Citation Nr: 21005611 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-10 044 DATE: February 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating higher than 20 percent for a low back disability (strain) is denied. Prior to March 3, 2020, an initial rating of 40 percent, but no higher, for radiculopathy of the left leg, is granted, subject to the laws and regulations governing the award of monetary benefits. Since March 3, 2020, a rating higher than 40 percent for radiculopathy of the left leg, is denied. REMANDED Entitlement to service connection for a bilateral hip disability (degenerative changes included pain), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has a bilateral hearing loss disability for VA purposes at this time. 2. The most probative evidence indicates that the Veteran’s low back disability is manifested by limitation of forward flexion of the thoracolumbar spine to no less than 40 degrees, with pain and a combined range of motion of the thoracolumbar spine of no less than 110 degrees. 3. Throughout the entire period on appeal, the Veteran’s radiculopathy of the left leg has been manifested by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for a rating higher than 20 percent for a low back disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295 (2019). 3. Prior to March 3, 2020, an initial rating of 40 percent, but no higher, is warranted for radiculopathy of the left leg. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520 (2019). 4. Since March 3, 2020, a rating higher than 40 percent for radiculopathy of the left leg, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1981 to October 1984. These matters are on appeal from a May 2015 rating decision. In October 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. In January 2020, these matters and a claim of entitlement to service connection for tinnitus were remanded by the Board for further development. The claim for service connection for tinnitus was granted in a March 2020 rating decision. The Veteran did not disagree with the disability evaluation or the effective date assigned. Therefore, this matter is no longer considered to be in appellate status. Service Connection Claim 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 requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as sensorineural hearing loss, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2019). The service treatment records include audiometric findings which reflect hearing loss, but these findings do not demonstrate hearing loss for VA purposes. On June 2010 VA audiology examination, the Veteran presented with a 14-month history of exposure to loud noise while working in a tank facility during service without the benefit of hearing protection. He also had loud noise exposure from radios in communication and minimal occupational noise exposure post-service as a police officer. He worked around loud noise, but wore hearing protection and denied recreational noise exposure. Audiometric findings indicated clinically normal hearing, bilaterally. Pursuant to the Board’s January 2020 remand, on March 2020 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) examination after a thorough review of the claims file and an examination of the Veteran, the examining audiologist diagnosed normal hearing in the left ear and sensorineural hearing loss in the right ear. However, since 4000 Hz was the only auditory threshold of 26 decibels or greater, specifically 35 decibels, and the speech recognition score was 100 percent, these audiometric results do not support a diagnosis of right ear hearing loss for VA purposes. 38 C.F.R. § 3.385 (2019). The Board finds that the claim for service connection for bilateral hearing loss must be denied. There is no competent medical evidence to show that the Veteran has had any diagnosed bilateral hearing loss pursuant to 38 C.F.R. § 3.385 during or since the Veteran’s service. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time, he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, however, there is no evidence of a bilateral hearing loss disability for VA purposes during the period under appellate review. The Board has considered the Veteran’s contentions that he has bilateral hearing loss related to his service. The Board has also closely reviewed the medical and lay evidence in the Veteran’s claims file and the Veteran’s testimony and finds no evidence that may serve as a medical nexus between the Veteran’s service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the existence of currently diagnosed bilateral hearing loss disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Given the foregoing, the Board finds that the medical evidence outweighs the Veteran’s contentions. It is important for the Veteran to understand the fact that the Board acknowledges that he currently experiences some bilateral hearing loss. Although he may have experienced decreased hearing acuity during and after his service due to acoustic trauma, the audiological findings of record do not necessarily support a finding that the Veteran has a bilateral hearing loss for VA purposes at this time. As there is no evidence that the Veteran currently has a bilateral hearing loss disability for VA purposes, entitlement to service connection for bilateral hearing loss must be denied. Increased Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 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. