Citation Nr: 21024263 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-12 911 DATE: April 22, 2021 ORDER Service connection for transient ischemic attacks (TIA) with seizure-like activity, but no actual seizure disorder, is granted. An increased rating of 20 percent for low back pain with mild degenerative changes, effective December 29, 2009, is granted. An increased rating for the low back disability in excess of 10 percent prior to December 29, 2009, in excess of 20 percent effective from December 29, 2009, and in excess of 40 percent since August 21, 2015, is denied. An increased rating for left lower extremity radiculopathy, rated as 10 percent disabling prior to August 27, 2013, and 20 percent disabling thereafter, is denied. An increased rating for right lower extremity radiculopathy, rated as 10 percent disabling prior to August 27, 2013, and 20 percent disabling thereafter, is denied. REMANDED Service connection for chronic arthritis of the joints (other than the cervical spine and great toes), to include left and right knee arthritis and associated right knee instability, is remanded. Service connection for a bilateral great (big) toe disability, to include arthritis, hallux valgus, and hallux rigidus, is remanded. FINDINGS OF FACT 1. The Veteran has diagnosed transient ischemic attacks (TIA) with seizure-like activity, but no actual seizure disorder, that was caused by his service-connected hypertension, which is in turn associated with his service-connected diabetes. 2. Throughout the appeal period, there has been no ankylosis or neurologic impairment associated with the Veteran’s low back disability other than his already service-connected bilateral lower extremity radiculopathy or neuropathy; and he had IVDS, but no incapacitating episodes with prescribed rest and treatment. 3. Prior to December 29, 2009, the Veteran’s low back disability manifested by pain and painful motion with limitation of thoracolumbar spine forward flexion to greater than 60 degrees and combined motion to greater than 120 degrees, with no muscle spasm or guarding that resulted in abnormal gait or spinal curvature 4. From December 29, 2009, through August 20, 2015, the Veteran’s low back disability manifested by pain and painful motion with limitation of thoracolumbar spine forward flexion to greater than 30 degrees, but not greater than 60 degrees, when considering the effects of flareups and repeated use over time. 5. Since August 21, 2015, the Veteran’s low back disability manifested by pain and painful motion, with forward flexion of the thoracolumbar spine to 30 degrees or less, when considering the effects of flareups and repeated use over time. 6. Prior to August 27, 2013, the Veteran’s bilateral lower extremity radiculopathies manifested by no more than mild incomplete paralysis of the sciatic nerve. 7. Since August 27, 2013, the Veteran’s bilateral lower extremity radiculopathies have manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for transient ischemic attacks (TIA) with seizure-like activity, but no actual seizure disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an increased rating for low back pain with mild degenerative changes of 20 percent, effective December 29, 2009, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, & 5243. 3. The criteria for an increased rating for low back pain with mild degenerative changes in excess of 10 percent prior to December 29, 2009, in excess of 20 percent from December 29, 2009 to August 20, 2015, and in excess of 40 percent since August 21, 2015, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, & 5243. 4. The criteria for an increased rating for left lower extremity radiculopathy, rated as 10 percent disabling prior to August 27, 2013, and 20 percent disabling thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for an increased rating for right lower extremity radiculopathy, rated as 10 percent disabling prior to August 27, 2013, and 20 percent disabling thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2009, which denied service connection for a bilateral big toe condition; and in July 2011 (with notice to the Veteran in August 2011), which denied service connection for chronic arthritis, service connection for ischemic strokes and seizures, and increased ratings for the low back disability and associated right and left lower extremity sciatic nerve disabilities. Rating decisions in October 2013 and November 2015 granted partial increases for the low back and bilateral lower extremity neurologic disabilities, as reflected in the issues above. In September 2014, the Veteran testified at a personal hearing at his local Regional Office (RO), or Travel Board hearing, before the undersigned Veterans Law Judge. The Board sent the Veteran a letter in October 2020 indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. However, there is no pending hearing request, and the transcript of his prior hearing is of record. The Board remanded these matters for additional development in June 2015 and April 2017. In August 2018, the Board issued a decision that denied service connection for chronic arthritis and remanded the remaining issues. The August 2018 Board decision also found that the issue of entitlement to an increased rating for diabetes was no longer in appellate status based on an award in a November 2017 rating decision and the Veteran’s limitation of his appeal for that issue. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2019 Order, pursuant to a Joint Motion for Remand by the parties, the Court vacated and remanded the Board’s 2018 decision as to the denial of service connection for chronic arthritis. As noted in the 2015 Board remand, a claim for cervical spine (neck) arthritis was already separately denied and is not on appeal, and the Veteran clarified during his 2014 Board hearing that his claimed arthritis was primarily in the knees and feet, specifically the two big toes, as shown in x-rays. Similarly, the June 2019 Joint Motion found that the 2018 Board denial did not adequately address the claimed chronic arthritis in the knees and feet. In January 2020, the Board remanded the issue of chronic arthritis, primarily limited to the knees and feet or toes, for further development pursuant to the Joint Motion. The case now returns to the Board for further consideration of all issues after development pursuant to the 2018 and 2020 (post-Joint Motion) Board remands. The Veteran’s representative provided arguments in August 2020 and March 2021. As explained below, another remand is necessary for the knee and toe issues. The Board’s decision herein is a full grant of issue on appeal for service connection for seizure or stroke. Otherwise, there is no argument or indication of any error as to the duty to notify, to include during the Board hearing. Moreover, the Veteran has shown actual knowledge of the required elements for the claims and had ample opportunity to participate in the adjudication. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to the duty to assist, the Veteran’s service treatment and personnel records, VA treatment records from multiple facilities and other identified post-service treatment facilities have been obtained and considered. The Veteran was provided updated VA examination for his increased rating claims, and there is no argument or indication that these examinations do not reflect the current severity or are otherwise inadequate. A further remand for another VA examination or medical evidence would not have a reasonable possibility of assisting in substantiating the claims on appeal. See 38 C.F.R. § 3.159. Therefore, the prior remand directives were at least substantially complied with, and a decision may be issued at this time. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service, even if the condition was first diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Presumptions also apply for certain conditions, which are discussed below as relevant. Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. Such aggravation need not be permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In adjudicating the merits of such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Service connection for ischemic strokes and seizures In his July 2009 claim, the Veteran asserted that he has a disorder manifested by strokes or seizures as secondary to his treatment with peginterferon and ribavirin for his service-connected hepatitis C from 1999 to 2006. He stated that in May 2009 he had a temporary loss of balance, loss of control of his right-sided extremities, and loss of speech, and a CT scan showed a history of micro-strokes. In his August 2011 notice of disagreement, the Veteran also asserted that his stroke or seizure condition is secondary to his service-connected diabetes. In a September 2014 statement, the Veteran’s wife described episodes of his strokes or seizures when he would collapse and lose consciousness and control. During his October 2014 Board hearing, the Veteran testified that he had been experiencing micro-strokes. He stated that his doctor told him in 2012 when he was first admitted to the emergency room that he had Jacksonian-type seizures and that they could be related to his diabetes. He was treated again in 2013 and 2014. Resolving reasonable doubt in the Veteran’s favor, the Board finds that he has diagnosed transient ischemic attacks (TIA) with seizure-like activity, but no actual seizure disorder. Additionally, this current disability was caused by his service-connected hypertension, which is in turn associated with his diabetes. Therefore, the criteria for a grant of secondary service connection are met. 38 C.F.R. § 3.310. Specifically, VA examinations and medical opinions were provided in June 2011, August 2013, August 2015, and September 2019, which addressed the Veteran’s current diagnosis and his assertions as to secondary service connection. As to a current disability, there is conflicting evidence as to whether the Veteran has a seizure disorder. However, the most probative evidence, including the 2019 VA examination, reflects a diagnosis of TIA and no actual seizure disorder. A June 2009 CT scan of the head showed multiple small nonacute infarcts in the bilateral parietal deep white matter and is also chronic ischemia in the white matter. A September 2009 MRI of the brain showed chronic microvascular ischemic changes as small chronic lacunar infarcts in the bilateral basal ganglia. Treatment records in April 2012 and April 2013 noted diagnoses of syncopal episode. A May 2012 record gave a diagnosis of seizure disorder, partial simple; multiple seizures; new onset focal seizure (Jacksonian type). A May 2012 CT scan of the head showed senescent changes and chronic small vessel ischemic disease. Emergency department records on February 21, 2014, noted that the Veteran complained of a single syncopal episode with abrupt onset, in that the Veteran felt faint and lost consciousness and collapsed. Although the record stated that there was “generalized seizure activity observed (for 2 minutes),” the rest of the record clarifies that this meant observation by the Veteran’s wife, not a medical provider. The record noted that the event was not witnessed, it occurred just prior to arrival and he had recovered at the scene, and he felt normal currently. The Veteran’s wife heard him fall and came into the room, where she saw him laying against the tub shaking his arms and legs and moaning, which continued for about two minutes. He was unresponsive and confused, and was oriented again after about 20 minutes. The Veteran reported having similar symptoms once previously, but during triage his wife reported that he had multiple similar episodes in the past. Also, during triage, the Veteran also reported that his blood pressure today at VA was over 200 systolic. The provider noted that an EKG showed no acute ischemia, and a CT scan of the head showed no acute disease. Upon consultation with a neurologist, the provider diagnosed a seizure, noting a concern for new onset seizure in an older patient and that an MRI and electroencephalogram (EEG) would be obtained. A February 21, 2014, record by a neurologist for an ER consult to rule out seizures noted an assessment of transient alteration of awareness. The Veteran described the recent episodes and reported prior similar episodes occurring about once a year that were witnessed by his wife. The provider noted a history of TIA in 2009 that presented as bilateral shakiness, “seizures” [quotes used in the record], slurring speech, and blurred vision, syncope episodes, hypertension poorly controlled, and diabetes mellitus since 2006. The neurologist gave a diagnosis of transient alteration of awareness in a patient with hypertension, diabetes