Citation Nr: 21023974 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-03 831 DATE: April 21, 2021 ORDER The claim for service connection for right knee disability is denied. The claim for service connection for left knee disability is denied. The claim for a rating in excess of 20 percent prior to June 23, 2017 and in excess of 40 percent for the lumbar spine disability is denied. The claim for a rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity is denied. The claim for a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity is denied. The claim for a compensable rating for surgical scar to the lower back is dismissed. REMANDED The claim for a rating in excess of 20 percent for degenerative arthritis of the left shoulder is remanded. The claim for a rating in excess of 20 percent for right shoulder status post surgery is remanded. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has not been shown to have a current left or right knee disability that results in functional loss. 2. Throughout the appeal period, the Veteran’s service-connected lumbar spine disability is manifested by complaints of pain as well as decreased range of motion, but without any resulting additional functional loss (to include when considering pain and flare-ups) not contemplated by the assigned ratings of 20 percent prior to June 23, 2017 and 40 percent since. 3. The Veteran’s radiculopathy of the right lower extremity was not productive of more than moderate impairment of the sciatic nerve. 4. The Veteran’s radiculopathy of the left lower extremity was not productive of more than moderate impairment of the sciatic nerve. 5. At a hearing held in February 2020, prior to the promulgation of a decision in the appeal, the Veteran, indicated a desire to withdraw the appeal for entitlement to a compensable rating for surgical scar to the lower back. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for an evaluation in excess of 20 percent prior to June 23, 2017, for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5241. 4. 4. The criteria for an evaluation in excess of 40 percent for the lumbar spine disability from June 23, 2017, to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5241. 5. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124, Diagnostic Codes 8620, 8621. 6. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124, Diagnostic Codes 8620, 8621. 7. The criteria for withdrawal of an appeal for entitlement to a compensable rating for surgical scar to the lower back t. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1995 to June 2000 with the U.S. Navy. A hearing was held before the undersigned Veterans Law Judge (VLJ) in February 2020. Duty to assist The Board generally is required to ensure that VA’s duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). There is no indication in this record of a failure to notify or assist the Veteran to include examination and obtaining medical records. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). The Veteran’s attorney maintains that the duty to assist has been raised in regard to the adequacy of VA examinations in 2019 and 2020. At the hearing, the described some parts of the examinations. However, on review of the record, the Board finds that the VA examination is adequate for rating purposes. The examination report contains a discussion of the Veteran’s medical history, subjective complaints, and pertinent clinical findings. After careful review, the Board finds sufficient evidence upon which to proceed. Additionally, based on the Veteran’s testimony that he did not undergo a VA nexus examination, the Board considered obtaining a VA nexus examination in conjunction with his claims for service connection for bilateral knee disabilities. However, on review of the record, a nexus VA opinion was obtained in July 2018. The Board does not find that additional medical review is needed. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA’s duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability The service treatment records (STRs) do not show any reports, complaints, findings, or diagnoses regarding the knees. There were no knee disabilities noted on the September 1999 MEB examination. The lower extremities were considered normal on the report of that examination that was conducted prior to separation. The Veteran specifically denied swollen or painful joint, painful trick or locked knees as well as any joint or bone deformity. Reviewing post service VA, SSA and private records, since 2011, the Veteran has undergone numerous examination and there is no reported diagnosis of a bilateral knee disability. A VA examination was conducted in July 2018 to identify and determine the etiology of any bilateral knee disability. The Veteran reported that he had bilateral leg weakness which caused him to fall. Importantly, he denied a specific knee joint problem. On examination, he denied any knee pain either on weight bearing or non-weightbearing. The examination was completely