Citation Nr: 21020913 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 09-36 850 DATE: April 8, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy prior to May 7, 2015, is denied. Entitlement to a rating of 20 percent, but not higher, for left lower extremity radiculopathy beginning May 7, 2015, is granted. Entitlement to a rating of 10 percent, but not higher, for right lower extremity radiculopathy of the sciatic nerve branch from July 31, 2014, to August 6, 2019, is granted. Entitlement to a rating of 20 percent, but not higher, for right lower extremity radiculopathy of the sciatic nerve branch beginning August 7, 2019, is granted. REMANDED Entitlement to service connection for a bowel and/or bladder disorder, to include as secondary to service-connected disability other than lumbar spine degenerative disc disease, is remanded. Entitlement to a rating in excess of 50 percent for right maxillary sinusitis, to include the question of entitlement to an extra-schedular disability rating under 38 C.F.R. § 3.321, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 24, 2009, is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine degenerative disc disease includes a diagnosis of intervertebral disc syndrome (IVDS) without physician-prescribed bedrest for at least six weeks or unfavorable ankylosis. 2. The Veteran’s left lower extremity radiculopathy is manifest by no more than mild incomplete paralysis prior to May 7, 2015. 3. The Veteran’s left lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis beginning May 7, 2015. 4. The Veteran’s right lower extremity radiculopathy of the sciatic nerve branch is manifest by no more than mild incomplete paralysis from July 31, 2014, to August 6, 2019. 5. The Veteran’s right lower extremity radiculopathy of the sciatic nerve branch is manifest by no more than moderate incomplete paralysis beginning August 7, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy prior to May 7, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 3. The criteria for entitlement to a rating of 20 percent, but not higher, for left lower extremity radiculopathy beginning May 7, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 4. The criteria for entitlement to a rating of 10 percent, but not higher, for right lower extremity radiculopathy of the sciatic nerve branch from July 31, 2014, to August 6, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 5. The criteria for entitlement to a rating of 20 percent, but not higher, for right lower extremity radiculopathy of the sciatic nerve branch beginning August 7, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to May 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2008 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2011, the Board held a central office hearing regarding the issue of entitlement to an increased rating for right maxillary sinusitis. A transcript of that hearing is associated with the claims file. The Veterans Law Judge (VLJ) who presided over that hearing is no longer at the Board. In an August 2019 correspondence, the Veteran declined the opportunity to appear at an additional Board hearing before a new VLJ. The issue of entitlement to an increased rating for right maxillary sinusitis has a long procedural history and was previously before the Board in December 2011, March 2016, September 2017, and January 2020. The remaining issues were also before the Board in January 2020. INCREASED RATING Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and 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). In cases where the question for consideration is the propriety of the initial disability rating assigned, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In cases where the question for consideration is the propriety of an increased rating disability previously granted, VA concentrates on the evidence that establishes the state of the veteran’s disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim; the appropriateness of a staged rating is also considered. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). A staged rating compensates the veteran for variations in the disability’s severity since the effective date of his award. 1. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease The Veteran contends that he is entitled to a higher rating for his lumbar spine degenerative disc disease. The Veteran’s disability is currently rated under DC 5243 for IVDS. Although portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this DC was not changed. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note 1. Unfavorable ankylosis is defined as 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. Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, would not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant to evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for IVDS based on incapacitating episodes. Although most of the VA examinations diagnose IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. There is no evidence in the claims file of bedrest prescribed by a physician for a period of at least six weeks during the appeal period. The preponderance of the evidence is also against a rating in excess of 40 percent for IVDS under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, pain during flare-ups, and pain during repetitive use over time. Even considering the Veteran’s lay reports of symptoms and noted functional loss, however, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. VA examinations found that the Veteran did not have ankylosis and indicated that even during flare ups and after repeated use over time the Veteran would still have range of motion in his thoracolumbar spine. The Veteran is already service connected for radiculopathy of the right and left lower extremity affecting the sciatic nerves. The ratings for these conditions are addressed in separate sections below. Additionally, the Veteran’s attorney argued that he has bowel and bladder problems “which may or may not be secondary to his back condition,” in a May 2012 informal claim. There is no evidence that the Veteran’s attorney had the medical experience or training to relate the Veteran’s conditions to his back disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent the May 2012 statement associated the Veteran’s bowl and bladder conditions with his back disability, the Board finds the statement is not competent. The May 2015, July 2018, and June 2020 VA examinations all found that the Veteran did not have a neurologic bowel or bladder problem associated with his back disability. There is no other evidence associated with the claims file that identified the Veteran’s diagnosed bowel and bladder conditions as neurologic conditions associated with the Veteran’s service-connected back disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy The Veteran contends that a higher rating is warranted for his left lower extremity radiculopathy. For the reasons that follow, the Board finds that an increased rating of 20 percent is warranted beginning May 7, 2015. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The first reference to the Veteran’s radiculopathy is a May 2012 informal claim in which the Veteran’s attorney indicated that the Veteran “has constant back pain with radiating pain to both lower extremities.” An April 2014 VA examination for mental condition noted that the Veteran was “walking very slowly and gingerly, seeming to be in pain.” This pain was not attributed to radiculopathy, however. A May 2014 VA medical center (VAMC) chiropractic record listed the Veteran’s complaint of “Chronic low back pain” without mentioning radiculopathy and reported that the Veteran had “Erect guarded posture and steady gait.” A June 2014 VAMC chiropractic record similarly noted only chronic low back pain and “Erect mildly guarded posture and steady gait.” A July 2014 VAMC care coordination record included the Veteran’s reported pain level of six due to “back & legs.” A July 2014 VAMC primary care record from the same date noted that the Veteran “has a long history of recurrent low back pain,” although the Veteran denied weakness or numbness. The July 2014 VAMC primary care record also referenced cervical spine pain and radiation to the left shoulder but did not mention radiation to the lower extremities. A September 2014 VAMC chiropractic record noted the Veteran’s report of “Chronic low back pain--worse than usual buring [sic] in the bilateral thighs/groin.” The Veteran’s gait was listed as normal in October 2014 and November 2014 VAMC records. In a December 2014 statement, the Veteran reported that “Due to my back issues, I now have issues with my legs and feet. They hurt all the time and I have issues standing or walking for any period of time.” The next day, a December 2014 VAMC chiropractic record noted “Chronic low back pain” as well as “Steady non-assisted gait” but did not reference radiation to the lower extremities. A December 2014 VA examination for mental disorders (which found the Veteran’s neuropsychological test results invalid) indicated that “Gait was slow and antalgic and assisted with a straight cane. He demonstrated significant pain behaviors throughout the examination, including position changing, sighing, and dramatic moaning at times.” A February 2015 VAMC chiropractic record documented the Veteran’s “Chronic low back pain” and “Steady non-assisted gait” but did not reference radiation to the lower extremities. A March 2015 VAMC primary care record indicated that the Veteran “walks with a cane” and assessed “Degenerative disc disease lumbar spinal and neuropathic pain component.” Based on the above evidence for the period prior to May 7, 2015, the Board finds no indication of trophic changes, sensory disturbance, loss of reflexes, muscle atrophy, or complete paralysis. The records do document intermittent issues with motor functions and pain. Although the Veteran mentioned “issues standing or walking for any period of time” due to his back, legs, and feet, the majority of the records reported a normal gait. Similarly, although the Veteran noted pain in multiple records across the period, the majority of the records were silent regarding pain in the lower left extremity. Moreover, beyond the Veteran’s report of a level six pain in his “back & legs” and his statement that his legs and feet “hurt all the time,” the frequency and severity of the Veteran’s left lower extremity radiculopathy is not generally noted. Because of this, the Board finds that the left lower extremity radiculopathy is primarily manifest by intermittent pain and intermittent impairment of motor functions. Accordingly, the level of impairment is most analogous to mild incomplete paralysis for the period prior to May 7, 2015, and a rating in excess of 10 percent is not warranted for radiculopathy of the left lower extremity in the period prior to May 7, 2015. 