Citation Nr: 21014528 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-25 751 DATE: March 12, 2021 ORDER A 30 percent rating, but no higher, for a lower back disorder from December 13, 2010 to December 21, 2020, is granted. A 50 percent rating, but no higher, for a lower back disorder since December 21, 2020 is granted. A separate 20 percent rating for right lower extremity radiculopathy secondary to a lower back disorder is granted. A separate 20 percent rating for left lower extremity radiculopathy secondary to a lower back disorder is granted. Service connection for diabetes mellitus type II (DBM) is denied. FINDINGS OF FACT 1. From December 13, 2010 to December 21, 2020, the Veteran’s lower back disorder manifested with constant pain, stiffness, muscle spasms, lumbar flexion greater than 30 degrees but not greater than 60 degrees, painful ROM, incapacitating episodes, flare-ups resulting in additional pain, reduced mobility and ROM, and functional impairment including difficulty with prolonged walking, standing, sitting, and lifting. 2. Since December 21, 2020, the Veteran’s lower back disorder manifested with additional symptoms of lumbar flexion of 30 degrees or less, and estimated limitation of flexion to 25 degrees during flare-ups. 3. The Veteran’s lower back disorder manifested with neurological symptoms analogous to moderate incomplete paralysis of the bilateral lower extremities. 4. The probative medical evidence indicates the Veteran’s current DBM was not incurred during a period of active duty service, federalized National Guard service, or active duty for training (ADT). CONCLUSIONS OF LAW 1. From December 13, 2010 to December 21, 2020, the criteria for a 30 percent disability rating, but no higher, for a lower back disorder were approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. Since December 21, 2020, the criteria for a 50 percent disability rating, but no higher, for a lower back disorder have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 3. The criteria for a separate disability rating for right lower extremity radiculopathy secondary to a lower back disorder have been met. 38 C.F.R. § 4.124a, DC 8250. 4. The criteria for a separate disability rating for left lower extremity radiculopathy secondary to a lower back disorder have been met. 38 C.F.R. § 4.124a, DC 8250. 5. The criteria for service connection for DBM have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1984 to May 1994 with periods of active duty in the Texas Army National Guard. He was mobilized for a period of active duty to provide relief efforts after Hurricanes Katrina and Rita from September 2, 2005 to September 15, 2005, and from September 13, 2008 to September 27, 2008 to provide support and recovery after Hurricane Gustav. In October 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. In a May 2019 decision, the Board of Veterans’ Appeals (Board) remanded the issue of service connection for diabetes mellitus type II and directed the VA Regional Office (RO) to schedule a new medical examination. An examination was completed in November 2020 and the remand directives were completed. Stegall v. West, 11 Vet. App. 268 (1998). The May 2019 Board decision also denied an initial compensable rating for a lower back disorder from December 10, 2009 to December 12, 2010 and denied a rating of more than 20 percent thereafter. The Veteran appealed these denials to the United States Court of Appeals for Veterans’ Claims (Court), and in an April 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the denials and remanded those issues to the Board. The Court directed the Board to consider the Veteran’s reports of functional loss during flare-ups and whether separate ratings were warranted for bilateral lower extremity (BLE) radiculopathy. In an October 2020 decision, the Board granted an initial 10 percent rating for a lower back disorder for the period of December 10, 2009 through December 12, 2010. The Veteran did not appeal this decision and this issue is no longer before the Board. The October 2020 Board decision remanded the issues of an increased rating for a lower back disorder since December 13, 2010 and service connection for BLE radiculopathy for additional development consistent with the April 2020 JMPR. The Veteran was afforded VA examinations in December 2020. Review of the completed development reveals that substantial compliance with the remand directives was obtained. Stegall. 1. Entitlement to a rating of more than 20 percent since December 13, 2010 for a lower back disorder. Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s lower back disorder was evaluated as 10 percent disabling for the period of December 10, 2009 to December 12, 2010. As indicated above, the Veteran did not appeal the evaluation for that period. Since December 13, 2010, the Veteran’s lower back disorder has been rated 20 percent disabling under the General Rating Formula for the Spine. See 38 C.F.R. § 4.71a, DC 5243. The appellate period is from December 13, 2010, the date of receipt of the Veteran’s increased rating claim. The General Rating Formula provides: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 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 rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; and A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. 