mellitus, obstructive sleep apnea, and history of TIA with episodes of loss of consciousness preceded by lightheadedness followed by a brief post-ictal period. The differential at that time consisted of convulsive syncope versus complex partial seizures. A prior MRI showed TIA with evidence of chronic microvascular ischemic disease and lacunar infarcts. The neurologist stated that the Veteran had significant stroke vascular risk factors and spells could be potentially a manifestation of TIA, and he should be admitted for further workup including MRI for TIA and an EEG. A February 21, 2014, EEG report later that day stated that no focal or generalized epileptiform activity observed. The impression was that the results were a normal awake and asleep EEG for age, with no definite epileptiform activity seen. In October 2014, the Veteran’s primary care provider summarized that he had received emergency treatment for diabetic-related problems. He noted treatment in May 2012, April 2013, and February 2014 for syncope and seizure, syncope, and collapse, and localization-related (focal) (partial) epilepsy and epileptic syndromes with simple partial seizures without mention of intractable epilepsy. The June 2011 and September 2019 examiners determined that the Veteran had diagnoses of transient ischemic attacks (TIA) or chronic microvascular ischemic changes with small chronic lacunar infarcts in the bilateral basal ganglia, as shown by a September 2009 MRI, not an actual seizure disorder or seizure activity. During the 2011 VA examination, the Veteran reported attacks two to three times per week with dizziness, weakness of the arms and legs and the right side of the body, very slight tremors of both hands, stiffness in the arms, being unable to walk, blurred vision, and swelling of the tongue. The examiner noted a history of TIA or cerebrovascular attack (CVA) in 1996, 2003, 2009, and 2010, with hospitalizations then and at other times, and that they occur periodically. The examiner stated that the Veteran was experiencing TIA with no lasting residuals, not a seizure disorder. During the August 2013 VA examination, the Veteran reported that he was first diagnosed with mini-strokes or TIA when he had a CT scan for neck and head pain. He reported symptoms of TIA of intermittent blurred vision, neck pain, swollen tongue with slurring, and headache. He could not recall the last episode, but he reported having ER treatment for episodes of syncope, most recently in March. Consistent with the above summary from February 2014, in determining that there was no diagnosis of seizure disorder, the September 2019 VA examiner noted the medical records reflecting a syncopal episode, that the Veteran was admitted and a seizure was suspected but not witnessed, and that an EEG was negative. The examiners’ determinations are highly probative because they are based on the Veteran’s reported symptoms, examination, history, and review of medical records and tests. They are also consistent with the notation in the 2014 neurology consult record that the Veteran’s “spells” could be manifestations of TIA and ordering an EEG to assess any seizure or epileptiform activity, which then had normal results. Therefore, the VA examiner’s diagnoses of TIA and no seizure disorder outweigh the conflicting medical evidence that is not based on a full review of records. The Veteran is not competent to give diagnosis for this medically complex question. The VA examiners found that there was no nexus for the claimed strokes or TIA, or the seizure disorder that is not diagnosed, based on secondary causation or aggravation from hepatis C or diabetes mellitus, type II. It is unnecessary to discuss those opinions or rationales further because the September 2019 examiner gave a rationale that is sufficient to link the disability to his hypertension. Specifically, the 2019 examiner stated that the current consensus view is that the findings of chronic microvascular ischemic changes on MRI represent the consequence of chronic hypertension. The examiner further stated that the pathophysiology of lacunar infarcts is not well known, and it is hypothesized to be due to either intrinsic cerebral small arteriolar anomalies or micro-embolism. The etiology of such small arteriolar abnormalities is multi-factorial. The examiner specified that hypertension represents a major risk factor for the development of such abnormalities, and the Veteran has history of uncontrolled hypertension. Although not noted by the VA examiner, the Veteran has been service-connected for hypertension as secondary to his diabetes mellitus, type II, effective since 1999, with subsequent nephropathy. Therefore, this rationale supports a grant of service connection on a secondary basis as caused by hypertension. The appeal is granted. Increased Ratings VA’s schedular percentage ratings are based on average impairment of earning capacity because of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flare-ups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where an increase in the level of a service-connected disability is at issue, as in this case, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal; however, the Board has considered the entire record and history to have a full picture of the Veteran’s disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). 1. An increased rating for low back pain with mild degenerative changes, rated as 10 percent disabling prior to August 27, 2013, 20 percent disabling from August 27, 2013, and 40 percent disabling since August 21, 2015 The Veteran seeks a higher rating of 40 percent for his low back throughout the appeal period based on his pain and resulting limitations, as noted in his August 2011 notice of disagreement and during his October 2014 Board hearing. The Veteran has separate ratings for his associated right and left lower extremity sciatic radiculopathies, which are discussed under the next section below. Historically, a February 2000 rating decision granted service connection for the Veteran’s low back disability, with a 10 percent rating under DC 5237, effective since September 1, 1999. A March 2006 rating decision and July 2007 statement of the case (SOC) addressed the denial of an increase from 10 percent, and the Veteran submitted a substantive appeal (VA Form 9) for that issue in October 2007. The Board notes that this VA Form 9 was untimely, as it was received more than one year after the March 2006 rating decision and more than 60 days after the July 2007 statement of the case. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2007). Moreover, in October 2008, the Veteran submitted a document stating that he wished to withdraw his prior appeal and reopen his claim for an increase for his low back disability. Therefore, his claim on appeal is from October 2008. As noted above, higher staged ratings of 20 percent, effective August 27, 2013, and 40 percent, effective August 21, 2015, were granted while his appeal was pending. VA recently amended the regulations for rating spinal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, & 5244). As relevant to this case, these changes result in distinctions between IVDS (still rated under DC 5243 as an alternative to the General Rating Formula as summarized above) and degenerative disc disease other than IVDS (now rated under DC 5242 but not DC 5243). Because there were medical notations of IVDS in this case, the applicable analysis remains the same under both sets of rating criteria, and neither set is more favorable to the Veteran. The addition of DC 5244 is for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires treatment and bed rest prescribed by a physician. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237, 5242, & 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 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, DCs 5237, 5242, & 5243. In this case, throughout the appeal period, the treatment records and examinations, as well as reports from the Veteran and his wife, reflect that his low back disability has manifested by varying degrees of pain or tenderness and painful or limited motion at times, as well as intermittent muscle spasms or guarding that sometimes resulted in an abnormal gait of limping when he walked. The Veteran described limitations or aggravation of pain from activities such as prolonged sitting, standing, walking, running, reaching overhead, or carrying groceries, climbing, or other physical activities. Although the Veteran missed some days of work and changed from strenuous duties to mostly desk work due to his back disability and associated lower extremity neurologic symptoms, he remained employed. See, e.g., September 2014 Board hearing: multiple VA examinations from 2008 to 2019. Throughout the appeal period, there has been no ankylosis, as the Veteran retained significant range of motion despite pain. There was also no objective associated neurologic impairment, to include bowel or bladder impairment, other than his already service-connected bilateral lower extremity radiculopathy or neuropathy. He is already service-connected for erectile dysfunction related to his diabetes. Although the Veteran has IVDS, there were no incapacitating episodes with treatment by a physician and prescribed bed rest, as required for consideration of a rating under the alternative IVDS schedule. See 38 C.F.R. § 4.71a, DCs 5237, 5242, 5243 & Notes. During a June 2010 VA examination, the Veteran denied any doctor-directed incapacitation in the past year, but he stated that he called in sick to work about 20 days due to back. An August 2015 VA examination stated that the Veteran did have incapacitating episodes with a total duration of at least one week but less than two weeks the last 12 months. However, the examiner explained that this notation was based on the Veteran’s reported history without documentation, as he stated that he stayed home from work for one week to relax due to his back. These are not sufficient to show prescribed bed rest or treatment by a physician, and there is no evidence of such factors in the Veteran’s treatment records. The Veteran’s pain and other factors resulted in distinct levels of limited motion, warranting staged ratings. As explained below, the assigned 10 percent rating is appropriate prior to December 29, 2009; a 20 percent rating is warranted from that date, which is a partial grant for the period prior to August 27, 2013; and the assigned 40 percent rating is appropriate from August 21, 2015, forward. The most relevant period for the Veteran’s claim begins one year prior to his October 2008 claim. As explained below, the Board finds that an increase to 20 percent is warranted based on limitation of motion, effective December 29, 2009. Prior to December 29, 2009, a rating higher than 10 percent was not warranted. The Veteran retained forward flexion to greater than 60 degrees and combined range of motion to greater than 120 degrees, even during periods of increased symptoms. There was also no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. See 38 C.F.R. § 4.71a, DC 5242. Within one year prior to the Veteran’s October 2008 claim, a February 2008 VA treatment record noted tenderness to palpation of the low back, and “mild to moderate” decreased range of motion to full lateral rotation and flexion and forward flexion, without specifying the degree of limitation for these planes. During the October 2008 VA examination, the Veteran had forward flexion to 75 degrees and combined range of motion to 185 degrees, with pain after repetitive testing but no further limitation due to pain or other factors. He was again tender to palpation of the paravertebral muscles, but there was no muscle spasm or guarding, and no abnormal spinal curvature or antalgic gait. He could walk one block and was unsteady, but he did not use a cane. The Veteran reported having constant low back pain, including pain at rest (or with non-weightbearing) such as while sitting, at a level of 5 out of 10. He reported flareups from physical activities with pain to a level of 8 or 9 out of 10, which usually occurred daily and lasted for an hour, and which impaired his daily functional activities for self-care and his job. A November 2008 VA neurologic examination for possible diabetes complications noted that range of motion of the lumbar spine was within normal range. These reports and measurements are consistent with the notation of mild or moderate loss in the February 2008 VA treatment record and warrant a 10 percent rating. The Veteran reported during his October 2008 VA examination that his flareups were alleviated by medications including gabapentin for chronic pain, rest, physical therapy, and he previously received an epidural shot. Nevertheless, as