normal. There was no limitation of motion, instability, loss of muscle strength, neurological deficits, muscle atrophy or any other functional limitation involving the knees. As explained, the most fundamental requirement for any claim for service connection is that the Veteran has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In summary, there is no competent evidence of a current bilateral knee disability upon which to predicate a grant of service connection for the claimed disabilities. The Veteran has neither provided nor identified any medical evidence showing he actually has a bilateral knee disability. The VA examiner listened to his complaints and symptoms, however, there is not a diagnosis of a bilateral knee disability. Without proof of a current disability, there can be no valid claim. The appeal is denied. Increased Rating The Veteran is seeking an increase disability rating for his disabilities of the lumbar spine and lower extremities. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or his ability to function under the ordinary conditions of daily life, including employment, by comparing his or his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the e-file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record contains service treatment records (STRs); private medical records; Social Security Administration (SSA) records; VA outpatient and examination reports; as well as statements and testimony of the Veteran. Procedural history The Veteran filed his claim for higher ratings in January 2015. In May 2015, the RO increased the rating for sciatic radiculopathy of the right lower extremity, assigning a 20 percent rating, effective January 8, 2015. The RO denied higher ratings for the lumbar spine disability, radiculopathies of the lower extremities, a TDIU as well as a temporary total evaluation based on treatment for a service-connected disability requiring convalescence. In January 2016, the RO increased the rating for sciatic radiculopathy of the left lower extremity, assigning a 20 percent rating, effective November 2, 2015. In July 2017, the RO increased the rating for T12 compression fracture with grade I spondylolisthesis L5-S1, and L5 spondylolysis with degenerative disc disease to 40 percent, effective June 23, 2017. Rating criteria for lumbosacral degenerative disc disease and radiculopathy During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under both the former and amended criteria for Diagnostic Code 5241, a 40 percent rating is assigned for evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 50 percent rating is assigned for evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for evidence of unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”  Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). 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. Normal thoracolumbar spine motion includes forward flexion from 0 to 90 degrees and normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Under the former criteria, Diagnostic Code 5241 also instructs to evaluate degenerative arthritis of the spine under Diagnostic Code 5003 if limitation of motion is noncompensable. Under the amended criteria, Diagnostic Code 5241 also instructs to evaluate degenerative arthritis, DDD other than intervertebral disc syndrome (IVDS) under either Diagnostic Code 5003 (Degenerative arthritis, other than post-traumatic) if limitation of motion is noncompensable, or under Diagnostic Code 5010 (Post-traumatic arthritis), which instructs to rate as limitation of motion, dislocation, or other specified instability under the affected joint, and where two or more joints are affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. A rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion of the same joint. Here, the Veteran is currently in receipt of a compensable rating under Diagnostic Code 5241 for limitation of motion for his lumbar spine. The revised Diagnostic Code 5010 distinguishes between joint conditions arising from traumatic causes and joint disease resulting from systemic processes. Traumatic arthritis will be rated as limitation of motion for the affected joint, dislocation or other specified instability under the affected joint. Under the old DC 5243, intervertebral disc syndrome (IVDS) is rated either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations, whichever method results in the higher rating. See Bierman v. Brown, 6 Vet. App. 125 (1994). However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14 - which prohibits “[t]he evaluation of the same disability under various diagnoses”. See Brady v. Brown, 4 Vet. App. 203, 206 (1993). See, too, Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another). Thus, a rating for IVDS may not be assigned while at the same time assigning separate ratings for the orthopedic and the neurologic components of IVDS. As to incapacitating episodes, if there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. The IVDS rating criteria do not provide for an evaluation in excess of 60 percent on the basis of the total duration of incapacitating episodes. The Board notes that revised criteria defines the clinical manifestations that are required for a diagnosis IVDS, but does not alter the rating of this disability. 