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8620. Turning to the period beginning May 7, 2015, the Board notes that this period begins with a VA examination. At the May 7, 2015 VA examination for the Veteran’s back, he reported functional loss of “increased pain with most movement with (L) radicular pain.” This VA examination recorded “moderate” “intermittent pain (usually dull)”; “paresthesias and/or dysesthesias”; and “numbness” of the left lower extremity. The VA examination also determined that the left lower extremity affected the sciatic nerve with “moderate” severity. A September 2015 VAMC primary care record noted that the Veteran’s “Back pain radiates to the bilateral posterior thighs… No numbness or tingling in his feet or hands.” A December 2015 private treatment record reported that the Veteran had “no frequent falls while walking; no fall in the past year; no fall since last visit.” A January 2016 VAMC primary care record noted numbness in the Veteran’s feet, which he attributed to his diabetes; the Veteran’s gait was “normal.” A January 2016 private hospital record indicated that the Veteran had no history of falling in the last three months, did not have an impaired gait, and did not use a mobility assistance device. A March 2016 private treatment record noted that the Veteran “reports no frequent falls while walking, no falls in the past year, no falls since last visit . . . and no moderate severity joint or muscle pain”; the Veteran was described as “ambulating normally.” A July 2017 private primary care record indicated that the Veteran “reports no weakness, no numbness.” In an August 2017 private primary care record, the Veteran complained of “bilat. leg pain and swelling, ongoing past year.” Although multiple private primary care records followed, the Veteran did not mention lower extremity pain again until May 2018. The Veteran denied weakness and numbness (September 2017, November 2017 private primary care records); his gait was “grossly normal” (October 2017 and April 2018 VAMC primary care records); and he denied any history of falls (November 2017 private hospital record). In a May 2018 private primary care record, the Veteran complained of “burning (feet) but reports no numbness… He reports no pain and no redness”; the only condition assessed was uncontrolled type II diabetes. A July 2018 VA examination for peripheral nerves determined that the Veteran had “Mild” “Intermittent pain (usually dull)”; “Paresthesias and/or dysesthesias”; and “Numbness” in the left lower extremity. The VA examination indicated that the Veteran had mild incomplete paralysis of the sciatic nerve. The Veteran reported at the VA examination that he “Constant[ly]” used a cane. The July 2018 VA examination for peripheral neuropathy also noted that left lower extremity muscle strength was all normal; the Veteran did not have any muscle atrophy; the Veteran’s left lower extremity reflexes were all normal; left lower extremity sensation testing for light touch was normal except for the foot and toes; and there were no trophic changes of the left lower extremity. The VA examination stated that the Veteran had increased pain with walking due to his peripheral neuropathy, which impacted his ability to work. A July 2018 VA examination for the Veteran’s back listed the Veteran’s “Intermittent pain (usually dull)” as “Moderate” and the “Paresthesias and/or dysesthesias” and “Numbness” as “Mild.” This VA examination also found the left sciatic nerve was “Mild[ly]” affected. A September 2018 VAMC primary care record described the Veteran’s gait as “grossly normal” but noted that the Veteran “Says his low back and his legs have been causing him some pain today… Says pain in the back radiates down his legs. Denies numbness/tingling in legs. Says with burning pain in legs.” A March 2019 VAMC primary care record also observed the Veteran’s gait to be “grossly normal.” In an August 2019 statement, the Veteran reported that his radiculopathy has definitely gotten much worse. My pain on a daily basis starts at an 8 on a scale of 1 to 10 and goes up from there. It stays numb all day, I use a cane. I can’t do stairs unless my wife helps me. It keeps me from sleeping and I wake up with pain. Because of the numbness I have fallen a lot, and my son has to help me get up. This started with my back pain and now it works down my legs. A September 2019 VAMC primary care record documented the Veteran’s gait as “grossly normal.” A December 2019 VA examination also recorded a normal gait. This VA examination found that the Veteran did not have peripheral neuropathy but instead the “symptoms are more likely due to referred pain from the primary lower back condition.” The VA examination noted the Veteran’s report of increasing pain in feet and