the Veteran still had pain, discounting any ameliorative effect of these medications does not result in additional loss of motion beyond that noted in the examinations. The AOJ granted an increase for the back to 20 percent as of the date of the August 27, 2013, VA examination, when the Veteran had forward flexion to 45 degrees with pain at that point, and additional loss to 40 degrees after repetitive testing. However, a December 29, 2009, VA joints examination, which addressed the Veteran’s low back disability in an examination related to his claim for arthritis related to hepatitis C, also measured thoracolumbar spine forward flexion limited to 45 degrees. Subsequently, the Veteran had higher measurements to 75 degrees in a June 2010 VA spine examination and to 70 degrees in a January 2011 VA spine examination. Notably, the Veteran reported using a cane during the December 2009 VA examination, as well as in the VA spine examinations in June 2010, January 2011, and August 2013. In contrast, he denied using a cane or other assistive device during an October 2008 VA examination. This suggests an increase in pain or other symptoms. Resolving reasonable doubt in the Veteran’s favor, the lower measurements of 40 and 45 degrees are generally consistent with additional limitation due to pain or other factors during periods of increased symptoms. During the August 2013 VA examination, the Veteran reported having constant back pain that he rated as level 7 out of 10 for severity, and flareups twice a week for a couple hours that he rated as level 8 out of 10. The Veteran was tender to palpation at the lower back muscles, he had guarding or muscle spasm that resulted in an abnormal gait, and he reported using a cane constantly for his low back. He reported treating his pain with gabapentin, tramadol, and rest, and that an epidural steroid shot about 6 months earlier helped. Nevertheless, as the Veteran still had significant pain, discounting any ameliorative effect of these medications does not result in additional loss of motion beyond 40 degrees as noted in the examination. There is no suggestion that the Veteran’s limitations reached 30 degrees of forward flexion during this period, including due to increased pain or other factors at times. For the above reasons, a rating of 20 percent, but no higher, is warranted as of December 29, 2009, due to limitation of thoracolumbar spine forward flexion to greater than 30 degrees but not greater than 60 degrees, when considering the effects of flareups and repeated use over time. See 38 C.F.R. § 4.71a, DC 5242. The AOJ found an increase to meet the 40 percent rating criteria as of the date of the August 21, 2015, VA examination, which measured forward flexion of the thoracolumbar spine limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5242. The lay and medical evidence does not demonstrate a factually ascertainable increase in severity to meet the 40 percent criteria prior to August 21, 2015. A subsequent VA examination in September 2019 measured forward flexion to 80 degrees, and the Veteran denied flareups and stated that his back “hurts all the time.” Nevertheless, the more limited measurement of forward flexion during the 2015 VA examination would be generally consistent with additional functional loss due to pain and other factors during flareups or after repeated use over time. As noted in the 2018 Board remand, VA examinations for the Veteran’s low back disability prior to 2016 may not have met criteria outlined in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should also attempt to elicit information from the Veteran as to additional limitation of motion or functional loss during flare-ups and after repeated use over time, and give an estimate in degrees of any additional loss during such episodes. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Under both the new and old rating criteria, a rating of 40 percent is the highest available rating under the General Rating Formula without ankylosis of a portion of the spine, which is not argued or shown. As the Veteran has been in receipt of the maximum rating possible based on limitation of motion, effective since August 21, 2015, any additional information as to limitation of motion during flare-ups or after repeated use over time would not afford him a higher rating. See Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Moreover, the 2015 and 2019 VA examiners noted that the Veteran reported constant back pain at a level of 8 out of 10, which was also 8 out of 10 during flareups. He denied flareups or additional functional loss over time and stated that his low back hurts all the time. This suggests relatively stable impairment, consistent with the examiners’ notations that there would be no significant limitation due to pain or other factors with repeated use over time or flareups. Effective since August 21, 2015, the Veteran is rated 40 percent disabled for his lumbar spine under DC 5243, as well as 20 percent each for the right and left lower extremity sciatic nerves, which have been effective since August 27, 2013. These ratings combine to 64 percent, including the bilateral factor, which rounds down to 60 percent. See 38 C.F.R. §§ 4.25, 4.26. Under the alternative IVDS Formula based on incapacitating episodes, a rating of 60 percent is the highest available rating. Moreover, as explained above, there is no indication of incapacitating episodes. In summary, reasonable doubt has been resolved in the Veteran’s favor to award a higher rating based on his lumbar spine orthopedic manifestations for a portion of the appeal period. The appeal is granted to this extent. However, any other increases in severity were not sufficient to more nearly approximate the criteria for the next higher rating or a separate rating at any point. Thus, the preponderance of the evidence is otherwise against an increased rating, there is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is otherwise denied. 