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, 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 when 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).  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.”  The spine has no opposite joint.  In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s’ neurological symptoms are now rated separately, they are still part of the overall evaluation for her back disability, and so they are properly part of a request for an increased disability rating for that condition. The separate neurological rating is simply a vehicle to provide “the maximum benefit allowed by law and regulation.” AB v. Brown, 6 Vet. App. 35, 38 (1993). As to the effective dates of these separate evaluations, the Board finds that the effective dates currently assigned for the increase to 20 percent for the radiculopathies (November 2, 2015 for the left and January 8, 2015 for the right) are supported by the evidence and procedural history. As to the left, the evidence does not reflect increase prior to this date and the evidence prior to this date supported the 10 percent rating. Under 38 C.F.R. § 4.124a, the schedules for rating diseases of the cranial and peripheral nerves include alternate diagnostic codes for paralysis, neuritis, and neuralgia of each nerve. See 38 C.F.R. § 4.124a, DCs 8205 to 8730. The DCs for paralysis of a nerve allow for multiple levels of incomplete paralysis, as well as complete paralysis. However, the ratings available for neuritis and neuralgia of the same nerves can be limited to less than the maximum ratings available for paralysis. In rating peripheral neuropathy attention is given to sensory or motor impairment as well as trophic changes (described at 38 C.F.R. § 4.104, Diagnostic Code 7115”). Peripheral neuropathy which is wholly sensory is mild or, at most, moderate. With dull and intermittent pain in a typical nerve distribution, it is at most moderate. With no organic changes it is moderate or, if of the sciatic nerve, moderately severe. 38 C.F.R. § 4.20. Neuralgia of a peripheral nerve of a lower extremity can receive a maximum rating of moderate incomplete paralysis. 38 C.F.R. § 4.124. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, can receive a maximum rating of severe, incomplete paralysis. 38 C.F.R. § 4.123. ‘Sciatic’ refers to the sciatic nerve; sciatica is used to refer to ‘a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by prolapse of the intervertebral disk’ the term is also used to refer to pain anywhere along the course of the sciatic nerve’.” Ferraro v. Derwinski, 1 Vet. App. 326, 329-30 (1991). Sciatic neurological manifestations are rated under DC 8520, 8620, or 8720 as, respectively, paralysis, neuritis or neuralgia of the sciatic nerve. The criterion for a 10 percent rating is mild incomplete paralysis. The criterion for a 20 percent is moderate incomplete paralysis and 40 percent when moderately severe. When severe with marked muscular atrophy, 60 percent is warranted and 80 percent is warranted for complete paralysis (with foot drop, no active movement possible below the knee, and weakened or, very rarely, lost knee flexion). See also 38 C.F.R. § 4.124a, DCs 8620, 8720 (for sciatic neuritis and neuralgia). Under DC 8526 for impairment of the anterior cural or femoral nerve. In order to warrant a higher rating during the period on appeal, the evidence must show mild incomplete paralysis (20 percent under DC 8526) or; moderately severe incomplete paralysis (40 percent under DC 8526). Moderate incomplete paralysis is the maximum evaluation reserved for the most significant cases of sensory-only impairment under 38 C.F.R. § 4.124a. Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Moderate is also the maximum evaluation that can be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve, under 38 C.F.R. § 4.124. Moderately severe incomplete paralysis is only applicable for involvement of the sciatic nerve and is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124, DC 8520. With severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve, under 38 C.F.R. § 4.124a, DC 8520, marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve; the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve, under 38 C.F.R. § 4.123. Hyphenated DC are used when a rating under one diagnostic code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. §§ 4.20, 4.27. Pertinent medical history The Veteran underwent Social Security Administration examination in January 2015 in conjunction with a claim for benefits. The examination report showed moderate paraspinal muscle tenderness in the mid-lumbar region. There was moderate bilateral paraspinal muscle spasm. The range of