legs… He has constant pain in the back of the legs to the posterior ankle… He has intermittent numbness in the feet that occurs without apparent provocation. He has intermittent pain in the feet in various areas at various times. The December 2019 VA examination determined that the Veteran’s left lower extremity had normal strength; the Veteran did not have muscle atrophy; the deep tendon reflexes were all normal; light touch sensation testing was normal except for the lower leg and ankle; and there were no trophic changes. The VA examination noted that the Veteran “Regular[ly]” used a cane “to help balance if his feet get numb.” A June 2020 VA back examination determined that the Veteran had “Mild” “Intermittent pain (usually dull)”; “Paresthesias and/or dysesthesias”; and “Numbness” in the left lower extremity. This VA examination stated that the left sciatic nerve was affected by “Mild” neuropathy. After considering this evidence, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, and pain in the period beginning May 7, 2015. Although the Veteran reported the “Constant” use of a cane at the July 2018 VA examination, the Board finds this statement lacks credibility when contrasted with the many contemporaneous medical records that documented a normal gait as well as the December 2019 VA examinations that followed and recorded “Regular” use of a cane. The Veteran also reported that numbness had caused him to “fall[] a lot” in his August 2019 statement, but the Board similarly finds this statement lacks credibility because he specifically denied falls in 2016 and 2017 treatment records and his gait was consistently described as normal before and after the August 2019 statement. The Veteran mentioned needing help to navigate stairs. As for sensory disturbance, the May 2015 VA examination noted “moderate” “paresthesias and/or dysesthesias” and “numbness.” The July 2018 VA examination for peripheral neuropathy listed these symptoms as “mild,” though it did document decreased sensation for light touch in the foot and toes. The July 2018 and June 2020 VA back examinations likewise listed “paresthesias and/or dysesthesias” and “numbness” as “mild.” The July 2018 VA back examination and December 2019 VA examination noted intermittent numbness in the feet. For pain, the May 2015 VA examination and July 2018 VA back examination recorded “moderate” “intermittent pain (usually dull)”; the July 2018 VA examination for peripheral neuropathy listed this pain as “mild,” and noted increased pain with walking. The June 2020 VA back examination described the intermittent pain as “mild.” The Veteran reported pain in several treatment records and described the pain as “daily . . . start[ing] at an 8” in his August 2019 statement. The December 2019 VA examination noted “constant pain in the back of the legs” as well as “intermittent pain in the feet.” The Veteran is competent to report his level of pain, but the Board gives the multiple medical records that consistently listed his pain as, at worst, “moderate,” greater weight in favor of finding the Veteran’s pain is moderate. Because the Veteran used a cane less than constantly, needed help using stairs, and experienced moderate sensory disturbance and constant moderate pain, the Board finds the level of impairment for the period beginning May 7, 2015, is most analogous to “moderate” incomplete paralysis. The Board acknowledges the lay assertions of impairment of motor functions and constant pain, such as in the Veteran’s December 2014 statement. However, the Board finds the contemporaneous medical records to be more probative because they listed the Veteran’s complaints (or lack thereof) and the providers’ observations at the time of treatment. The Board has considered all other potentially applicable DCs, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service connected. Additionally, although the Veteran reported difficulty sleeping in his August 2019 statement due to his service-connected radiculopathy, sleep disturbance is already considered in his service-connected depressive disorder. The regulations prohibit the Board from evaluating the same disability or manifestation under multiple diagnoses. 38 C.F.R. § 4.14. Therefore, a separate or higher rating under a different DC is not warranted. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left lower extremity radiculopathy prior to May 7, 2015, but that a 20 percent rating is warranted thereafter. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating of 10 percent, but not higher, for right lower extremity radiculopathy of the sciatic nerve branch Because neurological abnormalities are evaluated in conjunction with the back disability from which they stem, the issue of entitlement to an increased rating for right lower extremity radiculopathy of the sciatic nerve branch is before the Board. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The first reference to the Veteran’s radiculopathy is a May 2012 informal claim in which the Veteran’s attorney indicated that the Veteran “has constant back pain with radiating pain to both lower extremities.” An April 2014 VA examination for mental condition noted that the Veteran was “walking very slowly and gingerly, seeming to be in pain.” This pain was not attributed to radiculopathy, however. A May 2014 VAMC chiropractic record listed the Veteran’s complaint of “chronic low back pain” without mentioning radiculopathy and reported that the Veteran had “Erect guarded posture and steady gait.” A June 2014 VAMC chiropractic record similarly noted only chronic low back pain and “Erect mildly guarded posture and steady gait.” A July 31, 2014 VAMC care coordination record included the Veteran’s reported pain level of six due to “back & legs.” A July 2014 VAMC primary care record from the same date noted that the Veteran “has a long history of recurrent low back pain,” although the Veteran denied weakness or numbness. The July 2014 VAMC primary care record also referenced cervical spine pain and radiation to the left shoulder but did not mention radiation to the lower extremities. A September 2014 VAMC chiropractic record noted the Veteran’s report of “chronic low back pain--worse than usual buring [sic] in the bilateral thighs/groin.” The Veteran’s gait was listed as normal in October 2014 and November 2014 VAMC records. In a December 2014 statement, the Veteran reported that “Due to my back issues, I now have issues with my legs and feet. They hurt all the time and I have issues standing or walking for any period of time.” The next day, a December 2014 VAMC chiropractic record noted “chronic low back pain” as well as “Steady non-assisted gait” but did not reference radiation to the lower extremities. A December 2014 VA examination for mental disorders (which found the Veteran’s neuropsychological test results invalid) indicated that “Gait was slow and antalgic and assisted with a straight cane. He demonstrated significant pain behaviors throughout the examination, including position changing, sighing, and dramatic moaning at times.” A February 2015 VAMC chiropractic record documented the Veteran’s “Chronic low back pain” and “Steady non-assisted gait” but did not reference radiation to the lower extremities. A March 2015 VAMC primary care record indicated that the Veteran “walks with a cane” and assessed “Degenerative disc disease lumbar spinal and neuropathic pain component.” At a May 2015 VA back examination, the Veteran reported functional loss of “Increased pain with most movement with (L) radicular pain.” The Veteran did not report radiculopathy of the right lower extremity, and the VA examination neither diagnosed right lower extremity radiculopathy nor listed any symptoms affecting the right lower extremity. In a July 2015 notice of disagreement, the Veteran’s attorney wrote that service connection should be granted for radiculopathy of the right leg because “If he has radiculopathy, he contends it affects him bilaterally, not just on one side.” A September 2015 VAMC primary care record noted that the Veteran’s “Back pain radiates to the bilateral posterior thighs… No numbness or tingling in his feet or hands.” A September 2015 VAMC primary care nursing record noted that the Veteran complained of “lower back pain bilateral leg and foot pain.” A December 2015 private treatment record reported that the Veteran had “no frequent falls while walking; no fall in the past year; no fall since last visit.” A January 2016 VAMC primary care record noted numbness in the Veteran’s feet, which he attributed to his diabetes; the Veteran’s gait was “normal.” A January 2016 private hospital record indicated that the Veteran had no history of falling in the last three months, did not have an impaired gait, and did not use a mobility assistance device. A March 2016 private treatment record noted that the Veteran “reports no frequent falls while walking, no falls in the past year, no falls since last visit… and no moderate severity joint or muscle pain”; the Veteran was described as “ambulating normally.” A July 2017 private primary care record indicated that the Veteran “reports no weakness, no numbness.” In an August 2017 private primary care record, the Veteran complained of “bilat. leg pain and swelling, ongoing past year.” Although multiple private primary care records followed, the Veteran did not mention lower extremity pain again until May 2018. The Veteran denied weakness and numbness (September 2017 and November 2017 private primary care records); he denied tingling, burning, and shooting pain (November 2017 private primary care record); his gait was “grossly normal” (October 2017 and April 2018 VAMC primary care records); and he denied any history of falls (November 2017 private hospital record). In a May 2018 private primary care record, the Veteran complained of “burning (feet) but reports no numbness…He reports no pain and no redness”; the only condition assessed was uncontrolled type II diabetes. A July 2018 VA examination for peripheral nerves determined that the Veteran had “Mild” “Intermittent pain (usually dull)”; “Paresthesias and/or dysesthesias”; and “Numbness” in the right lower extremity. The VA examination indicated that the Veteran had mild incomplete paralysis of the sciatic nerve. The Veteran reported at the VA examination that he “Constant[ly]” used a cane. The July 2018 VA examination for peripheral neuropathy also noted that right lower extremity muscle strength