Citation Nr: 21028087 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-27 413 DATE: May 10, 2021 ORDER Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for an eye disability is denied. Entitlement to service connection for a gastrointestinal disorder, to include umbilical hernia, is denied. Entitlement to an initial rating in excess of 20 percent for right ankle collateral ligament strain is denied. Entitlement to an initial rating in excess of 40 percent for lumbar degenerative disc disease is denied. Entitlement to service connection for right lower extremity radiculopathy prior to January 6, 2015 is denied. Entitlement to 10 percent rating, but no higher, for right lower extremity radiculopathy, from January 6, 2015 through November 23, 2020 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to 40 percent rating, but no higher, for right lower extremity radiculopathy from November 24, 2020 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's current cervical spine cervical disabilities, variously diagnosed as degenerative arthritis, cervical strain, intervertebral disc syndrome, and cervical radiculopathy, did not manifest in service, or, for arthritis, within 1 year of separation from service, and are unrelated to service. 2. The Veteran's current eye disabilities, variously diagnosed as bilateral vitreous syneresis, nuclear cataracts, pterygia, floaters, pingueculae, and dry eye syndrome, did not manifest in service and are unrelated to service. His in service astigmatism is not a disease or injury under VA compensation law. 3. The Veteran's current gastrointestinal disorders, variously diagnosed as ventral hernia, esophagitis, right femoral hernia, and irritable bowel syndrome, did not manifest in service and are unrelated to service, including abdominal pain in service. 4. The Veteran's right ankle collateral ligament strain has been rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 5. The Veteran does not have unfavorable ankylosis of his entire thoracolumbar spine; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 6. From August 30, 2012 through January 5, 2015, the Veteran did not have radiculopathy of the right lower extremity. 7. From January 6, 2015 through November 23, 2020, the Veteran had mild incomplete paralysis of his right sciatic nerve. 8. From November 24, 2020, the Veteran has moderately severe incomplete paralysis of his right sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 3. The criteria for service connection for a gastrointestinal disorder, to include umbilical hernia, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 4. The criteria for a rating in excess of 20 percent for right ankle collateral ligament strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5270, 5271. 5. The criteria for a rating in excess of 40 percent for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 6. The criteria for service connection for right lower extremity radiculopathy from August 30, 2012 through January 5, 2012 have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 7. The criteria for a 10 percent rating, but no higher, for right lower extremity radiculopathy from January 6, 2012 through November 23, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 8. The criteria for a 40 percent rating, but not higher, for right lower extremity radiculopathy from November 24, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1973. The Board thanks him for his service. He appeals a March 2015 agency of original jurisdiction (AOJ) rating decision, based on claims filed in August 2012 (eye, gastrointestinal, lumbar spine, and right knee) and October 2012 (cervical spine). This case was previously before the Board. Specifically, in October 2018, the Board reopened the claim for service connection for a cervical disability and remanded the claim on the merits. In October 2018, the Board also remanded the issues of service connection for an eye disorder and a gastrointestinal disorder as well as claims for increased initial ratings for a lumbar spine disability and a right ankle disability. They now return for appellate review. In October 2018, the Board also remanded the issues of entitlement to service connection for a skin disorder. Also, a prior July 2018 Board decision also remanded service connection acquired psychiatric disorder and entitlement to a total disability due to individual unemployability (TDIU). Thereafter, a September 2020 rating decision granted service connection for major depressive disorder with anxious distress. A February 2021 rating decision granted service connection for urticaria. Accordingly, these claims are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The February 2021 rating decision also granted entitlement to a TDIU from August 22, 2012, the same date that the service connection was awarded for the disabilities at issue. Accordingly, entitlement to a TDIU, which was previously before the Board in conjunction with the current appeals is now moot. Rice v. Shinseki, 22 Vet. App. 447 (2009). The February 2021 rating decision also granted service connection for right lower extremity radiculopathy and assigned an evaluation of 10 percent effective November 24, 2020. Accordingly, as right lower extremity radiculopathy is part and parcel of adjudication of entitlement to a higher initial rating for the Veteran's service-connected lumbar degenerative disc disease, the Board will adjudicate the rating assigned for right lower extremity radiculopathy. SERVICE CONNECTION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis and organic disease of the nervous system are considered to be chronic diseases under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697(1997)); see 