Citation Nr: 21028664
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 14-30 088
DATE: May 11, 2021

ORDER

Entitlement to service connection for hypertension (HTN) is denied.

Entitlement to service connection for a heart disability is denied.

Entitlement to service connection for a right-hand disability is denied.

Entitlement to service connection for a bilateral shoulder disability is denied.

Entitlement to service connection for a bilateral hip disability is denied.

Entitlement to service connection for a right leg disability is denied.

Entitlement to an effective date prior to February 12, 2015, for the grant of service connection for left lower extremity (LLE) radiculopathy is denied.

Entitlement to an initial rating in excess of 10 percent prior to October 27, 2011; in excess of 10 percent from December 1, 2011 to September 14, 2012; and in excess of 20 percent after September 14, 2012, for cervical spine degenerative disc disease (DDD) is denied.

Entitlement to an initial rating in excess of 10 percent prior to October 10, 2019; and in excess of 20 percent thereafter for degenerative joint disease (DJD) and scoliosis of the lumbar spine is denied.

Entitlement to an initial rating in excess of 10 percent for left lower extremity (LLE) radiculopathy is denied.

Entitlement to an initial rating in excess of 70 percent disabling for major depressive disorder (MDD), not otherwise specified is denied.

Entitlement to an extension of a temporary total disability rating for convalescence, currently from October 27, 2011 to December 1, 2011, following cervical spine surgery is denied.

REMANDED

Entitlement to service connection for a right-hand disability is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 29, 2012 is remanded.

FINDINGS OF FACT

1. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

2. The preponderance of the evidence is against finding that the Veteran's heart disability began during active service or is otherwise related to an in-service injury or disease.

3. The Veteran's bilateral shoulder disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease.

4. The Veteran's bilateral hip disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease.

5. The Veteran's right knee disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease

6. The Veteran's LLE radiculopathy was first ascertainable on February 12, 2015.

7. Prior to September 14, 2012, the Veteran's cervical spine DDD manifested with forward flexion to 60 degrees.

8. From September 14, 2012, the Veteran's cervical spine DDD manifested with guarding and muscle spasm severe enough to result in abnormal spinal contour.

9. Prior to October 10, 2019, The Veteran's lumbar spine manifested with forward flexion that ranged between 70 and 88 degrees with objective evidence of pain.

10. From October 10, 2019, the Veteran had forward flexion to 70 degrees with objective evidence of pain and a diagnosis of mild scoliosis. 

11. The Veteran's LLE radiculopathy manifested with mild incomplete paralysis of the sciatic nerve.

12. The Veteran's psychiatric impairment resulted in occupational and social impairment with deficiencies in most areas.

13. The preponderance of the evidence reflects the Veteran did not require convalescence beyond December 1, 2011, following his October 27, 2011, cervical foraminotomy.

CONCLUSIONS OF LAW

1. The criteria for service connection for HTN are not met.  38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019).

2. The criteria for service connection for a heart disability are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

3. The criteria for service connection for a bilateral shoulder disability are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

4. The criteria for service connection for a bilateral hip disability are not met.  38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019).

5. The criteria for service connection for a right knee disability are not met.  38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019).

6. The criteria for an effective date prior to February 12, 2015, for the award of service connection for the grant of service connection for LLE radiculopathy have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019).

7. Prior to September 14, 2012, the criteria for an initial rating in excess of 10 percent for cervical spine disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2019).

8. From September 14, 2012, the criteria for a rating in excess of 20 percent for cervical spine disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2019).

9. The criteria for an initial rating in excess of 10 percent prior to October 10, 2019; and in excess of 20 percent thereafter for degenerative joint disease (DJD) and scoliosis of the lumbar spine have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242 (2019).

10. The criteria for an initial rating in excess of 10 percent for left lower extremity (LLE) radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2019).

11. The criteria for a disability rating in excess of 70 percent for major depressive disorder have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2019).

12. The criteria for an extension of a temporary total rating due to treatment requiring convalescence for a service-connected disability have not been met.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 4.30 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served active duty in the U.S. Army from October 1975 to October 1978 and from December 1990 to March 1991.

This case comes before the Board on appeal of rating decisions from November 2010, May 2011, October 2012, and November 2013.

This case was previously before the Board in July 2018, where the issues on appeal were remanded for further evidentiary development.

In an April 2020 rating decision, the AOJ increased the Veteran's MDD evaluation to 70 percent disabling effective November 29, 2012, granted TDIU effective November 29, 2012, and increased the evaluation of the Veteran's lumbar spine to 20 percent effective October 10, 2019.  

