Citation Nr: 21015565 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-06 403 DATE: March 17, 2021 ORDER Entitlement to service connection for left hip degenerative arthritis, to include as secondary to service-connected lumbar spine disability, is denied. Entitlement to service connection for right hip degenerative arthritis, to include as secondary to service-connected lumbar spine disability, is denied. Entitlement to an initial rating of 20 percent, but no higher, for service-connected radiculopathy of the right lower extremity from November 9, 2012 to January 7, 2020 is granted. Entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity since January 8, 2020, is denied. Entitlement to an initial rating of 20 percent, but no higher, for service-connected radiculopathy of the left lower extremity from November 9, 2012 to January 7, 2020 is granted. Entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity since January 8, 2020, is denied. Entitlement to a rating of 40 percent, but no higher, for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) from November 9, 2012 to January 7, 2020, is granted. Entitlement to a rating in excess of 40 percent for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) since January 8, 2020, is denied. Entitlement to an effective date earlier than November 9, 2012 for the grant of 20 percent disability rating for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2014 to January 7, 2020 is granted. FINDINGS OF FACT 1. Left hip degenerative arthritis did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by any service-connected disability. 2. Right hip degenerative arthritis did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by any service-connected disability. 3. From November 9, 2012 to January 7, 2020, the Veteran’s service-connected right lower extremity radiculopathy was manifested by moderate incomplete paralysis. 4. Since January 8, 2020, the Veteran’s service-connected right lower extremity radiculopathy has been manifested by at worst moderate incomplete paralysis. 5. From November 9, 2012 to January 7, 2020, the Veteran’s service-connected left lower extremity radiculopathy was manifested by moderate incomplete paralysis. 6. Since January 8, 2020, the Veteran’s service-connected left lower extremity radiculopathy has been manifested by at worst moderate incomplete paralysis. 7. From November 9, 2012 to January 7, 2020, the Veteran’s service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) was manifested by forward flexion of the thoracolumbar spine 30 degrees or less without ankylosis. 8. Since January 8, 2020, the Veteran’s service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less without ankylosis. 9. The Veteran’s service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) did not manifest to a degree of 20 percent disabling within one year prior to his November 9, 2012 increased rating claim. 10. Resolving reasonable doubt in favor of the Veteran, from May 1, 2014 to January 7, 2020, the Veteran’s service-connected Veteran’s service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) prevented him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left hip degenerative arthritis, to include as secondary to service-connected lumbar spine disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for right hip degenerative arthritis, to include as secondary to service-connected lumbar spine disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to an initial rating of 20 percent for service-connected radiculopathy of the right lower extremity from November 9, 2012 to January 7, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. 4. Since January 8, 2020, the criteria for an initial rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to an initial rating of 20 percent for service-connected radiculopathy of the left lower extremity from November 9, 2012 to January 7, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. 6. Since January 8, 2020, the criteria for an initial rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. 7. From November 9, 2012 to January 7, 2020, the criteria for a 40 percent rating, but not higher, for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243. 8. Since January 8, 2020 the criteria for a rating in excess of 40 percent for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243. 9. The criteria for entitlement to an effective date earlier than November 9, 2012 for the grant of 20 percent disability rating for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 10. From May 1, 2014 to January 7, 2020, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Rice v. Shinseki, 22 Vet. App. 447. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1982 to December 1986. A January 2019 Board decision remanded the issues on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). In his November 2014 application for a TDIU, the Veteran specified that he had been unable to secure employment because of his service-connected lumbar disability since May 1, 2014. Additionally, the matter of entitlement to a TDIU has been raised by certain findings made by VA examiners, as well as by several written statement made by the Veteran. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability for an initial or increased rating, it is part of the claim for benefits for that underlying disability. The Board notes that the Veteran has been granted TDIU effective January 8, 2020. As his increased rating claim for his service-connected thoracic spine disability was filed November 9, 2012, the matter of entitlement to a TDIU from November 9, 2012 to January 8, 2020 is properly before the Board in this appeal. Id. The Board lastly notes that the representative attempted to opt the matters concerning the ratings for the bilateral lower extremity ratings and the earlier effective date matter into the Appeals Modernization system via a VA Form 10182 dated in September 2020. Those issues have been developed for appellate review in the Legacy system, and the VA Form 10182 was not submitted within 60 days of any statement of the case or supplemental statement of the case. In December 2020, the representative attempted to “clarify” her position, noting that a May 2020 rating action addressed the three matters. What the representative fails to appreciate is that the three issues at hand were not first announced in the May 2020 rating action, but rather were already perfected in the Legacy system. The May 2020 rating action was an action during the pendency of the Legacy appeal, and as the representative well knows, that rating action did not extinguish the Legacy appeal on those issues. Consequently, the representative’s clarification still provides no basis at this point for transferring the references issues into the Appeals Modernization Act system. Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease; or (b) when a chronic disease is not shown as such during service, by evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In determining whether service connection is warranted for a disability, VA must determine 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for left hip degenerative arthritis, to include as secondary to service-connected lumbar spine disability. 2. Entitlement to service connection for right hip degenerative arthritis, to include as secondary to service-connected lumbar spine disability. The Veteran, through his representative, asserts that his left hip arthritis and his right hip arthritis is related to his active service. Alternately, the Veteran asserts that his left and right hip arthritis is caused by his service-connected lumbar spine disability. Service treatment records are silent for treatment or diagnosis of any hip arthritis or any hip condition. A June 1986 service treatment note reflects the Veteran complained of general pelvic pain without further hip treatment or diagnosis. Post-service medical treatment records reflect diagnoses of left hip degenerative arthritis and right hip degenerative arthritis as early as January 2014. A May 2014 VA examination noted the Veteran’s claimed right hip disability was less likely than not related to his military service. As rationale, the examiner stated that the Veteran’s military records were silent concerning treatment or diagnosis of a right hip condition. A September 2014 VA medical opinion stated that it was less likely than not that the Veteran’s right hip disability was caused by or related to his active service. As rationale, the examiner stated that while the Veteran had a complaint of pelvic pain in service, this pain was noted to be caused by his lumbar spine condition which caused compression on supplying nerve fibers. Further, the examiner noted that the pelvic pain was acute and resolved without further residual problems, the claimed pelvic pain was not treated after service discharge, and medical evidence did not support a relationship between the pelvic pain noted in service with the Veteran’s current hip degenerative arthritis. An August 2015 VA examination report opined that there was no medical literature to support a cause and effect relationship between spine and joint disease not incurred in the same traumatic event or as a result of an altered gait mechanic of the severity and longevity of the Veteran. The examiner concluded that there was no objective medical evidence that the Veteran’s currently diagnosed degenerative joint disease of the bilateral hips was related to or aggravated by his service-connected lumbar spine disability or otherwise caused or aggravated by active service. A January 2020 VA examination stated that it was less likely than not that the Veteran’s bilateral hip degenerative arthritis was proximately caused by or aggravated by the Veteran’s service-connected lumbar spine disability. As rationale, the examiner noted that the bilateral hip degenerative arthritis was age appropriate and exacerbated by obesity, deconditioning, and lack of strength and stretching. The examiner further opined that it was less likely than not that the Veteran’s claimed disabilities were directly related to his active service as there were no service records which diagnosed any hip condition. Medical treatment notes reflect a diagnosis of bilateral hip degenerative joint disease without etiologic opinion, to include any opinion as to secondary service connection. Based upon the evidence of record, the Board finds that the Veteran’s bilateral hip degenerative joint disease did not manifest during active service, nor did any bilateral hip degenerative joint disease manifest within a year of discharge. Service treatment records are silent for specific treatment or diagnoses of bilateral hip degenerative joint disease, and post-service medical treatment records do not establish diagnoses or treatment of the specific claimed conditions within one year of service discharge. Though service treatment records note an acute treatment for general pelvic pain, no specific joints were treated or diagnosed. Further, no objective medical evidence of record has positively opined the Veteran’s claimed bilateral hip degenerative joint disease is related to his active service, to include his acute pelvic pain in service, and the preponderance of the objective medical evidence of record fails to establish the Veteran’s claimed disabilities is as a result of his service-connected lumbar spine disability. The Board finds the opinions of the September 2014, August 2015, and January 2020 VA examiners