2. and 3. Increased rating for left lower extremity radiculopathy, rated as 10 percent disabling prior to August 27, 2013, and 20 percent disabling thereafter; increased rating for right lower extremity radiculopathy, rated as 10 percent disabling prior to August 27, 2013, and 20 percent disabling thereafter The Veteran seeks a 20 percent rating each for his right and left lower extremity radiculopathies throughout the appeal period based on pain, numbness, and other symptoms and resulting impairment, as noted in his August 2011 notice of disagreement and during his October 2014 Board hearing. Staged ratings of 20 percent, effective August 27, 2013, were granted while the appeal was pending. Historically, a June 2006 rating decision granted service connection for the Veteran’s right and left lower extremity neurologic impairment, with a 10 percent rating each under DC 8520, effective since February 28, 2005. His claim for increase is considered part of his October 2008 claim for an increase for the low back disability, as explained above. In July 2009, the Veteran also filed a claim for service connection for peripheral neuropathy of all four extremities as secondary to his diabetes mellitus or hepatitis C. There is conflicting evidence as to whether the Veteran’s lower extremity symptoms are due to his diabetic peripheral neuropathy or his low back degenerative disc disease with herniated disc and nerve root impairment. However, a November 2014 VA examiner stated that although the Veteran also has diabetic peripheral neuropathy, his lower extremity symptoms at least as likely as not overlap with his sciatic nerve radiculopathies associated with the low back disability; thus, there is no separate disability rating. Under DC 8520, complete paralysis of the sciatic nerve is assigned an 80 percent rating, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. Lower ratings of 10, 20, 40, or 60 percent are assigned for mild, moderate, moderately severe, or severe incomplete paralysis, respectively. Neuralgia of the sciatic nerve is rated using the same criteria under DC 8720. 38 C.F.R. § 4.124a. The terms “mild,” “moderate,” and “severe” are not defined in the diagnostic codes. However, the term “incomplete paralysis” for peripheral nerve injuries indicates a degree of lost or impaired function substantially less that the type pictured for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, introduction prior to DC 8510. Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis not characterized by these organic changes will be moderate, or moderately severe if there is sciatic involvement, incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, will be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Veteran’s bilateral lower extremity pain and other neurologic symptomology resulted in distinct levels of impairment, warranting the assigned staged ratings. Throughout the appeal period, the Veteran complained of varying levels and frequency of pain; a burning sensation, tingling, paresthesias, or dysesthesias; weakness or decreased strength; and numbness. Although an MRI of the lumbar spine in March 2007 showed bilateral nerve root impingement, the Veteran generally reported that his radicular symptoms were worse on the right side, and physical findings were also more prominent on the right side. A May 2012 MRI showed mild right neuroforaminal narrowing. See, e.g., VA examinations in October 2008, November 2008, June 2010, January 2011, June 2011, August 2013, November 2014, August 2015, September 2019; VA treatment records in March 2010, April 2011, July 2016, May 2017, April 2018; October 2014 Board hearing. However, prior to August 27, 2013, the Veteran’s left and right lower extremity radiculopathies manifested by no more than mild incomplete paralysis of the sciatic nerve. As summarized below, his bilateral symptoms were occasional or intermittent and did not rise to the moderate level at any point. The evidence reflects intermittent, not constant, pain bilaterally during this period. For example, a March 2010 VA treatment record noted pain from the low back down the right leg when the Veteran walked, which subsided when he rested. Concerning motor strength or muscle weakness, the evidence reflects no more than intermittent mild decreases, and no muscle atrophy. In October 2008, the Veteran had slightly decreased strength of 4 out of 5 on the right, but full 5 out of 5 strength on the left. Approximately three weeks later in November 2008 an examiner noted unspecified relative weakness in the legs, right more than left, but summarized that the Veteran had more sensory than motor involvement symptomatology. In December 2009, strength was intact bilaterally. In June 2010 and January 2011, the Veteran again had slightly decreased strength of 4 out of 5 on the right, but full strength on the left. In June 2011, the Veteran’s bilateral lower extremities had no motor impairment (normal muscle strength, fine motor control, and muscle tone). Concerning reflexes, the evidence reflects intermittent decreases to 1+, but no absent reflexes bilaterally. The Veteran had full or intact deep tendon reflexes of 2+ in October 2008, December 2009, June 2010, and January 2011. He had diminished or hypoactive reflexes of 1+ in November 2008 and June 2011. Concerning sensory disturbances, the symptoms or impairment were intermittent and no more than mild. The Veteran generally had full or intact sensation upon testing, including in October 2008, December 2009, June 2010, January 2011, and June 2011. The only noted diminished sensation was in November 2008. The AOJ found an increase to 20 percent effective August 27, 2013, the date of a VA examination. Since that date, the Veteran’s left and right lower extremity radiculopathies have manifested by no more than moderate incomplete paralysis of the sciatic nerve. Although the Veteran’s symptoms increased or decreased at times, the changes were not sufficient to show an increase for a distinct period prior to August 27, 2013, or to rise to moderately severe or severe at any point. Specifically, the Veteran generally reported constant pain that was moderate or severe during this period. During his August 27, 2013, VA spine examination, the Veteran reported constant pain bilaterally that he described as a “burning numbness” and rated at a level of 5 out of 10 on the left side and 8 out of 10 on the right side. He had previously reported only intermittent pain and subjective numbness. The examiner noted moderate constant pain bilaterally, but no intermittent pain. Although a VA examination concerning diabetic neuropathy on the same day noted no constant or intermittent pain, the Veteran reported a constant “burning” on the bottom of is feet that he rated as 7 out of 10 and that increased at times. During