Citation Nr: 21027159 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-29 369 DATE: May 4, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, from January 29, 2010, for lumbar stenosis with degenerative arthritis, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an increased disability rating in excess of 40 percent for lumbar stenosis with degenerative arthritis from October 4, 2019, is denied. Entitlement to an initial disability rating of 20 percent, but no higher, from January 29, 2010, for sciatic nerve impairment of the right lower extremity (RLE), to include as secondary to lumbar stenosis with degenerative arthritis, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an increased disability rating in excess of 20 percent for sciatic nerve impairment of the RLE, to include as secondary to lumbar stenosis with degenerative arthritis, from September 24, 2012, is denied. FINDINGS OF FACT 1. From January 29, 2010, and throughout the period of appeal, the Veteran's lumbar spine disability more nearly approximates painful limitation of forward flexion to 30 degrees, particularly when considering his functional impairment on his ability to sit, stand, lift or bend. 2. From January 29, 2010, and throughout the period of appeal, the most probative evidence demonstrates that the Veteran's sciatic nerve impairment of the RLE more closely approximates moderate incomplete paralysis of the sciatic nerve, but not productive of moderately severe paralysis or severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 40 percent, but no higher, from January 29, 2010, for lumbar stenosis with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an initial disability rating for 20 percent, but no higher, from January 29, 2010, for sciatic nerve impairment of the RLE, to include as secondary to lumbar stenosis with degenerative arthritis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1971 to June 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in May 2011 and May 2012, respectively. The above matters were previously before the Board on several previous occasions, first, in September 2012, at which time the Veteran testified before the undersigned Veteran's Law Judge. A transcript of that hearing has been associated with the Veteran's file. Both matters were subsequently remanded by the Board in July 2014 for VA examinations. In April 2017, the Board again remanded both matters for adequate examinations in light of Correia v McDonald, 28 Vet App 158 (2016). Because the Veteran's October 2019 lumbar surgery was not taken into account by the examiner, the Board remanded these matters in April 2020, for an examination that accurately reflects the severity of the Veteran's disabilities. Finally, in December 2020, the Board remanded for a lack of substantial compliance with its previous remand directives. There have been two adjudications of these matters by the RO during the course of the appeal. First, on January 23, 2015, when the Veteran's disability rating of his right lower extremity radiculopathy, sciatic nerve, was increased from 10 percent to 20 percent, effective September 24, 2012, the date of his hearing testimony during which the Veteran testified to the increase in the severity of his radiculopathy symptoms. Then, on February 25, 2020, at which time the disability rating of the Veteran's lumbar stenosis with degenerative arthritis was also increased, from 20 percent to 40 percent, effective October 4, 2019, the date of the VA examination when the increase in the severity of his back symptoms was confirmed. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Under the current rating criteria, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 1. Entitlement to an increased rating for lumbar stenosis with degenerative arthritis, rated at 20 percent disabling from January 29, 2010, and 40 percent disabling from October 4, 2019. The Veteran was granted service connection for his lumbar stenosis with degenerative arthritis in May 2011, at an initial 20 percent rating, effective January 29, 2010, the date of his claim, based on the findings of his November 2010 VA examination. The Veteran is seeking a higher rating evaluation throughout the period on appeal. For the following reasons discussed below, the Board finds that an increased rating from 20 percent to 40 percent is warranted from January 29, 2010, the date of his claim, but no higher than a 40 percent rating is warranted throughout the appeal period. November 2010 VA Examination During the Veteran's initial November 2010 VA examination, the Veteran reported experiencing stiffness on his back; that he uses a back brace on a daily basis and had received 5 epidural steroid injections for the management of this condition, including taking Naproxen. The Veteran also reported experiencing some numbness down one or the other leg (described as "sciatica-like distribution") which has been attributed to the disc bulge of his lower spine, and that these episodes last between 10-15 minutes. No incontinence, hospitalization, surgery or re-injury of his back was reported. The physical examination revealed a normal gait with no assistive devices used. The spine was reported by the examiner as normal in appearance with no thoracic kyphosis, lumbar lordosis, or scoliosis. However, there was some paravertebral muscle tenderness noted. The Veteran's range of motion (ROM) of his lumbar spine