Citation Nr: 21012440 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-34 290 DATE: March 4, 2021 ORDER Entitlement to service connection for left upper extremity cervical radiculopathy and carpal tunnel syndrome is granted. Entitlement to service connection for right foot achilles tendonitis with spur and plantar fasciitis is granted. Entitlement to service connection for left foot achilles tendonitis with spur and hallux rigidus is granted. Entitlement to service connection for degenerative disc disease of the cervical spine, status post cervical fusion and discectomy, is granted. Entitlement to an initial 10 percent rating, but no higher, from April 10, 2017, for sciatic nerve radiculopathy of the left lower extremity, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is denied. Entitlement to a rating in excess of 20 percent for lumbosacral strain and degenerative disc disease of the lumbosacral spine is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left upper extremity cervical radiculopathy and carpal tunnel syndrome began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran’s right foot achilles tendonitis with spur and plantar fasciitis began during active service. 3. The evidence is at least evenly balanced as to whether the Veteran’s left foot achilles tendonitis with spur and hallux rigidus began during active service. 4. The evidence is at least evenly balanced as to whether the Veteran’s degenerative disc disease of the cervical spine, status post cervical fusion and discectomy, began during active service. 5. The Veteran’s sciatic nerve radiculopathy of the left lower extremity has been manifested by no more than mild incomplete paralysis of the sciatic nerve during the entire claim period. 6. The Veteran’s right lower extremity sciatic nerve radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve during the entire claim period. 7. The Veteran’s lumbosacral strain and degenerative disc disease of the lumbosacral spine is manifested by limitation of motion of the thoracolumbar spine to at most 90 degrees of flexion; there is competent and credible evidence of thoracolumbar spine pain and flare ups, but there is no significant or sustained additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, incoordination, or flare ups; there is no spinal ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left upper extremity cervical radiculopathy and carpal tunnel syndrome are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right foot achilles tendonitis with spur and plantar fasciitis are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left foot achilles tendonitis with spur and hallux rigidus are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative disc disease of the cervical spine, status post cervical fusion and discectomy, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for an initial 10 percent rating, but no higher, from April 10, 2017, for sciatic nerve radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520. 6. The criteria for a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DC) 8520, 8720. 7. The criteria for a rating in excess of 20 percent for lumbosacral strain and degenerative disc disease of the lumbosacral spine are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5243 (effective prior to and since February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to March 1995. These matters initially came before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision. In December 2018, the Board remanded these matters for further development. Specifically, the Board directed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, obtain outstanding VA treatment records, and afford the Veteran a VA examination to assess the severity of his service-connected back disability. Pursuant to the Board’s remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of a June 2020 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Moreover, all available outstanding VA treatment records were obtained and associated with the claims file and the Veteran was afforded VA examinations in August and December 2020 to assess the severity of his service-connected back disability. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for neurological disability of the left lower extremity, and the Board remanded this issue in December 2018 for further development. A Decision Review Officer (DRO) awarded service connection for sciatic nerve radiculopathy of the left lower extremity and assigned an initial 10 percent disability rating, from December 14, 2020, by way of a January 2021 decision, and thereby resolved the appeal as to this issue. Regardless, the Board has included the separate issues of both entitlement to a higher initial rating for sciatic nerve radiculopathy of the left lower extremity and entitlement to an increased rating for sciatic nerve radiculopathy of the right lower extremity because these issues are being considered as part of the claim for an increased rating for the service-connected back disability. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). I. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a) (e.g., arthritis and organic diseases of the nervous system). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for neurological disability of the left upper extremity, bilateral foot disability other than right great toe fracture, and cervical spine disability The Board finds, for the following reasons, that the Veteran has current diagnoses of left upper extremity cervical radiculopathy and carpal tunnel syndrome, right foot achilles tendonitis with spur and plantar fasciitis, left foot achilles tendonitis with spur and hallux rigidus, and degenerative disc disease of the cervical spine, status post cervical fusion and discectomy, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. As an initial matter, the Board notes that the report of the Veteran’s July 1990 entrance examination documents that he had pes planus at the time of his entrance into service. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). There is no evidence of any pre-existing foot disability prior to service other than pes planus and the Veteran’s July 1990 entrance examination did not otherwise identify any other foot abnormalities. Therefore, the Board finds that the evidence is not clear and unmistakable that any foot disability other than pes planus pre-existed service and was not aggravated in service. Thus, with regard to the Veteran’s feet, he is presumed sound at service entrance other than for pes planus. 