Citation Nr: 21021774 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-07 887 DATE: April 14, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for left ankle strain/arthritis is denied. Entitlement to a disability evaluation in excess of 10 percent for right ankle strain/arthritis is denied. Entitlement to a disability evaluation in excess of 10 percent for right knee arthritis based upon limitation of motion is denied. Entitlement to a compensable disability evaluation for right knee arthritis based upon subluxation/lateral instability is denied. Entitlement to a disability evaluation in excess of 10 percent for lumbosacral strain prior to December 9, 2020, is denied. Entitlement to a 40 percent disability evaluation, and no more, for lumbosacral strain from December 9, 2020, is granted. Entitlement to a 20 percent disability evaluation, and no more, for left lower extremity radiculopathy from December 11, 2011 is granted. Entitlement to a 20 percent disability evaluation, and no more, for right lower extremity radiculopathy from December 11, 2011 is granted. Entitlement to a disability evaluation in excess of 20 percent for right big toe fracture residuals is denied. FINDINGS OF FACT 1. The Veteran's left ankle strain/arthritis has been manifested by pain on motion, limitation of motion, and functional loss, without functional loss equivalent to marked limitation of motion. 2. The Veteran's right ankle strain/arthritis has been manifested by pain on motion, limitation of motion, and functional loss, without functional loss equivalent to marked limitation of motion. 3. Throughout the appeal period, the Veteran was not shown to have right knee extension limited to less than 0 degrees or flexion limited to less than 45 degrees, with no subluxation/instability being demonstrated. 4. Prior to December 9, 2020, the Veteran has not been shown to have forward flexion of the lumbar spine to less than 90 degrees, with no additional loss of motion after repetitive use; with no findings of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and incapacitating episodes having a total duration of at least one week but less than two weeks during any 12 month period. 5. For the time period from December 9, 2020 the Veteran was noted to have forward flexion limited to 30 degrees; lumbosacral strain was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes requiring prescribed bed rest during any 12 month time period. 6. Radiculopathy of the left lower extremity has resulted in moderate impairment from December 21, 2011. 7. Radiculopathy of the right lower extremity has caused moderate impairment from December 21, 2011. 8. The Veteran's service-connected right big toe fracture residuals are manifested by no more than moderately severe symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for left ankle strain/arthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2020 & 2021). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for right ankle strain/arthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2020 & 2021). 3. The criteria for a disability evaluation in excess of 10 percent for right knee arthritis based upon limitation of motion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2020 & 2021). 4. The criteria for a compensable evaluation for right knee arthritis based upon subluxation/lateral instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020 & 2021). 5. The criteria for an evaluation in excess of 10 percent for lumbar strain prior to December 9, 2020 were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes Diagnostic Codes 5003, 5242, 5235-5243 (2020 & 2021). 6. The criteria for a 40 percent disability evaluation, and no more, for lumbar strain from December 9, 2020 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes 5003, 5242, 5235-5243 (2020 & 2021). 7. For the right lower extremity, the criteria for a 20 percent disability evaluation, and no more, for moderate incomplete paralysis for the sciatic nerve have been met from December 21, 2011. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2020). 8. For the left lower extremity, the criteria for a 20 percent disability evaluation, and no more, for moderate incomplete paralysis for the sciatic nerve have been met from December 21, 2011. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2020). 9. The criteria for a disability rating greater than 20 percent for service-connected right big toe fracture residuals have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2020 & 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1984 to April 1987. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. In August 2020, the Board remanded this matter for further development. The requested development has been completed and the matter is now ready for appellate review. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2019). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In this case, the Board finds that the medical evidence of record is sufficient to decide the case and is compliant with prevailing caselaw. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right and Left Ankle Diagnostic Code 5271 provides that a 10 percent rating is assignable for moderate limited motion of the ankle. A 20 percent rating is assignable for marked limited motion of the ankle. 38 C.F.R. § 4.71, Diagnostic Code 5271 (2019). Normal dorsiflexion of the ankle ranges from 0 to 20 degrees. Normal plantar flexion of the ankle ranges from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II (2019). Diagnostic Code 5270 is also potentially applicable to this claim. It provides that a rating of at least 20 percent is assignable for ankylosis of the ankle. If an ankle is ankylosed in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees, a 30 percent rating is assignable for the ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2019). Ankylosis is the stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79 (1996). The Veteran maintains that higher disability evaluations are warranted for his left and right ankle disorders as the symptomatology associated with each is more severe than that which is currently contemplated by the assigned disability evaluations. In conjunction with his claim, the Veteran was afforded a VA examination in March 2012. The Veteran described the pain as unbearable when his feet or ankles were touched. Physical examination revealed dorsiflexion to 10 degrees and plantar flexion to 25 degrees on the right. Dorsiflexion was to 15 degrees and plantar flexion was to 20 degrees on the left. Functional loss was caused by pain on movement. Muscle strength was 5/5 for plantar and