was reported as follows: forward flexion at 60 degrees; extension at 10 degrees; right and left lateral flexion at 20 degrees respectively; right and left rotations at 15 degrees respectively. In addition, the examiner noted that there was pain at the endpoint of each of the range of motion maneuvers. With regards to repetitive use testing with at least three repetitions, there was no additional loss of range of motion, pain, fatigability, weakness, lack of endurance or loss of coordination. Radiculopathy During this VA examination, positive straight leg sign on right leg and negative on the left leg was reported. Sensory examination was reported as normal for both extremities; however, the examiner reported a history of numbness in a "sciatica-like distribution" attributable to the disc bulge of the lower spine. August 2011 MRI A private MRI revealed the following with regards to L4-L5: [T]here is disc bulging diffusely estimated at 2-3 mm concentrically. There is no focal herniation of disc material. The congenitally, narrowing of the canal is accentuated by degenerative facet and ligamentous changes. At the midline, the canal measures at least 13 mm. The foramina are minimally narrowed, but not stenosed. L5-S1: [T]here is mild disc bulging diffusely of approximately 3 mm. The canal at the midline measures 13 mm. There is facet arthropathy. There is bilateral facet and ligamentous hypertrophy. There is foraminal: narrowing bilaterally, but not critical stenosis. September 2014 Examination Following the Veteran's testimony during his Board hearing in September 2012, the Veteran was afforded another VA examination. During this examination, the Veteran's range of motion (ROM) of his lumbar spine was reported as follows: forward flexion at 80 degrees; extension at 0 degrees; right lateral flexion at 10 degrees, left lateral flexion at 20 degrees; right lateral rotation at 5 degrees; left lateral rotation at 10 degrees. No additional limitation in ROM of the thoracolumbar spine (back) following repetitive-use testing, but additional functional loss was noted, with the following contributory factors: pain on movement; interference with sitting, standing and/or weight-bearing. Localized tenderness or pain on palpitation noted; guarding and/or muscle spasm was present but did not result in abnormal gait or spinal contour. Radiculopathy During this VA examination, muscle strength was reported as normal (5/5) for all, including knee extension; ankle plantar flexion and ankle dorsiflexion; no muscle atrophy was reported. No decreased sensory was reported during this examination. The examiner indicated that the Veteran has moderate numbness and moderate paresthesias and/or dysesthesias and moderate constant pain. Further, that it was difficult to narrow the Veteran's radiculopathy symptoms down to a specific nerve. July 2017 VA Examination During this examination, the Veteran was diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome (IVDS) and spinal stenosis. The Veteran reported experiencing flareups and also reported experiencing functional loss/impairment that has made it difficult for him to sit, stand, lift or bend. The Veteran's range of motion (ROM) of his lumbar spine was reported as follows: forward flexion at 45 degrees; extension at 20 degrees; right lateral flexion at 15 degrees, left lateral flexion at 20 degrees; right and left rotations at 30 degrees respectively. There was pain noted on examination acknowledged to cause functional loss in all ROMs; but no evidence of pain reported with weight bearing and no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and with no additional loss of function or range of motion. The examiner also reported that the Veteran did not exhibit muscle spasm or guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spine contour, respectively. However, he did report that the following additional factors contributed to the Veteran's lumbar spine disability: " [L]ess movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle or peripheral nerve injury, etc., disturbance of locomotion, interference with sitting, interference with standing." However, ankylosis of the spine or any other neurologic abnormalities was not reported. Although it was noted that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner noted that he was unable to describe in terms of range of motion. Consequently, the Veteran was afforded another VA examination that substantially complied with its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Radiculopathy During this VA examination, muscle strength was reported as normal (5/5) for all, including knee extension; ankle plantar flexion; ankle dorsiflexion and great toe extension; no muscle atrophy was reported. Decreased sensory was reported in the right lower leg/ankle and foot/toes. The examiner also noted the Veteran's report of numbness sensation in the right toes. The examiner indicated that the Veteran has mild numbness in the RLE, including mild constant pain; no paresthesias and/or dysesthesias was reported. Overall mild severity of radiculopathy was also noted. October 2019 VA Examination During this examination, the Veteran's range of motion (ROM) of his lumbar spine was reported as follows: forward flexion at 30 degrees; extension at 10 degrees; right and left lateral flexion at 20 degrees respectively; right and left rotations at 30 degrees respectively. The