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for cervical spine disability Based on the evidence of record, the Board concludes that service connection is not warranted for the Veteran's current cervical spine disabilities, which the evidence, including a November 2020 VA examination report, indicates are degenerative arthritis, cervical strain, intervertebral disc syndrome, and cervical radiculopathy. The preponderance of the evidence including the Veteran's service treatment records, a November 2014 VA examination report, and a November 2019 VA examination report reflects that these were not manifest in service, or, for degenerative arthritis, within 1 year of separation, and that they are unrelated to service. In this regard, the Veteran's service treatment records do not show the existence of a cervical disability. Also, the Veteran's cervical spine was normal as late as the post-service quadrennial (quad) examination dated in May 1977. The Veteran advised a VA examiner in November 2020 that he hurt his neck in 1972 when a heavy locker fell on him, causing chronic neck pain. However, his service treatment records show only complaints of low back pain at that time, and the November 2020 VA examiner noted that the Veteran's current cervical spine disabilities were diagnosed many years after service, and opined that they are less likely than not incurred in or caused by service. As a rationale, the November 2020 VA examiner noted that the only mention of injuries noted in the December 1972 incident report were of the Veteran's back and ankle; and that his neck was normal on quad examination in May 1977. The November 2020 VA examiner explained that there is no evidence to back this claim. A November 2014 VA examiner provided a similar medical opinion, and further explained that the Veteran had been in construction work from 2001 to May 2005 and that his cervical degenerative disc disease is considered part of the normal aging process for patients older than 40 years old (such as the Veteran). Also, the VA examiner in November 2019 opined that the Veteran's cervical condition is less likely than not incurred in or caused by service, including the claimed lower back injury in service. The November 2019 VA examiner noted that as late as May 1977, a report of medical history (and an examination) did not mention any cervical spine condition. Also of record is an April 2013 medical certificate, from Dr. Figueroa, indicating that the Veteran's lumbosacral disorder is directly related to service. However, Dr. Figueroa's opinion lacks probative value, as no rationale for the opinion was provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran, including in May 2015 and May 2018 statements, asserted that his cervical spine disability/degenerative disc disease occurred at the same time he injured his lower back in service in December 1972, while lifting a locker. However, while the Veteran believes his cervical disability is related to an in-service injury, he has not been shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion on this basis. This issue is medically complex, as it requires medical knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board gives more probative weight to the November 2014, November 2019 and November 2020 VA opinions, taken in combination. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a cervical spine disability. 2. Entitlement to service connection for an eye disability Based on the evidence of record, the Board concludes that service connection is not warranted for the Veteran's current eye disabilities, which the evidence, including November 2019 and January 2021 VA examination reports, indicates are bilateral vitreous syneresis, nuclear cataracts, pterygia, floaters, pingueculae, and dry eye syndrome. The preponderance of the evidence indicates that these were not manifest in service and are unrelated to service. Specifically, review of the Veteran's service treatment records does not demonstrate the existence of his current eye diagnoses. Instead, in one service treatment record, which does not have a legible year, the Veteran complained of pain over his right eye when he wore glasses. Also, in September 1972, he was diagnosed with mixed astigmatism, which is not a disease or injury under VA compensation law. Also, the Veteran's eyes and vision were normal as late as the time of the service examination in May 1977, four years post service, except for a report of a right eye burn; however, there is no evidence this was related to service. Additionally, the Veteran's current eye disabilities were each first shown many years after service. The first mention of any of these diagnoses is when bilateral pterygia excisions were mentioned in a September 2005 VA examination report as having occurred post service in 1975. Additionally, the November 2019 VA examiner found the Veteran's floaters were not caused by or related to service. The November 2019 VA examiner explained review of the Veteran's service treatment records found no diagnosis of floaters, and the Veteran stated that they started about three to four years prior to the examination. The November 2019 VA examiner also found the Veteran's cataracts were not caused by or related to service as review of his service treatment records found no diagnosis of cataracts. The November 2019 VA examiner explained that a cataract is an aging process of the lens, and was not caused by the Veteran's service. The November 2019 VA examiner also explained that the Veteran's pingueculae were not caused by or related to service as there was no diagnosis in the Veteran's service treatment records. The November 2019 VA examiner explained a pinguecula is a growth of fibrous conjunctival tissue not