Citation Nr: 21024379 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-03 139 DATE: April 22, 2021 ORDER Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome (IVDS) is denied. Entitlement to a rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy is denied. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy prior to June 12, 2017, is denied. Entitlement to a 20 percent rating for right lower extremity sciatic nerve radiculopathy from June 12, 2017, is granted; a rating in excess of 20 percent is denied. Entitlement to a rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is denied. REMANDED Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for asbestosis is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, and post-traumatic stress disorder (PTSD), is remanded. Entitlement to service connection for alcohol and drug abuse is remanded. Entitlement to a compensable rating prior to June 12, 2017, and a rating in excess of 10 percent thereafter for a heat rash disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine (or the functional equivalent of ankylosis during flare-ups), nor does he have IVDS with incapacitating episodes for at least six weeks during the past 12 months. 2. The Veteran’s right lower extremity radiculopathy is not shown to have been productive of severe incomplete paralysis, neuritis, or neuralgia, of the femoral nerve. 3. Prior to June 12, 2017, the Veteran’s right lower extremity radiculopathy is not shown to have been productive of moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 4. From June 12, 2017, the Veteran’s right lower extremity radiculopathy is shown to have been productive of moderate incomplete paralysis but not of moderately severe incomplete paralysis, neuritis, or neuralgia of the sciatic nerve. 5. The Veteran’s left lower extremity radiculopathy is not shown to have been productive of moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2020). 2. The criteria for a rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8526, 8626, 8726 (2020). 3. Prior to June 12, 2017, the criteria for an initial evaluation in excess of 10 percent for right lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8620, 8720 (2020). 4. From June 12, 2017, the criteria for a 20 percent for right lower extremity sciatic nerve radiculopathy have been met; the criteria for a rating in excess of 20 percent have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8620, 8720 (2020). 5. The criteria for an initial evaluation in excess of 10 percent for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8620, 8720 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015, March 2016, and July 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified before a decision review officer (DRO). In June 2019, he testified at a Board hearing before the undersigned Veterans Law Judge; transcripts of both hearings are in the record. In an October 2020 rating decision, the AOJ increased the rating for radiculopathy of the right lower extremity sciatic nerve to 20 percent and granted a separate evaluation of 20 percent for radiculopathy of the right lower extremity femoral nerve, each effective August 1, 2020. As this does not constitute a full grant of the benefits sought on appeal, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In evaluating the severity of a disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different diagnostic codes - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 40 percent for IVDS is denied. The Veteran contends that he is entitled to a higher rating than the 40 percent assigned for his service-connected IVDS, which is currently rated under 38 C.F.R. § 4.71a, DC 5243, and which provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the IVDS Formula, a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula, 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, and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. 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. 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. Consideration must 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); 38 C.F.R. § 4.45. 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; this section is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). The spine has no opposite joint. 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. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for IVDS based on incapacitating episodes because the evidence of record does not show that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a 60 percent rating (i.e., incapacitating episodes having a total duration of at least six weeks during the past 12 months). See VA back examinations in June 2016 (no prescribed bed rest); June 2017 (no prescribed bed rest); May 2018 (no prescribed bed rest); and August 2020 (no prescribed bed rest). The preponderance of the evidence is also against a rating in excess of 40 percent for IVDS under the General Rating Formula as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, or the functional equivalent of ankylosis. During his January 2015 VA back examination, the Veteran reported being able to only drive six to seven miles a day because of increasing back pain with sitting; he can only walk two and one-half to three blocks before needing to stop and rest, and can only lift seven to 10 pounds. Range of motion on forward flexion was to 40 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. He had increasing pain with range of motion exercise, and pain was noted in all range of motion testing. On repetitive use and flare-up testing, forward flexion was to 20 degrees, extension to 10 degrees, and right and left lateral flexion was to 15 degrees; rotation remained at 30 degrees. During his June 2016 VA back examination, the Veteran reported frequent back pain associated with sitting for 30 minutes, standing or walking for 20 minutes, bending, or lifting/carrying loads heavier than five pounds. His range of motion movements were abnormal, except