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (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). Low back disability Spine disabilities can be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2018). The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, a 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, 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 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. Moreover, “chronic orthopedic and neurological manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2019). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2019). IVDS (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent rating is warranted where there are incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Veteran contends that his service-connected low back disability is more severe than his 20 percent evaluation, would indicate. Turning to the orthopedic manifestations of the Veteran’s low back disability, on May 2015 VA back Disability Benefits Questionnaire (DBQ) examination, the examiner diagnosed low back strain. The Veteran presented with a history of service-connected low back strain. He did not report flare-ups of his back disability, but stated that he had constant pain, including pain with sitting, standing, and walking. Range of motion measurements indicated 50 degrees forward flexion, 10 degrees extension, 15 degrees right and left lateral flexion, and 25 degrees right and left lateral rotation. The combined range of motion was 140 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on examination and caused functional loss, but there was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints associated soft tissue of the thoracolumbar spine located at the left paraspinal muscles. Pain was rated 7 out of 10 on the pain scale. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. Regarding whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, the examiner was unable to say without resort to mere speculation. There was insufficient evidence or objective examination findings that would provide a reliable prediction of decreased functional ability during flare-ups or with repetitive use over a period of time. The examiner opined that based on the available evidence and examination findings it was not possible to predict within a reasonable degree of medical certainty a potential loss of range of motion manifested as a consequence of a flare-up or exacerbation outside the clinical setting. Any such prediction would be mere speculation. Muscle strength testing was normal and there was no guarding or muscle spasm of the thoracolumbar spine. There was no ankylosis or other neurologic abnormalities or findings related to the thoracolumbar spine. Regarding IVDS, the examiner stated that the Veteran had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Episodes of bed rest had a total duration of at least 6 weeks during the past 12 months. He used no assistive devices. Regarding the functional impact of the low back disability on the Veteran’s ability to work, it impacted his ability to perform occupational tasks that required use of his back for tasks involving physical effort such prolonged standing and walking, climbing, and lifting. Sitting also caused pain and impacted his ability to be successful at sedentary jobs that required prolonged sitting. On November 2016 VA back conditions DBQ examination, the examiner diagnosed lumbosacral strain and vertebral fracture and sciatica. Flare-ups of the Veteran’s low back disability were described as pain rated 6 to 8 or 9 out of 10 on the pain scale with radiating pain into the hips and legs. He was employed as a Sergeant of the Court Unit for the police department which required him to go to various court houses. However, he also had a sedentary job. He had difficulty sleeping due to back pain. Functional loss or functional impairment was described as an inability to run and he was unable to perform impact exercises, including aerobic exercise. Range of motion measurements indicated 50 degrees forward flexion, 10 degrees extension, 10 degree right lateral flexion, 15 degrees left lateral flexion, 10 degrees right lateral rotation, and 15 degrees left lateral rotation. The combined range of motion was 110 degrees. Range of motion was outside of normal range, but was normal for the Veteran due to flat lordosis which did not reverse as he flexed forward or increase when he bent back. Range of motion itself contributed to a functional loss. At that time, he worked in a desk position at the police department. Pain was noted on examination throughout range of motion and with weight-bearing. There was objective evidence of localized tenderness or pain of the joints or associated soft tissue of the thoracolumbar spine. However, he was able to perform repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigue and lack of endurance significantly limited functional ability with repeated use over a period of time and during flare-ups, but the examiner was unable to describe in terms of range of motion explaining that range of motion. This was due to the fact that the Veteran’s range of motion was so decreased he could only assess his range of motion during an actual bout of pain. He had guarding or muscle spasm of the thoracolumbar spine which did not result in abnormal gait or abnormal spinal contour. The