his October 2014 Board hearing, the Veteran reported pain but focused on numbness, which is further discussed below. During a November 2014 VA examination, the Veteran reported a constant severe burning sensation to the lower legs and feet, and the examiner noted moderate constant pain bilaterally. The Veteran reported that his pain is relieved at times by his medication of Gabapentin, but he did not take that medication all the time. This reflects that the Veteran had moderate or severe pain bilaterally despite the ameliorative effects of this medication, or when not using the medication. During an August 2015 VA examination, the Veteran reported only intermittent pain that was moderate on the right side and mild on the left side, During his November 2019 VA examination, the Veteran reported only mild intermittent pain that was usually dull in the right lower extremity, stating that his low back sometimes shoots down his right leg through the foot. He denied any pain in the left lower extremity. Although the Veteran had moderate or severe pain in both lower extremities at times, pain alone does not rise to the level of moderately severe or severe incomplete paralysis of the nerve to warrant a higher rating than 20 percent. Concerning motor strength or muscle weakness, the evidence reflects no more than intermittent mild decreases, and no muscle atrophy. In both August 2013 VA examination reports, as well as in August 2015 and September 2019, the Veteran had full strength of 5 out of 5. The only time there was an objective strength decrease was in November 2014, with a slight decrease to 4 out of 5 bilaterally. Concerning reflexes, the evidence reflects decreases to 1+ at times, but no absent reflexes bilaterally. The Veteran diminished or hypoactive reflexes of 1+ in both August 2013 VA examination reports and in November 2014. He had full or intact deep tendon reflexes of 2+ bilaterally in August 2015 and September 2019. Concerning sensory disturbances, the symptoms or impairment were mild or moderate, and intermittently absent to cold sensation, as shown by testing. The August 2013 VA examination reports both recorded decreased sensation at several locations, and the diabetic neuropathy report stated that cold sensation was absent bilaterally. However, the spine report noted moderate numbness bilaterally and no paresthesias or dysesthesias, whereas the diabetic neuropathy report noted mild paresthesias or dysesthesias bilaterally and no numbness. During the October 2014 VA examination, the Veteran testified that he had severe numbness in both legs that was worse than previously, and that he could not feel his feet to tell if they were touching the ground, which caused him to fall at times. He also continued to have tingling, and he stated that his legs “lock up” around the knee area every couple of weeks, although this appears to refer to his separate knee disabilities. During the November 2014 VA examination, the examiner noted moderate paresthesias or dysesthesias and numbness bilaterally. Sensation testing was decreased for light touch, moderately impaired for vibration sense, and mildly impaired for cold sensation. In August 2015, sensory testing was normal. The examiner noted moderate reported right-sided numbness and no left-sided numbness, and mild paresthesias or dysesthesias bilaterally. In September 2019, sensory testing was again normal, the examiner denied numbness and paresthesias or dysesthesias, and the examiner found no objective findings in either lower extremity. VA examiners in August 2013 and November 2014 also noted trophic changes of smooth skin and loss of hair on the lower legs and/or feet, although a September 2019 VA examiner found no trophic changes. Overall, VA examiners since August 2013 found that the Veteran had mild or moderate incomplete paralysis of the sciatic nerve bilaterally, and no left-side impairment or radiculopathy in September 2019. Although the examiners’ conclusion as to the overall degree of severity is not determinate, the Board agrees that the Veteran’s impairment amounts to no more than moderate incomplete paralysis, based on mild or moderate symptoms that were generally intermittent, as summarized above. This degree of impairment warrants the assigned 20 percent rating for each lower extremity under DC 8520 since August 27, 2013. In summary, the Veteran’s lower extremity neurologic impairments were relatively stable during the staged periods on appeal. Any increases in severity were not sufficient to more nearly approximate the criteria for the next higher rating at any point. Thus, the preponderance of the evidence is against an increased rating, there is no reasonable doubt to resolve in the Veteran’s favor, and the appeals are denied. REASONS FOR REMAND 1. and 2. Service connection for chronic arthritis of the joints (other than the cervical spine and great toes), to include left and right knee arthritis and associated right knee instability; and service connection for a bilateral great (big) toe disability, to include arthritis, hallux valgus, and hallux rigidus, are remanded. Another remand is necessary for these issues for an addendum medical opinion for secondary service connection considering all service-connected disabilities. The Veteran submitted a claim in October 2008 for service connection for his bilateral great toes, and in July 2009 for chronic arthritis of the arms, hands, legs, and feet. As noted above, he subsequently clarified that his arthritis claim focuses on his knees and feet. The Veteran has focused his foot complaints on his bilateral big toes, including arthritis, hallux rigidus, and hallux valgus with bunions. In August 2018, the Board separated out the issue of service connection for a bilateral great toe condition and remanded that issue for additional development. Therefore, that issue was not addressed at the Court in the June 2019 Joint Motion for Remand because there was no final denial. An April 2020 Supplemental Statement of the Case (SSOC) in response to the August 2018 remanded issues addressed service connection for a bilateral toe disability. The November 2020 SSOC in response to the January 2020 Board remand for chronic arthritis separated out issues of service connection for bilateral degenerative arthritis of the knees and right knee instability, and service connection for hallux valgus and hallux