Citation Nr: 21009497 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-14 904 DATE: February 22, 2021 ORDER Entitlement to an initial rating in excess of 20 percent prior to February 4, 2020 for radiculopathy of the left upper extremity is denied. Entitlement to a rating in excess of 40 percent from February 4, 2020 for radiculopathy of the left upper extremity is denied. Entitlement to an initial rating in excess of 10 percent prior to August 26, 2013 for degenerative disc disease of lumbar spine is denied. Entitlement to a rating in excess of 40 percent from August 26, 2013 for degenerative disc disease of lumbar spine is denied. Entitlement to an initial rating in excess of 10 percent prior to February 4, 2020 for degenerative disc disease of cervical spine is denied. Entitlement to a rating in excess of 20 percent from February 4, 2020 for degenerative disc disease of cervical spine is denied. Entitlement to an initial rating of 20 percent for right lower extremity radiculopathy is granted from March 8, 2019. Entitlement to a rating in excess of 20 percent from March 8, 2019 for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to February 4, 2020, the Veteran’s radiculopathy of the left upper extremity manifested by no more than mild incomplete paralysis. 2. From February 4, 2020, the Veteran’s radiculopathy of the left upper extremity did not manifest by severe incomplete paralysis. 3. Prior to August 26, 2013 the Veteran’s degenerative disc disease of lumbar spine did not manifest to forward flexion of 60 degrees or less, or a combined range of motion of the thoracolumbar spine to 120 degrees or less; 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. 4. From August 26, 2013, the Veteran’s degenerative disc disease of lumbar spine is not manifested by unfavorable ankylosis of the spine or intervertebral disc syndrome necessitating bed rest. 5. Prior to February 4, 2020, the Veteran’s degenerative disc disease of cervical spine did not manifest by forward flexion of the cervical spine to 30 degrees or less; or, the combined range of motion of the cervical spine to 170 degrees or less; 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. There was no intervertebral disc syndrome necessitating bed rest. 6. From February 4, 2020 the Veteran’s degenerative disc disease of cervical spine did not manifest by forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. There was no intervertebral disc syndrome necessitating bed rest. 7. Prior to March 8, 2019, the Veteran’s right lower extremity radiculopathy was manifested by symptoms consistent with mild incomplete paralysis. 8. From March 8, 2019, the Veteran’s for right lower extremity radiculopathy is manifested by symptoms consistent with moderate incomplete paralysis, but not moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to February 4, 2020, the criteria for an initial rating higher than 20 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Codes 8510, 8512 (2019). 2. For the period from February 4, 2020, the criteria for a rating higher than 40 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Codes 8510, 8512. 3. Prior to August 26, 2013, the criteria for an initial rating in excess of 10 percent for degenerative disc disease of lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5242-5243 (2019). 4. From August 26, 2013, the criteria for a rating in excess of 40 percent for degenerative disc disease of lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5242-5243 (2019). 5. For the period prior to February 4, 2020, the criteria for an initial rating higher than 10 percent for degenerative disc disease of cervical spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 5010-5243 (2019). 6. For the period from February 4, 2020, the criteria for a rating higher than 20 percent for degenerative disc disease of cervical spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 5242-5243 (2019). 7. For the period prior to March 8, 2019, the criteria for an initial rating higher than 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 8520 (2019). 8. For the period from March 8, 2019, the criteria for a rating of 20 percent, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1969 to December 1971. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2019. A transcript of that hearing is of record. During the March 2019 Board hearing, the Veteran’s testimony suggested the belief that the issues of entitlement to specially adapted housing and special home adaptation were on appeal. A November 2016 rating decision denied entitlement to those benefits, and the Veteran was notified by correspondence dated November 7, 2016. VA received a notice of disagreement on November 8, 2017, and a statement of the case was issued on November 21, 2017. To date, the Veteran has not submitted a substantive appeal. Accordingly, the Board does not have jurisdiction over these issues. In August 2019, the Board remanded the issues on appeal to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Following the August 2019 Board remand, in November 2019 correspondence the AOJ attempted to obtain the Veteran’s private treatment records and associate them with the claims file. The Veteran failed to respond. The duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the Board will proceed with adjudication with the evidence of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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). If there is a question as to which evaluation to apply to the Veteran’s disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. 