 VA treatment record indicates the Veteran had full extension in the right knee.  A December 2016 private treatment record appears to indicate extension was limited to 20 degrees, while VA examination in June 2017 shows extension limited to 10 degrees.  Thereafter, VA examination of the right knee revealed no limitation of extension.  Given that the December 2016 private treatment record is not consistent with the remainder of the medical evidence of record, and the record does not clearly show that testing was completed utilizing a goniometer on that occasion, the Board does not afford such probative value.  Nevertheless, the Board resolves all doubt in the Veteran's favor and finds a separate 10 percent rating is warranted based on limitation of extension pursuant to Diagnostic Code 5261 as of September 10, 2010, the date physical examination performed with a goniometer first demonstrated objective limitation of extension.  38 C.F.R. § 4.71A.

As for a separate and/or higher rating under Diagnostic Code 5257, the Board has considered the Veteran's reports of some right knee instability and giving way, and again notes that such Diagnostic Code does not require objective medical evidence of lateral instability for a rating to be assigned.  English, 30 Vet. App. 347.  However, as previously stated, the Veteran is not competent as a lay person to diagnose lateral instability or recurrent subluxation.  Woehlaert, 21 Vet. App. 456.  In the instant case, objective testing did not reveal any right knee lateral instability, subluxation, or patellar dislocation or history thereof.  Consequently, the Board affords greater probative weight to the VA examiners' findings during the appeal period than the Veteran's generalized lay statements.  See, e.g., Waters, 601 F.3d at 1278.  Therefore, the Board finds that a higher or separate rating pursuant to the old or amended criteria under Diagnostic Code 5257 is not warranted for the Veteran's right knee disability.

Similarly, the evidence does not demonstrate ankylosis, dislocated or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal and, therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application in the instant case.

Other Considerations

In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities.  The Veteran's history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned.  Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the service-connected disabilities at issue.  As such, while the Board accepts the Veteran's testimony concerning matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue.   

The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has been stable throughout the periods on appeal. Therefore, assigning additional staged ratings for such disabilities is not warranted.  Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in the partial awards assigned herein. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the Veteran's claims. Therefore, the benefit of the doubt doctrine is not applicable and his initial rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

8. Entitlement to SMC under 38 U.S.C. § 1114(k) based on loss of use of a creative organ.

The Veteran has advanced the narrow theory of entitlement to SMC based on the loss of use of a creative organ due to erectile dysfunction.

SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule.  Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352.  

In pertinent part, SMC under subsection (k) is payable for the anatomical loss or loss of use of one or more creative organs.  38 U.S.C. § 1114(k).  Entitlement to SMC based on loss of use of a creative organ can be granted on the basis of erectile dysfunction.  However, as the Board herein denies service connection for erectile dysfunction, entitlement to SMC for loss of use of a creative organ is not warranted.  Id.; 38 C.F.R. § 3.350(a).

9. Entitlement to a TDIU prior to September 14, 1999.

The Veteran asserts that his service-connected disabilities have prevented him from securing and following a substantially gainful occupation since January 1996.  A June 2009 rating decision awarded a TDIU effective August 29, 2008, and a May 2018 rating decision granted an earlier effective date of September 14, 1999, for the award of a TDIU.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  38 C.F.R. § 4.16(b).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities."  The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

In Snider v. McDonough, No. 19-6707, (Vet. App. Nov. 19, 2021), the Court held the Board must address the Ray standard, i.e., whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" to require referral of the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16(b), prior to reaching the question of whether the Veteran's service-connected disabilities render him unemployable. 

Although VA did not receive the Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940), until April 28, 2016, the appeal period before the Board stems from receipt of the Veteran's claim for service connection for left kneecap laceration on July 9, 1995, pursuant to Rice, 22 Vet. App. 447.  From July 9, 1995, to August 27, 1999, the Veteran's single service-connected disability of residuals of left kneecap laceration is rated as noncompensably disabling and, from August 27, 1999, to September 14, 1999, such disability is rated as noncompensably disabling, his left knee instability is rated as 20 percent disabling, and his traumatic arthritis of the left knee is rated as 10 percent disabling, which results in a combined disability rating of 30 percent.  While such disabilities may be considered as one due to a common etiology, the Veteran does not meet the schedular threshold for a TDIU prior to September 14, 1999.  