38 U.S.C. § 1111. In this regard, the law and regulation relating to the presumption of soundness reflects that it applies to specific conditions and not more generally to a part of the anatomy. Medical records, including a November 2019 VA podiatry note and the reports of VA neurological and cervical spine examinations dated in December 2020, indicate that the Veteran experiences left upper extremity cervical radiculopathy and carpal tunnel syndrome, right foot achilles tendonitis with spur and plantar fasciitis, left foot achilles tendonitis with spur and hallux rigidus, and degenerative disc disease of the cervical spine, status post cervical fusion and discectomy. Therefore, current left upper extremity neurological disability, bilateral foot disability other than right great toe fracture, and cervical spine disability have been demonstrated. Additionally, there is evidence of left upper extremity neurological symptoms, bilateral foot symptoms other than right great toe fracture, and cervical spine symptoms in service and/or around the time of his separation from service and evidence of continuous symptoms in the years since service. In this regard, the Veteran reported during VA neurological, foot, and cervical spine examinations conducted in December 2020 that he gradually began to develop left arm pain, tingling, and numbness in 1993, that he developed bilateral foot pain (separate and distinct from the toe pain associated with his right great toe fracture) in 1992, and that he gradually began to develop neck pain in the mid-1990s. Moreover, the Veteran’s post-service medical records and lay statements essentially indicate that he has experienced continuous left upper extremity neurological, bilateral foot, and cervical spine symptoms in the years since service. The Veteran is competent to report left upper extremity neurological, bilateral foot, and cervical spine symptoms in service and continuous symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence to explicitly contradict his reports and they are generally consistent with the evidence of record. Thus, the Board finds that the Veteran’s reports of left upper extremity neurological, bilateral foot, and cervical spine symptoms in service and continuous symptoms in the years since service are credible. The examiner who conducted the December 2020 VA examinations opined that the Veteran’s left upper extremity radiculopathy was likely (“at least as likely as not”/“50 percent or greater probability”) incurred in or caused by service. She reasoned that the Veteran’s radiculopathy was related to his degenerative disc disease and status post cervical fusion with discectomy. He had no issues related to his claimed left upper extremity neurological disability prior to service, his left upper extremity radiculopathy was chronic and directly related to his degenerative disc disease and status post cervical fusion with discectomy, and there was evidence of chronicity and a nexus had been established. According to medical literature, radiculopathy refers to symptoms that develop when there is compression of a spinal nerve root. Most commonly, the nerve compression is related to a disc herniation or spondylosis (degenerative changes in the spine) and may occur with or without trauma. It is important to note that not all disc herniations cause nerve compression or pain. While any nerve root can be affected, the lower cervical (neck) and lower lumbar (low back) levels are the most common. Since the fibers of one spinal nerve root provide sensation and strength in a specific region of the body, arm, or leg, a compressed nerve will cause symptoms in the region where the nerve provides strength and sensation. Nerves in the neck provide sensation and strength in the arm, while nerves in the low back provide sensation and strength in the legs. The December 2020 examiner also opined that the Veteran’s claimed cervical spine disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. The examiner explained, in pertinent part, that there was no objective evidence that the Veteran’s cervical spine disability had its onset in service or within the one year after discharge from service, or was related to an in-service injury. The claims file was silent for complaints, treatment, or diagnosis for the Veteran’s claimed cervical spine disability during service and a nexus had not been established. The December 2020 cervical spine opinion is of little, if any, probative value because it is solely based on the absence of clinical evidence of cervical spine problems during service, and it does not take into account the Veteran’s competent and credible reports of neck pain in service and continuous symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The December 2020 neurological opinion, by contrast, is based upon an examination of the Veteran and a review of medical literature and the Veteran’s treatment records and reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, the December 2020 left upper extremity neurological disability opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran experienced left upper extremity neurological symptoms, bilateral foot symptoms (separate and distinct from his right great toe fracture symptoms), and cervical spine symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current left upper extremity cervical radiculopathy and carpal tunnel syndrome, right foot achilles tendonitis with spur and plantar fasciitis, left foot achilles tendonitis with spur and hallux rigidus, and degenerative disc disease of the cervical spine, status post cervical fusion and discectomy, and there is a probative medical opinion that the left upper extremity cervical radiculopathy is related to service. There is no adequate medical opinion contrary to a conclusion that the current left upper extremity cervical radiculopathy and carpal tunnel syndrome, right foot achilles tendonitis with spur and plantar fasciitis, left foot achilles tendonitis with spur and hallux rigidus, and degenerative disc disease of the cervical spine, status post cervical fusion and discectomy had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left upper extremity cervical radiculopathy and carpal tunnel syndrome, right foot achilles tendonitis with spur and plantar fasciitis, left foot achilles tendonitis with spur and hallux rigidus, and degenerative disc disease of the cervical spine, status