Citation Nr: 21005915 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-00 749 DATE: February 2, 2021 ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for Sjogren’s syndrome is denied. Entitlement to an earlier effective date of May 31, 2005 but no earlier, for the grant of service connection for degenerative arthritis, intervertebral disc syndrome, and degenerative disc disease of the spine (back disability) is granted. Entitlement to a rating in excess of 20 percent for back disability is denied. For the period from August 15, 2016 through February 6, 2020 a rating in excess of 10 percent for left lower extremity radiculopathy is denied. For the period from August 15, 2016 through February 6, 2020 a rating in excess of 10 percent for right lower extremity radiculopathy is denied. For the period beginning February 7, 2020, a rating of 40 percent, but no higher, for left lower extremity radiculopathy is granted. For the period beginning February 7, 2020, a rating of 40 percent, but no higher, for right lower extremity radiculopathy is granted. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s migraine headaches are not caused by or related to an in-service event, injury, or disease. 2. The Veteran does not have hearing loss bilaterally for Department of Veterans Affairs (VA) purposes. 3. The Veteran’s Sjogren’s syndrome is not caused by or related to an in-service event, injury, or disease. 4. VA received an informal claim for service connection for the Veteran’s back disability on May 31, 2005. 5. The Veteran’s back disability manifests with painful motion and limitation of motion, but he has forward flexion of the thoracolumbar spine to greater than 30 degrees and ankylosis of the entire thoracolumbar spine is not present. 6. For the period from August 15, 2016 to February 6, 2020, the Veteran’s radiculopathy of the bilateral lower extremities is manifest by no more than mild incomplete paralysis. 7. For the period since February 7, 2020, the Veteran’s radiculopathy of the bilateral lower extremities is manifest by moderately severe incomplete paralysis without marked muscular atrophy. 8. The Veteran’s tinnitus is assigned the maximum schedular rating authorized for that disability. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for Sjogren’s syndrome have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to an earlier effective date of May 31, 2005, for the award of service connection for a back disability, have been satisfied. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(a) (2005), 3.400. 5. The criteria for a disability rating in excess of 20 percent for service-connected back disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. 6. For the period from August 15, 2016 to February 6, 2020, the criteria for a disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8620. 7. For the period from August 15, 2016 to February 6, 2020, the criteria for a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8620. 8. For the period beginning February 7, 2020, a rating of 40 percent, but no higher, for service-connected left lower extremity radiculopathy have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8620. 9. For the period beginning February 7, 2020, a rating of 40 percent, but no higher, for service-connected right lower extremity radiculopathy have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8620. 10. The criteria for a disability rating in excess of 10 percent for service-connected tinnitus have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to December 1994. He subsequently joined the Air National Guard with periods of service from July 2003 to September 2003 and October 2003 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by a VA RO. While the issues were certified to the Board from separate appeal streams, they have been merged to ensure the most expedient resolution to the Veteran’s claims. The issues related to service connection for migraine headaches, rating the back disability, and TDIU were remanded in May 2019 and have since been returned to the Board for appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as an organic disease of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Migraines The Veteran has a current diagnosis of migraine headaches. See, e.g., January 2020 VA January 2020 examination. Thus, the remaining question is whether the current migraine headaches are related to service. Active duty service treatment records show complaints of headaches which were attributed to various diagnoses, but not migraine headaches. For example, in what appears to be February 1992, a complaint of headaches and other symptoms was assessed as pharyngitis. In September 1992, headaches were attributed to viral syndrome/upper respiratory infection. In May 1993, the Veteran complained of fever, chills, congestion, fatigue, frontal headaches, and productive cough. The assessment was viral upper respiratory infection. In February 1994, the Veteran complained of headache and back pain, which was diagnosed as sinusitis. In July 1994, a complaint of headaches was attributed to sinusitis. During the November 1994 separation examination, evaluation of the head, face, neck, and scalp was normal. So was neurological evaluation. In a corresponding report of medical history, the Veteran specifically denied having had frequent or severe headache. If migraines were present during service, the Board would expect the Veteran would have responded “yes” when asked if he had frequent or severe headaches at separation because a reasonable person would have interpreted the question to include migraine headaches. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having frequent or severe headaches. The Veteran was examined for enlistment in the Air National Guard in February 2002. Neurological evaluation was normal. In the corresponding report of medical history, he reported using Advil for occasional headaches. The Veteran presented for a VA examination in April 2017, however, this examination was deemed inadequate by the previous Board remand and will not be discussed. After Board remand, the Veteran presented for a VA examination in January 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it was less likely than not that the Veteran’s migraines had their clinical onset during active service or are related to any in-service disease, event, or injury, or manifested within one year of separation from active duty service. In support of this conclusion, the examiner explained that the Veteran separated from active duty in 1994, and that during his National Guard physical in 2002, he denied a chronic headache condition. While documentation of treating the occasional headache with Advil was noted, it was deemed not concerning and normal. The examiner opined that given the Veteran was seen numerous times for his back condition in 2004 onward, he had plenty of opportunity to voice concerns for headaches in general or migraines, but that he did not. The examiner opined that there was no mention of a chronic headache condition until at least 2010, many years after separation from active duty service. As for service treatment records showing treatment for headaches, they were deemed normal sinusitis, cold, or generalized muscle aches, which were of normal variants. Thus, the examiner ultimately opined that there is no chronic debilitating headache condition during active duty. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. For example, while the Veteran did complain of having headaches during active duty service, they were diagnosed as sinusitis and treated. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Regarding the Veteran and his attorney’s assertion that the Veteran would not be expected to report his headache pain when reporting his back pain during service, the examiner is explaining that as the Veteran had opportunities to report and receive treatments for his back pain, had he had headache pain during service, the Veteran would have reported such as, again, he had opportunities to receive treatment and took advantage of them for other ailments. There is no reason that back pain would be reported and not headache pain. Therefore, the rationale is not flawed but merely explaining the discrepancy in the Veteran’s treatment seeking behavior between his back and headaches. The Board has considered the Veteran’s statements, to include his assertions that his migraine symptoms began during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., headaches; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Importantly, the examiner accounted for the in-service headaches in offering the negative opinion. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied recurrent or severe headaches. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. In any event, again, the examiner accounted for the Veteran having headaches from other causes, such as sinusitis, when offering an opinion that migraine headaches were unrelated to service. The Board acknowledges the Veteran’s attorney’s argument that the January 2020 VA examination is inadequate. However, the Board finds that the VA examiner adequately discussed the evidence, including that pertinent to service, and provided an adequate rationale for the conclusion reached. The examiner did not base the opinion solely on no chronic headache disorder being diagnosed during service; instead, this was one supporting fact for the negative opinion. The examiner also accounted for headache complaints during active service and explained that while the Veteran had occasional headaches after service, at least as early as 2002, these were not concerning and normal and a chronic headache condition was not shown until 2010. While the Veteran’s attorney points to a few instances of headaches reported more than a decade after active service, these do not fundamentally affect the examiner’s opinion. As the VA examiner noted, the Veteran certainly did have headaches and received treatment for them before 2010, but the VA examiner also remarked that these headaches were not concerning and normal. Disagreement with a medical professional’s evaluation of evidence does not render the opinion inadequate. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. 2. Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. Active duty service treatment records are negative for complaints, treatment, or diagnosis of hearing loss in either ear. While the Veteran’s military occupational specialty of AC electrical and environmental systems journeyman indicates that the probability of excessive noise exposure is high, audiometric testing at the November 1994 separation examination showed no hearing loss for VA purposes. On the corresponding report of medical history, the Veteran specifically denied having had hearing loss. As sensorineural hearing loss is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of sensorineural hearing loss is not shown, in-service incurrence of sensorineural hearing loss cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied having experienced hearing loss. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran underwent a VA examination in February 2017 to determine the etiology and nature of the claimed bilateral hearing loss. Audiometric testing revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 35 30 LEFT 20 20 20 35 35 The Veteran’s speech discrimination score using the Maryland CNC Test showed 96 percent on the right and 98 percent on the left ear. As there are no auditory thresholds of 40 decibels or greater for any of the frequencies between 500 and 4000 Hz, or auditory thresholds for at least three of the frequencies 500 to 4000 that are 26 decibels or greater in either ear, or speech discrimination scores less than 94 percent, the Veteran does not meet the threshold for bilateral hearing loss for VA purposes in either ear. The Board recognizes the positive nexus opinion by the VA examiner, who opined that it is as likely as not that the Veteran’s hearing loss is related to in-service noise exposure. However, as the Veteran’s hearing loss in both ears does not meet the auditory threshold required by law to be considered a disability for VA purposes, service connection cannot be granted. 38 C.F.R. § 3.385. The Board has considered the Veteran’s statements, to include his assertions that his hearing loss is related to military service. The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. The Veteran is not competent to establish the level of hearing loss he suffers from. That is, his lay statements cannot establish a hearing loss disability for VA purposes. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board finds that service connection for bilateral hearing loss is not warranted as the Veteran does not have a hearing loss disability for VA purposes. 3. Sjogren’s Syndrome Sjogren’s syndrome is a “symptom complex of unknown etiology… marked by the triad of keratoconjunctivitis sicca (dry eye) with or without lacrimal gland enlargement, xerostomia (dry mouth) with or without salivary gland enlargement, and the presence of connective tissue disease…”. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 980, 1849, 2087 (32nd Ed. 2012). The Veteran has current Sjogren’s syndrome. For example, the Veteran submitted a September 2018 private medical treatment record showing a positive test for Sjogren’s syndrome. Thus, the remaining question is whether the current Sjogren’s syndrome is related to service. This claim must be denied as the preponderance of the evidence is against a finding of an in-service event, injury, or disease related to Sjogren’s syndrome. Service treatment records show no complaints, diagnosis, or treatment related to Sjogren’s syndrome. During the November 1994 separation examination, evaluation of the eyes, mouth and throat was normal. In a corresponding report of medical history, the Veteran specifically denied having had eye trouble and/or ear nose or throat trouble. If symptoms of Sjogren’s syndrome were present during service, the Board would expect the Veteran would have responded “yes” when asked if he had eye or throat trouble at separation because a reasonable person would have interpreted the question to include symptoms of eye and throat trouble. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having dry or irritated eyes and difficulty swallowing. Sjogren’s syndrome is not shown by medical evidence until approximately April 2014, many years after the Veteran’s separation from service. Simply put, there is no competent evidence suggesting that Sjogren’s syndrome onset during service or is otherwise related to an in-service event, injury or disease. As such, a medical opinion is not necessary, and the claim must be denied. It is noted that the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of Sjogren’s syndrome as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Earlier Effective Date The current effective date for the award of service connection for the Veteran’s back disability is based on a complete VA Form 21-526 submitted on July 18, 2005. However, the Board finds the proper effective date for that award is May 31, 2005, the date VA received an informal claim for benefits. See 38 C.F.R. § 3.155(a) (2014). Generally, the effective date of an evaluation and award of compensation based on an original claim, is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a) (2005). If a formal claim is received within one year, it will be considered