extending onto the cornea, was associated with aging and a history of sun exposure, and was not caused by service. These November 2019 VA examiner's opinions were based on medical records review and clinical knowledge. A January 2021 VA examiner also provided a nexus opinion. However, there was clearly a clerical error made by the January 2021 VA examiner, in checking the box for a positive opinion, as it is clear from the VA medical opinion itself, including its rationale, that the examiner meant to opine that the Veteran's current eye disabilities were less likely than not incurred in service or caused by service. The January 2021 VA examiner explained that all of the Veteran's current complaints arose much later than service, and that there is no evidence of these diagnoses during service. The January 2021 VA examiner also noted that cataracts, dry eye syndrome, and vitreous syneresis/degeneration are all common in the elderly and present bilaterally in the Veteran, while an eye injury (the problem of astigmatism), which the Veteran had in service was unilateral. The January 2021 VA examiner noted the Veteran's pterygia were bilateral also, and pterygia are caused by excessive ultraviolet light exposure. The January 2021 VA examiner indicated that it is possible that there may have been eye surgery for a pterygium in service, but that this was speculation based on the evidence. However, the Veteran has not alleged he underwent in-service eye surgery, and his service treatment records document astigmatism, with no mention of eye surgery as late as the quad examination in May 1977. While the Veteran believes his eye disabilities are related to his service, he has not been shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion on this basis. This issue is medically complex, as it requires medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show he has the medical training or credentials to make such a determination. See Jandreau, 492 F. 3d at 1376-77. Thus, the Board gives more probative weight to the November 2019 and January 2021 VA opinions, taken in combination. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 55-57. Accordingly, service connection is not warranted for an eye disability. 3. Entitlement to service connection for a gastrointestinal disorder, to include umbilical hernia Based on the evidence of record, the Board concludes that service connection is not warranted for the Veteran's current gastrointestinal disorders, which the evidence, including the November 2019 and November 2020 VA examination reports, reflect are ventral hernia, esophagitis, right femoral hernia, and irritable bowel syndrome. The preponderance of the evidence indicates that these were not manifest in service and are unrelated to service. In this regard, the Veteran's service treatment records do not show the existence of a gastrointestinal disorder nor was such a finding shown on the quad examination in May 1977. Further, there were no abdominal masses or tenderness on a VA evaluation in December 2005. Instead, the evidence, including the November 2019 and November 2020 VA examination reports, indicate that the Veteran's current gastrointestinal disorders were diagnosed many years after service. The Veteran had been seen for pain in his right inguinal area in service in September 1972, but no inguinal hernia was present, and the assessment instead was muscle strain after he had complained of right lower quadrant pain for one day after doing some lifting. The VA examiner in November 2019 opined that it is less likely than that any of the Veteran's current hernias or gastrointestinal disorders were caused by or a result of abdominal pain or gastrointestinal disorders in service. The November 2019 VA examiner explained that the cause of the Veteran's lower abdominal pain in service was balanitis, not hernias. The November 2019 VA examiner explained that the Veteran was treated with donnatal in 1978 (post-service) for "ulcers", and that his separation examination has a "no" response checked regarding the existence of digestive problems and is silent for gastrointestinal disorder. Additionally, the November 2019 VA examiner explained as late as 2007, an esophagogastroduodenoscopy showed no esophagitis, a normal stomach, and a small hiatus hernia. The November 2019 VA examiner noted that umbilical hernias are common and that genetic and extracellular matrix disorders may predispose patients to hernia formation. The November 2020 VA examiner opined that the Veteran's current gastrointestinal disorders are less likely than not manifest during or are otherwise related to the Veteran's service. The November 2020 VA examiner noted that the Veteran complained of lower abdominal pain in service in November 1972, but that the cause of his discomfort at that time was balanitis, which was treated with an antibiotic, Mycolog. The November 2020 VA examiner explained balanitis is unrelated to a hernia condition, and there is no competent evidence of record indicating that it could, or did, cause any of the Veteran's current gastrointestinal disorders. The November 2020 VA examiner further noted that a September 1972 service treatment record documented there was no inguinal hernia present, and that the Veteran's hernia conditions were diagnosed many years after service, with no records of documentation indicating the etiology of how and when the umbilical hernia occurred. The Veteran, including in May 2015 and May 2018 statements, reported that it is well documented in his service treatment records that he suffered from abdominal pain. However, while the Veteran believes his gastrointestinal disabilities are related to his service, he has not been shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion on this basis. This issue is medically complex, as it requires medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show he has the medical training or credentials to make such a determination. See Jandreau, 492 F. 3d at 1376-77. Thus, the Board gives more probative weight to the November 2019 and November 2020 VA opinions, taken in combination. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 55-57. Accordingly, service connection is not warranted for a gastrointestinal disorder. INCREASED RATINGS The Veteran appeals for higher ratings for his service connected lumbar spine and right ankle disability. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. 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 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. 4. Entitlement to an initial rating in excess of 20 percent for right ankle collateral ligament strain Based on the evidence, the Board concludes that a rating in excess of 20 percent is not warranted for the Veteran's service connected right ankle collateral ligament strain disability for any part of the rating period, which begins in August 2012. Throughout the appeal period, the Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. VA amended the criteria for rating musculoskeletal system and muscle disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under the revised rating criteria for Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a, Diagnostic Code 5271. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle under Diagnostic Code 5271 throughout the appeal period, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating at any point during the appeal period. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. However, there is no probative evidence of ankylosis of the subastragalar or tarsal joint under Diagnostic Code 5272, or malunion of the os calcis under Diagnostic Code 5273, or astragalus under Diagnostic Code 5274. Diagnostic Code 5270 will be considered, as it is for ankylosis of the ankle. Under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. As noted above, VA amended the criteria for rating musculoskeletal system and muscle disabilities effective from February 7, 2021; however, Diagnostic Code 5270 (as well as Diagnostic Code 5272 for ankylosis of the subastragalar or tarsal joint, Diagnostic Code 5273 for malunion of the os calcis and Diagnostic Code 5274 for astragalus) was unchanged by the amendments. According to 38 C.F.R. § 4.71, Plate II, normal ankle dorsiflexion is from zero to 20 degrees, and normal ankle plantar flexion is from zero to 45 degrees. The preponderance of the evidence indicates that the Veteran does not have, and has not had, during any part of the rating period, ankle ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees, even when 38 C.F.R. §§ 4.40 and 4.45 are considered. This evidence includes the November 2014 and November 2020 VA examination reports. The latter VA examination report, for example, indicates that the Veteran does not have right ankle ankylosis and shows that the Veteran's right ankle dorsiflexion is to 18 degrees, and that his plantar flexion is to 43 degrees. This weighs against a finding of ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees, even when 38 C.F.R. §§ 4.40 and 4.45 are considered. The Veteran was able to perform repetitive use testing with at least 3 repetitions, with no additional loss of function or range of motion afterwards. Additionally, the Veteran's muscle strength was 4/5 in plantar and dorsiflexion, in part due to his low back disability, and there was no muscle atrophy. The Veteran argued in May 2018 that he has a right ankle aversion deformity; however, the Veteran's right ankle disability has been evaluated under the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). Further, while the Veteran, as a layperson, is competent to report the symptoms he has experienced to include pain as noted by his representative in April 2018 argument; however, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability for his right ankle disability according to the rating criteria. Jandreau, 492 F.3d at 1377. Such competent evidence concerning the nature and extent of the Veteran's right ankle disability was provided by the VA examiners' findings which directly address the criteria under which his disability is evaluated, and include consideration of pain, and are therefore accorded greater weight than the Veteran's subjective complaints of symptomatology for his right ankle disability. For these reasons, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his right ankle disability. In making this determination, the Board considered the application of "staged" ratings, but found no additional distinctive periods where the Veteran's service-connected right ankle disability met or nearly approximated the criteria for higher rating other than that already granted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than or separate from that already assigned for the right ankle disability, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, 1 Vet. App. 55-57 5. Entitlement to an initial rating in excess of 40 percent for lumbar degenerative disc disease Throughout the initial appeal period, the Veteran's lumbar degenerative disc disease is rated under Diagnostic Code 5242. The Board notes that Diagnostic Codes 5242, which is used to evaluate degenerative arthritis was revised effective February 7, 2021. As the current appeal was certified to the Board prior to February 7, 2021, the Board will consider both versions of Diagnostic Codes 5242 and apply whichever is more favorable to the Veteran. Prior to February 7, 2021, Diagnostic Code 5242 applied to arthritis of the