1. Entitlement to an initial rating in excess of 20 percent prior to February 4, 2020 for radiculopathy of the left upper extremity 2. Entitlement to a rating in excess of 40 percent from February 4, 2020 for radiculopathy of the left upper extremity The Veteran contends that he is entitled to higher disability ratings for his left upper extremity radiculopathy. The Veteran is left-handed. The Veteran’s left upper extremity radiculopathy was assigned a 20 percent disability from June 17, 2011 to February 4, 2020, and 40 percent disabling thereafter. Prior to February 4, 2020, the Veteran’s left upper extremity radiculopathy was evaluated under Diagnostic Code 8510. Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group of nerves (fifth and sixth cervicales). Diagnostic Code 8510 provides that mild incomplete paralysis is rated 20 percent disabling on the major side; moderate incomplete paralysis is rated 40 percent disabling on the major side; and severe incomplete paralysis is rated 50 percent disabling on the major side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The Veteran’s radiculopathy of the left upper extremity is currently rated under Diagnostic Code 8512, which states that a 20 percent disability rating is warranted when there is mild incomplete paralysis of the lower radicular group in the minor or major hand. Where there is moderate incomplete paralysis, a 30 percent rating is for assignment when affecting the minor hand and a 40 percent rating is for assignment when affecting the major hand. Where there is severe incomplete paralysis, a 40 percent rating is for assignment when affecting the minor hand and a 50 percent rating is for assignment when affecting the major hand. When there is complete paralysis of the lower radicular group, involving all intrinsic muscles of the hand, and some or all flexors of the wrist and fingers, wherein the paralysis results in the substantial loss of use of the hand, a 60 percent disability rating is awarded for the minor hand and a 70 percent rating is awarded for the major hand. 38 C.F.R. § 4.124a, Diagnostic Code 8512. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial 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. The words “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. See 38 C.F.R. § 4.6. 38 C.F.R. § 4.123 stipulates that cranial or peripheral 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. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Under 38 C.F.R. § 4.124, cranial or peripheral neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The Veteran attended a VA examination in May 2013. He had deceased sensation in his left forearm and reported mild left upper extremity intermittent pain and paresthesias and/or dysesthesias. The examiner determined that the Veteran’s left arm radiculopathy was mild. The Veteran submitted a private medical record dated October 2013 which stated that the Veteran had neck pain but explicitly denied any radiating pain. The Veteran testified at a Board hearing in March 2019. He stated that he had bulging discs in his upper neck that partially paralyzed his left arm. Being left hand dominant, the Veteran testified that it was difficult to write. March 2019 private treatment records reflect that the Veteran denied any weakness in his extremities. He reported numbness in his right leg and right hand but did not report any neurological symptoms in his left upper arm. March 2019 private medical correspondence reflects that the Veteran’s doctor described the Veteran’s right-hand and leg neuropathy as chronic. He specifically addressed the right hand and there was no mention of left-hand neuropathy at all. The Veteran attended a VA examination in February 2020. He reported moderate left upper extremity constant pain, paresthesias and/or dysesthesias and numbness. Muscle grip strength was 4/5 in his left hand. Elbow extension and flexion, wrist extension and flexion, and pinch strength were all normal. A sensory examination revealed decreased sensation in the left hand. The examiner determined that the Veteran had moderate incomplete paralysis of the left radial nerve. She stated that the Veteran’s current radiculopathy of the left upper extremity condition may impact his ability to perform repetitive or prolonged left-hand gripping and heavy lifting. The examiner concluded that the Veteran’s left arm radiculopathy had not progressed in severity. The available evidence of record does not reflect that the Veteran is entitled to higher ratings for his left upper extremity radiculopathy. As noted above, the AOJ attempted to obtain the Veteran’s private treatment records, and he failed to comply. The treatment records that are available to do not reflect moderate incomplete paralysis at any period on appeal, and certainly not severe incomplete paralysis. The most probative evidence of record are the VA examinations provided by medical professionals, and the limited treatment records. The Board finds it particularly probative that the Veteran denied any extremity weakness during March 2019 private treatment, and that the Veteran’s treating physician reported only right hand neuropathy. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Severe incomplete paralysis was not evident in either of his VA examinations, and his left upper extremity radiculopathy was not determined to be “moderate” in nature until the February 2020 VA examination. Not only is there no probative medical evidence of moderate incomplete paralysis prior to February 2020, but the Veteran explicitly denied any extremity weakness in March 2019. To the extent that the Veteran contends that his disability is more severe than reflected by the rating assigned herein, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as pain or weakness in grip strength. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the observations of medical professionals are more probative and credible than his lay opinion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent prior to February 4, 2020, and a rating in excess of 40 percent thereafter for left upper extremity radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial rating in excess of 10 percent prior to August 26, 2013 for degenerative disc disease of lumbar spine 4. Entitlement to a rating in excess of 40 percent from August 26, 2013 for degenerative disc disease of lumbar spine The Veteran’s back disability was evaluated as 10 percent disabling prior to August 26, 2013 and 40 percent disabling thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Diagnostic Code 5242 is rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.71a. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): 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 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 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; 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. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS). IVDS (preoperatively or postoperatively) may be evaluated 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 when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Id. July 2011, May 2012, and August 2012 private treatment records reflect that the Veteran’s gait was stable. The Veteran attended a VA examination for his back in May 2013. He reported flare-ups of pain but no decrease in function during flare-ups. Range of motion testing revealed flexion to 80 degrees or greater, with pain at 65 degrees, extension to 20 degrees with pain at 10 degrees. Looking at his combined range of motion of the thoracolumbar spine at each point where objective evidence of pain began, equaled 165 degrees. There was no additional limitation in range of motion of the spine following repetitive use testing. The Veteran reported IVDS but denied any incapacitating episodes over the last year. There was no evidence of guarding or muscle spasms. The examiner concluded that the Veteran’s back disability would cause difficulty lifting, pushing and pulling. On August 26, 2013, the Veteran submitted correspondence stating that he intended to apply for compensation and wished to preserve an effective date. October 2013 private treatment records reflect that the Veteran reported back pain, described as moderate, dull, and aggravated by sitting. He told his treating physician that his symptoms were moderate in severity. Private examination of the back revealed no swelling, edema, muscle spasm, normal sensation and normal coordination and reflexes. Flexion was described as severely reduced. Range of motion was not described in degrees. January 2014 private records reflect that the Veteran reported back pain. He had a normal gait. The Veteran attended another VA examination in February 2014. He reported flare-ups of back pain triggered by sitting on hard surfaces. During a flare-up, the Veteran stated that he was unable to get out of bed. The Veteran reported the occasional use of a cane. Range of motion testing revealed forward flexion to 65 degrees, with pain at 35 degrees, and extension to 15 degrees, with pain at 10 degrees. Taking pain into consideration, he had a combined range of motion of 135 degrees. He did not perform repetitive use testing. There was no evidence of muscle spasms or atrophy, and guarding did not result in an abnormal gait. The Veteran reported IVDS but denied any incapacitating episodes over the last year. The examiner concluded that the Veteran’s back disability would cause difficulty lifting and pushing and pulling or walking for long distances. A private May 2014 x-ray revealed diffuse degenerative changes of the lumbar spine, with no acute fracture or dislocation. The Veteran again exhibited a normal gait during July 2014 private treatment. October 2014 private diagnostic testing revealed degenerative changes of the lumbar spine and lower thoracic spine. In March 2016 correspondence, the Veteran stated that he took medication to treat his back pain, but that pain was always present. April 2018 private treatment reflects that the Veteran had chronic back pain. The Veteran denied back pain during May 2018 private treatment. During his March 2019 Board hearing, the Veteran testified that it was sometimes difficult to go out to eat because if he was seated on a hard surface for longer than 45 minutes it was difficult to get up. He also stated that he was unable to walk long distances and usually used a scooter for errands like the grocery store. In March 2019, the Veteran’s private doctor submitted correspondence discussing the Veteran’s radiculopathy and trouble walking. Corresponding treatment records revealed back pain and trouble bending but appeared to conclude that he was not a fall risk. Upon VA examination in February 2020, the Veteran reported constant back pain rated as a 5/10 on the pain scale. He described a worsening a symptom but denied any emergency room visits, hospitalizations or surgery. He denied using any assistive devices as a normal mode of locomotion. He told the examiner that his back pain increased with forward bending, heavy lifting, prolonged walking and prolonged standing. He denied flare-ups. Range of motion testing revealed flexion to 65 degrees and extension to 20 degrees. Combined range of motion was 190 degrees. Moderate tenderness to palpation of the low back was noted. Following repetitive use