examiner reported that his abnormal ROM of itself contributed to functional loss, described as "The Veteran cannot fully forward or laterally flex or extend his back." Pain was noted during the examination that causes functional loss. However, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine was noted. Further, there was no additional loss of function or range of motion after three repetitions. Pain was noted as causing additional functional loss and ROM measurements were same as those reported during his initial ROM. The examination was not conducted during a flareup. No guarding and muscle spasm noted as resulting in abnormal gait or abnormal spine contour was reported. Radiculopathy Findings of radiculopathy reflects moderate constant pain; moderate paresthesias and/or dysesthesias; moderate numbness; moderate level of severity noted; no ankylosis of the spine; no other neurologic abnormalities noted. Use of assistive devices for both his back and RLE described as follows: "Cane on an occasional basis and crutches on a regular basis, for "right lower extremity / right lower extremity radiculopathy, sciatic nerve; degenerative arthritis of the spine / lumbar stenosis with degenerative arthritis." The examiner reported that he was unable to perform straight leg testing during this examination; decreased sensory was reported for both right and left extremities of lower leg and toes. October 2020 VA Examination During the Veteran's most recent examination, he was also diagnosed with status post fusion of the spine. The Veteran's range of motion (ROM) of his lumbar spine was reported as follows: forward flexion at 40 degrees; extension at 10 degrees; right and left lateral flexion at 20 degrees respectively; right and left rotations at 25 degrees respectively. Abnormal ROM was reported due to pain that contribute to a functional loss, which the Veteran described as "pain with limitation with walking, standing, sitting for long periods of time." No pain was noted during the examination, but there was evidence of pain with weight bearing noted; also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine (back) described by the Veteran as "aching pain"; severity (4/10); no additional loss of ROM after 3 repetitions was noted; pain noted as contributing to additional functional loss in ROM was the same as the initial ROM; guarding and muscle spasm noted as resulting in abnormal gait or abnormal spine contour. Radiculopathy Straight leg testing was normal for both legs. Normal muscle strength and no muscle atrophy was reported; similar to the prior examination, decreased sensory was also reported in the right lower leg/ankle and foot/toes. Symptoms of his RLE reported as moderate paresthesias and/or dysesthesias; moderate intermittent pain, moderate numbness, with an overall moderate severity noted. With regard to assistive devices, it was noted that the Veteran uses a brace (occasionally) and a cane (regular) with regards to lumbar stenosis with degenerative arthritis. February 2021 Medical opinion In response to the Board's specific remand directive for a retrospective opinion, the examiner responded as follows: A new request was made based upon the most current remand and the medical doctor provided the following: I have reviewed the conflicting medical evidence and am providing the following opinion: "Passive and non-weight-bearing range of motion cannot be performed on individuals with back conditions. Individuals with back conditions cannot readily relax enough to perform such maneuvers. Even in the absence of a back condition, the biomechanics of back movement preclude such evaluation. This is accepted orthopedic principle. The veteran has consistently reported flares on all available DBQ's. The estimates for ROM during flare for each DBQ will be given in the sequence of flexion, extension, right flexion, left flexion, right rotation and left rotation. For 2010, the estimate would be 0 to 60°, 0 to 5°, 0 to 15°, 0 to 15°, 0 to 10° and 0 to 10°. For 2013, 0 to 75°, 0 to 0°, 0 to 5°, 0 to 5°, 0 to 0° and 0 to 5°. For 2014, 0 to 75°, 0 to 5°,0 to 15°, 0 to 15°, 0 to 10° and 0 to 10°. For 2017, 0 to 40°, 0 to 15°, 0 to 10°, 0 to 15°, 0 to 25° and 0 to 25°. For 2019, zero 25°, 0 to 5°, zero the 15°, 0 to 15°, 0 to 25° and 0 to 25°. For 2020, 0 to 35°, 0 to 5°, 0 to 15°, 0 to 15°, 0 to 25°, and 0 to 25°. These estimates are based on the history as given by the veteran for flares, the physical exam documentation and responses recorded for observed repetitive use, and other pertinent documentation. The Board finds this retrospective opinion to be in substantial compliance with its remand directives, especially with regards to the ROM that was not measured for passive and nonweight-bearing during prior examinations. Treatment Records The record reflects that a surgical procedure was performed on March 13, 2010, following an Emergency Room visit specifically, the administration of bilateral L3-4 L4-L5 and 15-S1/lumbar facet injections (intravenous conscious sedation) for treatment of his back pain radiating to his lower legs. Such pain was noted to be acute for 4 days, also described as moderate to severe cramping. Motrin (800 mg) was prescribed, and Flexeril and Percocet. This was following his February 26, 2010, complaints of low back pain, backache and decreased ROM noted as follows: flexion restricted & painful; flexion and extension painful; tenderness over thoracic and lumbar vertebrae noted. On April 8, 2011, the Veteran reported that his low back pain persists, aggravated by prolonged sitting; gradual onset and persistent; 5/16/2011: Lumbar sprain noted as stable. Treatment records on December 2, 2018, reflect the Veteran's complaint lower back pain compliant radiating to his feet; MRI performed. 