motion was normal. Straight leg raising was negative. There was no joint ot limb tenderness to palpation, joint instability, crepitus, edema, ecchymosis, or pain on motion in the lower extremities. There was 4/5 weakness in the quadriceps otherwise strength was normal on motor examination. There was no atrophy. The deep tendon reflex examinations of the ankle and knees were normal. At VA examination in April 2015 the Veteran reported his medical history. He complained of daily back pain with radiation into the lower extremities. He reported severe pain and difficulty walking during flareups. He walked with a cane. On range of motion study, forward flexion was decreased to 50 degrees; extension was to 10 degrees; left and right lateral flexion was 15 degrees; right and left lateral rotation was 25 degrees. There was pain noted on motion. There was no tenderness on palpation of the soft tissue of the lower back. The Veteran was able to perform repetitive without additional loss of function. Neither pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time. There was 4/5 strength in right hip flexion and knee extension. There was no muscle spasm or muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising was negative on the left and positive on the right. The Veteran endorsed mild intermittent and constant pain in the left lower extremity and moderate in the right lower extremity. There was mild paresthesias and or dysesthesias in the left lower extremity and moderate in the right lower extremity. There was mild numbness in the lower extremities. The examiner diagnosed IVDS. At VA examination in January 2016, the Veteran indicated that his symptoms had remained the same. He also reported increased pain with flareups. He described impairment in lifting, sitting, standing and walking for extended periods. The range of motion was as follows: forward flexion 0 to 40 degrees; extension 0 to 20 degrees; right and left lateral flexion 0 to 30 degrees; and right and left lateral rotation 0 to 30 degrees. There was pain noted on motion. There was no tenderness on palpation of the soft tissue of the lower back. The Veteran was able to perform repetitive without additional loss of function. There was no pain on weight-bearing. Pain, weakness, fatigability and incoordination significantly limited functional ability with repeated use over time. Pain, and endurance significantly limited functional ability with flareups. Muscle spasm that resulted in abnormal gait was noted. There was no guarding, muscle atrophy or localized tenderness of the thoraco lumbar spine muscles. The reflex and sensory examination were normal. Straight leg raising test was positive. The Veteran endorsed mild intermittent and constant pain in the lower extremities. There was moderate paresthesias and or dysesthesias in the left lower extremity and moderate in the right lower extremity. There was moderate numbness in the lower extremities. There was moderate radiculopathy of the sciatic nerve. The examiner diagnosed IVDS. At the June 2017 examination, forward flexion was 0 to 28 degrees; extension 0 to 10 degrees; right lateral flexion 0 to 10 and left lateral flexion 0 to 15 degrees; and right lateral rotation 0 to 15 degrees and left lateral rotation 0 to 25 degrees. There was 4/5 strength in right and left hip and ankle plantar flexion. There was no muscle spasm or muscle atrophy. The deep tendon reflexes of the ankle and knees were hypoactive. There was decreased sensation to light touch of the left thigh/knee and ankle. Straight leg raising was negative. The Veteran endorsed moderate paresthesias and or dysesthesias in the right lower extremity. There was no numbness in the lower extremities. The Veteran endorsed moderate intermittent and constant pain in the right lower extremity. There was moderate radiculopathy of the femoral nerve of the right lower extremity. The examiner indicated that the left lower extremity was unaffected. At the VA examination in January 2018, there was moderate intermittent pain in the lower extremities. There was moderate paresthesias and or dysesthesias in the lower extremities. On muscle strength testing, ankle plantar flexion and dorsiflexion were 4/5. There was moderate numbness of the lower extremities. The deep tendon reflexes of the ankles were hypoactive. The sensory examination of the lower extremities was normal. There was moderately severe incomplete radiculopathy of the sciatic nerve of the lower extremities. At the VA examination in November 2018, forward flexion was 0 to 50 degrees; extension 0 to 10 degrees; right and left lateral flexion 0 to 15 degrees; and right lateral rotation 0 to 30 degrees and left lateral rotation 0 to 25 degrees. There was moderate intermittent pain in the left lower extremity. There was moderate paresthesias and or dysesthesias in the right lower extremity and mild in the left lower extremity. There was no numbness of the lower extremities. On muscle strength testing, ankle plantar flexion and