rigidus. However, the Veteran’s assertions and evidence for his claimed chronic arthritis and bilateral great toe disorder, to include arthritis, hallux rigidus, and hallux valgus, overlap. They will be addressed together to avoid unnecessary repetition. Theories of entitlement based on direct service connection, including a presumption for arthritis, and secondary service connection have been raised. The medical opinions are inadequate to address secondary service connection. VA examiners in August 2015 and October 2020 gave opinions and rationales for whether the Veteran’s current knee and toe conditions were caused or aggravated by his hepatitis C and treatment or by his diabetes, which is his primary assertion. However, as argued by the Veteran’s representative in March 2021, no examiner has addressed whether the other service-connected disabilities caused or aggravated his chronic arthritis. The 2019 Joint Motion stated that the 2015 examiner did not address whether “service-connected disabilities” caused or aggravated arthritis in the knees and feet. The Joint Motion directed that VA obtain a new examination or opinion to address whether the Veteran’s arthritis in the knees or feet was “caused by his service-connected disabilities, to include hepatitis c and [diabetes mellitus, type II].” Likewise, the January 2020 Board remand directive stated that an addendum opinion should address whether the claimed arthritis is related to “a service-connected disability, to include hepatitis C and diabetes mellitus type II.” The Veteran is service-connected for numerous conditions, including a low back disability and neurologic impairment that has been attributed to his low back (sciatica) as well as his diabetes mellitus (diabetic neuropathy), although the symptoms overlap and are not separately rated. An addendum opinion should be obtained to consider all service-connected conditions. The Board notes that the 2018 and 2020 Board remand directives stated that VA examiners should consider the Veteran’s lay reports of symptoms during and since service in addressing the theory of direct service connection for these issues. As the Board finds the Veteran not credible as to having symptoms since service, this remand directive has been substantially completed, and no further medical opinion is necessary as to direct service connection for these issues. Unless the Board finds the lay statements not competent or not credible, an examiner’s opinion must address the Veteran’s relevant lay statements in order to include enough detail to inform the Board’s decision. Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). The VA examiners’ reports, including in September 2019 and October 2020, noted the Veteran’s lay reports as the nature and timing of his relevant symptoms and his asserted injuries during service. However, they found no nexus to service based, in part, on medical records showing no specific injury or onset in service or continuity. An examiner must support conclusions with analysis, but the report must be read as a whole and need not “explicitly lay out the examiner’s journey from facts to a conclusion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the Veteran is competent to report experiencing observable knee and foot or toe difficulties consistently since service, these reports are not credible. Such reports are inconsistent with his more probative reports and objective evidence in contemporaneous records for treatment and evaluation during and after service. In brief, the Veteran did not report problems with the knees, feet or toes during his military separation examination in May 1999 or during an October 1999 VA examination, although he complained of other orthopedic or musculoskeletal problems. X-rays did not show arthritis, and he did not report relevant symptoms, until several years after service, despite seeking treatment for other orthopedic or musculoskeletal conditions during that period. Although the Veteran testified in 2014 that he sought VA treatment at Fort Myers for the toes in 2002 or 2003, any such records were determined not to exist or to be not available in 2017. This also complies with prior remands consistent with the duty to assist. The evidence does include treatment records from other facilities since 1999 and during that timeframe that do not mention the toes, arthritis, or loss of cartilage being shown on X-rays, as he has reported. Moreover, November 2008 authorization for release of records (VA Form 21-4142) prior to the denial of his claim, the Veteran identified podiatry treatment at Fort Myers for the big toes only in August 2007. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician to address secondary service connection for the Veteran’s arthritis in the knees and toes of the feet. (a) The examiner should give an opinion as to whether the Veteran’s current arthritis in the knees or bilateral great toes in the feet were at least as likely as not proximately caused by OR aggravated beyond its natural progression by any of his service-connected disabilities, not only his hepatitis C and treatment or his diabetes mellitus type II. The examiner should address the following service-connected conditions: low back disability, bilateral lower extremity radiculopathy/neuropathy (from sciatica or overlapping symptoms with diabetic neuropathy), diabetic nephropathy with hypertension, bronchial asthma with obstructive sleep apnea; chronic duodenitis with gastric metaplasia and villi atrophy consistent with celiac disease; right ulnar nerve impairment, bilateral upper extremity diabetic peripheral neuropathy, xerosis cutis of the skin, left 5th finger deformity, bilateral cataracts, retention cyst left maxillary sinus, allergic rhinitis, chin scar, head scar, pseudofolliculitis barbae and acne keloidalis nuchae, and erectile dysfunction. (b) For this purpose, aggravation means any incremental increase in disability in a non-service-connected disability (i.e., any additional impairment of earning capacity) resulting from a service-connected condition, whether or not the increase is permanent. (c) In responding, the examiner should explain the reasons behind any opinions and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert   (d) opinion, it is as medically sound to find in favor of the proposition as it is to find against it. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.