was all normal; the Veteran did not have any muscle atrophy; the Veteran’s right lower extremity reflexes were all normal; right lower extremity sensation testing for light touch was normal except for the foot and toes; and there were no trophic changes of the right lower extremity. The VA examination stated that the Veteran had increased pain with walking due to his peripheral neuropathy, which impacted his ability to work. A July 2018 VA back examination listed the Veteran’s “Intermittent pain (usually dull)” as “Moderate” and the “Paresthesias and/or dysesthesias” and “Numbness” as “Mild.” This VA examination also found the right sciatic nerve was “Mild[ly]” affected. A September 2018 VAMC primary care record described the Veteran’s gait as “grossly normal” but noted that the Veteran “Says his low back and his legs have been causing him some pain today…Says pain in the back radiates down his legs. Denies numbness/tingling in legs. Says with burning pain in legs.” A March 2019 VAMC primary care record also observed the Veteran’s gait to be “grossly normal.” In an August 7, 2019 statement, the Veteran reported that his radiculopathy has definitely gotten much worse. My pain on a daily basis starts at an 8 on a scale of 1 to 10 and goes up from there. It stays numb all day, I use a cane. I can’t do stairs unless my wife helps me. It keeps me from sleeping and I wake up with pain. Because of the numbness I have fallen a lot, and my son has to help me get up. This started with my back pain and now it works down my legs. A September 2019 VAMC primary care record documented the Veteran’s gait as “grossly normal.” A December 2019 VA examination also recorded a normal gait. This VA examination found that the Veteran did not have peripheral neuropathy but instead the “symptoms are more consistent with referred pain from the primary lower back condition.” The VA examination noted the Veteran’s report of increasing pain in feet and legs… He has constant pain in the back of the legs to the posterior ankle… He has intermittent numbness in the feet that occurs without apparent provocation. He has intermittent pain in the feet in various areas at various times. The December 2019 VA examination determined that the Veteran’s right lower extremity had normal strength; the Veteran did not have muscle atrophy; the deep tendon reflexes were all normal; light touch sensation testing was normal except for the lower leg and ankle; and there were no trophic changes. The VA examination noted that the Veteran “Regular[ly]” used a cane “to help balance if his feet get numb.” A June 2020 VA back examination determined that the Veteran had “Mild” “Intermittent pain (usually dull)”; “Paresthesias and/or dysesthesias”; and “Numbness” in the right lower extremity. This VA examination stated that the right sciatic nerve was affected by “Mild” neuropathy. Based on the above evidence, the Board finds that a 10 percent rating is warranted beginning July 31, 2014. Although right lower extremity radiculopathy was reported in the May 2012 informal claim from the Veteran’s attorney, the Veteran did not mention right lower extremity radiculopathy until July 31, 2014. Between May 2012 and July 2014, the Veteran received at least two VAMC chiropractic treatments at which he did not mention radiculopathy. For these reasons, the Board finds that, giving the Veteran the benefit of the reasonable doubt, the appropriate date to begin the 10 percent rating is July 31, 2014. On that date, he reported pain in his “legs.” Although he also denied weakness and numbness in a different July 31, 2014 VAMC treatment record (and referenced left should radiation but not lower extremity radiation), the Board grants the Veteran the benefit of the reasonable doubt and finds that he experienced right lower extremity pain on that date. For the period from July 31, 2014, to August 6, 2019, the Board finds no documentation of trophic changes, muscle atrophy, loss of reflexes, or complete paralysis. The records indicate intermittent issues with motor functions, sensory disturbances, and pain. For motor functions, although the Veteran reported problems such as “issues standing or walking” (December 2014 statement) and “Constant[ly]” using a cane (July 2019 VA examination for peripheral neuropathy), the Board finds that this was only of “mild” severity prior to August 7, 2019. The majority of the treatment records document a normal gait, without mention of a cane. The August 7, 2019 statement also indicated that the Veteran experienced “a lot” of falls. 