Citation Nr: 21007274 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-21 184 DATE: February 9, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for the Veteran’s lumbar spine disability from March 1, 2013 to February 19, 2020 is denied. Entitlement to an evaluation in excess of 40 percent for the Veteran’s lumbar spine disability from February 19, 2020 is denied. Entitlement to a 20 percent evaluation, but no higher, for radiculopathy of the right lower extremity from December 26, 2018 to February 19, 2020, is granted. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity from February 19, 2020, is denied. Entitlement to a 20 percent evaluation, but no higher, for radiculopathy of the left lower extremity from December 26, 2018 to February 19, 2020, is granted. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the left lower extremity from February 19, 2020, is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability from March 1, 2013 to February 19, 2020 did not manifest in forward flexion of the thoracolumbar spine to 30 degrees, favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes resulting in doctor-prescribed bed rest and treatment by a physical with a duration of 4 weeks or more during any 12-month period. 2. The Veteran’s lumbar spine disability from February 19, 2020 did not manifest in favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes resulting in doctor-prescribed bed rest and treatment by a physical with a duration of at least 6 weeks or more during any 12-month period. 3. Resolving reasonable doubt, the Veteran’s radiculopathy of the right lower extremity manifested with moderate, incomplete paralysis from December 26, 2018 to February 19, 2020. 4. The Veteran’s radiculopathy of the right lower extremity from February 19, 2020 is not manifested by symptoms consistent with moderately-severe incomplete paralysis. 5. Resolving reasonable doubt, the Veteran’s radiculopathy of the left lower extremity manifested with moderate, incomplete paralysis from December 26, 2018 to February 19, 2020. 6. The Veteran’s radiculopathy of the left lower extremity from February 19, 2020 is not manifested by symptoms consistent with moderately-severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability from March 1, 2013 to February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 40 percent for a lumbar spine disability from February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for a 20 percent evaluation for radiculopathy, right lower extremity from December 26, 2018 to February 19, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. 4. The criteria for an evaluation in excess of 20 percent for radiculopathy, right lower extremity from February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. 5. The criteria for a 20 percent evaluation for radiculopathy, left lower extremity from December 26, 2018 to February 19, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. 6. The criteria for an evaluation in excess of 20 percent for radiculopathy, left lower extremity from February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Marine Corps from March 1987 to February 1989. This matter is on appeal from a July 2013 rating decision. The Veteran was afforded an August 2019 hearing with the undersigned Judge. A transcript of the hearing has been associated with the record. The Board remanded this appeal in November 2019 for additional development. During the pendency of the appeal, a December 2019 rating decision increased the Veteran’s lumbar spine disability to 20 percent effective from March 1, 2011, the date of the Veteran’s claim for an increased rating. An August 2020 rating decision increased the Veteran’s lumbar spine disability to 40 percent effective February 19, 2020, the date of the VA examination held to evaluate the severity of the Veteran’s lumbar spine disability. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran’s lumbar spine disability for the periods from March 1, 2011 to February 19, 2020 and from February 19, 2020, remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board also notes that the August 2020 rating decision granted service connection for radiculopathy, right lower extremity and radiculopathy, left lower extremity as associated with service-connected lumbar spine disability with a 20 percent evaluation, effective February 19, 2020. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine 38 C.F.R. § 4.71a, DC 5235-5243 requires consideration of neurological findings, including bladder or bowel impairment. Accordingly, as service connection was granted for radiculopathy in relation to the Veteran’s service-connected lumbar spine disability, the Board notes that the issues of regarding the evaluation of the Veteran’s radiculopathy of the right and left lower extremities are part and parcel of the Veteran’s appeal for an increased rating for his lumbar spine disability and therefore also before the Board. As such, the Board has recharacterized the issue on appeal as entitlement to an increased evaluation in excess of 20 percent for the Veteran’s lumbar spine disability from March 1, 2011 to February 19, 2020; an increased evaluation in excess of 40 percent for the Veteran’s lumbar spine disability from February 19, 2020; and an increased evaluation in excess of 20 percent for the Veteran’s radiculopathy of the right and left lower extremities. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Lumbar spine disability The Veteran is currently service connected for a lumbar spine disability evaluated at 20 percent from March 1, 2011 to February 19, 2020 and at 40 percent from February 19, 2020 under Diagnostic Code 5237. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). A 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. 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. 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. Under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint.” 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran’s own observations. Id. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Formula, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The rating criteria define normal range of motion for the various spinal segments 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). As less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). A 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. 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. 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. Under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint.” 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran’s own observations. Id. The Veteran was afforded a June 2014 VA examination. The Veteran reported an October 2012 private physician reported mild to moderate degenerative changes of the lumbar spine. The Veteran did not report any flareups impacting his back function. Upon examination, the examiner measured the Veteran’s range of motion (ROM) with forward flexion to 75 degrees and a combined ROM of 175 degrees. The examiner noted pain with forward flexion, extension, and right and left lateral flexion. The examiner noted the Veteran’s less movement than normal with pain contributed to functional loss. The examiner found no evidence of muscle spasm or guarding. The Veteran was able to perform repetitive testing without additional loss of motion. The Veteran demonstrated full strength with normal reflex and no evidence of atrophy. The examiner found no evidence of ankylosis or IVDS. The examiner found no functional impact on occupation and noted the Veteran had a desk job. In a May 2016 form 9 statement, the Veteran stated that his condition was worse than determined by VA and that his back disability prevented him from sleeping at night. The Veteran submitted a December 2018 private physician examination. The Veteran reported flareups of severe pain that affected his ability to sleep, lift, and work. The Veteran reported functional impairment where he had difficulty lifting or walking. Upon examination, the private physician measured the Veteran’s ROM with forward flexion to 70 degrees and a combined ROM of 170 degrees. The examiner found the Veteran was unable to perform repetitive use testing due to pain with repetitive testing and with weight and non-weight bearing. The examiner found localized tenderness with small muscle spasms and guarding of the spine. The examiner found abnormal spinal contour due to muscle spasm. The examiner found the Veteran’s disability contributed to less movement than normal, weakened movement, pain, and interference with sitting and standing. The examined noted that the Veteran’s concentration and ability to function would be impaired when pain was severe. The Veteran demonstrated full strength with no muscle atrophy and normal reflex. The examiner did not indicate whether there was IVDS or ankylosis. At the Veteran’s August 2019 hearing, the Veteran testified that his condition had worsened since his previous examination. The Veteran stated that he was unable to bend down and touch his toes and described a general decrease in mobility, flexibility, and ability to rotate. The Veteran stated that he was unable to traverse stairs and had to move his bedroom down to the first floor. The Veteran stated that he required to take pain medication daily to manage constant pain. The Veteran stated that he experienced flareups of debilitating pain once every couple month or around 5 to 6 times a year; the Veteran described that these flareups would sometimes prevent him from going to work for a couple days at a time. The Veteran noted that his current occupation was a desk job as an engineer investigating warranty claims; the Veteran stated that he has exhausted his sick days and personal leave working around the debilitating episodes every month or two when he cannot get out of bed. The Veteran also noted that he would go see a family doctor during his flareups that would last 3 to 4 days. The Veteran states that he has suffered 6 to 8 episodes resulting in missed time up to 30 days a year. The Veteran was afforded a February 2020 VA examination. The Veteran reported symptoms of shooting sharp pain with limited movement and pain and numbness in his legs. The Veteran reported severe flareups occurring 8 to 12 times a year that would last 3 to 5 days and be caused by extended sitting, bending and lifting. The Veteran reported functional loss where he described being debilitated from 4 to 5 days. Upon examination, the private physician measured the Veteran’s ROM with forward flexion to 70 degrees and a combined ROM of 180 degrees. The examiner observed the Veteran as morbidly obese and that the Veteran’s abnormal ROM contributed to a functional loss of decreased flexion significant with extension. Pain was noted on forward flexion and extension but did not result in or cause functional loss. The examiner noted pain with weight bearing. Upon repetitive testing, the Veteran had additional loss of motion with forward flexion measured at 50 degrees and combined ROM of 170 degrees. With repeated use over time, the examiner found pain caused functional loss and described the Veteran’s forward flexion to 60 degrees and a combined ROM of 210 degrees. Considering flareups, the VA examiner found the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flareups. The examiner found pain significantly limited functional ability during flareups; the examiner described the Veteran’s ROM at 30 degrees forward flexion and a combined ROM of 115 degrees. The examiner found no evidence of guarding or muscle spasm. The Veteran demonstrated 5/5 strength with no atrophy and normal reflex. No evidence of ankylosis was found. The VA examiner did not find the Veteran with IVDS or that it impacted the Veteran’s ability to work. The examiner remarked that the determination of the impact of flareups was “based on the statement of the [Veteran]” where he described encountering 5 to 8 flareups in a year lasting 4 to 5 days and significantly impairs his ability to go to work. The examiner noted that there