Citation Nr: 21027707 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-15 927 DATE: May 6, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for a service-connected acquired psychiatric condition to include major depression and post-traumatic stress disorder (PTSD), is granted. Entitlement to a 20 percent rating, but no higher, for service connected left lower extremity sciatic nerve radiculopathy is granted. Entitlement to a 20 percent rating, but no higher, for service connected right lower extremity sciatic nerve radiculopathy is granted. Entitlement to an initial disability rating in excess of 10 percent for a service-connected back disability is denied. Entitlement to an initial compensable rating for service-connected right ear hearing loss is denied. FINDINGS OF FACT 1. At all times during the appeal the preponderance of the evidence shows that the Veteran's service-connected acquired psychiatric disorder has been manifested by occupational and social impairment with reduced reliability and productivity but not occupational and social impairment with deficiencies in most areas. 2. At all times during the appeal the preponderance of the evidence shows that the Veteran's service-connected left and right lower extremity sciatic nerve radiculopathy is manifested by adverse symptomatology that equates to moderate incomplete paralysis but not moderately severe incomplete paralysis. 3. At all times during the appeal the preponderance of the evidence shows that the Veteran's back disability is not manifested by adverse symptomatology that equates to at least flexion being less than 60 degrees and/or the combined range of motion of the thoracolumbar spine being 120 degrees or less even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis, or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 2 weeks during a 12-month period at any time during the appeal. 4. At all times during the appeal the most probative evidence of record shows that the Veteran's service-connected right ear hearing loss resulted in Level I hearing acuity in the right ear and level I hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating, but no higher, for the acquired psychiatric condition have been met at all times during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.130, Diagnostic Code (DC) 9434. 2. The criteria for 20 percent ratings, but no higher, for service-connected left and right lower extremity sciatic nerve radiculopathy have been met at all times during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124, 4.124a, DCs 8520, 8526. 3. The criteria for entitlement to a rating in excess of 10 percent for a service connected back disability have not been met at all times during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, , 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DCs 5235 to 5243. 4. The criteria for a compensable disability rating for right ear hearing loss have not been met at all times during the appeal. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to March 1971. This matter was previously before the Board in October 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. Initially, the Board of Veterans' Appeal (Board) notes that additional evidence has been added to the claims file since the RO issued the August 2020 supplemental statement of the case. However, the Board finds that this evidence is not pertinent and thereafter a delay to obtain a waiver or Remand for agency of original jurisdiction is not required. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Post-Remand Compliance Initially, the Board finds that the post-remand development substantially complied with the Remands. The Board has reached this conclusion because it finds that the post-Remand VA examinations dated in August 2019 provide all needed information to rate the Veteran's service connected disabilities under all applicable rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board has reached this conclusion because it finds that while the appeal was in Remand status the RO obtained and associated with the record all identified and available medical records. See 38 U.S.C. § 5103A(b). Therefore, the Board finds that further delay by remanding the appeal to undertake additional development is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, 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). 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). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. The acquired psychiatric condition By way of history, the Veteran was granted service connection for an acquired psychiatric condition, styled majored depression, recurrent with polysubstance dependence in full remission, and assigned a 30 percent evaluation effective March 13, 2012. An August 2016 rating decision temporarily increased the Veteran's disability to 100 percent disabling from November 2, 2015 to January 1, 2016, a 30 percent rating from January 1, 2016 to April 13, 2016 and increased to 50 percent disabling effective on April 13, 2016. The Veteran contends that he is entitled to higher disability ratings than those assigned. The Veteran's acquired psychiatric condition is rated under Diagnostic Code 9434. which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Initially, and as noted in the JMPR, the Board notes that this claim for a higher rating for PTSD was pending before the agency of original jurisdiction on or after August 4, 2014, because it was certified to the Board on August 30, 2018. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board's adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). Next, the Board notes that the Veteran was afforded a VA mental health examination in March 2013. The examiner diagnosed the Veteran with recurrent major depression and polysubstance abuse in remission. The Veteran's mood was depressed with a constricted affect. On examination, the Veteran's symptoms consisted of a depressed mood, suspiciousness, mild memory loss. The examiner found that the Veteran had a mostly good work history but that the primary impact of his depression at the time of the examination was on social and interpersonal functioning. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms. The Board notes that the Veteran had two periods of temporary 100 percent total disability from June 27, 2015 to August 1, 2015 and again from November 2, 2015 due to substance abuse relapses and hospitalizations, to include a PTSD residential rehabilitation. In March 2013, the Veteran was afforded a VA mental health examination during which the examiner diagnosed recurrent major depressive disorder and polysubstance abuse in full remission. The Veteran reported working part time and denied ever having problems on his job. At the examination, the examiner noted depressed mood, suspiciousness, and mild memory loss. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. At a subsequent examination in June 2016, the Veteran presented as depressed with a constricted affect and poor judgment and insight. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, speech intermittently illogical, impaired judgment, difficulty in establishing and maintaining work and social relationships, difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. The examiner found occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran was afforded another VA mental health examination in August 2019. The examiner diagnosed the Veteran with PTSD and substance use disorder in remission. On examination, symptoms consisted of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, flatted affect and disturbances of motivation and mood. The Veteran noted that he lives with his wife and child and that things were "good" with the family. He also reported having two friends with whom he spends time. He denied use of alcohol or drugs since his treatment in 2015. The examiner opined that the Veteran's acquired psychiatric condition causes occupational and social impairment with reduced reliability and productivity. Tellingly, the Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above examinations and VA treatment records that shows that the acquired psychiatric disorders adverse symptomatology approximates the criteria for a 50 percent rating at all times during the appeal because his adverse symptomatology includes, among other things, a depressed mood, a constricted affect, suspiciousness, mild memory loss, poor judgment and insight, chronic sleep impairment, speech intermittently illogical, impaired judgment, and panic attacks. See 38 C.F.R. § 4.130; Owens, supra; Fenderson, supra; Hart, supra; Tatum, supra; Young, supra. The Board also finds that the Veteran had a PTSD residential rehabilitation during the appeal supports the 50 percent rating. See Owens, supra. However, the Board finds that the criteria for a higher rating are not met at any time during the pendency of the appeal. In this regard, the Board finds that that the most probative evidence of record shows that the Veteran does not have demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, while not exclusive symptomatology, the Board nonetheless finds the fact that the evidence does not establish that the Veteran had obsessional rituals that interfered with routine activities; abnormal speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships weighs against his claim for a higher rating. See Owens, supra. Likewise, the Board finds the fact that the Veteran told the August 2019 VA examiner that he lives with his wife and child, things were "good" with the family, and he has two friends with whom he spends time weighs against finding that his acquired psychiatric disorder causes at least occupational and social impairment with deficiencies in most areas at any time during the appeal. Id. Likewise, the Board finds the Veteran's statement to the March 2013 examiner that he worked a part-time job with no problems at work weight against finding his acquired psychiatric disorder causes at least occupational and social impairment with deficiencies in most areas at any time during the appeal. Id. This does not suggest the Veteran does not have problems (a 50 percent evaluation strongly indicates a significant problem if it did not there would be no basis for a compensable evaluation a 50 percent evaluation suggests, very generally, a 50 percent reduction in the ability to work, a significant disability evaluation which will, over time, cause the Veteran many problems, this is not in dispute). Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). 2. The left and right lower extremity sciatic nerve radiculopathy The Veteran's left lower extremity sciatic nerve radiculopathy and right lower extremity sciatic nerve radiculopathy are each rated as 20 percent disabling effective March 13, 2012, the left lower extremity sciatic nerve radiculopathy is rated as 10 percent effective April 13, 2016, and the right lower extremity sciatic nerve radiculopathy is rated as noncompensable effective April 13, 2016, all under 38 C.F.R. § 4.124a. Diagnostic Code 8520. Disability ratings for the nerves, are found at 38 C.F.R. § 4.124a. Diagnostic Code 8520 pertains to the sciatic nerve and provides for a 10 percent rating for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the nerve (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. § 4.120 provides that when rating peripheral nerve injuries and residuals, the rater should consider the relative impairment of motor function, trophic changes, and/or sensory disturbances. Attention should be given to the site and character of the injury. The words "mild," "moderate," "moderately severe," 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 for "equitable and just decisions." 