to be probative and persuasive. The examiners are shown to have reviewed of the evidence of record, including the contentions of the Veteran, and the evidence as to the Veteran’s history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the preponderance of the evidence failed to demonstrate that the claimed disabilities manifested during active service, fail to establish the claimed disabilities manifested as a result of service or within one year of service, and fail to demonstrate that the claimed disabilities are caused by or aggravated by any service-connected disability. The Veteran’s lay statements of record are competent insofar as they report symptomatology which is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts a nexus between his bilateral hip degenerative joint disease and his service-connected lumbar spine disability and active service, the Board finds them to be less probative, as the Veteran is not shown to possess expert knowledge which would enable him to render such a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, his lay statements concerning a nexus between his claimed disabilities and his service-connected disability and/or active service do not constitute competent medical evidence and lack probative value. For the reasons stated above, the Board concludes that the preponderance of evidence is against granting service connection for bilateral hip degenerative joint disease on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary disorders of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between joint motion pain as opposed to pain that places further limitation of the particular range of motion. Disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The examination upon which ratings are based must 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 the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. §§ 4.40, 4.45, 4.59 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson, 9 Vet. App. 7. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Since the Veteran timely appealed the rating initially assigned for his service-connected radiculopathy disabilities, the Board must consider entitlement to “staged” ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 3. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity from November 9, 2012 to January 7, 2020 and in excess of 20 percent since January 8, 2020. 4. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity from November 9, 2012 to January 7, 2020 and in excess of 20 percent since January 8, 2020. The Veteran generally asserts that his service-connected radiculopathy of the right and left lower extremities is more severe than his initial ratings reflect. An April 2020 rating decision granted an increased rating for both the service-connected left and right lower extremity radiculopathy disabilities with a 20 percent rating effective January 8, 2020. His bilateral lower radiculopathy disabilities are both rated separately under Diagnostic Code 8520. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” Id. A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating is assigned for moderately severe, incomplete paralysis. A 20 percent disability rating is assigned for moderate, incomplete paralysis. 38 C.F.R. § 4.124a , Diagnostic Code 8620. The Rating Schedule further clarifies that “when the [neural] involvement is wholly sensory, the rating should be for mild, or at most, [ ] moderate,” incomplete paralysis. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, 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. 38 C.F.R. § 4.124a. An April 2013 VA examination report noted bilateral radiculopathy. The examiner opined the radiculopathy was related to the Veteran’s service-connected lumbar spine disability. Both the right and left lower extremity radiculopathy was found to have mild intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner noted the overall severity of the bilateral lower extremity radiculopathy as mild. The examiner also noted decreased sensation in both the left and right lower leg and ankle as well as the feet and toes. An August 2015 VA examination report noted severe constant pain and intermittent pain as symptoms of the Veteran’s bilateral radiculopathy of the lower extremities. The examiner also noted moderate paresthesias and/or dysesthesias and mild numbness of both lower extremities. Additional decreased sensation in both the left and right lower leg and ankle, thighs and knees, and well as the feet and toes were similarly noted upon examination. A November 2015 VA examination report also noted severe constant pain and intermittent pain as symptoms of the Veteran’s bilateral radiculopathy of the lower extremities as well as moderate paresthesias and/or dysesthesias and mild numbness of both lower extremities. Additional decreased sensation in both the left and right lower leg and ankle, thighs and knees, and well as the feet and toes were similarly noted upon examination. A September 2016 VA examination report found moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and mild numbness as symptoms of the Veteran’s bilateral radiculopathy of the lower extremities. Additional decreased sensation in both the left and right upper anterior thighs, lower legs and ankles, thighs and knees, and well as the feet and toes were similarly noted upon examination. A January 2020 VA examination report noted both the right and left lower extremity radiculopathy was found to have severe constant pain, paresthesias and/or dysesthesias, and numbness. The examiner also noted decreased sensation in the Veteran’s lower legs and ankles as well as his feet and toes. Medical treatment records reflect the Veteran’s endorsement of daily bilateral pain associated with