spine and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Since February 7, 2021, Diagnostic Code 5242 applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5242 provides that degenerative arthritis other than prost-traumatic arthritis, is to be rated under Diagnostic Code 5003 on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved, and posttraumatic arthritis is to be rated under Diagnostic Code 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 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, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Under the rating schedule, Intervertebral Disc Syndrome (IVDS) is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on "incapacitating episodes" or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to this method of rating (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent rating is warranted if IVDS is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Additionally, the Board notes that since February 7, 2021, Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Based on the evidence, the Board concludes that a rating in excess of 40 percent rating is not warranted for the Veteran's service connected low back disability under 38 C.F.R. § 4.71a for any part of the rating period, which begins in October 2012. The preponderance of the evidence shows that the Veteran does not have, and has not had, during any part of the rating period, unfavorable ankylosis of his entire thoracolumbar spine, including when 38 C.F.R. §§ 4.40, 4.45 are considered. This includes the November 2019 VA examination report which indicates that the Veteran does not have thoracolumbar spine ankylosis and shows that forward flexion of the Veteran's thoracolumbar spine was to 65 degrees, extension was to 20 degrees, and right and left lateral flexion and rotation were to 25 degrees, including with repetitive use testing, and that with flare-ups, it was estimated that forward flexion would be to 60 degrees, extension would be to 15 degrees, and right and left lateral flexion and rotation would be to 20 degrees. The November 2019 VA examiner also documented the Veteran's muscle strength was 5 out of 5 in his lower extremities, and he had no muscle atrophy. Even the 20 degrees of trunk flexion, 7 degrees of extension, 4 inches of left lateral flexion, and 4.5 inches of right lateral flexion, and 25 degrees of right and left lateral rotation shown on VA treatment in July 2019, and the similar range of motion reported by a private physician in April 2013, does not qualify as unfavorable ankylosis of the Veteran's entire thoracolumbar spine. No thoracolumbar spine ankylosis is shown. The Veteran argued, in April 2015, that he was on bed rest for six and a half weeks in 2014. However, there are no medical records to support at least six weeks of bedrest prescribed by a physician and treatment prescribed by a physician during any 12 month period during the rating period, to support a higher rating. To the contrary, the VA examiner in November 2014 indicated that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Additionally, the November 2019 VA examiner indicated that the Veteran does not have IVDS. Thus, the most probative evidence of record does not reflect the Veteran had incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12 month period since August 2012 to permit a 60 percent rating for IVDS. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right lower extremity, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability. Further, while the Veteran, as a layperson, is competent to report the symptoms he has experienced, to include pain as noted by his representative in April 2018 argument; however, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability for his low back disability according to the rating criteria. Jandreau, 492 F.3d at 1377. Such competent evidence concerning the nature and extent of the Veteran's low back disability was provided by the VA examiners' findings which directly address the criteria under which his disability is evaluated, and include consideration of pain, and are therefore accorded greater weight than the Veteran's subjective complaints of symptomatology for his low back disability. For these reasons, the Board finds that the Veteran is not entitled to an initial rating in excess of 40 percent for his lumbar degenerative disc disease. In making this determination the Board considered the application of "staged" ratings, but found no additional distinctive periods where the Veteran's service-connected low back disability met or nearly approximated the criteria for higher rating other than that already granted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than or separate from that already assigned for the Veteran's lumbar degenerative disc disease, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, 1 Vet. App. 55-57. 6. Entitlement to a compensable rating for right lower extremity radiculopathy prior to November 24, 2020 and a rating in excess of 10 percent for it from that date The Veteran's appeal for additional compensation for his service connected low back disability encompasses an appeal for additional compensation for his service connected right lower extremity radiculopathy from August 30, 2012, the date of his claim for low back disability compensation. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine's Note (1). The Veteran's right lower extremity radiculopathy has been rated as 10 percent disabling from November 24, 2020. Diagnostic Code 8520, for the sciatic nerve, and under which the Veteran's right lower extremity radiculopathy is rated, provides for a 10 percent rating for mild sciatic nerve incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, and a 40 percent rating for moderately severe incomplete paralysis. A 60 percent rating is provided for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, and an 80 percent rating is provided for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. In rating peripheral nerve disability, neuritis, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. The preponderance of the evidence reflects that prior to January 6, 2015, the Veteran did not have a right sciatic nerve disability as necessary to warrant a compensable rating under Diagnostic Code 8520 at any time from August 22, 2012 through January 5, 2015. Such evidence includes the November 2014 VA examination report which indicates that the Veteran had no radicular pain or any other symptoms of radiculopathy. His straight leg raising was negative bilaterally at that time, and the November 2014 VA examiner indicated that his right and left lower extremity were not affected by radiculopathy. The Veteran reported lumbar spine pain with radiculopathy symptoms in a January 6, 2015 VA treatment record, but he did not indicate that he had had right lower extremity radiculopathy on any date certain prior to that time. Accordingly, service connection for right lower extremity radiculopathy prior to January 6, 2015 is not warranted. Next, at least a relative equipoise of the evidence indicates that January 6, 2015 through November 23, 2020, the Veteran had slight, but not moderate, right lower extremity radiculopathy, warranting a 10 percent rating, but no higher, under Diagnostic Code 8520. The Veteran reported lumbar spine pain with radiculopathy on January 6, 2015, but did not describe the radiculopathy symptoms at that time, and he had no gross motor or sensory deficits at that time. Likewise, while he had positive straight leg raising in March 2015, and radiculopathy was assessed, he did not describe any sciatic nerve symptoms, and there was no gross motor or sensory deficit. As documented in an October 2017 VA treatment record, he complained of sharp pain radiating down the right leg, but denied numbness and weakness. In February 2018, he had no focal or acute changes neurologically. The Veteran described no more than some radicular type pain going down his right leg and denied saddle anesthesia and difficulty walking at the time of VA treatment in May 2019 and June 2019. Accordingly, from January 6, 2015 through November 23, 2020, a 10 percent rating his warranted for the Veteran's right lower extremity radiculopathy. Next, the preponderance of the evidence indicates that from November 24, 2020, the Veteran has moderately severe incomplete paralysis of his right sciatic nerve to warrant a 40 percent rating, but no higher, under Diagnostic Code 8520. On VA ankle examination on November 24, 2020, the Veteran's muscle strength was four out of five in plantar and dorsiflexion, which was, in part due to his right ankle disability, and there was no muscle atrophy. Also, on November 24, 2020 VA thoracolumbar spine examination, significant pertinent complaints included intermittent numbness, tingling, and shooting pain down his right leg into his foot. Also at that time, the November 2020 VA examiner indicated that the Veteran had four out of five muscle strength as to right hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He also had no constant right lower extremity pain; severe intermittent right lower extremity pain and paresthesias, and/or dysesthesias; mild right lower extremity numbness; no muscle atrophy; and no other signs or symptoms of radiculopathy. While the November 2020 VA examiner graded the degree of right lower extremity radiculopathy as severe, there is no finding of marked muscular atrophy as required to award a 60 percent rating. Accordingly, from November 24, 2020, a 40 percent rating, but no higher, for moderately severe paralysis of the right sciatic nerve is warranted. However, there is no indication on any date certain prior to November 24, 2020 the Veteran had moderately severe incomplete paralysis of his right sciatic nerve. The Board has also considered whether higher ratings are available under the regulations pertaining to neuritis and neuralgia. In terms of neuritis, the November 2020 examiner did not find loss of reflexes, muscle atrophy, or sensory disturbance, thus a higher evaluation under Diagnostic Code 8620 is not warranted at any point during the appeal period. In terms of neuralgia under 38 C.F.R. § 4.124, while the November 2020 VA examiner endorsed a finding of severe intermittent pain as to the right sciatic nerve, the maximum rating allowed must be equal to moderate incomplete paralysis, which is a lesser rating than assigned above for this period. See 38 C.F.R. § 4.124. For these reasons, the Board finds that, the preponderance of the evidence supports a rating of 10 percent, but no higher, for right lower extremity radiculopathy, from January 6, 2015 through November 23, 2020 and a rating of 40 percent, but no higher, from November 24, 2020. However, prior to January 6, 2015, radiculopathy of the right lower extremity was not demonstrated, thus service connection, with a corresponding compensable rating, for this period is not warranted. In making these determinations the Board considered the application of "staged" ratings, but found no distinctive periods where the Veteran's right lower extremity radiculopathy met or nearly approximated the criteria for a higher initial rating other than that already granted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against a rating higher than or separate from that already granted herein, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, 1 Vet. App. 55-57. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.