Nonetheless, if there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of such service-connected disabilities, the Board may refer the case to the Director of Compensation Service for extra-schedular consideration.  38 C.F.R. § 4.16(b).  According to the Veteran's VA 21-8940, he completed three years of college and underwent additional training at Fayetteville State University from 1962 to 1965.  Pertinent to his work history, he indicated that he worked as an office controller for several car dealerships from January 1988 to January 1996.  

With respect to the evidence contemporaneous to the Veteran's report that his last full-time position ended in January 1996, records associated with his Social Security Administration (SSA) application show he applied for disability benefits on the basis of acute rheumatoid arthritis with extreme pain, stiffness, and soreness in all joints, to include the hips, shoulder, back, and knees.  In addition, a December 1996 Medical Consultant's Case Analysis indicates the Veteran had a long history of rheumatoid arthritis with arthritic changes noted in his elbows, hands, and toes.  SSA ultimately awarded disability benefits as of January 16, 1996, with a primary diagnosis of rheumatoid arthritis.

As to the functional impairment associated with the Veteran's left knee disabilities during the appeal period, an August 1999 private treatment record shows he had some loss of motion in the left knee, with flexion to 90 degrees and extension to 175 degrees, and chronic pain.  Flare-ups could occur six to seven times per year.  On VA examination in October 1999, however, the VA examiner found no evidence of involvement of the left knee joint itself, and the Veteran had only slightly painful motion.  Flexion was to 140 degrees, with pain starting at 100 degrees, and the VA examiner determined pain, weakness, and stiffness would limit the Veteran's ability to perform normal daily activities insofar as he cannot push a lawn mower, climb stairs, or garden. However, he was still able to brush his teeth, dress himself, shower, cook, vacuum, walk, drive a car, shop, and take out trash.

Here, the Board finds the probative evidence described above does not show the Veteran's service-connected disabilities, singularly or jointly, were of sufficient severity so as to substantiate a reasonable possibility that he is unemployable by reason of his or her service-connected disabilities such that referral for extra-schedular consideration. Moreover, such does not show that such disabilities rendered him incapable of performing the physical and mental acts required by employment consistent with his education and work history prior to September 14, 1999.  

First, the Veteran is in receipt of only a combined 30 percent disabling rating during the relevant period, which does not suggest that the resulting impairment from his service-connected disabilities made it difficult to obtain or keep employment.  Second, the Veteran's education consisted of three years of college, and his work history appears comprised of mainly office positions, which do not require significant manual labor.  In this regard, the Veteran's service-connected disabilities prior to September 14, 1999, were all of a physical nature.  Third, the medical evidence described above does not demonstrate severely limited range of motion or other significant impairment resulting from the Veteran's service-connected left knee disability that would make working in such an office setting incompatible with his left knee disabilities.  Moreover, SSA found that the Veteran was rendered unemployable by the systemic disease of rheumatoid arthritis that affects multiple nonservice-connected joints in addition to the Veteran's service-connected left knee disability.

Therefore, based on the foregoing, the Board finds that, for the entire appeal period from July 9, 1995, to September 14, 1999, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities such that referral for extra-schedular consideration is necessary. Furthermore, the evidence does not show that such service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 

In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against such claim, the benefit of the doubt doctrine is not applicable.  Therefore, referral for extra-schedular consideration of a TDIU is not warranted.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

10. Entitlement to an effective date prior to September 14, 1999, for the award of DEA under 38 U.S.C. Chapter 35.

The AOJ deemed the Veteran eligible for DEA under 38 U.S.C. Chapter 35 as of September 14, 1999.  On appeal, he seeks an earlier effective date for such eligibility.  