dorsiflexion were 4/5. The deep tendon reflexes of the ankles were considered normal. On the sensory examination, there was decreased sensation in the ankles and toes. There was moderately severe incomplete radiculopathy of the sciatic nerves of the lower extremities. At the VA examination in August 2019, forward flexion was 0 to 60 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 30 and left lateral flexion 0 to 20 degrees; and right left lateral rotation 0 to 20 degrees. There was no pain on weightbearing or non-weightbearing. The sensory and reflex examinations were considered normal. Straight leg raising was negative, bilaterally. There was moderate intermittent pain in the right lower extremity and mild intermittent pain in the left. There was moderate paresthesias and or dysesthesias in the right lower extremity and mild paresthesias and or dysesthesias in the left lower extremity. There was mild numbness in the right lower extremity. The examiner found that there was mild radiculopathy involving right sciatic nerve. The examiner diagnosed IVDS. At the VA examination in January 2020, there was pain in all planes of motions and with weightbearing. Forward flexion was 0 to 50 degrees; extension 0 degrees; right lateral flexion 0 to 13 and left lateral flexion 0 to 15 degrees; and right and left lateral rotation 0 to 20 degrees. Repetitive testing was considered too strenuous. There was noted muscle spasm that resulted in abnormal gait. Muscle strength was reduced to 4/5 on knee extension. Straight leg raising was positive in both lower extremities. There was moderate constant and intermittent pain in the right lower extremity. There was mild intermittent pain the left lower extremity. There was moderate paresthesias and or dysesthesias in the right lower extremity and mild paresthesias and or dysesthesias in the left lower extremity. There was moderate numbness in the right lower extremity and mild numbness in the left lower extremity. The examiner found that there was moderate involvement of the right sciatic nerve and mild in the left lower extremity. The examiner indicated that there was no IVDS. 3. Entitlement to a rating in excess of 20 percent prior to June 23, 2017, and in excess of 40 percent after For the purposes of clarity, the discussion below is separated into different time periods. Regardless of the time period or regulations examined, however, the Board notes the VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). Prior to June 23, 2017  The Veteran filed his claim for higher ratings in January 2015. For this period the Veteran was assigned a 20 percent evaluation for his lumbar spine disability. The Board finds that based on the Veteran’s reported pain and functional loss a rating in excess of 20 percent is not warranted for the disability of the lumbar spine for this period. As noted above, VA examinations show that the lumbar spine disability has been manifested by forward flexion greater than 40 degrees, but not greater than 60 degrees within this period. The Veteran’s reports of pain and functional loss are adequately considered by the VA examination reports and findings of motion limitation. During this period, there is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less, or of favorable ankylosis of the entire thoracolumbar spine, even considering other functionally limiting factors during this time period. Further, there is no evidence of incapacitating episodes resulting from intervertebral disc syndrome, and thus a higher rating under the IVDS formula is not proper. Therefore, a rating in excess of 20 percent is not warranted. Since June 23, 2017 Upon review of the relevant evidence, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability under Diagnostic Code 5241 is not warranted. As the record is silent for relevant evidence pertaining to the Veteran’s lumbar spine from February 7, 2021, onward, the Board will consider only the former criteria under Diagnostic Code 5241. Specifically, the medical evidence of record, to include the June 2017, November 2018, August 2019 and January 2020 VA examinations and private treatment records, does not support a finding of ankylosis of the lumbar spine or evidence of incapacitating episodes resulting from intervertebral disc syndrome. At the VA examinations in June 2017, November 2018, August 2019 and January 2020, the Veteran reported continuing pain. He also indicated problems in sitting, standing and walking for extended periods. However, forward flexion ranged from 28 degrees to 60 degrees on testing. While there is evidence of the some ankylosis at January 2020 examination with 0 degrees of extension, there is no evidence to suggest that the Veteran’s lumbar spine condition has been manifested by unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As there is otherwise no clinical evidence, for the period from June 2017, demonstrating entitlement to a rating in excess of 40 percent, the claim is denied. 