for full range of motion in right and left lateral flexion and rotation. Pain was only noted in extension. There was no evidence of ankylosis. The Veteran denied any flare-ups of the spine. During his May 2018 VA back examination, the Veteran reported frequent back pain associated with sitting for 30 minutes, standing or walking for 20 minutes, twisting, turning, or bending, or lifting/carrying loads heavier than 10 pounds. His range of motion movements were abnormal, except for full range of motion in right and left lateral rotation. Pain was noted in all movements except for right and left lateral rotation. There was no evidence of ankylosis. The Veteran did not report flare-ups of the spine. During his August 2020 VA back examination, the Veteran reported constant back pain, rated as eight out of 10, that gets better with medication and hot showers. He reported flare-ups involving his lower right leg once or twice a week, which he described as a “striking pain.” His range of motion movements were abnormal, including during flare-ups, except in right and left lateral rotation. Pain was noted in all movements except for right and left lateral rotation. There was no evidence of ankylosis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and weakened movement, and an inability to perform certain physical activities. The Board further notes that some of the VA examinations noted pain on flexion and extension but did not note where said pain started during range of motion testing. Even when considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by such statements do not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine, or even the functional equivalent of ankylosis. See generally Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (April 16, 2021). The evidence of record shows that while limited, the Veteran retained motion of his lumbar spine and was thus not ankylosed. There is simply no evidence that the Veteran’s spine was ever fixed in flexion or extension, or had the functional equivalent of being so fixed during the worst times of back pain, as required for a higher rating. During his June 2016, May 2018, and August 2020 VA examinations, he had full movement in right and left lateral rotation without any pain. While the January 2015 VA examination notes limited range of motion in right and left lateral rotation, the Board finds that this examination alone is not reflective of the total disability picture. As the Veteran retained movement of the lumbar spine and said movement was not limited by pain, there is no evidence on which to find that the Veteran’s lumbar spine was fixed or was functionally limited to the equivalent of being fixed. In short, there is no evidence during the appeal period that the Veteran had immobility and consolidation of his back, that it was fixed in flexion or extension, or that he had 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. As stated above, the record shows that the Veteran, while limited, has retained some movement of his back at all times during the appeal period. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his service-connected IVDS. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Increased Ratings – Radiculopathy Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, with the foot dangling and dropping, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a, DC 8520. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. (Neuritis and neuralgia of that group are evaluated under DCs 8626 and 8726.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a, DC 8526. The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Factual Background On June 2016 VA back examination, the Veteran reported numbness and tingling, with pain intermittently radiating down his buttocks to the posterior aspect of his legs to the dorsum of both feet that was associated with sitting for 30 minutes, standing or walking for 20 minutes, bending, and lifting and/or carrying loads heavier than five pounds. His muscle strength testing was normal; there was no muscle atrophy. His reflex examination was also normal. His sensory examination was normal except for decreased sensation in the left thigh/knee (L3/4). His straight leg raising test was negative. Mild intermittent pain, paresthesias and/or dysesthesias, and numbness were noted in the bilateral lower extremities; no other signs or symptoms of radiculopathy were noted. This examination report included a checklist for identification of each individual nerve manifesting impairment in this case. The examiner completed the checklist with markings that indicated involvement of the sciatic nerve bilaterally, but somehow concluded that the right and left lower extremities were not affected by radiculopathy. The examiner did not indicate any other nerve involvement. Despite the examiner’s findings, the RO granted service connection for right and left lower extremity radiculopathy involving the sciatic nerve, rated 10 percent disabling each, effective May 2, 2016 (date of the Veteran’s increased rating claim for his service-connected back disability). On June 12, 2017, VA peripheral nerves examination, the Veteran had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities. His muscle strength testing was normal, with no atrophy noted. His reflex exam was also normal. He had normal sensation throughout, except for decreased sensation noted in the left upper anterior thigh (L2). No trophic changes were noted and the Veteran’s gait was normal. This examination report included a checklist for identification of each individual nerve manifesting impairment in this case. The examiner completed the checklist with markings that indicated “mild” incomplete paralysis of the sciatic nerve for both lower extremities; all other nerves were normal. On June 12, 2017, VA back examination, muscle strength testing was normal with no atrophy noted. Reflex and sensory examinations were also normal, and the Veteran’s straight leg raising test was negative. He