10/15/2019: back pain complaint; spine exam an abnormal posture noted; lumbosacral spine pain elicited by flexion; by extension; lumbar spine neuro: decreased response to tactile stimulation on knee and medial leg (14);decreased response to tactile stimulation on lateral leg and dorsum of foot (1-5). X-ray conducted; Pain assessment: Veteran noted that his pain was getting worse and he could barely walk, that he now requires a walker now. It was noted that decompression and fusion was recommended, and subsequently performed (complete diskectomy) on 10/21/2019. Analysis The Board finds that notwithstanding the Veteran's ROM that by themselves did not fall within a 40 percent disability rating under the diagnostic code, including the retrospective ROM findings, the Veteran's low back disability has been shown to be severe throughout the period of appeal, as initially manifested in his 2010 treatment records, which reflects severe pain levels requiring the administration of several epidural injections to ease his pain, and ongoing follow-up treatment with prescribed pain medication. After a review of all the above referenced evidence of record, and considering the overall record in a light most favorable to the Veteran, the Board finds that for the entire period on appeal, the Veteran's lumbar spine disability has more nearly approximated forward flexion to 30 degrees or less, particularly when taking into consideration the Veteran's reported limitation during flare-ups, functional impairment, limitation due to pain and lack of endurance and the Veteran's contentions of his severe pain level that have essentially remained the same throughout this entire period. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton, 25 Vet. App. at 5. As noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Despite the fact that the Veteran's range of motion was within the range prescribed disability range of 20 percent rating from January 29, 2010, the Board will give the Veteran the benefit of the doubt, and find that the Veteran's functional impairment due to his pain level was as described in his March 2010 treatments records, and his initial November 2010 VA examination, and manifested in his ongoing treatment records and subsequent VA examinations which is reflected as severe and sometimes debilitating. Under DeLuca, the Board finds that such additional loss resulted in the functional equivalent of forward flexion of the thoracolumbar spine to 30 degrees or less during flare-ups. Thus, the Board resolves all reasonable doubt in favor of the Veteran and finds that throughout the period on appeal, the Veteran's lumbar stenosis with degenerative arthritis has more closely approximated the criteria contemplated in the 40 percent criteria. Higher Rating Consideration in Excess of 40 Percent On the other hand, the Board finds that the criteria for a rating higher than 40 percent are not met in this case. Although his October 4 2019, VA examination, reflects specific complaints of severe back pain, and a recommended surgical procedure was subsequently performed to help ease the Veteran's back pain, the record is bare of specific evidence of favorable or unfavorable ankylosis of the thoracolumbar spine or the entire spine, which would warrant a higher than 40 percent disabling rating. Additionally, notwithstanding the fact that the Board has granted an evaluation of 40 percent from the date of his claim, January 29, 2010, based on additional functional loss due to severe pain, granting a further increased rating based upon DeLuca and its progeny is not applicable where-as here-a higher rating requires ankylosis or incapacitating episodes that warrant bedrest as prescribed by a physician. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Furthermore, based on the prior findings of radiculopathy on the record, the Board notes that the Veteran was separately granted service connection for radiculopathy of his RLE, effective January 29, 2010, which is currently at 20 percent. Therefore, the Veteran is already being compensated for his reported radiating pain on the right lower side of his body, for which he is also seeking an increased evaluation, as further evaluated below. Increased Rating for Neurological Impairments Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. Under DC 8520, a 20 percent rating is assigned where there is moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned where there is moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Finally, an 80 percent rating is assigned where there is complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See the nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); 2. Entitlement to an increased rating for sciatic nerve impairment of the right lower extremity, to include as secondary to lumbar stenosis with degenerative arthritis, rated at 10 percent disabling from January 29, 2010, and 20 percent disabling from September 24, 2012. The Veteran was granted service connection for his sciatic nerve impairment of the right lower extremity