entire paraspinal musculature, perhaps more on the right than the left, from the upper thorax to his sacrum, was in some spasm and was slightly tender to direct pressure more in the lower thorax than his lumbar area. Guarding did not result in abnormal gait or spinal contour. Additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc.; disturbance of locomotion; interference with sitting; and interference with standing. Muscle strength testing was normal and there was no atrophy. Reflex and sensory examinations were normal. Straight leg raising was normal. The examiner indicated that the Veteran did not have radicular pain or any other symptoms or ankylosis of the spine or any other neurologic abnormalities. Regarding IVDS, the Veteran had episodes of bed rest having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. However, the examiner stated that he was placed on bed rest in the late fall and early winter of 2015-2016 due to his bilateral total hips disability and explained that he was never prescribed bed rest for low back pain. Regarding assistive devices, he regularly wore a brace and used a TENS unit. He was given a back brace 10 years ago, but stopped wearing it and had not used a TENS unit for several years. Regarding functional impact, although he continued to work for the police department, he did so in an almost entirely sedentary type of job where he sat almost all of the time. Private treatment records include a March 2017 report which includes range of motion measurements of 20 degrees extension, 40 degrees forward flexion, and normal lateral range of motion. There was tenderness to palpation of the left lumbar paraspinal. Straight leg raising was positive on the left. Deep tendon reflexes were intact. Strength in the left leg was normal. Gait was also normal. In October 2019, the Veteran testified that he was unable to walk due to his back disability and experienced constant numbness. He also testified that he had a constant knot in the back of his hamstring. On March 2020 VA back conditions DBQ examination the Veteran presented with complaints of lower back pain numbness, tightness, and shooting sharp pains down his left leg, back side of his left leg, and below the left knee. He reported numbness to the lateral aspect of his leg, described as dysesthesias and numbness. His back disability was aggravated by standing, sitting, wearing a duty belt, lifting and bending over. He was currently on administrative leave due to lower back pain. He was receiving physical therapy, but had to call out approximately once per month due to his low back disability. After a thorough examination of the Veteran, the examiner diagnosed lumbosacral strain and degenerative arthritis of the spine. Flare-ups of the low back disability occurred once per month, but were more so sciatic than lower back pain with shooting pains down his back. Flare-ups lasted approximately one week or so, but he would typically return to work after a day or two. Regarding functional loss or impairment of the thoracolumbar spine, the Veteran reported worsening of back pain with repetitive motion over time, but it was not significantly more limiting than at baseline. He did report functional limitation with regard to standing, sitting, wearing duty belt, lifting and bending over. Range of motion measurements indicated 50 degrees forward flexion and 20 degrees each extension and right and left lateral flexion and rotation. The combined range of motion was150 degrees. He reported limitations with regards to reaching, bending over to pick up items, and difficulty lifting items. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing. There was mild lumbar paraspinal tenderness on palpation of the soft tissue of the thoracolumbar spine. He was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc.; disturbance of locomotion; interference with sitting; and interference with standing. Muscle strength testing was normal. There was no evidence of muscle atrophy. Reflex examination was normal. There was no evidence of ankylosis and the examiner stated that there was no IVDS. Regarding the functional impact of the low back disability, the Veteran reported difficulty with prolonged sitting and standing, activities that involved range of motion of the lumbar spine including bending over to pick up time and twisting to reach items, wearing his duty belt for prolonged periods, and carrying heavier loads for prolonged periods. The examiner remarked that pain due to repetitive motion or flareups was not directly observed. Review of his treatment records did not show any specific reference to treatment for flareups or limitations due to flareups or repetitive motion that would aid in the determination of estimates of range of motion limitation due to flareups or repetitive use. The examiner stated that after examining the Veteran, interviewing him about his complaints and reviewing available records there was no basis to determine additional range of motion loss due to flareups or repetitive motion. The Board finds that this is sufficient to meet the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner opined that the Veteran’s diagnosis of lumbar degenerative arthritis represents a progression of his service connected disability. In this case due to body habitus and mechanics it is not reasonable to test range of motion in passive, or non weight bearing scenarios. Regarding