dorsiflexion on the left and right. There was no ankylosis. The Veteran reported using assistive devices with ankle flareups. The Veteran stated that standing and walking caused his ankle pain to worsen. He indicated that he was unable to stand or walk for more than 20 minutes. At the time of a December 2020 VA examination, the Veteran was diagnosed with degenerative arthritis of the right and left ankles. The Veteran reported that his ankles continued to progressively worsen. Flareups caused aching and stiffness. He was unable to perform prolonged walking, running, standing. Physical examination revealed dorsiflexion to 10 degrees and plantar flexion to 20 degrees on the right and left. Pain was noted but did not result in functional loss. Repetitive motion revealed no additional limitation of motion. The examiner indicated that pain, weakness, fatigability or incoordination would significantly limit functional ability, with repeated use over a period of time, with dorsiflexion being limited to 5 degrees and plantar flexion being limited to 10 degrees for both ankles. The Veteran was estimated to have the same range of motion with flareups. Muscle strength was reported as 4/5 and the Veteran was specifically found to not have ankylosis. There was no muscle atrophy. Ankle instability testing revealed negative results. The Veteran was noted to use a cane on a constant basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of marked limited motion of the left or right ankle, so the criteria for an increased disability rating in excess of 10 percent under DC 5271 are not approximated or met for any period. Throughout the rating period, the left ankle disability was manifested by dorsiflexion ranging from 5 to 10 degrees (out of 20 degrees) and plantar flexion ranging from 10 to 25 degrees on the right and 10 to 20 degrees on the left (out of 45 degrees) including after consideration of orthopedic limiting factors (38 C.F.R. §§ 4.40 , 4.45, 4.59, DeLuca), resulting in no more than moderate left or right ankle limitation. In consideration of the foregoing, the Board finds that, under the facts of this case, the range of motion lost on the left or right amounts to no more than moderate limitation of left or right ankle motion, which is consistent with the 10 percent schedular ratings assigned; therefore, higher increased ratings under DC 5271 are not warranted for any period. 38 C.F.R. §§ 4.3, 4.7. No higher or separate schedular rating is warranted under any of the other diagnostic codes pertaining to the ankle. The left or right ankle disabilities are not manifested by ankylosis; therefore, a higher rating is not warranted under either DC 5270 for ankle ankylosis or DC 5272 for subastragalar or tarsal joint ankylosis. Also, neither the left nor right ankle has undergone astragalectomy and is not manifested by malunion of os calcis or astragalus; therefore, a higher rating under DC 5274 or DC 5273 is not warranted. 38 C.F.R. § 4.71a. The Board notes that regulations regarding limitation of motion of the ankle changed effective February 7, 2021. The assigned percentages remained the same for the disabilities, with the ankle disabilities still being described as either moderate (warranting a 10 percent disability evaluation under DC 5271) or marked (warranting a 20 percent disability under DC 5271). The new regulation defines moderate as less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion. It defines marked as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. These regulations are not retroactive. Applying these regulations would not warrant a higher disability evaluation from February 7, 2021 for either the right or left ankle arthritis. The statements of the Veteran as to the extent of his current symptoms have been considered. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Based upon the guidance of the Court in Hart, the Board has considered whether staged ratings are appropriate. However, in the present case, the Veteran's symptoms have remained relatively consistent throughout the course of the period on appeal, as such, staged ratings are not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). There is simply no basis upon which to grant the Veteran's claims. Right Knee Limitation of motion of the knee is addressed in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees; 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees; 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The knee is considered a major joint. 38 C.F.R. § 4.45(f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that regulations regarding the musculoskeletal system changed effective February 7, 2021. While DCs 5260 and 5261 remained the same, DC 5257 changed as follows: Recurrent subluxation or instability: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation 30 One of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 20 Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 10 Patellar instability: A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker 30 A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker 20 A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker 10 Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). The General Counsel further held that separate ratings could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. The Veteran maintains that the symptomatology associated with his right knee warrants an evaluation in excess of that which has currently been assigned. In conjunction with his claim, the Veteran was afforded a VA examination in March 2012. The Veteran reported having daily knee pain at that time. He noted having flareups with severe pain and swelling and stiffness. Physical examination revealed flexion to 45 degrees and extension to 0 degrees. There was no objective evidence of painful motion. Repetitive testing was not performed due to pain. There was no functional loss of the knee. Pain was present on the right side. Muscle strength was 5/5 for flexion and extension. Joint stability testing was normal. There was no subluxation/dislocation. There was no meniscal condition. The Veteran used crutches, a cane, and a walker on a regular basis with occasional use of a brace and a wheelchair. The Veteran reported having severe knee pain and stated that he was unable to stand or walk for more than twenty minutes. At the time of a December 2020 VA examination, the Veteran was diagnosed as having right knee degenerative arthritis. The Veteran reported having aching and stiffness. He was unable to do prolonged walking, running, or standing. Physical examination revealed that the Veteran had range of motion from 0 to 80 degrees. There