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 normal combined range of motion of the thoracolumbar spine is 240 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. Id. at Note (2). “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. See Note (5) to DC 5243. During the February 2011 VA examination, the Veteran reported stiffness and soreness in his lower back, mostly during the morning. He reported that prolonged sitting and walking aggravated his back, and that he occasionally experienced tingling that radiated from his right buttock down to the middle right calf. The Veteran denied any bowel, bladder or sexual dysfunction. Range of motion (ROM) testing indicated forward flexion to 40 degrees, extension to 20 degrees, right and left lateral bending and left and right lateral rotation to 20 degrees. The examiner noted pain at the endpoints but no increased pain, fatigue, weakness or incoordination with repetitive motion in any plane. The Veteran’s reflexes and motor function were normal in all muscle groups in the lower extremities. The examiner noted straight leg testing was “questionably positive” on the right side at 40 degrees and negative while sitting. He noted tenderness to palpation (touch) at approximately the L5 level and the right sciatic notch but did not find evidence of spasms. The Veteran had a normal gait, heel-toe walked without difficulty, and had normal lumbar lordosis (inward curvature of the lumbar spine). The examiner indicated that X-rays revealed disc space narrowing at the L3-4 vertebrae and spondylosis (degeneration of the spine) at L5. The examiner indicated a diagnosis of degenerative disc disease (DDD) of the lumbar spine (lower back). In a May 2012 VA physical therapy record, the Veteran reported having sharp, stabbing lower back pain, spasms, and tenderness after exercising. He reported constant pain of “6-7/10” in severity, and additional aggravation by lifting, bending, and prolonged standing and sitting. He reported pain interfered with sleep and walking. The Veteran denied bladder or bowel issues, falling or balance issues, or numbness. On physical examination, the Veteran had a 25 percent decrease in flexion, extension, and right and left lateral flexion, and right and left lateral rotation were within functional limits. The examiner noted the Veteran’s ROM was decreased due to pain and tightness. The examiner also indicated the Veteran had moderate spasms and hypertonicity along the lumbosacral paraspinals with tenderness in those areas. Straight leg testing was positive in the left leg. The examiner noted the Veteran’s lower back pain was associated with a decrease in pain-free mobility, muscle strength, poor posture, and decreased functional mobility. The Veteran was afforded an additional VA examination in September 2012. During that examination, he reported back pain but denied flare-ups. ROM testing indicated flexion to 75 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. The Veteran denied pain during ROM testing and was able to perform repetitive use testing without any pain or additional loss of ROM. The Veteran’s gait and posture were normal, and he did not have localized tenderness, guarding, muscle atrophy, muscle spasm, intervertebral disc syndrome (IVDS), or ankylosis. Muscle strength, reflex, and sensory testing were all normal. The examiner further noted that the Veteran did not have radicular or any other neurological symptoms associated with his lower back disorder. The examiner indicated the Veteran’s lower back disorder caused functional impairment of less movement than normal and prevented the Veteran from performing heavy duty work such as pushing, pulling, and lifting heavy weight. The examiner concluded the Veteran’s lumbar DDD had not changed since the previous examination. The Veteran was afforded an additional VA examination in July 2017. During the examination, the Veteran reported experiencing painful flare-ups and “very limited” motion. He indicated his symptoms began in March 2013 and occurred when exercising, standing or sitting for prolonged periods. The Veteran had normal ROM but reported painful flexion. The examiner found no evidence of pain with weight bearing, non-weight bearing, or localized tenderness. The examiner found objective evidence of pain during active and passive ROM but indicated that pain did not result in or cause functional loss. The Veteran did not have additional loss of ROM after repetitive use testing. The Veteran did not demonstrate guarding, muscle spasm, muscle atrophy, IVDS or ankylosis. Muscle strength, reflex, and sensory testing was normal, and straight leg testing was negative. The examiner indicated the Veteran was not being examined immediately after repeated use over time or during a flare-up, and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss under those circumstances. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability during flare-ups and after repeated use over time. This opinion has low probative value as it failed to account for the Veteran’s reports of “very limited” motion during flare-ups. During the October 2018 Board hearing, the Veteran reported experiencing painful ROM, pain with prolonged sitting, standing and walking, tingling down both legs, muscle spasms, and flare-ups about two to three times per week, with pain at a “10/10.” He reported that during flare-ups he was unable to bend his spine and his doctor had advised him to lie down during these episodes. The Veteran also reported missing ten to fifteen days of work in the past two years due to his back pain. During the February 2019 VA examination, the Veteran reported lower back pain, flare-ups, and muscle spasms. He reported feeling as though he could not move during flare-ups, and being confined to his bed until his medication began working. During initial testing, the Veteran demonstrated normal ROM but reported pain on all ranges of motion. The examiner found no evidence of pain with weight bearing, non-weight-bearing, or localized tenderness. The examiner indicated that pain reported during ROM testing did not result in or cause functional loss and that there was no objective evidence of pain during active or passive ROM testing. The Veteran did not have additional loss of ROM after repetitive use testing. The examiner indicated the Veteran did not have guarding, muscle spasm, muscle atrophy, IVDS or ankylosis. The examiner indicated the Veteran was not being examined immediately after repetitive use over time or during a flare-up, and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss under those circumstances. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability during flare-ups and after repeated use over time. This opinion has low probative value because it failed to consider the Veteran’s reports that he could barely move and was frequently confined to his bed during flare-ups. In a July 2020 Statement in Support of Claim (VA Form 21-4138), the Veteran reported seeking emergency medical care for his lower back pain several times in the past three years. He also reported his lower back disorder severely worsened in the past six months and that he had missed 21-30 days of work during that time period. In an August 2020 VA Emergency Room note, the Veteran reported intermittent lower back pain in the past two weeks after beginning a new workout routine. He denied paresthesia, or bowel or bladder incontinence. In December 2020, the Veteran was afforded an additional VA examination pursuant to the October 2020 Board remand. During the examination, the Veteran continued to report lower back pain and stiffness and indicated his symptoms had worsened in the past 18 months. He reported constantly wearing a back brace. The Veteran reported daily flare-ups when sitting, standing, or walking for longer than ten minutes. He indicated that flare-ups were moderate to severe and lasted for hours. The Veteran reported missing one to two weeks of work in the past year due to lower back pain. Specifically, the Veteran reported four or more incapacitating episodes per year, totaling one week to less than two weeks. On ROM testing, the Veteran had forward flexion to 30 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The Veteran reported pain on all ranges of motion, and the examiner indicated pain caused functional loss, specifically the inability to stand, walk, or sit for longer than 10 minutes. The Veteran was able to perform repetitive use testing without additional loss of ROM or pain. The examiner noted objective evidence of pain and tenderness during weight bearing and non-weight bearing, and that passive ROM testing could not be performed in a safe and reasonable manner. The examiner did not find evidence of muscle spasm, muscle atrophy, guarding, IVDS or ankylosis. Muscle strength and reflex testing was normal and straight leg testing was negative. However, the Veteran had decreased sensation in his lower legs, ankles, feet and toes. The examiner indicated the Veteran was not being examined immediately after repetitive use over time or during a flare-up, and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss under those circumstances. The examiner opined that pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups and after repeated use over time. He estimated the Veteran would have additional limitation of ROM during flare-ups and after repeated use, with flexion to 25 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. From December 13, 2010 to December 21, 2020, the Veteran’s lower back disorder manifested with constant pain, stiffness, muscle spasms, lumbar flexion greater than 30 degrees but not greater than 60 degrees, painful ROM, incapacitating episodes, flare-ups resulting in additional pain, reduced mobility and ROM, and functional impairment including difficulty with prolonged walking, standing, sitting, and lifting. Ordinarily, these symptoms would warrant a 20 percent rating because the Veteran did not have lumbar flexion of 30 degrees or less during this time period. See 38 C.F.R. § 4.71a, DC 5243. However, throughout the appellate period, the Veteran has consistently reported flare-ups with additional pain, reduced ROM, and functional loss. Given these symptoms, a 30 percent increased rating is warranted for the period from December 13, 2010 to December 21, 2020. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. During the December 2020 VA examination, the Veteran’s lower back disorder manifested with lumbar flexion of 30 degrees, and the examiner opined that flexion would be limited to 25 degrees during a flare-up. Based on ROM alone, flexion of 30 degrees or less warrants a 40 percent rating under the General Rating Formula for the Spine. See 38 C.F.R. § 4.71a, DC 5243. However, as indicated above, the Veteran has had additional limitation of ROM and functional loss due to pain throughout the appellate period. Given these symptoms, the next highest rating of 50 percent is warranted as of December 21, 2020. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. A 50 percent rating is not warranted before December 21, 2020 because the evidence does not show that the Veteran had flexion of 30 degrees or less prior to that date. A rating of more than 50 percent is not warranted at any point during the appellate period because the Veteran has not been found to have ankylosis and he has consistently demonstrated a range of motion in his spine. For these reasons, the Board will grant a 30 percent rating from December 13, 2010 to December 21, 2020, and a 50 percent rating thereafter. See Hart, supra. (holding that staged ratings may be warranted in increased rating claims). 2. Entitlement to separate ratings for BLE radiculopathy. Disability ratings for neurological conditions are ordinarily assigned in proportion to impairment of motor, sensory, or mental function. See 38 C.F.R. § 4.124a. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. Lower extremity radiculopathy is rated according to DC 8520, which provides ratings for paralysis of the sciatic nerve. DC 8520 provides a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; and a 40 percent rating for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. See 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis,” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is equitable and just. See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Private treatment records contain reports of lower extremity numbness and tingling as early as 2009. In a September 2009 letter, the Veteran’s private doctor (J.W., M.D.) noted the Veteran reported low back pain with tingling in the right lateral thigh and calf, “which is a sign of radiculopathy.” During the August 2010 VA examination, the Veteran had normal muscle strength, reflex, and sensory tests. Straight leg testing was negative bilaterally (a positive straight leg test suggests radiculopathy) and the Veteran did not report radicular symptoms. During the February 2011 VA examination, the Veteran reported “tingling” in his lower back that radiated down his right thigh and calf. He demonstrated a positive straight leg test in the right leg, although the examiner indicated this result was questionable. A May 2012 VA physical therapy record noted a positive straight leg raise test (“SLR”) in the left leg. The attending clinician also noted muscle spasms, decreased muscle strength, and poor posture due to lower back pain. The September 2012 and July 2017 VA examination reports indicated normal muscle strength, reflexes and sensory tests, and straight leg testing was negative bilaterally. Both examiners indicated the Veteran did not have any radicular or other neurological symptoms associated with his lower back disorder. The report of the February 2019 VA examination also noted negative straight leg testing bilaterally and normal muscle strength, reflex and sensory tests. While the Veteran reported experiencing muscle spasms, the VA examiner indicated the Veteran did not have any signs or symptoms of radiculopathy. April 2019 private chiropractic records reflect that the Veteran continued to report pain, stiffness and loss of sensation in his legs. Straight leg testing was positive bilaterally. The Veteran reported “severe difficulty” with most activities of daily living (ADLs), including climbing stairs, bending, and heavy lifting, and “moderate” difficulty with standing and rising from sitting. The examiner indicated diagnoses of sciatica, radiculitis or neuritis, and lower back pain. The Veteran was afforded a VA peripheral nerves examination in December 2020. The examiner diagnosed the Veteran with BLE radiculopathy and indicated the condition was caused by the Veteran’s service-connected lower back disorder. Testing indicated normal muscle strength and reflexes, and the Veteran did not have muscle atrophy. Straight leg testing was negative bilaterally. The Veteran had decreased sensation to light touch in his lower legs, ankles, feet and toes. He reported radicular symptoms, namely moderate intermittent pain, severe numbness, and severe paresthesias and/or dysesthesias (burning, tingling and/or prickling sensations), in his