Chapter 35 benefits, Survivors' and DEA, is a program of education or special restorative training that may be authorized for an eligible person, such as a child or surviving spouse, if the applicable criteria are met.  38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.  Basic eligibility for certification of Survivors' and DEA benefits exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or, (5) if a serviceperson is on active duty as a member of the Armed forces and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.  Service-connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. 

As of September 14, 1999, the Veteran meets the basic eligibility requirements for DEA under 38 U.S.C. Chapter 35 based on the award of a TDIU, which fulfills the requirement of a permanent and total service-connected disability.  Prior to September 14, 1999, the Veteran does not meet any of the basic eligibility requirements for DEA under 38 U.S.C. Chapter 35.  The issue of entitlement to an earlier effective date for the award of a TDIU is denied herein, and the Veteran is not otherwise in receipt of a permanent and total service-connected disability.  Further, the record does not show that the Veteran was, while on active duty as a member of the Armed forces, listed by the Secretary concerned as missing in action, captured in the line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power for a period of more than 90 days.  Consequently, an effective date prior to September 14, 1999, for eligibility to DEA under 38 U.S.C. Chapter 35 is not warranted.

REASONS FOR REMAND

11. Entitlement to service connection for a digestive disorder, claimed as diarrhea, to include as secondary to service-connected disabilities and the medications prescribed therefor.

In November 2018, the Board remanded the Veteran's service connection claim for  a digestive disorder, claimed as diarrhea, for an addendum etiological opinion.  In particular, the Board requested that the January 2015 VA examiner, or an appropriate substitute, address whether the Veteran's claimed diarrhea was a symptom of his service-connected digestive disabilities, a separate condition related to service, or a separate condition proximately due to and/or aggravated by a service-connected disability.  

In January 2021, a VA examiner provided diagnoses of irritable bowel syndrome (IBS) and diverticulitis based on the Veteran's symptoms of constant diarrhea and abdominal pain.  The VA examiner specifically found his claimed diarrhea was a symptom of IBS and opined such disorders were less likely than not incurred in or caused by service.  In this regard, he found there was no documentation of any complaints of a digestive condition during or shortly after military service.  Likewise, the VA examiner opined the Veteran's disorders were not caused or aggravated by a service-connected disability and provided the same rationale, i.e., there was no documentation of any complaints of a digestive condition during or shortly after military service.  In addition, he found the Veteran's service did not aggravate any IBS/diarrhea beyond its normal progression.

Here, the VA examiner appears to have based the unfavorable opinions regarding secondary service connection on the absence of in-service evidence, rather than any relationship, or lack thereof, between the Veteran's IBS and diverticulitis and his service-connected disabilities.  In addition, the VA examiner did not provide an opinion with respect to whether any medications prescribed for the Veteran's service-connected disabilities caused or aggravated such disorders.  Consequently, the Board finds a remand is warranted for an addendum opinion addressing such matters.

The matter is REMANDED for the following action:

Forward the record, to include a copy of this Remand, to the examiner who completed the January 2021 Intestinal Conditions DBQ, or an appropriate substitute if unavailable, for an addendum opinion regarding the etiology of the Veteran's IBS and diverticulitis.  The need for additional examination is left to the discretion of the clinician selected to provide the opinion.  Following a review of the record, the clinician should address the following:

For the Veteran's IBS and diverticulitis, provide an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) caused or aggravated by a service-connected disability, to include the medications prescribed for such.  For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology.

The Veteran is service-connected for the following:  COPD and asthma; hiatal hernia, Barrett's esophagus and gastritis; toxic maculopathy, bilateral eyes; degenerative disk disease of L5-S1 with associated facet arthropathy; traumatic arthritis left knee; osteoarthritis of the right knee; sciatic neuritis LLE; sciatic neuropathy RLE; residuals, left kneecap laceration; and left knee instability.  

A rationale for any opinion offered must be provided.

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. M. Celli, 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.