his radiculopathy as well as prescribed medications to manage the symptoms of his bilateral lower extremity radiculopathy. Based on a review of the evidence, the Board finds that a disability rating of 20 percent, but no higher, for the Veteran’s right lower extremity radiculopathy and left lower extremity radiculopathy is warranted from November 9, 2012 to January 7, 2020. In making this finding, the Board finds persuasive the VA examinations and medical treatment records reflecting persistent pain, paresthesia, and numbness in the left and right lower extremities from November 9, 2012 to January 7, 2020. In particular, from November 9, 2012 to January 7, 2020, the Veteran consistently endorsed constant pain and decreased sensation in both the left and right lower extremities. VA examination reports from November 9, 2012 to January 7, 2020 support the Veteran’s reported symptoms, and the examination reports similarly found the Veteran’s overall symptoms to manifest as moderate incomplete paralysis at worst. In light of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating for the left lower and right lower radiculopathy disabilities is warranted from November 9, 2012 to January 7, 2020. After review of the evidence, the Board finds that a rating in excess of 20 percent since January 8, 2020, and at any time during the appeal period, is not warranted. The Veteran has reported experiencing pain, paresthesia, and numbness in the left and right lower extremities. However, medical evidence of record does not reflect that he experiences weakness, muscle atrophy, other neurological impairments, or other indicia of more than moderate paralysis in either lower extremity since January 8, 2020 or at any time during the appeal period. All VA examination reports of record have noted normal motor strength, and the Veteran’s reflex examinations were overwhelmingly normal. All VA examiners of record have also noted the absence of other neurologic impairment related to the service-connected bilateral radiculopathy disability. In light of the above, the Board finds that the Veteran’s symptoms are primarily sensory in nature with limited loss of function. As noted, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent since January 8, 2020 for the Veteran’s bilateral radiculopathy of the lower extremities. 5. Entitlement to a rating in excess of 20 percent for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) from November 9, 2012 to January 7, 2020 and in excess of 40 percent since January 8, 2020. The Veteran also asserts that his service-connected lumbar spine disability with IVDS is more severe than his current ratings reflect, exclusive of his several temporary total ratings throughout the appeal period. An April 2020 rating decision granted an increased rating for the service-connected lumbar spine disability with a 40 percent rating effective January 8, 2020. His lumbar spine disability is rated under Diagnostic Code 5242-5243. The Board notes that Diagnostic Codes 5242 and 5243, which are used to evaluate degenerative arthritis and intervertebral disc syndrome was revised effective February 7, 2021. As the current appeal was certified to the Board prior to February 7, 2021, the Board will consider both versions of Diagnostic Codes 5242 and 5243 and apply whichever is more favorable to the Veteran. Prior to February 7, 2021, Diagnostic Code 5242 applied to arthritis of the spine and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Since February 7, 2021, Diagnostic Code 5242 applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5242 provides that degenerative arthritis other than prost-traumatic arthritis, is to be rated under Diagnostic Code 5003 on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved, and posttraumatic arthritis is to be rated under Diagnostic Code 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Under the rating schedule, Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on “incapacitating episodes” or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to this method of rating (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent rating is warranted if IVDS is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Additionally, the Board notes that since February 7, 2021, Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. 38 C.F.R. § 4.71a, Diagnostic Code 5243. There is a large amount of evidence in this case, consisting of mainly medical evidence. The Board notes that it has reviewed the evidence in its entirety but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (The Board is presumed to have considered all evidence presented in the record and is therefore not required to specifically discuss every piece of evidence.). The Board will address that evidence which is pertinent to the appeal. An April 2013 VA examination report noted the Veteran’s complaints of increased pain in his lower back and his reports of difficulty bending, sitting for more than 20 minutes, and standing for more than 10 minutes. Forward flexion measured 40 degrees and extension measured 10 degrees. The examiner noted localized tenderness without muscle spasm, guarding, or muscle atrophy. The examiner did find the Veteran had IVDS but did not have any incapacitating episodes as a result. The Veteran also endorsed regular use of a brace. An August 2015 VA examination recorded the Veteran had recently had spinal surgery, and he endorsed functional loss including inability to lift more than a few pounds, difficulty bending, and difficulty with prolonged standing. Forward flexion measured 10 degrees, and extension measured 10 degrees. The examiner noted muscle tenderness, guarding, and spasm which resulted in abnormal gait. No ankylosis of the spine was noted. The examiner