bilateral lower extremities. The Veteran reported regularly wearing a back brace. The examiner indicated sciatic nerve root involvement in both legs and that the Veteran had mild incomplete paralysis of the sciatic nerve. The examiner characterized the Veteran’s radiculopathy as “mild” and indicated the Veteran did not have any other radicular symptoms or neurological abnormalities. The examiner also noted the Veteran had an unsteady gait due to his lower back disorder. Throughout the appellate period, the Veteran reported muscle spasms in his lower back, numbness and tingling in his bilateral lower extremities, and using a back brace. Although the December 2020 VA examiner characterized the Veteran’s radiculopathy as “mild,” the examiner also indicated that the Veteran’s functional due to radiculopathy included difficulty standing or walking for more than ten minutes. Given these symptoms, separate 20 percent ratings are warranted for “moderate incomplete paralysis” of the sciatic nerve under DC 8520. A rating of more than 20 percent is not warranted at any point during the appellate period. While the Veteran has reported “severe” radicular symptoms and difficulty with ADLs, he has been able to continue working as a corrections officer despite these limitations. Although the Veteran was observed to have an unsteady gait, he has not reported falling and has not completely or partially lost the ability to use his legs. See 38 C.F.R. § 4.124a, DC 8520. For these reasons, his radiculopathy is not “moderately severe.” For the reasons above, the Board will assign separate 20 percent evaluations for radiculopathy of the right and left lower extremities. 3. Service connection for DBM Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for chronic diseases, including DBM, may be established on a presumptive basis if the chronic disease was shown as chronic in service, manifested to a compensable degree within a presumptive period of one year after separation from service, or was noted in service with a continuity of symptomatology since service. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). However, the chronic disease presumption requires 90 days of continuous active service and does not apply to claims based on a period of active duty for training (ADT). 38 C.F.R. § 3.307(a)(3); Grose v. Brown, 4 Vet. App. 144, 148 (1993); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Eligibility for VA benefits, such as service connection, is governed by statutory and regulatory law which defines an individual’s legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. “Active military, naval, or air service” includes any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). ADT is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Inactive duty training means duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). National Guard duty is different from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been: (1) been ordered into federal service by the President of the United States; (2) performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505; or (3) ordered to ADT under 10 U.S.C. § 12301(d). 10 U.S.C. §12401. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ADT/INACDUTRA or during Federalized National Guard service. In the absence of such evidence, the period of ADT would not qualify as “active military, naval, or air service” and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C. § 101(2)-(24). The Veteran was diagnosed with DBM in January 2012. He contends that his current DBM developed during his National Guard service. Diabetes is a disease, not an injury, and therefore it must be shown that such a condition either began during or was otherwise caused by a period of active duty or ADT. See 38 U.S.C. § 101 (24). The Veteran does not allege, nor does the evidence show, that his DBM manifested during his initial period of active duty from May 1984 to May 1994. The preliminary question is whether the Veteran has any period of federalized National Guard service that would make him eligible to receive Title 38 Veterans’ benefits. Service personnel records indicate that the Veteran served in the Texas Army National Guard from May 22, 2005 to December 22, 2012. A July 2007 memorandum indicates the Veteran was awarded a Humanitarian Service Medal for relief efforts for Hurricanes Katrina and Rita during the period between August 30, 2005 and September 12, 2005. An Army National Guard Retirement Points Statement indicates that the Veteran had “Army National Guard Duty under Title 32, State Controlled” from September 2, 2005 to September 15, 2005. The September 2005 period of service is considered “federalized” and the Veteran is eligible for VA benefits based on this period. Orders dated September 15, 2008 and September 22, 2008 indicate the Veteran was ordered to “active duty for special work” (ADSW) for active duty operational support (ADOS) for hurricane recovery from September 13, 2008 to September 27, 2008. The orders characterize the Veteran’s service as within 32 U.S.C. § 505. Under VA regulations, full-time duty performed by members