had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in both lower extremities with no other signs or symptoms of radiculopathy. The examiner noted mild radiculopathy involving the sciatic nerve in the bilateral lower extremities; no other nerves were affected. During his January 2018 RO hearing, the Veteran testified to pain and numbness in both legs, with right worse than left. He testified that the pain gets worse every year. In a May 2018 statement, his spouse reported that he suffers from severe bilateral leg pain that prevents him from doing any household chores; he takes medication for the pain. During his May 2018 VA back examination, the Veteran reported frequent low back pain with minimal numbness and tingling that intermittently radiated down both his buttocks, hamstrings, calves, and feet, right worse than left. His muscle strength testing was normal, with no muscle atrophy noted. His reflex exam was also normal. His sensory exam was normal except for decreased sensation noted in the lower leg/ankle (L4/L5/S1), and his straight leg raise test was negative. The Veteran had moderate intermittent pain in the right lower extremity and mild intermittent pain in the left lower extremity, as well as mild paresthesias and/or dysesthesias and numbness in both lower extremities. No other signs or symptoms of radiculopathy were noted. The examiner determined that the Veteran’s sciatic nerve radiculopathy of the right and left lower extremities was moderate and mild, respectively; no other nerves were affected. During his June 2019 Board hearing, the Veteran testified that he experienced pain from his back through his left leg, all the way to the bottom of his left ankle, at least three times a week. It prohibits him from driving long distances because he can no longer sit for a long time. (He testified that he was in pain as a result of sitting through his hearing.) When asked whether this was something that developed recently or has been going on, he said that “it’s been going on, but it’s just like the doctor told me, he said that as I get older[,] it gets worse and worse.” His right leg is not as bad as the left, but he does have “some pain” there. During March 2018 private treatment, the Veteran reported numbness, tingling and weakness associated with his back disability. During March and June 2019 treatment, he denied any new weakness difficulties and any other associated symptoms. During his August 1, 2020, VA back examination, the Veteran reported “striking pain” in his lower right leg once or twice a week. Muscle strength was normal except active movement against some resistance was noted in hip flexion and knee extension; there was no muscle atrophy. His reflex exam was normal; he had decreased sensation in his right upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5); he had normal sensation on his left side. His straight leg raise test was negative bilaterally. Mild intermittent pain and numbness was noted on the right lower extremity but was normal on the left lower extremity; there was no constant pain, paresthesias and/or dysesthesias bilaterally, and there were no other signs or symptoms of radiculopathy. The examiner determined that the Veteran had moderate radiculopathy of the right femoral and sciatic nerves and stated that there was no evidence or complaint at the current exam for a left radiculopathy. Based on that last examination, a 20 percent rating was granted for right lower extremity radiculopathy of the sciatic nerve; service connection for right lower extremity radiculopathy of the femoral nerve was also granted and assigned a 20 percent rating, both effective August 1, 2020. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity femoral nerve is denied. The Veteran’s right lower extremity femoral nerve radiculopathy is currently evaluated as 20 percent disabling from August 1, 2020. Upon review of the evidence, the Board finds that the earliest indication of any involvement of the femoral nerve was during the August 1, 2020, VA examination. (Prior examinations in June 2016, June 2017, and May 2018 only showed involvement of the sciatic nerve, not the femoral nerve.) The competent evidence of record indicates that the severity level of the Veteran’s right lower extremity femoral nerve radiculopathy is no more than moderate. In this regard, the medical evidence affirmatively shows that the Veteran does not experience severe incomplete paralysis, or complete paralysis, of the femoral nerve, and the Veteran does not report any symptomatology consistent with either severe incomplete paralysis or complete paralysis. As the medical evidence shows no severe incomplete paralysis or complete paralysis, a rating higher than the currently assigned 20 percent from August 1, 2020, is not warranted. As there is no evidence of neuritis or neuralgia, an increased rating would not be warranted under DC 8626 or DC 8726. The preponderance of the evidence is against the claim for an initial rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy from August 1, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy prior to June 12, 2017, is denied. 