2016 and 2017 treatment records specifically denied falls, however, and his gait was consistently described as normal. For these reasons, the Board finds the Veteran’s statements regarding his issues standing, problems walking, and his constant use of a cane to be less credible than the contemporaneous medical records that documented a normal gait without falls. As for sensory disturbances, the treatment records related intermittent findings of numbness. The two July 2018 VA examinations noted “Mild” “Paresthesias and/or dysesthesias” and “Numbness.” The July 2018 VA examination for peripheral nerves also recorded normal light-tough sensation except for the foot and toes. Regarding the Veteran’s pain, after the December 2014 VAMC record referenced leg pain, there were multiple treatment records noting low back pain without mentioning the right lower extremity. The Veteran also attended the May 2015 VA examination in which he did not report right lower extremity pain. Treatment records from the September 2015 VAMC primary care record to the August 2017 private primary care record noted lower extremity pain, and then the next reference to pain is burning in his feet in May 2018, which he associated with his diabetes. The July 2018 VA examination for peripheral neuropathy indicated that the Veteran had “mild” “Intermittent pain (usually dull)” and increased pain with walking. The July 2018 VA back examination determined that the Veteran’s “intermittent pain (usually dull)” was “moderate.” The Veteran reported “some pain” in a September 2018 VAMC primary care record. Based on this evidence of irregular issues with motor functions, sporadic sensory disturbances, and pain that was intermittently reported and only once classified as moderate, the Board finds that the level of impairment of the right lower extremity radiculopathy is most analogous to “mild” incomplete paralysis for the period from July 31, 2014, to August 6, 2019. Turning to the period beginning August 7, 2019, the Board finds that the Veteran’s right lower extremity radiculopathy is primarily manifest by impairment of motor functions, sensory disturbance, and pain. Regarding the issue of impairment of motor functions, the Board notes the Veteran’s “Regular” reported use of a cane, his “fall[ing] a lot,” and his report that he cannot use stairs without help. For the reported falls due to numbness, the Board finds this statement lacks credibility because he specifically denied falls in 2016 and 2017 treatment records and his gait was consistently described as normal before and after the August 2019 statement. For sensory disturbance, the June 2020 VA back examination listed “paresthesias and/or dysesthesias” and “numbness” as “mild.” The December 2019 VA examination noted intermittent numbness in the feet. As for pain, the December 2019 VA examination recorded “constant pain” in the legs and “intermittent pain” in the feet. The June 2020 VA back examination described the intermittent pain as “mild.” The Veteran reported the pain as “daily . . . start[ing] at an 8” in his August 2019 statement. The Veteran is competent to report his level of pain, but the Board gives greater weight to the medical evidence that consistently listed his pain as, at worst, “moderate,” because it described his pain across time with contemporary findings. Because the Veteran used a cane less than regularly, needed help using stairs, felt mild sensory disturbance, and experienced constant moderate pain, the Board finds the level of impairment for the period beginning August 7, 2019, is most analogous to “moderate” incomplete paralysis. The Board acknowledges the lay assertions of impairment of motor functions and constant pain, such as in the Veteran’s December 2014 statement. However, the Board finds the contemporaneous medical records to be more probative because they listed the Veteran’s complaints (or lack thereof) and the providers’ observations at the time of treatment. The Board has considered all other potentially applicable DCs, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service connected. Additionally, although the Veteran reported difficulty sleeping due to his service-connected radiculopathy in his August 2019 statement, sleep disturbance is already considered in his service-connected depressive disorder. The regulations prohibit the Board from evaluating the same disability or manifestation under multiple diagnoses. 38 C.F.R. § 4.14. Therefore, a separate or higher rating under a different DC is not warranted. In conclusion, the Board finds that the preponderance of the evidence supports a 10 percent rating for right lower extremity radiculopathy of the sciatic nerve branch from July 31, 2014, to August 6, 2019. Beginning August 7, 2019, a 20 percent rating is warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a bowel and/or bladder disorder, to include as secondary to service-connected disability other than lumbar spine degenerative disc disease, is remanded. Remand is required to obtain a VA medical opinion that fulfills the directives of the prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). To address the prior remand directive, the VA examiner completed VA examinations and medical opinions for three different body systems. The Board will address the VA medical opinions for each body system in turn. For the VA medical opinions relating to the Veterans gastrointestinal conditions, the June 2020 VA medical opinion failed to address whether the Veteran’s in-service nausea was a potential cause of his diagnosed gastroesophageal reflux disease (GERD), hiatal hernia, and esophagitis. Relatedly, the June 2020 VA medical opinion noted that “Vomiting is a common symptom of esophagitis, and is the more likely source of the veteran’s nausea & vomiting, rather than the other way around” but did not address the nausea and vomiting that occurred prior to the Veteran’s 2012 diagnosis