post cervical fusion and discectomy is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). The Board notes that the benefit granted herein with respect to the Veteran’s feet is service connection for right foot achilles tendonitis with spur and plantar fasciitis and left foot achilles tendonitis with spur and hallux rigidus. Although there is evidence of bilateral pes planus during the claim period, there is no evidence to distinguish between all of the symptoms of the Veteran’s foot disabilities. Therefore, a separate decision as to entitlement to service connection for bilateral foot disability other than right great toe fracture, achilles tendonitis with spur, plantar fasciitis, and hallux rigidus is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Thus, in applying the benefit of the doubt doctrine, all the Veteran’s foot symptoms must, therefore, be attributed to his now service-connected right foot achilles tendonitis with spur and plantar fasciitis and left foot achilles tendonitis with spur and hallux rigidus. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Cf. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (indicating that additional foot disorders diagnosed during the claim period should generally be rated along with the service-connected foot disability). II. Higher Initial Rating/Increased Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Background The Veteran’s bilateral lower extremity neurological disability and back disability claim was received on April 10, 2017. The Veteran reported during a May 2017 VA back examination that he experienced low back pain and stiffness and periodic numbness in the left lower extremity. He was not receiving any treatment for his symptoms. He experienced flare ups of increased back pain and stiffness and there was functional loss/impairment of the thoracolumbar spine in that there was pain with prolonged sitting, standing, bending over, and lifting. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 90 degrees and extension and right and left later flexion and rotation all to 20 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with spinal extension and right and left lateral flexion and rotation, but the pain did not result in/cause functional loss. There was moderate tenderness or pain on palpation of the lower lumbar spine and paraspinals. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time and during flare ups. The examiner who conducted the May 2017 examination explained that he was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during flare ups without resorting to mere speculation because the examination was not being conducted immediately after repetitive use over time or during a flare up. Moreover, there was localized tenderness of the thoracolumbar spine, but it did not result in an abnormal gait or abnormal spinal contour. There was no guarding or muscle spasm of the thoracolumbar spine. There were additional contributing factors of disability in terms of interference with sitting and standing. Muscle strength was normal (5/5) in the lower extremities bilaterally, there was no muscle atrophy, knee and ankle reflexes were normal (2+) bilaterally, lower extremity sensation was normal bilaterally, and straight leg raise testing was negative bilaterally. Overall, the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine, there were no neurologic abnormalities or findings related to the thoracolumbar spine, and the Veteran did not have IVDS of the thoracolumbar spine. He did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran’s back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having lumbosacral strain and degenerative disc disease of the lumbosacral spine. This disability impacted his ability to work in that pain limited prolonged sitting, standing, bending over, and lifting. The examiner who conducted the examination also noted that there was no objective evidence of pain on non weight-bearing and that passive range of motion testing could not be performed or was not medically appropriate. A July 2017 VA primary care note and a September 2017 VA neurological examination report indicate that the Veteran experienced pain and tingling down the back of both legs and down the sides of his legs to his feet. He did not take any medications other than Excedrin and had not undergone any injections or physical therapy. The Veteran reported moderate constant pain, paresthesias/dysesthesias, and numbness and mild loss of strength in the lower extremities bilaterally, but there was no intermittent pain. Lower extremity muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, lower extremity reflexes were normal (2+) bilaterally, and lower extremity sensation was normal bilaterally. There were no trophic changes attributable to peripheral neuropathy and the Veteran’s gait was normal. Overall, there was mild incomplete paralysis of the right sciatic nerve. The Veteran occasionally used a walking stick for his lower extremity radiculopathy and hips (he would lean on it when he stopped walking), but he did not use any other assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There was scarring related to the Veteran’s disability, but none of the scars were painful or unstable, the total area of all related scars was not greater than 39 square centimeters, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of right lower extremity radiculopathy was provided. This disability impacted the Veteran’s ability to work in that prolonged sitting and typing were affected by his radiculopathy and he had to change positions and take breaks. The Veteran reported during an August 2020 VA back examination that he experienced daily back stiffness, pain, and aches. The pain was 5/10 in severity at its worst, was aggravated by bending and lifting, and was alleviated with rest. Mild to moderate flare ups of back symptoms occurred approximately every 1 to 2 weeks, lasted for approximately 10 minutes at a time, were caused by excessive lifting or bending, were alleviated with rest, and resulted in difficulty bending. There was functional loss/impairment of the thoracolumbar spine in that the Veteran experienced difficulty walking, standing, bending, and lifting. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 90 degrees and extension and left and right lateral flexion and rotation all to 30 degrees. There was no pain noted on examination, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, or evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time and during flare ups. Pain significantly limited functional ability of the thoracolumbar spine with repeated use over a period of time and during flare ups and the ranges of spinal motion with repeated use over time and during flare ups would be flexion to 90 degrees and extension and left and right lateral flexion and rotation all to 30 degrees. There was no guarding or muscle spasm of the thoracolumbar spine and there were no additional contributing factors of disability. Moreover, lower extremity muscle strength was all normal (5/5) bilaterally, there was no muscle atrophy, knee and ankle reflexes were normal (2+) bilaterally, lower extremity sensation was all normal bilaterally, and straight leg raise testing was negative bilaterally. Overall, the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine, there were no other neurologic abnormalities or findings related to the thoracolumbar spine, and the Veteran did not have IVDS of the thoracolumbar spine. He did not use any assistive devices, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, there was no scarring related to the Veteran’s disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of lumbosacral strain and degenerative disc disease of the lumbosacral spine was provided. This disability did not impact the Veteran’s ability to work. The examiner who conducted the August 2020 examination noted that there was no objective evidence of pain on non weight-bearing and that the range of motion and pain information for the passive ranges of spinal motion was the same as the information for the active ranges of motion. The reports of VA back and neurological examinations dated in December 2020 indicate that the Veteran experienced constant low back pain and intermittent pain and numbness down his legs. He reported that there was mild intermittent pain, paresthesias/dysesthesias, and numbness in the lower extremities bilaterally, but there was no constant pain. He was not receiving any treatment for his symptoms and he did not experience any flare ups of back symptoms. There was functional loss/impairment of the thoracolumbar spine in that the Veteran experienced difficulty bending, lifting, and twisting. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 90 degrees and extension and left and right lateral flexion and rotation all to 30 degrees. There was pain associated with right and left lateral rotation and the pain caused functional loss. There was no evidence of pain with weight-bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time and during flare ups. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability of the thoracolumbar spine with repeated use over a period of time or during flare ups. There was no guarding or muscle spasm of the thoracolumbar spine and there were no additional contributing factors of disability. Moreover, lower extremity muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, knee and ankle reflexes were normal (2+) bilaterally, lower extremity sensation was normal bilaterally, and straight leg raise testing was negative bilaterally. Overall, there was bilateral mild incomplete paralysis of the sciatic nerves. There were no trophic changes attributable to peripheral neuropathy, there was no ankylosis of the spine, there were no other neurologic abnormalities or findings related to the thoracolumbar spine, and the Veteran did not have IVDS of the thoracolumbar spine. His gait was normal, he did not use any assistive devices, and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There was no scarring related to the Veteran’s disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having lumbosacral strain, degenerative disc disease of the lumbosacral spine, and bilateral sciatic nerve radiculopathy. These disabilities impacted his ability to work in that he was only able to perform light activities that do not require heavy lifting. Also, the examiner who conducted the December 2020 examinations noted that there was no objective evidence of pain with non weight-bearing and that passive range of motion testing of the spine was not performed because it was not feasible to perform this testing in a safe and reasonable manner. 2. Entitlement to a higher initial rating for sciatic nerve radiculopathy of the left lower extremity (rated noncompensable prior to December 14, 2020 and 10 percent disabling since that date) and entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy The Veteran’s sciatic nerve radiculopathy of the left lower extremity is rated under 38 C.F.R. § 4.124A, DC 8520 and his right lower extremity sciatic nerve radiculopathy is rated under 38 C.F.R. § 4.124A, DC 8720. These disabilities are both rated as paralysis of the sciatic nerve under DC 8520. Under DC 8520, the following ratings apply: 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; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124A, DC 8520. The rating schedule provides guidance for rating neurological disabilities. With regard to rating neurological disabilities, 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. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized 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. 38 C.F.R. § 4.124. The term “incomplete paralysis” 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 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. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested right and left lower extremity neurological symptoms of the type and extent, frequency, and/or severity, as appropriate to warrant 10 percent ratings, but no higher, during the entire claim period since April 10, 2017 (the date of receipt of his bilateral lower extremity neurological disability and back disability claim). The above evidence reflects that the Veteran has reported occasional pain, tingling, numbness, and weakness in his legs throughout the entire claim period. Examinations conducted during the claim period have consistently revealed normal muscle strength, sensation, and reflexes in both lower extremities and negative straight leg raise testing bilaterally. There has been no evidence of any muscle atrophy, the Veteran’s gait has been normal, and he has not consistently used any assistive devices other than a walking stick. In light of the Veteran’s reported lower extremity neurological symptoms and resolving reasonable doubt in the Veteran’s favor, the Board finds that the symptoms of his service-connected right and left lower