4. Entitlement to a 20 percent rating for right lower extremity sciatic nerve radiculopathy from June 12, 2017, is granted; a rating in excess of 20 percent is denied. As previously noted, the Veteran’s right lower extremity sciatic radiculopathy is currently evaluated as 10 percent disabling prior to August 1, 2020, and 20 percent disabling from that date. To warrant a rating in excess of 10 percent, the evidence would have to show that the Veteran’s sciatic radiculopathy was moderate; to warrant a rating in excess of 20 percent, the evidence would have to show severe sciatic radiculopathy. Upon review of the evidence, the Board finds that the evidence supports a 20 percent evaluation, but no higher, for right lower extremity sciatic nerve radiculopathy from June 12, 2017; the evidence does not support an evaluation in excess of 10 percent prior to June 12, 2017, or an evaluation in excess of 20 percent at any time during the appeal period. Prior to June 12, 2017, the most probative evidence of record is against a finding that the Veteran’s right lower extremity sciatic nerve radiculopathy was manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis and therefore, the level of impairment is most analogous to mild incomplete paralysis. Beginning June 12, 2017, the evidence supports a 20 percent evaluation, but no higher, for right lower extremity sciatic nerve radiculopathy when the severity level of the Veteran’s right lower extremity sciatic radiculopathy more nearly approximated moderate incomplete paralysis. While the June 2017 VA peripheral nerves examiner determined that the Veteran had mild incomplete paralysis of the right lower extremity, that examiner also noted moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. The Veteran testified as to worsening pain every year during his January 2018 hearing. Additionally, the May 2018 VA back examiner determined that the Veteran’s right lower extremity sciatic nerve radiculopathy was moderate. Based on the foregoing and affording the Veteran the benefit of the doubt, the Board finds that the evidence supports a 20 percent evaluation, but no higher, from June 12, 2017, for right lower extremity sciatic nerve radiculopathy. A rating in excess of 20 percent is not warranted at any point during the appeal period as there is no evidence that the Veteran’s right lower extremity sciatic nerve radiculopathy more nearly approximated severe incomplete paralysis. There is no evidence of motor and/or reflex impairment at a grade reflecting a higher level of limitation and no evidence of atrophy. As there is no evidence of neuritis or neuralgia, an increased rating would not be warranted under DC 8620 or DC 8720. Accordingly, prior to June 12, 2017, a rating in excess of 10 percent for right lower extremity sciatic radiculopathy is denied. From June 12, 2017, a 20 percent rating (but no higher) is granted. 5. Entitlement to a rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is denied. The Veteran contends that he is entitled to a higher rating than that currently assigned. To warrant a rating in excess of 10 percent, the evidence would have to show that the Veteran’s sciatic radiculopathy of the left lower extremity was moderate. The Board finds that the Veteran’s left lower extremity sciatic nerve radiculopathy is not shown to have been manifested by moderate incomplete paralysis of the sciatic nerve, such that an initial evaluation in excess of 10 percent for the left lower extremity is warranted under DC 8520. Although there have been a range of findings noting, at times, some moderate symptoms, these are not consistently shown and overall, the findings do not indicate moderate symptoms. In this regard, other findings have ranged from normal to mild. The most recent VA examination in August 2020 shows normal muscle, reflex, and sensory examinations throughout the lower left extremity; in fact, the examiner stated that there was no evidence, or even complaint, of left radiculopathy. All VA examiners concluded that overall, the Veteran’s lower left extremity symptoms are mild. Based on the foregoing, the Board finds that the evidence is insufficient to show that the Veteran’s left lower extremity sciatic nerve radiculopathy is manifested by symptomatology that more nearly approximates the criteria for an initial evaluation in excess of 10 percent under DC 8520, and that the preponderance of the evidence is against an initial increased evaluation. As there is no evidence of neuritis or neuralgia, an increased rating would not be warranted under DC 8620 or DC 8720. The preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition, to include COPD, is remanded. The Board finds that portions of the August 2020 VA respiratory examination to be inadequate. The August 2020 VA respiratory examiner included a diagnosis of COPD, stated that asbestos exposure is not known to directly cause COPD, and opined that the Veteran’s tobacco use is the most likely etiology for his COPD. She further noted that the most recent x-rays noted hyperinflation, and that the previous condition of atelectasis was presumed resolved. She concluded by noting that atelectasis is a common radiological finding in smokers. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, even if the Veteran may no longer have a diagnosis of atelectasis, he still had a diagnosis of such during the pendency of the appeal. The Board finds that the examiner’s notation that “atelectasis is a common radiological finding in smokers” is not sufficient to determine whether his atelectasis is at least as likely as not due to his conceded exposure to asbestos during service. Accordingly, another opinion is required. 2. Entitlement to service connection for asbestosis is remanded. The matter of entitlement to service connection for asbestosis is inextricably intertwined with the respiratory claim being remanded; accordingly, it must be remanded as well. 3. Entitlement to service connection for a right shoulder disability is remanded. The August 2020 VA shoulder examiner opined that the Veteran’s right shoulder disability is not due to service since there are no complaints of right shoulder pain until 37 years after separation from service; she opined that his shoulder disability is most likely due to age-related degenerative changes and/or trauma, in light of a 1995 fall from a roof. The Board takes issue with this opinion for several reasons. First, the examiner discusses “age-related degenerative changes” but only included a diagnosis of right rotator cuff tear during the examination. Second, during the examination, the Veteran reported onset of right shoulder pain during service with heavy lifting. He also testified during his Board hearing that he has continually experienced problems with his right shoulder since his discharge from service. These reports were ignored by the examiner, who instead relied on the absence of medical treatment alone, which is not a sufficient basis for a negative opinion. Thus, another medical opinion is required. 