of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, constitutes ADT. 38 C.F.R. § 3.6. VA generally considers ADSW for a period of less than 180 days to be ADT, unless the ADSW was operational support in which case it is considered active service. The Veteran’s September 2008 ADSW was for operational support, it is considered active duty for VA compensation purposes. A December 2010 order indicates that the Veteran was ordered to temporary duty for three (3) days, from October 14, 2010 to October 16, 2010, for Soldier Readiness Processing (SRP). The order does not indicate whether this period of service was federalized. The Veteran’s military personnel records also indicate that he may have served periods of INACDUTRA. However, service connection for diabetes cannot be based on a period of INACDUTRA as it is a disease and not an injury. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). As indicated above, there is no evidence that the Veteran’s DBM began during his initial period of active service from May 1984 to May 1994. Service treatment records (STRs) from that period are silent for treatment or diagnosis of DBM or related symptoms. A February 2005 report of medical examination before enlistment in the Army National Guard indicated normal clinical evaluations and urinalysis was negative for abnormal sugar levels. In a report of medical history of the same date, the Veteran denied ever having had “high or low blood sugar” or “sugar or protein in urine.” The attending clinician noted the Veteran was moderately obese at that time. A March 2007 VA cardiology record indicated the Veteran had abnormal glucose levels after lab testing. The attending clinician noted the Veteran was developing early diabetes, which may have been insulin resistance due to obesity. The clinician advised the Veteran to reduce sugar intake and increase cardiovascular exercise for weight reduction. March 2006 and August 2007 periodic health assessments indicated the Veteran did not have a history of diabetes or high or low blood sugar. In a March 2008 report of medical history, the Veteran continued to deny ever having had high or low blood sugar or sugar or protein in his urine. A May 2011 VA primary care record indicated the Veteran had elevated glucose and was last seen by a VA medical provider in 2007. A January 2012 VA hospital record indicated the Veteran was prescribed Metformin for DBM, which was noted to be a “new diagnosis.” A February 2012 diabetic retinal examination report noted a provisional diagnosis of DBM with its onset in January 2012. During the October 2018 Board hearing, the Veteran reported having a history of borderline diabetes during his National Guard service and being prescribed Metformin by his primary care doctor. He reported multiple periods, beginning in 2005, where his Reserve unit was mobilized in a “pre-deployment” status. He indicated that while in pre-deployment status, his diet was limited to military rations provided during field operations. The Veteran stated he was in good health before these pre-deployment periods and suggested that eating rations resulted in “prediabetes,” which progressed to his current DBM. The Veteran was afforded a VA examination in November 2020. The VA examiner indicated the Veteran had elevated glucose was diagnosed with prediabetes in 2007, but noted the diagnosis was likely insulin resistance related to obesity. The examiner noted the Veteran was a National Guard unit member at that time, however after reviewing the Veteran’s medical records she was unable to confirm that he was on active duty when prediabetes was diagnosed. Based on these findings, the examiner concluded the Veteran’s current DBM is less likely than not related to a period of active duty service. The preponderance of the evidence is against finding service connection for DBM. There is no probative medical evidence indicating that the Veteran’s current DBM was diagnosed during, developed in, or is otherwise related to any period of active duty service, federalized National Guard service, or was incurred in the line of duty during a period of ADT. Although the Veteran had elevated glucose in 2007, this was attributed to obesity, which was well-documented in the Veteran’s medical records before and during service. The Veteran was diagnosed with DBM in January 2012, one month before his separation from National Guard service. However, the presumptions pertaining to chronic diseases do not apply where, as here, the Veteran does not have 90 days of continuous active service. Additionally, the Board has considered the Veteran’s lay assertions that his DBM was caused by eating military rations during his National Guard service. However, DBM is a complex medical issue that requires specialized training and knowledge to diagnose. As a layperson, the Veteran lacks the medical expertise to offer an opinion as to the cause of his DBM. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As there is no probative medical evidence establishing a nexus, or link, between the Veteran’s current DBM any eligible period of service, the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.