of esophagitis. Furthermore, the June 2020 VA medical opinion did not address whether the Veteran’s medications for service-connected disabilities caused or aggravated his gastrointestinal conditions. Finally, the VA medical opinions failed to provide a rationale for why the Veteran’s gastrointestinal conditions were not caused or aggravated by his service-connected disabilities. Regarding the VA medical opinions for the Veteran’s diagnosed bladder conditions (benign prostate hyperplasia (BPH) and frequent urinary tract infections (UTIs)), the June 2020 VA medical opinion (and December 2020 addendum VA medical opinion) relied on the Veteran’s statement that his UTIs were related to his lack of circumcision. No further rationale was provided, and there is no evidence that the Veteran has the necessary expertise to render such an opinion. In addition, the June 2020 VA medical opinion (and December 2020 addendum VA medical opinion) did not provide a rationale for why BPH was less likely than not related to service or a service-connected disability, instead stating simply that “BPH is a common development with men as they age.” Finally, the December 2020 addendum VA medical opinion failed to provide a rationale regarding why the Veteran’s BPH and frequent UTIs are not secondary to his service-connected depressive disorder. For the VA medical opinions relating to his diagnosed bowel condition (diverticulitis), a June 2020 VA medical opinion stated that the Veteran’s frequent nausea and vomiting in service would “in no way account for the onset of his bowel condition,” but did not state why. Moreover, a December 2020 addendum VA medical opinion failed to provide a rationale regarding why his diverticulitis is not secondary to his service-connected depressive disorder. 2. Entitlement to a rating in excess of 50 percent for right maxillary sinusitis, to include the question of entitlement to an extra-schedular disability rating under 38 C.F.R. § 3.321, is remanded. As discussed in the January 2020 Board remand, the question of the Veteran’s entitlement to a disability rating higher than 50 percent remains before the Board. Pursuant to DC 6513, a 50 percent disability rating is the maximum schedular rating for maxillary sinusitis; however, the Veteran’s attorney argues that an extra-schedular disability rating under 38 C.F.R. § 3.321 is warranted. The Board previously determined that the question of an extra-schedular disability rating under 38 C.F.R. § 3.321 is inextricably intertwined with the current development of the issue of service connection for a bowel and/or bladder disorder. Therefore, remand pending completion of the development ordered on the gastrointestinal service connection issue is warranted. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 3. Entitlement to a TDIU prior to September 24, 2009, is remanded. The January 2020 Board remand noted the Veteran’s assertion that he has been unable to work on a full-time basis since January 17, 2009, due to his service-connected disabilities. The Veteran does not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for the period from January 17, 2009 through September 24, 2009. Resolution of the claim for a rating in excess of 50 percent for right maxillary sinusitis could affect the issue of entitlement to a TDIU prior to September 24, 2009. The Board therefore finds the issues are inextricably intertwined and remand is necessary pending resolution of the right maxillary sinusitis claim. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether any gastrointestinal condition, including GERD, hiatal hernia, and esophagitis, 2. Is at least as likely as not related to the Veteran’s active duty service, including his in-service nausea and vomiting. 3. Is at least as likely as not caused by, or otherwise due to, any service-connected disability, including sinusitis. 4. Is at least as likely as not aggravated beyond its natural progression by any service-connected disability, to include sinusitis and/or the Veteran’s medications for sinusitis. If the clinician determines that esophagitis is “the more likely source of the veteran’s nausea [and] vomiting,” as stated in the June 2020 VA medical opinion, the clinician must account for the nausea and vomiting that occurred prior to the 2012 diagnosis of esophagitis. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Any opinions expressed must be accompanied by a complete rationale. 5. Obtain an addendum opinion from an appropriate clinician regarding whether any diagnosed bladder condition, including BPH and frequent UTIs, 6. Is at least as likely as not related to service. 7. Is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Any opinions expressed must be accompanied by a complete rationale. 8. Obtain an addendum opinion from an appropriate clinician regarding whether any bowel condition, including diverticulitis, 9. Is at least as likely as not related service, to include in-service vomiting and nausea. 10. Is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected depressive disorder. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Any opinions expressed must be accompanied by a complete rationale. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.