was pain on flexion and extension. There was also pain with weightbearing. There was objective evidence of crepitus. There was no additional loss of motion with repetitive testing. The examiner indicated that range of motion would be decreased from 0 to 40 degrees following repetitive use over time. The examiner reported that the Veteran's right knee caused pain and interference with standing. Muscle strength was 4/5. There was no muscle atrophy. There was no ankylosis. There was no lateral instability or recurrent subluxation. Testing was normal for anterior instability, posterior instability, medial instability, and lateral instability. The Veteran was noted to constantly use a cane for all of his service-connected disabilities. The examiner stated that there was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the right knee. Passive range of motion was the same as active. The Board finds that as it relates to flexion of the right knee, the Veteran has not been shown to have flexion to less than 40 degrees, with pain, to include after repetitive use over time, at the time of any VA examination or outpatient visit during the time period in question. As the Veteran has been shown to have limitation of motion, although noncompensable for rating purposes, a 10 percent disability evaluation, and no more, would be warranted under 5260. Therefore, a rating in excess of 10 percent for limitation of flexion is not warranted. As to extension, the Veteran has been shown to have extension to 0 degrees. As such, a compensable disability evaluation would not be warranted for extension under 5261. While the Board is sympathetic to the Veteran's reports of pain, objective testing did not reveal that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors resulted in the right knee being limited in motion to the extent required for a 20 percent rating for limitation of flexion or extension of the right knee. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). As it relates to instability, the Veteran has been found to have no instability or subluxation of the right knee, to include at two separate VA examinations, with the December 2020 VA examiner indicating that testing was normal for anterior instability, posterior instability, medial instability, and lateral instability. There have been no findings of subluxation or dislocation. As such, a compensable disability evaluation based up subluxation/lateral instability is not warranted at any time. Lumbar Spine Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243 as follows: 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 Unfavorable ankylosis of the entire spine: 100 percent Unfavorable ankylosis of the entire thoracolumbar spine: 50 percent Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis: 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height: 10 percent The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least six weeks during the past 12 months 60 percent With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months 40 percent With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months 20 percent With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months 10 percent Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating for Formula and Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The Board notes that regulations regarding the musculoskeletal system changed effective February 7, 2021. While limitation of motion criteria remained the same, the criteria for intervertebral disc syndrome changed as follows: 5243 Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. In conjunction with his claim, the Veteran was afforded a VA examination in March 2012. At that time, a diagnosis of lumbar strain was rendered. Physical examination revealed flexion to 90 degrees with no pain, extension to 30 degrees (normal) with no pain, right and left lateral flexion to 30 degrees with no pain, and right and left lateral rotation to 30 degrees with no pain. Range of motion remained the same after repetitive testing. Functional loss resulted from pain on movement. There was no localized tenderness or pain to palpation for the joints or soft tissue and the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5 for hip flexion and left great toe extension and 4/5 for knee extension, ankle plantar flexion, ankle dorsiflexion, and right great toe extension. There was no muscle atrophy. The Veteran was noted to not have IVDS but did have incapacitating episodes of at least one week but not two weeks in the past twelve months. The examiner further reported that the Veteran had sciatic nerve root involvement of the right and left lower extremities that resulted in moderate impairment. As to functional impact, the examiner noted that the Veteran reported that he had to change positions frequently due to discomfort in his low back. He indicated that the pain in the area was severe and that during flareups he felt that he could not function. At the time of a December 2020 VA examination, the Veteran reported having aching and stiffness of his back. He was unable to perform prolonged walking, running, or standing, and could not lift heavy objects. Range of motion testing revealed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Active and passive motion were the same. There was pain noted on all ranges of motion. There was pain with weightbearing. There was no localized tenderness or pain on palpation of the joint or associated tissue. There was no additional functional loss with repetitive motion. The examiner approximated loss of use over time ranges of motion as follows: forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The same estimates were provided for times of flare-ups. There was no ankylosis. There was no guarding or muscle spasm of the lumbar spine. The low back caused interference with standing and sitting. Muscle strength was 4/5 for knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension on the left and right and 5/5 for hip flexion on both sides. Reflexes were decreased on both sides in the thigh/knee, lower leg/ankle, and foot/toes. The Veteran was noted to have moderate radiculopathy of the right and left lower extremities. The Veteran did not have IVDS. Lumbar Strain Prior to December 9, 2020 As it relates to limitation of flexion, the criteria for an evaluation in excess of 10 percent were not met at any time. As noted above, for a 20 percent disability evaluation 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 must be present. Prior to December 9, 2020, the Veteran was not shown to have flexion limited to more than 90 degrees nor were the total ranges of motion limited to warrant