testing, the Veteran’s forward flexion was reduced to 60 degrees, his extension stayed the same, and his overall combined range of motion was 170 degrees. The examiner determined that pain, weakness, fatiguability or incoordination significantly limited functional ability with repeated use over time and estimated range of motion to be 55 degrees forward flexion and 20 degrees extension. There was no evidence of muscle spasms or atrophy, and guarding did not result in an abnormal gait. There was no evidence of IVDS. The examiner concluded that the Veteran’s low back condition may impact his ability to perform repetitive forward bending, heavy lifting, prolonged standing, and prolonged walking. The evidence does not warrant a rating in excess of 10 percent prior to August 26, 2013 or in excess of 40 percent thereafter for the Veteran’s back disability. The most probative evidence of record are the VA examinations provided by medical professionals, which evaluated the Veteran’s back disability with objective range of motion measurements. Prior to August 26, 2013, the evidence of record did not reflect forward flexion of the thoracolumbar spine less than 60 degrees; or, a combined range of motion of the thoracolumbar spine less than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis. In fact, only a few months prior at the May 2013 VA examination, the Veteran was able to achieve flexion to 65 degrees and extension to 10 degrees before experiencing pain, and a combined range of motion of 165 degrees. There is no other probative evidence prior to August 26, 2013 suggesting that the Veteran’s back condition warranted a rating in excess of 10 percent. There is also no probative evidence to suggest that the Veteran has ever experienced unfavorable ankylosis of the entire thoracolumbar spine at any time, and therefore he is not entitled a rating in excess of 40 percent. Neither the Veteran, his private treatment, nor the VA examinations reflect any unfavorable ankylosis. The Veteran’s functional loss was considered, as the medical evidence shows that the Veteran consistently reports chronic back pain. 38 C.F.R. §§ 4.40, 4.45. However, the examiners generally took limitation caused by pain into account in the findings of range of motion. Thus, the degree of additional limitation caused by pain is already contemplated in the disability rating currently assigned. There is otherwise no evidence of impairment of motor skills, muscle function, or strength, and the Veteran’s gait is normal. Consequently, the Board finds that a higher compensable rating based on functional loss is not warranted. Additionally, as the record contains no reports of incapacitating episodes as due to a back disability during the period on appeal, the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes does not provide a basis for increased ratings. To the extent that the Veteran contends that his disability is more severe than reflected by the rating assigned herein, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as pain or weakness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, we conclude that the observations of medical professionals are more probative and credible than his lay opinion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to August 26, 2013, and a rating in excess of 40 percent thereafter for his back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to an initial rating in excess of 10 percent prior to February 4, 2020 for degenerative disc disease of cervical spine 6. Entitlement to a rating in excess of 20 percent from February 4, 2020 for degenerative disc disease of cervical spine The Veteran’s neck disability was rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5243 prior to February 4, 2020 and 20 percent disabling thereafter under Diagnostic Code 5242-5243. Under Diagnostic Code 5010, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. As such, the Veteran’s neck disability will be rated based on the Diagnostic Codes concerning limitation of motion. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the 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. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. 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. See also Plate V, 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71a. As discussed above, spine conditions can also be rated under the criteria for intervertebral disc syndrome (IVDS), DC 5243. July 2011 private treatment records reflect that there was no neck tenderness. His gait was stable. May 2012 and August 2012 private records reflect that the Veteran denied neck pain or stiffness. The Veteran attended a VA examination for his neck in May 2013. He reported flare-ups of pain but no decrease in function during flare-ups. Range of motion testing revealed flexion to 45 degrees or greater, with pain at 30 degrees, extension to 40 degrees with pain at 20 degrees. Looking at his combined range of motion of the cervical spine at each point where objective evidence of pain began, equaled 180 degrees. Not only was there no additional limitation in range of motion of the cervical spine following repetitive use testing, but the Veteran was able to move his neck further without pain, to include forward flexion until 40 degrees. The Veteran reported IVDS but denied any incapacitating episodes over the last year. The examiner concluded that the Veteran’s neck disability would cause difficulty lifting and pushing and pulling. October 2013 private treatment records reflect that the Veteran reported neck pain, stiffness and spasm, with impaired range of motion. He told his treating physician that his symptoms