diagnosed IVDS. He noted bed rest was prescribed by a physician with a total duration of 6 weeks in the past 12 months as noted in the Veteran’s medical treatment notes dated August 2014 and March 2015. The Veteran endorsed regular use of a cane and brace. A November 2015 VA examination report recorded the Veteran’s complaint of moderate to severe constant pain in the lower back as well as difficulty walking, standing, and laying down. Range of motion testing was unable to be completed because of the Veteran’s pain level. The examiner noted localized tenderness and guarding resulting in abnormal gait as well as IVDS with prescribed bed rest following incapacitating episodes as noted in the Veteran’s medical treatment notes dated August 2014 and March 2015. No ankylosis of the spine was noted. A September 2016 VA examination recorded the Veteran’s described functional loss as decreased range of motion and difficulty with ambulation. Forward flexion measured 60 degrees, and extension measured 20 degrees. The examiner noted localized tenderness in the lumbosacral area, and he described functional loss as pain and lack of endurance. The examiner noted flareups which limited forward flexion to 45 degrees as well as muscle spasm not resulting in abnormal gait. The examiner did not find ankylosis but did diagnose IVDS without incapacitating episodes. A January 2020 VA examination reported the Veteran’s complaints of daily pain and difficulty standing, driving, sitting, walking, bending or squatting, lifting, carrying, using stairs, and pushing or pulling objects. Forward flexion measured 20 degrees and extension measured 0 degrees. The examiner noted muscle guarding and spasm which resulted in abnormal gait. The examiner did not find ankylosis but did diagnose IVDS without incapacitating episodes. Medical treatment records throughout the appeal period reflect similar symptoms as noted by the VA examination reports of record. Specifically, the Veteran’s lumbar spine disability consistently caused functional loss such as pain, fatigue, and weakness throughout the appeal period. No medical treatment records reflect ankylosis of the spine at any time. Based on the reported symptomatology of the Veteran’s lumbar spine disability, the Board finds that when affording the Veteran the benefit of the doubt, a 40 percent rating for his service-connected lumbar spine disability is warranted from November 9, 2012 to January 7, 2020. In this regard, medical treatment records confirm functional loss symptoms throughout the appeal period and VA examination reports reflect forward flexion measured 10 degrees at worst during the appeal period without ankylosis of the spine. Although both the August 2015 and November 2015 VA examination reports note incapacitating episodes of at least six weeks in the previous 12 months as a result of the Veteran’s diagnosed IVDS, the Board finds that these periods of incapacitating episodes occurred during the period when the Veteran had a temporary total evaluation of 100 percent based on lumbar spine surgery and convalescence from July 30, 2014 to September 31, 2014 and from March 23, 2015 to September 31, 2015. See 38 C.F.R. § 4.30. Notably, both the August 2015 and November 2015 VA examiners cited the Veteran’s medical records for his 2014 and 2015 spine surgery as support for their findings of incapacitating episodes. Additionally, while a spine disability may be rated under the IVDS criteria at 38 C.F.R. § 4.71a, the Veteran’s lumbar spine disability does not warrant a rating under this criteria for any period. The VA examination reports and medical treatment records for the appeal period do not show, and the Veteran does not allege, any incapacitating episodes due to IVDS as defined in the criteria described earlier beyond the periods of temporary total evaluation described above. Thus, resolving all doubt in favor of the Veteran, the Board finds that a 40 percent rating for the entire appeal period is warranted. However, a rating in excess of 40 percent is not warranted at any time during the appeal as the Veteran does not have or has ever been noted to have spinal ankylosis, which is necessary for a rating in excess of 40 percent. The Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the VA medical professional who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran's current thoracolumbar spine disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula. As the Veteran is currently rated as compensable under Diagnostic Code 5242-5243, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability that he has not already been granted service connection for. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran has previously been granted service connection for bilateral lower extremity radiculopathy associated with his lumbar disability. Thus, affording the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS) more closely approximated the criteria for a 40 percent rating, and no higher, during the entire appeal period. Earlier Effective Date For an increased rating claim, the effective date shall be the “date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400 (o)(1). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 C.F.R. §§ 3.400 (o)(2); 38 U.S.C. § 5110 (b)(2). If the increase in severity occurred more than one year prior to the date of the claim, the increase is effective as of the date of the claim. Harper v. Brown, 10 Vet. App. 125 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). 