4. Entitlement to service connection for chronic kidney disease is remanded. The March 2020 VA kidney examiner only addressed the Veteran’s diagnoses of kidney stones/nephrolithiasis and hydronephrosis. The examiner noted that the Veteran passed his kidney stones, had normal renal function thereafter in 2012, and thus concluded that the Veteran’s kidney disability was not incurred in or caused by his military service, to include as due to asbestos exposure. The examiner added that the Veteran’s abnormal renal function in 2010 was due to an obstructive left renal stone and that his kidney function returned to normal with spontaneous passage of the left kidney stone. The Board finds this examination inadequate as the record contains a November 2014 diagnosis of chronic kidney disease, and a November 2016 private treatment record notes an atrophic left kidney with multiple small sub-centimeter cysts. Accordingly, a new examination that addresses all diagnoses of record is required. 5. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, and PTSD, is remanded. In a May 2008 statement, the Veteran’s spouse reported that he is “very depressed” because of limitations from his back and lower extremity radiculopathy. During VA treatment in June 2018, the Veteran reported feeling more irritable with more dysphoric moods. He associated his lower moods with times when he is suffering from pain. The Board notes that service connection is in effect for several musculoskeletal disabilities, as well as radiculopathy. Based on the Veteran’s statement, the Board finds that a VA examination with causation opinion is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for alcohol and drug abuse is remanded. The matter of entitlement to service connection for drug and alcohol abuse is inextricably intertwined with the Veteran’s claim of service connection for a psychiatric disability that is being remanded; accordingly, this issue must be remanded as well. 7. Entitlement to a compensable rating prior to June 12, 2017, and a rating in excess of 10 percent thereafter for a heat rash disability is remanded. The Veteran has repeatedly stated throughout the course of this appeal that his skin disability is worse in the summer and with heat. Accordingly, the Board finds that a remand is necessary so that the Veteran can be scheduled for a VA skin examination during the summer months to evaluate the severity of this service-connected disability. 8. Entitlement to TDIU is remanded. The matter of entitlement to TDIU is inextricably intertwined with the Veteran’s other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received for the disabilities remaining on appeal. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. Obtain copies of VA treatment records from October 2020 to the present. 3. Thereafter, arrange for a VA examination (to include tele-health interview if necessary) of the Veteran to determine the nature and likely cause of any respiratory disability that the Veteran may currently have or has had during the course of this appeal. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify, by diagnosis, all respiratory disabilities present during the appeal period (from April 2014). (b) For each respiratory disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, to include conceded asbestos exposure? Please explain why. 4. After the development in 1 and 2 are completed, arrange for a VA examination (to include tele-health interview if necessary) of the Veteran to determine the nature and likely cause of any right shoulder disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify, by diagnosis, all right shoulder disabilities present during the appeal period (from February 2016), to include (but not limited to) osteoarthritis, rotator cuff tear, shoulder impingement, and tendinitis. (b) For each right shoulder disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner may not rely solely on the absence of medical evidence during or immediately after service and must consider the Veteran’s statement of right shoulder pain in and since service. 5. After the development in 1 and 2 are completed, arrange for a VA examination (to include tele-health interview if necessary) of the Veteran to determine the nature and likely cause of any kidney disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify, by diagnosis, all kidney disabilities present during the appeal period (from April 2014), to include (but not limited to) chronic kidney disease and atrophic left kidney with multiple small sub-centimeter cysts. (b) For each kidney disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, to include conceded asbestos exposure? Please explain why. 6. Thereafter, arrange for a VA examination (to include tele-health interview if necessary) of the Veteran to determine the nature and likely cause of any psychiatric disability that the Veteran may currently have or has had during the course of this appeal. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify, by diagnosis, all psychiatric disabilities present during the appeal period (from April 2014). (b) For each psychiatric disability diagnosed, is it at least as likely as not (50 percent or greater probability) that such disability was either caused or aggravated by any of the Veteran’s service-connected disabilities? The opinion must address whether the psychiatric disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 7. Thereafter, schedule the Veteran for a VA skin examination during a flare-up of his condition, preferably during the summer months, or if not possible, obtain a VA opinion as to the total area and exposed areas affected during a flare-up of the condition and a description of the frequency and duration of flare-ups throughout the course of this appeal (from April 2014). 8. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.