were “other factors possibly that should be at it in determining whether a person is incapable of functioning during a flareup; i.e. Musculoskeletal conditions, psychological conditions.” The examiner noted during evaluation of repetitive use testing the Veteran demonstrated decreased ROM and was observed to “grimace and grunt [with] each movement, showing it was difficult to do.” The examiner remarked that the Veteran’s decreased ROM was common with his body habitus noted as morbid obesity and observed the Veteran as a very tall and large man. The examiner opined that the decreased ROM could either be due to pain or his body habitus and lack of exercise. The examiner noted that to explain ROM and functional ability during a flareup the Veteran was asked to demonstrate what he could and couldn’t do during a flareups with measurements taken; however, the examiner further found there was “no explanation except pain is the cause of limited range of motion and the findings are subjective to the [Veteran’s] statement.” After review of the evidence from March 1, 2013 to February 19, 2020 the preponderance of the evidence fails to support a rating in excess of 20 percent. The medical evidence demonstrates the Veteran did not have forward flexion of the thoracolumbar spine at 30 degrees or less, or evidence of ankylosis. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237. The Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Such impairment was not documented in the June 2014 VA examination and December 2018 private examination as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability. There has been no showing of unilateral loss of lateral spine motion in the standing position, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, abnormal mobility on forced motion, or loss of strength. There was also no evidence of muscle atrophy. Without such pathology, a disability evaluation greater than 20 percent is not warranted. The Board also finds that there is no basis for the assignment of any higher rating from March 1, 2013 to February 19, 2020 based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned 20 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. The Board acknowledges that the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that the Veteran has functional impairment, pain and limited motion as demonstrated by the VA examinations. See DeLuca, supra. The Board further finds that the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 20 percent from March 1, 2013 to February 19, 2020. The Board notes that there is no evidence of muscle atrophy or guarding and the VA examination in June 2014 and the private examination in December 2018 again revealed that the Veteran was able to perform repetitive use testing with either no loss of motion that was insufficient loss of motion to the degree required for a higher rating in excess of 20 percent. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran’s functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain and tenderness, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. Thus, the weight of the evidence is against the grant of an increased disability evaluation in excess of 20 percent. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. After review of the evidence since February 19, 2020, the Board finds the preponderance of the evidence fails to support a rating in excess of 40 percent for the Veteran’s lumbar spine disability. The medical evidence demonstrates the Veteran did not show or have evidence of ankylosis. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237. Review of the Veteran’s treatment record show continued complaints and treatments for back pain but no findings of ankylosis. The Board also finds that there is no basis for the assignment of any higher rating from February 19, 2020 based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned 40 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. On the most recent VA examination in February 2020, forward flexion was noted to be from 0 to 30 degrees during flareups which would warrant only a 40 percent disability evaluation. Additionally, the February 2020 examiner did not find the Veteran with ankylosis. The Board acknowledges that the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that the Veteran has functional impairment, pain and limited motion as demonstrated by the VA examination. See DeLuca, supra. The Board further finds that the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 40 percent. The Board notes that there is no evidence of muscle atrophy, guarding or spasm in the VA examinations. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran’s functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. The Board notes that the February 2020 VA examination found evidence of pain with weight bearing but do not include measurements of passive range of motion or specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). However, generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. There is no indication that the range of motion testing in these examinations was performed other than on weight-bearing. Therefore, there is no prejudice to the Veteran in relying on these examinations that involved active range of motion testing because such results tend to produce the “worst case scenario” of impairment and thus would tend to support the highest possible rating.” After taking into account the medical findings and the lay statements the evidence does not suggest that motion is limited to the requisite degree for a higher rating at any point. Therefore, even with the reports of flare-ups, the Board finds that the overall impairment resulting from the Veteran’s back disability would still more closely approximate no more than a 40 percent rating. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain and tenderness, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 40 percent from February 19, 2020 as contemplated by the holding in Deluca. Regarding an evaluation in excess of 20 percent from March 1, 2013 to February 19, 2020 and in excess of 40 percent from February 19, 2020 based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a higher rating of 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Although the Veteran had reported, stated or testified flareups resulting in incapacitating episodes that prevented him from going to work, neither the June 2014 VA examiner, December 2018 private examiner, or the February 2020 VA examiner found the Veteran with IVDS. The Veteran at his August 2019 hearing testified that he also saw a private doctor for flareups that lasted 3 to 4 days at a time; however, review of the claims record does not show evidence of these visits has been submitted by the Veteran to be associated with the record. Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran’s service-connected lumbar spine disability as the examiners did not find the Veteran with IVDS. See 38 C.F.R. § 4.71, Diagnostic Code 5243. Therefore, an evaluation in excess of 20 percent from March 1, 2013 to February 19, 2020 and in excess of 40 percent from February 19, 2020 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. As such, the preponderance of the evidence is against the award of an increased evaluation in excess of 20 percent from March 1, 2013 to February 19, 2020 and in excess of 40 percent from February 19, 2020 for the Veteran’s lumbar spine disability. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. As a preponderance of the evidence is against the award of an increased evaluation for these periods of the appeal, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Radiculopathy of the right and left lower extremity The Veteran is currently service connected for radiculopathy of the right and left lower extremity both evaluated at 20 percent under Diagnostic Code 8520. Under DC 8520, paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. At the Veteran’s June 2014 VA examination, the Veteran demonstrated full strength with no atrophy; normal reflex and sensation; and a negative straight leg raising test. The examiner found no evidence of radiculopathy. The Veteran submitted a December 26, 2018 private examination. The private provider found the Veteran had normal sensation in both lower extremities as well as a negative straight leg raising test. The provider found evidence of radiculopathy with symptoms of moderate intermittent pain and dull pain. The provider found involvement of the sciatic nerve in both lower extremities at moderate severity. In an August 2019 medical provider statement, the treating provider stated that the Veteran’s symptoms had progressed to include worsening pain in the low back area with radiation to the legs. At the Veteran’s August 2019 hearing, the Veteran testified to symptoms of shooting pain and some numbness in both legs, with more pain in the right leg on occasion. The Veteran stated that he would experience these symptoms several times a week. The Veteran also noted that he had trouble going up and down stairs and had moved his bedroom down to the first floor to avoid using the stairs. The Board remanded this appeal in November 2019 for additional development. The Veteran was afforded a February 2020 VA examination. The Veteran reported symptoms of shooting sharp pain with limitation of movement and numbness in his legs. The Veteran demonstrated full strength with no atrophy; normal reflex and sensation; and a negative straight leg raising test. The examiner found evidence of radiculopathy with symptoms of severe intermittent pain and moderate numbness in both lower extremities. The examiner found involvement of the sciatic nerve in both lower extremities and indicated both at moderate severity. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that 20 percent disability rating, but no higher, for radiculopathy of the right and left lower extremity from December 26, 2018 to February 19,2020, is warranted. As noted above, under Diagnostic Code 8520, a 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. In the submitted December 2018 private examination, the private physician found moderate severity of the right and left sciatic nerve. The February 2020 VA examination also found involvement of the sciatic nerve in both lower extremities at moderate severity. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that 20 percent disability rating, but no higher, for radiculopathy of the right and left lower extremity is warranted from December 26, 2018 to February 19, 2020. However, an evaluation in excess of 20 percent for the radiculopathy of the right and left lower extremity from February 19, 2020 has not been demonstrated by the evidence of record at any point. Diagnostic Code 8520 provides a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. However, there is no evidence to support a finding that the Veteran has worse than moderate, incomplete paralysis of right and left lower extremities. 38 C.F.R. § 4.124a, DC 8520. While the Veteran had numbness and pain there was no evidence of foot drop, paralysis, constant weakness, or muscle atrophy. Additionally, the December 2018 private physician and February 2020 VA examiner found that the Veteran only had radiculopathy of the right and left-side sciatic nerve at moderate severity. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s radiculopathy of the right and left lower extremity. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion and other evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner’s findings and other evidence of record. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As a result, the Board finds that a 20 percent rating, but no higher, is warranted from December 26, 2018 to February 19, 2020 as the Veteran has exhibited symptoms consistent with moderate incomplete paralysis in the right and left lower extremity; however, the Board also finds that an increased evaluation in excess of 20 percent for radiculopathy of the right and left lower extremity from February 19, 2020 is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.