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. With the above criteria in mind, the Board notes that at the March 2013 VA examination reflexes were hypoactive at 1+, straight leg raising was negative on the right and positive on the left, he had mild intermittent pain and paresthesias/dysesthesia, and numbness in the right leg and moderate intermittent pain and paresthesias/dysesthesia, and numbness in the left leg. However, lower extremity muscle strength was normal at 5/5, there was no muscle atrophy, and sensory examination was normal. It was opined that the radiculopathy was mild on the right and moderate on the left. At the June 2016 VA examination, muscle strength was 4/5 in the right hip and left ankle. the Veteran had moderate intermittent pain on the left, mild paresthesias/dysesthesia on the left, and mild numbness in the right and left. There was no muscle atrophy and reflexes were normal at 2+. Sensory examination was normal. Straight leg raising is negative bilaterally. Tellingly, the Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum, supra; Young, supra. Therefore, when considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above examinations and VA treatment records that shows that the left and right lower extremity sciatic nerve radiculopathy approximates the criteria for 20 percent ratings at all times during the appeal because his adverse symptomatology includes, among other things, reflexes were hypoactive at 1+, straight leg raising being negative on the right and positive on the left, mild intermittent pain and paresthesias/dysesthesia, and numbness in the right leg and moderate intermittent pain and paresthesias/dysesthesia, and numbness in the left leg/moderate intermittent pain on the left, mild paresthesias/dysesthesia on the left, and mild numbness in the right and left, and/or muscle strength was 4/5 in the right hip and left ankle. See 38 C.F.R. § 4.130; Owens, supra; Fenderson, supra; Hart, supra; Tatum, supra; Young, supra. However, the Board finds that the criteria for higher ratings are not met at any time during the pendency of the appeal. In this regard, the Board finds that that the most probative evidence of record shows that the Veteran's radiculopathy is not manifested by symptoms matching or approximating moderately severe incomplete paralysis. The Board notes that the Veteran's symptoms have been regarded as either mild, or of average or medium extent (moderate), rather than as extremely intense, or to the extent as to be considered severe (moderately severe). Moreover, the evidence shows that the Veteran's right lower extremity radiculopathy and left lower extremity radiculopathy symptoms were wholly sensory, as the Veteran did not experience any bowel or bladder problems, muscular atrophy, or pathologic reflexes as a result of his radiculopathy. 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. In light of the foregoing, the Board concludes the record does not reflect that the Veteran's service-connected left and right lower extremity sciatic radiculopathy meet or nearly approximated the criteria of moderate incomplete paralysis at any time during the period on appeal. Therefore, the board finds that the preponderance of the evidence is against the assignment of ratings in excess of 20 percent for either disability. 3. The back disability An August 2013 rating decision granted the Veteran service connection for a back disability effective March 13, 2012, and assigned a 10 percent disability rating under DC 5237-5242. The Veteran contends that he is entitled to a higher disability rating. Initially, the Board notes that since the appeal was last before the Board VA amended some of its' criteria for rating musculoskeletal disabilities including the back under 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that a Remand is not required to provide the appellant with notice of the new musculoskeletal rating criteria and for the RO to adjudicates the claim applying the new criteria. The Board has reached this conclusion because it finds that nothing in the new criteria changes how this Veteran's back disability is rated and, therefore, he will not be prejudiced by it adjudicating this claim at this time. See Sabonis, supra. 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; 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 body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Moreover, under the old and new rating criteria, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. DC 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. The Veteran was afforded a VA examination of his back in March 2013. At that time, the pain free range of motion after repetition was flexion to 70 degrees; extension to 20 degrees; left and right lateral rotation to 30 degrees; and right lateral and left lateral flexion to 30 degrees. It was opined that he had no incapacitating episodes. The Veteran was afforded a VA examination of his back in July 2016. The examiner diagnosed the Veteran degenerative arthritis of the spine since approximately 2012. The Veteran denied flareups but reported back pain which is worse when standing or walking for extended periods of time. Examination revealed flexion to 85 degrees; extension to 15 degrees; left and right lateral rotation to 30 degrees; and right lateral flexion at 25 and left lateral flexion to 20 degrees. The examiner noted objective evidence of pain with extension and left lateral rotation, with tenderness to palpation in the mid lower back but no evidence of pain with weight bearing. Following three repetitions, the Veteran's pain caused additional loss, with flexion to 90 degrees, extension to 25, normal right lateral flexion and left lateral flexion to 20 degrees, right lateral rotation to 25 and left lateral rotation to 20. The examiner found no guarding, but muscle spasms that did not result in abnormal gait or abnormal spine contour. The examiner found no incapacitating episodes of spine disease nor ankylosis. Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back, the Board has not overlooked the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because the examiners considered the range of motion of the thoracolumbar spine taking into account the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. With the above criteria in mind, the Board notes that under the General Rating Formula for Disease and Injuries of the Spine the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 20 percent, rating at any time during the appeal because flexion was not less than 60 degrees and the combined range of motion of the thoracolumbar spine was not the 120 degrees or less required for an increased rating. The Board has reached this conclusion because the ranges of motion of the Veteran's back considering the above criteria were as follows at his VA examinations: at the in March 2013 VA examination forward flexion of the thoracolumbar spine was 70 degrees and the combined range of motion of the thoracolumbar spine was 210 degrees; and at the July 2016 VA examination forward flexion of the thoracolumbar spine was 85 degrees and the combined range of motion of the thoracolumbar spine was 205 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also notes that the treatment records also do not document flexion being less than 60 degrees and the combined range of motion of the thoracolumbar spine being 120 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine during the appeal period because the record is negative for reports of guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in March 2014 and December 2018. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing reports of guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent for his back disability under the old and new Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the March 2013 and July 2016 VA examinations, are negative for his having physician ordered bedrest. See Colvin, supra. In fact, the March 2013 and July 2016 VA examiners opined that there was no physician ordered bedrest. Moreover, the Board finds that the Veteran is not competent to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training and the medical the record does not show he ever had a total of at least 2 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Therefore, the Board also finds that the criteria for a rating in excess of 10 percent for the Veteran's back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5243. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. 4. The right ear hearing loss An August 2013 rating decision granted service connection for right ear hearing loss and assigned a noncompensable evaluation effective March 13, 2013. The Veteran contends that he should be entitled to a higher, compensable rating. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the vertical columns represent nine separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four frequencies and dividing that sum by four. The horizontal rows under Table VI represent nine separate ranges of speech discrimination percentages, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the vertical column appropriate for the calculated pure tone threshold average and the horizontal row appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85(b). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85(h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the better ear) with the appropriate vertical column (which represents the Roman numerical designation for the poorer ear). 38 C.F.R. § 4.85(e). Importantly, VA regulation provides "[a]n examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids." 38 C.F.R. § 4.85(a). See also, Swain v. McDonald, 27 Vet. App. 219, 222 (2015) ("There is no dispute that § 4.85(a)...requires use of the Maryland CNC test to determine the degree of a veteran's hearing loss, unless the examiner certifies that use of the test is not appropriate."). When impaired hearing is service connected in only one ear, then the nonservice-connected ear will be assigned a numeric designation of I unless the service-connected hearing loss is at least 10 percent disabling and there is hearing impairment in the non service-connected ear under 38 C.F.R. § 3.385. 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). At a VA audiological examination in March 2013, the examiner found puretone thresholds of 10, 5, 10, 25 decibels in the right ear and puretone thresholds of 5,10, 10, and 20 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 12 decibels in the right ear and 11 decibels in the left ear. Speech recognition ability was 92 percent in the right ear and 94 percent in the left ear. Applying these results to Table VI of the Rating Schedule reveals numeric designations of Level I for the right ear and Level I for the left ear. When hearing loss is Level I in one ear and Level I in the other, a noncompensable evaluation is assigned under Table VII of the Ratings Schedule. Following the October 2018 Board remand, the Veteran was afforded a VA audiological examination in August 2019. The examiner found puretone thresholds of 10, 10, 15, 30 decibels in the right ear and puretone thresholds of 10,10, 15, and 30 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 16 decibels in the right ear and 16 decibels in the left ear. Speech recognition ability was 100 percent in the right ear and 100 percent in the left ear. Applying these results to Table VI of the Rating Schedule reveals numeric designations of Level I for the right ear and Level I for the left ear. When hearing loss is Level I in one ear and Level I in the other, a noncompensable evaluation is assigned under Table VII of the Ratings Schedule. As to 38 C.F.R. § 4.86(a) and (b), at the above VA examinations the Veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) nor thresholds of 30 decibels or less at 1,000 Hz, and 70 decibels or more at 2,000 Hz. Consequently, 38 C.F.R. § 4.86(a) and (b) does not apply to the current claim. This is true at all times during the appeal. Fenderson, supra. The Board attaches probative weight to the medical records and clinical findings from the medical professionals who conducted audiological testing in March 2013 and August 2019 rather than to the Veteran's lay witness statements. The Board notes that both examinations found relatively consistent results more than six years apart. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable disability rating is warranted for the Veteran's bilateral hearing loss at any time during the period of this appeal. To the extent that the Veteran contends that his bilateral hearing loss was more severe than reflected by his assigned disability rating prior to December 30, 2020, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as trouble hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (2006). (Continued on the next page) Accordingly, the Veteran's claim for a compensable rating for right ear hearing loss is denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.