Correia, the examiner stated that it was not medically appropriate to perform passive range of motion testing or non-weight testing as there were no feasible means to perform this. After review of all the evidence regarding the orthopedic manifestations of the Veteran’s low back disability, the Board finds that a rating higher than 20 percent for the Veteran's low disability is not warranted. A 40 percent evaluation is assigned for forward flexion to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. In sum, while the Veteran clearly has problems with the low back, the most probative evidence of record does not indicate that the Veteran’s low back disability is manifested by forward flexion to 30 degrees or favorable ankylosis of the entire spine. Moreover, there was no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing on prior VA examinations. There is no evidence of record that the Veteran’s forward flexion is limited to 30 degrees or that there is favorable ankylosis of the entire thoracolumbar spine. Accordingly, the 20 percent evaluation is warranted. Regarding the DeLuca factors, the Board observes that the VA examiner noted the Veteran’s complaints such as pain and less movement than normal. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran’s low back disability more closely approximates a 40 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for the orthopedic manifestations of the Veteran’s low back disability. While the Board accepts the contentions of the Veteran that his thoracolumbar spine disability causes him to experience pain, providing the basis for the 20 percent evaluation, the Board has taken that into account in its consideration of the range of motion of the Veteran’s thoracolumbar spine. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Turning next to the neurological manifestations of the Veteran’s low back disability, apart from radiculopathy of the left leg, which is addressed separately below, on May 2015, November 2016, and March 2020 VA examinations, there was no bowel or bladder incontinence or retention due to the low back disability. Accordingly, the Board does not find that a separate rating for bladder or bowel impairment related to the Veteran’s low back disability is warranted at this time. The Board has also considered whether the Veteran is entitled to a rating higher than a rating higher than 20 percent for a low back disability under the Formula for Rating IVDS. On May 2015 VA examination, the examiner stated that the Veteran had episodes of bed rest which had a total duration of at least 6 weeks during the past 12 months. However, on November 2016 VA examination, the examiner explained that in the late fall and early winter of 2015-2016 the Veteran was prescribed bed rest for his bilateral hip disability and not low back pain. On May 2020 VA examination, the examiner opined that the Veteran did not have IVDS. Since there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks due to the Veteran’s low back disability, during the course of the appeal, the Formula for Rating IVDS does not entitle the Veteran to a higher rating for his low back disability. Radiculopathy of the left leg The Veteran contends that his service-connected left leg radiculopathy is more severe than his initial 20 percent evaluation prior to March 3, 2020, and higher than 40 percent since March 3, 2020, would indicate. The Veteran’s left leg radiculopathy is rated under DC 8520, which governs disabilities of the sciatic nerve, provides for a 10 percent rating for incomplete paralysis of the sciatic nerve that is mild, a 20 percent rating for a moderate disability, a 40 percent rating for a moderately severe disability, and a 60 percent rating for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 38 C.F.R. § 4.124a (diseases of the peripheral nerves). An 80 percent rating is authorized for complete paralysis of the sciatic nerve, evidenced by foot dangles and drops, no active movement possible of muscles below the knees, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a (diseases of the peripheral nerves). The rating schedule does not define the terms “mild,” “moderate,” or “severe” as used in this diagnostic code. However, when the involvement is only a sensory deficit, the rating should be considered “mild,” or at most, “moderate” in degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2019). The maximum rating to be assigned for neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, should be that for “moderate” incomplete paralysis. 38 C.F.R. § 4.124 (2019). On May 2015 VA back DBQ examination regarding radiculopathy there was moderate intermittent pain and numbness of the left leg involving the L4/L5/S1/S2/S3 nerve roots. On May 2015 VA peripheral nerves DBQ examination, left sciatica was diagnosed. Symptoms included moderate pain and numbness of the left leg. There was moderate incomplete paralysis of the left sciatic nerve. The Veteran did not use any assistive device. As far as the functional impact, the sciatic impacted is ability to perform occupational tasks that required the use of the back for tasks involving physical effort such as standing for a prolonged period, walking a significant distance, climbing, or lifting. The Veteran stated that he had pain with sitting which impacted his ability to be successful at sedentary jobs that required prolonged sitting. In a June 2015 notice of