a 20 percent disability evaluation. The VA examiner found little to no additional limitation of motion after repetition. Even when considering any additional limitation of motion caused by pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants evaluations in excess of those currently assigned for limitation of motion based upon the appropriate codes governing limitation of motion. The competent evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Furthermore, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis were also not present. Moreover, the Veteran was only noted to have had incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, warranting no more than a 10 percent disability evaluation. Lumbar Strain from December 9, 2020 The Board finds that the weight of the evidence demonstrates that a 40 percent rating, and no more, is warranted from December 9, 2020. At the time of the December 9, 2020 VA examination, the Veteran was found to have forward flexion limited to 30 degrees. An evaluation in excess of 40 percent is not warranted as the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine. There has been no demonstration of unfavorable ankylosis at the time of any VA examination or in any VA treatment records. For example, at the time of his most recent VA examination, the Veteran was specifically found to not have ankylosis. As such, no more than a 40 percent disability evaluation based upon limitation of motion would be warranted. The evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering any pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 40 percent for limitation of motion based upon the governing limitation of motion. As to incapacitating episodes, as noted above, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Moreover, no VA examiner has indicated that the Veteran has IVDS which resulted in any physician prescribed bed rest or incapacitating episodes having a total duration of at least six weeks during the past 12 months. As such, a 60 percent evaluation, based upon incapacitating episodes, is not warranted at any time. Left and Right Lower Extremity Radiculopathy Resolving reasonable doubt in favor of the Veteran, the Board will find that the criteria for a 20 percent disability evaluation for right and left lower extremity radiculopathy have been met throughout the appeal period. The Board notes that the Veteran has reported having continuous pain and numbness throughout the appeal period. Furthermore, the Veteran's sciatic neuropathy has been described as moderate at the time of both VA examinations. Therefore, resolving reasonable doubt in favor the Veteran, the criteria for a 20 percent evaluation have been met. Right or left lower extremity radiculopathy has not been shown to be more than moderate at any time during the course of the appeal, including at the time of the most recent VA examination. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a higher rating in excess of 20 percent and must be denied for any period. As the preponderance of the evidence is against an evaluation in excess of 20 percent, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Residuals of a Right Big Toe Fracture The Veteran’s disability is rated under Diagnostic Code 5284. 38 C.F.R. § 4.71a. Under this rating criteria, a 10 percent rating is assigned for moderate disability, a 20 percent rating is assigned for moderately severe disability, and a 30 percent rating is assigned for severe disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284. With actual loss of the use of the foot, a 40 percent rating may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. The Board notes that regulations regarding the musculoskeletal system changed effective February 7, 2021. However, DC 5284 underwent no substantive changes. The Veteran maintains that the symptomatology associated with his right big toe fracture residuals warrants an evaluation in excess of that which has currently been assigned. In conjunction with his claim, the Veteran was afforded a VA foot examination in March 2012. At the time of the examination, the Veteran’s foot injury was described as moderately severe. The Veteran was noted to use a cane and a walker but it was for pain in the right knee and ankles. The Veteran reported that closed shoes caused pain on his toe. At the time of a December 2020 VA examination, the Veteran reported that his right toe had become progressively worse. He noted having aching and stiffness and stated that he was unable to perform prolonged walking, running, or standing. The right toe residuals were noted to cause mild impairment. The examiner indicated that the pain interfered with standing and weight-bearing. The Veteran was noted to use a cane for right foot and lumbar spine pain. The examiner stated that examination showed mild toe impairment of right foot. The examiner indicated that the Veteran had pain with flexion of the right great toe, and was unable to perform prolonged walking, running, or standing. Having carefully considered the evidence of record, the Board finds that the criteria for a disability rating greater than the currently assigned 20 percent for residuals of a right big toe fracture. As indicated above, under Diagnostic Code 5284, the evidence must show that the foot disabilities are severe in order for the next higher 30 percent disability rating to be warranted. In this regard, the VA examinations have found the Veteran to have no more than moderately severe impairment resulting from the right big toe fracture residuals, with the most recent examiner finding that the residuals caused no more than mild impairment. There is no evidence of record to support that the service-connected right big toe fracture residuals had resulted in severe disability. As such, an increased disability rating is not warranted. The Board has considered rating the disabilities under alternate diagnostic code provisions, however, the evidence has consistently demonstrated that there was an absence of Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. As such, ratings under Diagnostic Codes 5276 through 5283 are not appropriate. The statements of the Veteran as to the extent of his current symptoms have been considered. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. (Continued on the next page)   Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms have remained relatively consistent throughout the course of the period on appeal, as such, staged ratings are not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). There is simply no basis upon which to grant the Veteran's claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.