6. Entitlement to an effective date earlier than November 9, 2012 for the grant of 20 percent disability rating for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS). The Veteran, through his representative, generally asserts that he is entitled to an effective date earlier than November 9, 2012 for the grant of a 20 percent disability rating for his service-connected lumbar spine disability. The Veteran first notified VA that he was seeking an initial increase in benefits for his service-connected lumbar spine disability in correspondence received by VA on November 9, 2012. The Veteran attended a VA examination in April 2013, and he was ultimately assigned a 20 percent evaluation for his lumbar spine disability effective November 9, 2012, the date the VA received his increased rating claim. For the purposes of this instant appeal, he has not challenged the 20 percent evaluation but instead seeks an earlier effective date for the assignment of his 20 percent disability rating. His service-connected lumbar spine disability is rated under Diagnostic Code 5242-5243. As noted earlier, prior to February 7, 2021, Diagnostic Code 5242 applied to arthritis of the spine and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Since February 7, 2021, Diagnostic Code 5242 applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5242 provides that degenerative arthritis other than prost-traumatic arthritis, is to be rated under Diagnostic Code 5003 on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved, and posttraumatic arthritis is to be rated under Diagnostic Code 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Under the rating schedule, Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on “incapacitating episodes” or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to this method of rating (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent rating is warranted if IVDS is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Despite the Veteran’s general assertions, the objective medical evidence of record does not support or indicate that an increase in symptomology occurred within one year prior to the Veteran’s date of claim. Specifically, a review of medical treatment records prior to the November date of claim, submitted during the appeal period, fails to show any reports or treatment for the service-connected lumbar spine disability which support a rating higher than 20 percent. There is no medical evidence that his condition increased in severity or that any symptoms manifested during the year immediately preceding receipt of the claim for an increased rating, and the treatment records fail to show symptomatology warranting a higher rating. As entitlement to a higher rating was not shown prior to the April 2013 VA examination, the appropriate effective date for the grant of a 20 percent rating is November 9, 2012, the date when such VA received the claim for an increased rating. 38 C.F.R. § 3.400 (o). In sum, absent evidence that an increase in disability occurred for the Veteran’s service-connected lumbar spine disability prior to November 9, 2012, an earlier effective date is not warranted. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As the preponderance of the evidence is against the assignment of an effective date earlier than November 9, 2012, for the award of a 20 percent rating for service-connected herniated nucleus pulposus with intervertebral disc syndrome (IVDS), the Board finds that the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Pursuant to 38 C.F.R. § 4.16 (a), a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In his November 2014 application for a TDIU, the Veteran stated that he was unable to continue as a self-employed photographer as of May 1, 2014 because of his severe lumbar pain. As an increased rating claim for such disability is currently on appeal, the current claim for a TDIU rating from November 9, 2012 (the date of his increased rating claim) to January 8, 2020 (the date the RO granted TDIU) is properly before the Board. See Rice, 22 Vet. App. at 447. From May 1, 2014 to January 7, 2020, the Veteran’s service-connected disabilities included herniated nucleus pulposus with intervertebral disc syndrome (IVDS) rated herein at 40 percent; right lower extremity radiculopathy rated herein at 20 percent; left lower extremity radiculopathy rated herein at 20 percent; hypertension rated at 10 percent; adjustment disorder rated at 30 percent effective October 20, 2014; and scar associated with herniated nucleus pulposus with intervertebral disc syndrome (IVDS) rated 10 percent effective March 23, 2015 and as noncompensable effective September 6, 2016. Since May 1, 2014, the Veteran’s combined rating was at least 70 percent which meets the threshold criteria for consideration of a schedular TDIU. 38 C.F.R. § 4.16 (a). Further review of the evidence reflects the significant impact that his service-connected disabilities, specifically the service-connected lumbar spine disability, has made on the Veteran’s ability to work since May 1, 2014. The record reflects the Veteran has a high school education and worked as a photographer since at least 2004. Medical treatment records and VA examination reports both confirm that the Veteran’s lumbar-spine disability impacted his ability to work by limiting his ability to stand, bend, or pick things up. Social Security Administration records dated December 2016 confirm and support the Veteran’s assertion that he is unable to work because of his lumbar spine disability. Nothing of record contradicts the Veteran’s assertion of unemployability as a result of his service-connected lumbar spine disability. In light of the Veteran’s occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that from May 1, 2014 to January 7, 2020, the Veteran’s service-connected lumbar spine disability symptoms were sufficient enough to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU from May 1, 2014 to January 7, 2020 is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.