disagreement, the Veteran stated that he felt that a 40 percent rating was warranted due to severe as opposed to moderate paralysis of the left leg. He complained of shooting pain down his left leg. In a February 2017 VA addendum, a VA examiner noted that Veteran’s radicular pain manifested by moderate intermittent pain and numbness involving the left leg, L4/L5/S1/S2/S3 nerve roots (sciatic nerve). Private treatment records include an April 2018 report which states that the Veteran’s sciatica had been “killing him” and that he experienced tingling toes at night and left leg weakness. A November 2019 report indicates chronic low back pain and sciatica of the left leg. On March 2020 VA peripheral nerves conditions DBQ examination, the Veteran presented with a diagnosis of left lumbar radiculopathy. He complained of lower back pain numbness, and sharp shooting pains down the back side of the left leg to below the left knee. He also reported numbness to the lateral aspect of his leg, described as dysesthesias aggravated by standing, sitting, wearing a duty belt, lifting, and bending over. Additional symptoms included mild constant pain and moderate intermittent pain. Muscle strength testing was normal and there was no evidence of atrophy. However, on sensory examination, there was decreased sensation for light tough on the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. Gait was normal. There was moderately severe incomplete paralysis on the left. The Veteran’s peripheral neuropathy impacted his ability to work. He reported limited shooting pains down the back of his legs worsened by prolonged sitting and standing. After review of the evidence, including VA and private treatment records and examinations, and lay statements from the Veteran, the Board finds that prior to March 3, 2020, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence above is consistent with moderately severe incomplete paralysis of the sciatic nerve in the left leg, which warrants the assignment of an initial rating of 40 percent, but no higher. However, the Board finds that prior to and since March 3, 2020, the evidence does not reflect a disability picture that is comparable to severe incomplete paralysis of the sciatic nerve in the left leg. As such, the Board also finds that the preponderance of the evidence is against a rating higher than 40 percent, for radiculopathy of the left leg. The Board has considered whether the Veteran is entitled to a separate rating for radiculopathy of the right leg. However, on May 2015, November 2016, and March 2020 VA examination the Veteran was not diagnosed with radiculopathy of the right leg. Accordingly, a separate rating for radiculopathy of the right leg is not warranted. Additional considerations In this case, the Veteran is competent to report complaints such as difficulty with prolonged standing and sitting, difficulty walking, and numbness, and as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant higher ratings and has taken these contentions seriously (this was the basis of the Board’s remand to address this medical question and the basis for the increased rating for radiculopathy of the left leg prior to March 3, 2020 assigned herein). He is not, however, competent to identify a specific level of disability of his low back and left leg disabilities according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s low back and left leg disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Bilateral hip disability The Veteran contends that he has a bilateral hip disability secondary to his service-connected low back disability. Pursuant to the Board’s January 2020 remand, on March 2020 VA hip and thigh conditions examination, degenerative arthritis of the hips was diagnosed. The examining staff physician opined that the bilateral hip disability was les likely than not due to his low back disability. He further opined that the claimed disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. However, the evidence does not show nor does the Veteran contend that he had a pre-existing bilateral hip disability that was aggravated by his service. On this basis, the Board finds that the opinion is based on an inaccurate factual premise and is therefore inadequate for adjudication purposes. As it remains unclear whether the Veteran’s bilateral hip disability is related to his service-connected low back disability, on remand an addendum should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: Obtain an appropriate addendum by an examiner, other than the March 2020 VA examiner, regarding the nature and etiology of the Veteran’s claimed bilateral hip disability. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion: Is it at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed bilateral hip disability, is (a) proximately due to or the result of the Veteran's service-connected back disability, or (b) aggravated (any incremental increase in the bilateral hip disability beyond its normal progression) by his service-connected back disability? If it is determined that the bilateral hip disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, testimony and complaints concerning his back disability, including those made to medical providers, and the November 2019 private statement from S.S., M.D. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the medical officer should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.