in May 2012, at an initial 10 percent rating, effective January 29, 2010, the date of a finding of radiculopathy, and increased to a 20 percent rating from September 12, 2012, based on the Veteran's Board testimony. For the following reasons, the Board finds that an initial disabling rating of 20 percent from January 29, 2010, is warranted throughout the appeal period. Although sensory examination of the right leg was reported as normal and complaints noted as sensory in nature during the November 2010 VA examination, the examiner also reported a finding of a history of numbness in a "sciatica-like" distribution attributable to the disc bulge of the lower spine. Further, the Veteran's treatment records (March 2010) reflects several complaints of low back pain radiating to his lower legs and a subsequent August 2011 MRI findings confirmed a disc bulging diffusely estimated at 2-3 mm concentrically and noted a history of consistent back pain with bilateral extremity radiculopathy symptoms. The Veteran also reported that his symptoms functionally impaired his ability to sit, stand, bend or lift Further, although the Veteran's rating for his RLE was increased from 10 percent to 20 percent, on September 24, 2012, based on his Board testimony, during which he specifically described having flareups and tingling sensations, the Veteran also testified that the severity of his radiculopathy symptoms were not given due consideration during the Veteran's initial November 2010 VA examination, indicating that he was experiencing this level of severity even then. Subsequent examinations also indicate more than mild radiculopathy symptoms. For instance, during the September 2014 exmaintion, the examiner described the Veteran's radiculopathy symptoms as moderate numbness and moderate paresthesias and/or dysesthesias and moderate constant pain. Decreased sensory was reported in the right lower leg/ankle and foot/toes. The examiner also noted the Veteran's report of numbness sensation on his right toes. During the October 2019 VA examination, the examiner noted that the Veteran was using assistive devices both for of assistive devices for both his back and RLE symptoms, and during his most recent examination, in October 2020, symptoms of his RLE were reported as moderate paresthesias and/or dysesthesias; moderate intermittent pain, moderate numbness, with an overall moderate severity noted. In taking all of this into consideration, the Board finds that the current evidence of record reveals that Veteran's RLE radiculopathy symptoms do not appear to be mild in nature, manifested by some functional impact, leading to the need for the use of assistive devices for both his back and RLE. Functional loss is defined by the VA as the inability, due to damage or infection in parts of the system, to be able to perform normal working movements of the body with normal excursion, strength, speed, coordination and/or endurance. The Board observes that the words "mild," "moderate," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In consideration of this fact, and in giving the Veteran the benefit of the doubt, the Board finds that the Veteran's RLE radiculopathy disability manifests functionality of a moderate incomplete paralysis from January 29, 2010, and as such, entitlement to a disability rating of 20 percent, but no higher, for RLE neuropathy, is warranted from that date. Higher Rating in Excess of 20 percent for RLE However, in applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his RLE during the appeal period, including from September 24, 2012, onwards as there is no evidence to support a finding that the Veteran's RLE radiculopathy has been manifested by moderately severe incomplete paralysis of the sciatic nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. More specifically, although the Veteran's RLE has gotten progressively more severe, the Board finds that the Veteran's current symptoms in no way compatible with the type of "severe incomplete paralysis" or "complete paralysis" findings required for a 40 percent rating under Diagnostic Code 8520. Further, the Veteran's current disability also does not warrant a higher rating under neurological impairments affecting the sciatic nerve evaluated under Diagnostic Codes 8620 (neuritis) and 8720 (neuralgia), 8521 (external popliteal) and 8522 (superficial peroneal). The Board has also considered the applicability of other Diagnostic Codes related to the foot and ankle. However, there is no evidence or allegation that the Veteran's disability stemming from the great toe of his right foot is productive of any other ratable conditions such as weak foot, pes cavus, or an ankle disability. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the choice of diagnostic code should be upheld if supported by explanation and evidence); Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (discussing the application of DC 5284 to listed and unlisted foot disabilities). As a preponderance of the evidence is against the award of a higher rating than the 20 percent for his RLE radiculopathy disability, the benefit of the doubt doctrine is not applicable as to this issue. Therefore, any claim for a higher initial rating in excess of 20 percent for the period starting from January 29, 2010, must also be denied. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate 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.