38 C.F.R. §§ 3.400, 4.71(a), DC 5241. Therefore, the Board finds that the preponderance of the evidence is against a schedular rating higher than 20 percent prior to June 23, 2017, and 40 percent since for his lumbar spine disability. Hence the appeal as to a higher rating for this disability must be denied and there is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 4. Entitlement to a disability rating higher than 20 percent for sciatic radiculopathy, right lower extremity 5. Entitlement to a disability rating higher than 20 percent for sciatic radiculopathy, left lower extremity The Veteran’s radiculopathy of the lower extremities has been described as mild to severe during the appeal period. The degree of the severity of his clinical manifestations has fluctuated. However, the Board finds that given the absence of significantly decreased strength, muscle atrophy, trophic or organic changes the Veteran does not have the combination of symptoms and findings demonstrating moderately severe incomplete paralysis, neuritis or neuralgia of the peripheral nerves of either lower extremity. Additionally, the Board notes that the June 2017 examiner indicated moderate radiculopathy of the femoral nerve of the right lower extremity. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or, more appropriately in this case, the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). As Diagnostic Code 8620 ultimately provides a higher maximum rating that Diagnostic Code 8626, the Board finds that the Veteran’s peripheral neuropathy of the lower extremities should remain rated under Diagnostic Code 8620. 38 C.F.R. § 4.124a. There simply is no basis in the record to distinguish the manifestations of the sciatic neuropathy from that of the femoral neuropathy. The Board accordingly attributes the right lower extremity nerve symptoms shown in the record to the sciatic nerve impairment. The Board notes that there is caselaw specifying that if symptoms of a nonservice-connected disorder cannot be distinguished from those of a service-connected disorder, VA must attribute those symptoms to the service-connected disorder. Such caselaw does not extend to the situation where overlapping symptoms of two service-connected disorders require VA to first attribute all the symptoms to one disorder, and then to attribute the same symptoms to the other disorder. That would violate the rule against pyramiding. Rather, the appropriate method in such cases is to attribute the non-distinguishable symptoms to the nerve disorder which would result in the higher disability rating. In this case, that nerve disorder is the sciatic nerve. Accordingly, ratings in excess of 20 percent is not warranted for mild to moderate neurological impairment of the sciatic nerve of the right and left lower extremities. In making its determinations in this case, the Board has also carefully considered the Veteran’s contentions with respect to the nature of his service-connected disabilities and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). At the hearing, the Veteran reported that he felt that his radiating pain extended further down his leg possibly involving additional nerves. The Veteran’s reports of symptoms have been considered; including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of his service-connected disabilities. As such, the Board relies upon the competent medical evidence with regard to the specialized evaluation of symptom severity and details of clinical features of the service-connected disabilities. 6. Entitlement to a compensable rating for surgical scar to the lower back The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or his authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn his appeal for entitlement to a compensable rating for surgical scar to the lower back. The Veteran’s representative made a knowing withdrawal at the time of the hearing. The request to withdrawal this issue from appellate status was effective. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND 1. The claim for a rating in excess of 20 percent for degenerative arthritis of the left shoulder is remanded. 2. The claim for a rating in excess of 20 percent for right shoulder status post surgery is remanded At his hearing the Veteran provided several statements which suggest that his symptoms have worsened to include possible left shoulder surgery. Given the above, a new VA examination is thereby necessary. 3. TDIU The issue of TDIU is inextricably intertwined with the issues remanded. The matters are REMANDED for the following action: 1. Update VA treatment records.   2. Thereafter, schedule the Veteran for a VA examination to determine the severity of his bilateral shoulder disabilities. All manifestations and the severity thereof of the shoulders should be documented. The examiner should detail any left shoulder surgery history. The examiner should detail the impact of the shoulders on the Veteran’s ability to work in light of his work history. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.