extremity sciatic nerve radiculopathy have more closely approximated the criteria for 10 percent ratings for paralysis of the sciatic nerve (i.e., mild incomplete paralysis) under DC 8520 during the entire claim period since the April 10, 2017 receipt of his claim. The Board also finds, however, that ratings higher than 10 percent are not warranted at any time during the claim period. In particular, the Veteran has only reported occasional neurological symptoms in his lower extremities, all lower extremity neurological testing has been normal, there has been no muscle atrophy, the Veteran’s gait has been normal, he has not consistently required the use of any assistive devices other than a walking stick, and examiners have only reported at most mild incomplete paralysis of the sciatic nerves bilaterally. Overall, the symptoms of the Veteran’s sciatic nerve radiculopathy of the right and left lower extremities have been wholly sensory and these disabilities have been manifested by at most mild incomplete paralysis. In sum, an initial 10 percent rating, but no higher, is warranted for sciatic nerve radiculopathy of the left lower extremity, from April 10, 2017. A rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is not warranted at any time during the claim period. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to a rating in excess of 20 percent for lumbosacral strain and degenerative disc disease of the lumbosacral spine As an initial matter, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran’s lumbosacral strain and degenerative disc disease of the lumbosacral spine is rated under 38 C.F.R. § 4.71A, DC 5243 as IVDS. Under DC 5243 both prior to and since the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71A, DC 5243. Under the criteria for rating IVDS, the following ratings apply: a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes 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 for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71A, DC 5243. For purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a , DC 5243, Note (1). Alternatively, limitation of motion of the thoracolumbar spine is rated under the General Rating Formula. Under the General Rating Formula both prior to and since the regulatory change, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all 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. Each range of motion measurement is to be rounded to the nearest five degrees. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested thoracolumbar spine symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant no higher than a 20 percent rating during the entire claim period for lumbosacral strain and degenerative disc disease of the lumbosacral spine under the criteria in effect both prior to and since the regulatory change. The above evidence reflects that the Veteran has not been diagnosed as having IVDS at any time during the claim period and there is otherwise no evidence of IVDS of the thoracolumbar spine that has required bed rest prescribed by a physician and treatment by a physician. Therefore, a higher rating is not warranted on the basis of IVDS. With respect to limitation of spinal motion, forward flexion of the thoracolumbar spine has been to 90 degrees during all examinations conducted during the claim period. These findings, by themselves and without consideration of potential functional impairment, are contemplated by no more than a 20 percent rating under the General Rating Formula. As for functional impairment, the Veteran has experienced back pain, stiffness, and tenderness, pain has occasionally been associated with ranges of spinal motion, and there has been functional loss/functional impairment of the thoracolumbar spine in terms of pain with prolonged sitting and standing, walking, bending, and lifting. Nevertheless, the ranges of spinal motion have remained the same following repetitive-use testing. The Veteran has reported occasional flare ups of back symptoms, but the examiner who conducted the August 2020 VA examination specified that spinal flexion would still be to 90 degrees with repeated use over time and during flare ups. The Veteran did not report any flare ups during the most recent December 2020 back examination and the December 2020 examiner explained that pain, weakness, fatigability, and incoordination did not significantly limit functional ability of the thoracolumbar spine with repeated use over a period of time or during flare ups. The Veteran is competent to report the symptoms associated with his service-connected back disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion has been documented, the preponderance of the evidence nonetheless supports the conclusion that the Veteran’s back symptoms have most closely approximated the criteria for at most a 20 percent rating for limitation of spinal motion under the General Rating Formula. Specifically, the above evidence reflects that the flare ups and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent rating at any time during the claim period. A preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s back symptoms have not been shown to have been so disabling to actually or effectively result in limitation of forward flexion of the thoracolumbar spine more nearly approximating 30 degrees or less, which is the requirement for a 40 percent rating based on limitation of spinal motion in the absence of ankylosis under the General Rating Formula. Moreover, there has been no showing of any ankylosis at any time during the claim period. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). There is no evidence that the Veteran’s thoracolumbar spine has been fixed in position or ankylosed at any time during the claim period, he has retained the ability to move his spine (albeit a limited ability), and the absence of thoracolumbar spine ankylosis was specifically noted during the May 2017, August 2020, and December 2020 examinations. Therefore, a rating in excess of 20 percent is not warranted on the basis of ankylosis. In sum, a rating in excess of 20 percent for lumbosacral strain and degenerative disc disease of the lumbosacral spine is not warranted at any time during the claim period. As the preponderance of the above evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. Additional Considerations As a final point, the Board notes that in conjunction with the higher rating matters decided herein, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.