filed as of the date of receipt of the informal claim. Id. Here, in a July 2005 correspondence, VA acknowledged the receipt of an informal claim on May 31, 2005 from the Veteran. The Veteran then filed a formal claim in July 2005, within one year. As such, the date of claim is May 31, 2005. As the effective date of a claim for service connection is the date of receipt of the claim or the date entitlement arose, whichever is later, the Board finds that May 31, 2005 is the proper effective date for the award of service connection for the back disability. An earlier effective date is not warranted as the record does not reflect any additional pending, unadjudicated formal or informal claims for service connection for a back disability before May 31, 2005. Therefore, an effective date of May 31, 2005, but no earlier, is granted. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 criteria.”). 1. Back Disability Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, incapacitating episodes of IVDS of the requisite duration to support a higher disability rating are not shown. The only incapacitating episodes noted in examination reports come from a February 2017 report which indicates between 2 and 4 weeks of incapacitating episodes during the past 12 months. This would only warrant a 20 percent rating and rating under this code would actually decrease the Veteran’s combined rating as his neurologic and orthopedic manifestations would both be accounted for by the rating such that he could not receive separate ratings for radiculopathy. See id.; see also 38 C.F.R. § 4.14. During the appeal period the Veteran underwent examinations in September 2005, February 2017, April 2017, and February 2020. However, the February 2020 results largely cannot be used for rating purposes for the back disability because the VA examiner was unable to test the Veteran’s range of motion. Specifically, the VA examiner noted that the Veteran was unable or unwilling to do anything on the examination. The examiner opined that the Veteran is opioid dependent, and that it is impossible to determine where and how bad his pain is. The examiner also opined that there is likely a large somatic component to his unwillingness as well. It is noted that at the examination the Veteran denied experiencing flare-ups of the back disability. Range of motion testing was performed during the September 2005 VA examination and showed, at worst, forward flexion to 80 degrees with pain at 65 degrees, and a combined range of motion of no less than 230 degrees. The examiner was unable to determine if pain, fatigue, weakness, lack of endurance, and incoordination additionally limited the joint function in degrees. The examiner noted that the Veteran had constant pain, which is squeezing, aching, oppressing, and sharp in nature. The examiner reported no muscle spasm and some tenderness to palpation, especially in the L5-S1 region. Range of motion testing was also performed during both February 2017 and April 2017 VA examinations and showed, at worst, forward flexion to 70 degrees and a combined range of motion no less than 170 degrees. The Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, during the February 2017 examination the Veteran reported flare-ups but described them as rapid movement causing pain in the lower back that extends down the legs. In April 2017 he again reported flare-ups and indicated during a flare-up he has to walk slowly, use a cane, and hold on to things when going to the restroom, and that he cannot make sudden movements or play any sports with his kids. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. As the examiner was unable to test the Veteran’s range of motion during the most recent examination, additional information which may have helped to estimate range of motion during flare-up and after repetitive use over time could not be obtained. Notably, the examiner indicated that given the Veteran’s past opiod dependence it is impossible to determine where and how bad his pain is. The Board finds this an adequate explanation as to why range of motion could not be estimated. As there is no indication additional examination would result in information which would aid in an estimate of range of motion during flare-up or after repetitive use over time, additional inquiry in this regard is unnecessary and the Board will consider the range of motion shown on examination to represent the degree of limitation. Medical treatment records do not significantly contradict the findings of the examinations. Notably, in a July 2019 private treatment record, the Veteran’s low back was found to have no misalignment, asymmetry, crepitation, defects, tenderness, masses or effusions. On range of motion testing, the Veteran exhibited no pain, no obvious crepitation or contracture. The Veteran’s stability was noted as having no obvious dislocation, subluxation or laxity, and muscle strength showed no atrophy or abnormal movements. Given the above, a higher rating is not warranted based on limitation of motion. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. As a result, a higher rating is not warranted based on ankylosis. The separate ratings for left and right lower extremity radiculopathy as of August 15, 2016 are discussed below. In September 2018, the Veteran’s attorney argued that separate ratings for radiculopathy should have been awarded earlier than August 2016. See 38 C.F.R. § 4.71a, Spinal Formula, Note (1). Specifically, the Veteran’s attorney asserts that the Veteran’s symptoms of radiculopathy persisted since 2005. In September 2005, the Veteran underwent a VA examination for the back disability. He reported a history of back pain of squeezing, aching, oppressing, and sharp in nature, travelling to left leg and heel. On examination, the Veteran’s motor function and sensory function were within normal limits. The right lower extremity reflexes revealed a knee jerk of 2+ and ankle jerk of 3+. The left lower extremity reflexes reveal a knee jerk of 2+ and ankle jerk of 3+. While the Board acknowledges the Veteran’s attorney’s argument that the Veteran’s current radiculopathy of the bilateral lower extremities should have an effective date in 2005 as the Veteran complained of left thigh pain radiating into his left knee. The Board has carefully considered the statements made by the Veteran regarding radiating pain during the September 2005 VA examination. The Veteran is certainly competent to describe the feelings of pain in his left leg, but an opinion attributing that pain to radiculopathy requires medical expertise as it is beyond lay observation. Notably, the Spinal Formula specifically contemplates radiating pain. It is only when there are separate objective neurological abnormalities when a separate rating can be assigned. Here, while the Veteran reported leg pain, the examiner ultimately did not diagnose radiculopathy to include after review of MRI results. The medical evidence, which is most probative on this point, does not support the Veteran’s attorney’s assertions that the Veteran had objective neurological abnormality – specifically, radiculopathy – in September 2005 or prior to August 2016. There is no competent evidence of radiculopathy until August 2016, when the Veteran was assessed and treated for radiculopathy of the lumbosacral region. Therefore, a separate rating for radiculopathy is not warranted prior to that date. Aside from radiculopathy, no other neurological manifestations of the service connected back disability are shown which should be addressed by a separately-assigned disability rating. For the above reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for his back disability. 2. Radiculopathy in the Right and Left Lower Extremities The Veteran contends that his right and left lower extremity radiculopathy are more severe than the currently assigned ratings. By the way of history, The Veteran’s radiculopathy of the bilateral lower extremities is currently rated at 10 percent under Diagnostic Code 8620 for each extremity effective August 15, 2016. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The Board notes that “Mild,” as relevant to a physical condition, is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed January 25, 2021). “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. The term “severe” is used throughout the rating schedule, including in Diagnostic Code 8520, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). August 15, 2016 to February 6, 2020 The Veteran underwent VA examination in February 2017 and April 2017 to assess the severity of his back disability. Lower extremity neurological testing was performed. The Veteran was not found to have muscle atrophy. The sensory examination showed normal sensation for the bilateral lower extremities. Reflex and motor testing were also normal. The Veteran reported moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the lower extremities bilaterally at the February examination and only on the left at the April examination. The February examiner indicated that the Veteran had moderate incomplete paralysis of the sciatic nerve bilaterally. The April examiner indicated the right lower extremity was not affected by radiculopathy and the left lower extremity had mild incomplete paralysis of the sciatic nerve. Treatment records are not in significant conflict with clinical findings during examination. For example, an April 2017 private treatment record shows subjective reports some tingling/numbness but not weakness. Objective testing showed normal strength. In May 2017, it was noted that any motor system decrease appeared to be secondary to pain, that lower extremity sensory examination was normal, and that reflexes were brisk and symmetrical. Based on the above, the Board finds that despite the examiner’s finding of moderate incomplete paralysis in February 2017, the evidence overall shows no more than mild incomplete paralysis of the sciatic nerve bilaterally. Notably, at both VA examinations during this period objective testing revealed no deficits in sensation, reflexes, or strength. Treatment records showed similar findings. The April examiner also found no incomplete paralysis on the right and mild incomplete paralysis on the left based on findings and reports similar to those considered in February. The impairment from