were moderate in severity. Private examination of the neck revealed normal strength and tone, with no laxity or crepitus. Right flexion and extension were noted as mildly reduced and left flexion and extension were determined to be severely reduced. Range of motion was not described in degrees. January 2014 private records reflect that the Veteran denied neck pain or stiffness. May 2014 private MRI revealed subtle asymmetric disc protrusion, diffuse disc bulging and protrusions and diffuse degenerate changes throughout the cervical spine. A private May 2014 x-ray revealed moderate degenerative changes of the cervical spine, with no acute fracture or dislocation. A May 2014 private MRI revealed subtle asymmetric disc protrusion, diffuse disc bulging and protrusions and diffuse degenerate changes throughout the cervical spine. The Veteran again denied neck pain or stiffness during July 2014 private treatment. March 2019 private treatment records explicitly state that neck pain and stiffness were not present. Examination revealed mildly reduced flexion and moderately reduced extension. Upon VA examination in February 2020, the Veteran reported constant neck pain that increased with motion. He reported taking Tylenol as needed to treat the pain. He denied any flare-ups of the cervical spine. Range of motion testing revealed flexion to 35 degrees and extension to 30 degrees. Mild tenderness to palpation of the posterior neck was noted. There was no additional limitation in range of motion of the cervical spine following repetitive use testing. The examiner determined that pain, weakness, fatiguability or incoordination significantly limited functional ability with repeated use over time and estimated range of motion to be 30 degrees forward flexion and 25 degrees extension. There was no evidence of muscle spasms or atrophy, and guarding did not result in an abnormal gait. There was no evidence of IVDS. The examiner concluded that the Veteran’s current degenerative disc disease of cervical spine condition may impact his ability to perform repetitive neck flexion, extension, rotation, overhead lifting and reaching. The evidence does not warrant a rating in excess of 10 percent prior to February 4, 2020 or in excess of 20 percent thereafter for the Veteran’s neck disability. The most probative evidence of record are the VA examinations provided by medical professionals, and the private treatment records. The Board finds it particularly probative that the Veteran denied neck pain or stiffness on several occasions during his private treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Prior to February 4, 2020, the evidence did not reflect forward flexion of the cervical spine less than 30 degrees; or, the combined range of motion of the cervical spine less 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. The Board notes that the May 2013 VA examination reported forward flexion to 45 degrees or more with pain at 30 degrees, however the Veteran was able to achieve forward flexion to 45 degrees or more without pain until 40 degrees following repetitive use testing during the same examination. Furthermore, the private treatment records regularly reflect that the Veteran denied any neck pain or stiffness. Prior to February 4, 2020, there is no probative medical evidence reflecting that a rating in excess of 10 percent is warranted. There is also no probative evidence that a rating in excess of 20 percent is warranted at any period during the appeal. The February 2020 VA examiner estimated that the Veteran’s forward flexion would be limited to 30 degrees with repeated use over time and the RO assigned a 20 percent disability rating based on that description. There is no probative evidence of record suggesting that the Veteran suffers from additional limitation which would result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. The Veteran’s functional loss was considered during the entire period on appeal, as the medical evidence shows that the Veteran has periodically reported neck pain. 38 C.F.R. §§ 4.40, 4.45. However, the examiners generally took limitation caused by pain into account in the findings of range of motion. Thus, the degree of additional limitation caused by pain is already contemplated in the disability rating currently assigned. There is otherwise no evidence of impairment of motor skills, muscle function, or strength. Consequently, the Board finds that a higher compensable rating based on functional loss is not warranted. Additionally, as the record contains no reports of incapacitating episodes as due to a neck disability during the period on appeal, the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes does not provide a basis for increased ratings. To the extent that the Veteran contends that his disability is more severe than reflected by the rating assigned herein, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as pain or weakness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, we conclude that the observations of medical professionals are more probative and credible than his lay opinion. The Board also finds some of his statements in support of his claim to be inconsistent with his private treatment records, which frequently explicitly deny neck pain and stiffness. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to February 4, 2020, and a rating in excess of 20 percent thereafter for a neck disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 7. Entitlement to an initial rating in excess of 10 percent prior to February 4, 2020 for right lower extremity 8. Entitlement to a rating in excess of 20 percent from February 4, 2020 for right lower extremity The Veteran’s right lower extremity radiculopathy associated with his back disability was evaluated as 10 percent disabling from June 17, 2011 to February 4, 2020, and 20 percent disabling thereafter under Diagnostic Code 8520. Under Diagnostic Code 8520, paralysis of the sciatic nerve: a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with evidence of marked muscular atrophy. 38 C.F.R. § 4.124a. Complete paralysis will be evaluated as 80 percent disabling for such symptoms as foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. As mentioned above, the terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. July 2011 private treatment records reveal that the Veteran denied any discomfort, aching or fatigue in his lower extremities with ambulation. August 2012 private treatment records reflect that the Veteran reported “some right leg pain.” The Veteran attended a VA examination in May 2013. He had deceased sensation in his right foot and reported mild right lower extremity intermittent pain and paresthesias and/or dysesthesias. October 2013 private treatment records reveal that the Veteran reported radiating pain from his back to his right thigh. The Veteran attended another VA examination in February 2014. Muscle strength testing was all normal and there was no evidence of muscle atrophy. He had deceased sensation in his right foot and reported mild right lower extremity intermittent pain and paresthesias and/or dysesthesias. April 2018 private treatment records reveal that the Veteran was “grossly moving all [four] extremities,” there was no edema, his pedal pulses were intact, and touch proprioception was within normal limits. During his March 8, 2019 Board hearing, the Veteran testified that he was experiencing right leg numbness, forcing him to concentrate while walking. March 2019 private medical correspondence reflects that the Veteran’s doctor described the Veteran’s right lower extremity radiculopathy as chronic and affecting his ability to walk. Corresponding March 2019 private treatment records reveal that the Veteran experienced numbness in his right thigh and periodic unsteadiness. Weakness in his extremities was determined to be “not present.” The records also appear to reflect that the Veteran did not have a history of falling and his fall risk assessment was very low. The Veteran attended a VA examination in February 2020. The Veteran walked with a normal gait. He reported moderate right lower extremity constant pain, paresthesias and/or dysesthesias and numbness. Muscle strength was 4/5 in his right ankle. There was no evidence of muscle atrophy. A sensory examination revealed decreased sensation in the right foot. The examiner determined that the Veteran had moderate incomplete paralysis of the right sciatic nerve. She stated that the Veteran’s current radiculopathy of the right lower extremity condition may impact ability to perform prolonged walking, prolonged standing, heavy lifting. The examiner concluded that the Veteran’s right leg radiculopathy had not progressed in severity. When addressed as a totality, the Board finds that, granting the Veteran the benefit of doubt, the weight of competent and credible medical and lay evidence reveals that the Veteran’s right lower extremity radiculopathy did increase in severity, to moderate incomplete paralysis, prior to February 4, 2020. The earliest ascertainable date of increase is the March 8, 2019 Board hearing, when the Veteran provided testimony that his right leg radiculopathy had gotten worse and submitted corresponding private treatment records revealing March 2019 treatment for lower extremity radiculopathy. There are no probative treatment records or lay statements revealing an earlier date, and the next closest medical record, dated April 2018, reveals that there was no edema, his pedal pulses were intact, and touch proprioception was within normal limits. As noted above, under Diagnostic Code 8520, the words “slight,” “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. None of the available records reveal that the Veteran has an altered gait, and the February 2020 VA examination explicitly states that the Veteran’s gait was normal, and his right lower extremity radiculopathy may impact his ability for prolonged walking. The Board notes that the VA examinations and treatment records reflect right lower extremity weakness, numbness and radiating pain at times. An increased 40 percent rating is warranted for moderately severe incomplete paralysis. The February 2020 VA examination noted moderate incomplete paralysis of the right sciatic nerve and his private treatment records do not reflect more than moderate neuropathy. There is no competent and credible evidence of moderately severe incomplete paralysis, and involvement of the symptomology of the Veteran’s right lower extremity has consistently been noted to be at worst moderate during the period on appeal. A 40 percent rating is warranted for moderately severe incomplete paralysis which is not found herein. There is no muscle atrophy or evidence of loss of motor function such as an inability to move the foot, lower, and upper legs. This is consistent with the present 20 percent rating for moderate symptoms. Thus, the evidence of record does not reflect than an increased 40 percent rating for moderately severe incomplete paralysis is warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 10 percent prior to March 8, 2019 and 20 percent thereafter for the Veteran’s service-connected right lower extremity radiculopathy associated with his back condition is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.