radiculopathy shown during this period consists of the Veteran’s subjective reports of impairment of sensation (e.g., pain and numbness). Overall, these complaints amount to mild incomplete paralysis bilaterally when considering them in concert with the other evidence of record. Therefore, prior to February 7, 2020, the level of impairment is most analogous to mild incomplete paralysis and a higher rating is not warranted. Since February 7, 2020 The Veteran underwent VA examination in February 2020 to assess the current severity of his bilateral lower extremity radiculopathy in association with his back disability. Muscle strength testing revealed 2/5 strength (active movement with gravity eliminated), but the Veteran did not have muscle atrophy. Reflexes were normal. The sensory examination showed decreased sensation for the lower leg/ankle (L4/L5/S1) region, and the feet/toes (L5). The Veteran reported experiencing severe constant pain in both lower extremities, as well as numbness. He did not have any other signs or symptoms of radiculopathy. The examiner indicated the severe radiculopathy affecting the sciatic nerves bilaterally. Treatment records do not show more significant impairment than that shown on examination; muscle atrophy is not demonstrated. Given that strength is reduced to 2/5, sensation is decreased, and the Veteran reports severe pain along with moderate numbness, the Board finds that bilaterally, the Veteran’s radiculopathy results in moderately severe incomplete paralysis of the sciatic nerves bilaterally. As such, 40 percent ratings are warranted the date of the February 2020 examination. 38 C.F.R. § 4.124a, Diagnostic Code 8620. Higher ratings are not warranted as the evidence is against a finding of marked muscular atrophy of either lower extremity. Id. Special Monthly Compensation for Loss of Use In September 2018, the Veteran’s attorney argued that he is entitled to special monthly compensation for loss of use of his bilateral lower extremities. See 38 C.F.R. § 3.350. Notably, loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2), 4.63. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc. could be accomplished equally well by an amputation stump with prosthesis. Id. For example, extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of 31⁄2 inches or more, will constitute loss of use of the hand or foot involved. Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. The Veteran’s attorney appears to argue that the Veteran’s need for a walker alone satisfies the above criteria. The Board disagrees. The criteria require that the actual remaining function essentially is the same functioning the Veteran would have with an amputation. Id. In that regard, the Veteran reported for a February 2020 VA examination to determine the severity of his back disability and radiculopathy of the bilateral lower extremities. The examiner reported that the functional impairment of the extremity is not such that no effective function remains other than that which would be equally well served by an amputation with prosthesis, to include the Veteran’s neurologic symptoms of the bilateral lower extremities. The record also does not reflect complete paralysis of a nerve or ankylosis due to service-connected disability. Accordingly, the evidence of record does not establish that the Veteran has loss of use of his bilateral lower extremities for SMC purposes. The Board finds that the preponderance of the evidence demonstrates that the Veteran’s level of service-connected lower extremity impairment does not rise to the level of “loss of use,” and thus does not warrant special monthly compensation. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Tinnitus The Veteran is service-connected for tinnitus and is assigned a 10 percent disability rating under 38 C.F.R. § 4.87, Diagnostic Code 6260. This is the maximum schedular rating for this particular disability. There is no other appropriate diagnostic code pursuant to which a higher rating could be awarded. Accordingly, a disability rating in excess of 10 percent for tinnitus cannot be granted and, as such, the claim must be denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record regarding tinnitus. REASONS FOR REMAND The issue of entitlement to SMC based on the need for regular aid and attendance has been raised in connection with the other appeal issues. Notably, in September 2018 correspondence, the Veteran’s attorney asserted that the Veteran’s disabilities cause him to require regular aid and attendance from his wife and children. Specifically, the Veteran and his attorney asserted his orthopedic disabilities make it difficult for him to cook or bathe without the aid of his spouse or children. An aid and attendance examination has not been performed and is necessary in this case. As the findings from such examination may be relevant to the claim for a TDIU, both claims must be remanded. The matters are REMANDED for the following action: Schedule the Veteran for an aid and attendance examination. The electronic claims files should be made available to and reviewed by the examiner. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.