However, as these increases did not represent a total grant of the benefits sought on appeal, the claims for increase remain before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.         38 C.F.R. § 3.303 (d). 

Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes hypertension.  See 38 C.F.R. §§ 3.303 (b), 3.309 (a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012).  First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service.  38 C.F.R. § 3.303 (b).  In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service.  38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2019).  The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted.

Service connection for a recognized chronic disease can also be established through continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309.  For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b).  For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.  When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required.  Id.

Additionally, service connection may be granted on a secondary basis.  Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury.  38 C.F.R. § 3.310 (2019).  To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.

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) (2012).

1. Entitlement to service connection for hypertension (HTN)

Here, the Veteran contends that his hypertension began a couple of years prior to 2011, after he was started on his medications for his service-connected disabilities.  See March 2011 Correspondence.  Based on a preponderance of evidence, the Board disagrees.

At the outset, the Veteran has current diagnosis of hypertension.  Thus, the first element of service connection is met.  However, the second element which requires an in-service incurrence has not been met.  Specifically, the Veteran's service treatment records (STRs) is silent for any complaints, treatment, or diagnosis of hypertension.  The Board notes that for VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more.  38 C.F.R. § 4.104, DC 7101 n.1 (2019).  A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days."  Id.  The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension.  Gill v. Shinseki, 26 Vet. App. 386, 391 (2013).  

In this instance, the Veteran's blood pressure readings during service were: 105/60, 110/60, 110/60, 120/60, 126/78/ 132/86, 114/84, 124/70, and 134/92 and 150/110 (after the electrical shock injury), 120/88, and 128/100.  In the March 2011 examination, the examiner explained that the Veteran had an isolated elevation in his diastolic blood pressure greater than 90 on just one occasion during his separation examination.  The examiner opined that the blood pressure readings obtained after the electrical shock injury, though elevated, could not be used to support a diagnosis of HTN at that time as the readings likely represented an acute response to stresses of the day and not evidence of chronic blood pressure elevation.  The examiner noted that his opinion is supported by the subsequent blood pressure reading of 120/88 in February 1988.  The examiner concluded that to meet the diagnosis of HTN in service, the Veteran would have needed two additional blood pressure reading greater than 140/90 after his separation but before his release from active duty, which the records did not support.  Additionally, in a March 2013 VA examination, the examiner opined that the Veteran's HTN was less likely than not secondary to his electrocution during service.  The examiner reasoned that there was no basis in medical fact identified to make such an assertion.  

Moreover, the Veteran indicated that his hypertension began a couple of years prior to 2011, due to medications prescribed for his service-connected disabilities.  In that regard, in the August 2020 addendum opinion, the physician opined that the Veteran's HTN was not secondary to medications prescribed for his service-connected disabilities.  The physician reasoned that based on the medications prescribed, there was no medication that would aggravate the Veteran's hypertension.  The Board finds the physician's opinion to be competent, credible, and highly probative.  The physician examined the Veteran, reviewed the pertinent evidence, accounted for the Veteran's statements, and provided an opinion based on the evidence and medical principles.  Moreover, although the Veteran asserted that the medications prescribed caused his hypertension, he did not provide any information to support his assertion and the Veteran has not demonstrated the expertise or training to render a medical opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999).

Based on the foregoing, the preponderance of the evidence is against finding that the Veteran's hypertension was caused or incurred during service, had its onset within a year of discharge from service, or is secondary to the medications prescribed for his service-connected disabilities.  

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019).

2. Entitlement to service connection for a heart disability

Here, the Veteran contends that his heart disability was caused or incurred during active duty service or secondary to his service-connected disabilities or prescribed medications.  Based on a preponderance of evidence, the Board disagrees.

At the outset, the Veteran was diagnosed with hypertensive heart disease in the March 2011 VA examination.  The examiner indicated that heart sounds of S3 and S4 were consistent with left-ventricular hypertrophy that most likely was due to his long-standing hypertension.  Thus, the first element of service connection is met.  Additionally, the second element is met.  Specifically, in August 1987, while performing tower operations, the Veteran received an electrical shock of approximately 440 volts, which caused him to be thrown into a railing and knocked unconscious, as well as injuring his neck and back.  He was initially transported to medical center for treatment, released, and then taken back because of dizziness and chest pains.  See STRs.  

Therefore, to warrant direct service connection there must a nexus or link between the Veteran's in-service injury and his heart disability, which is generally proven by medical evidence.

In that regard, in the September 2012 VA examination, the examiner explained that electrical shock is noted in the literature to sometimes causes cardiac, renal, neurologic, skin and musculoskeletal issues.  The examiner noted, however, that following the accident, the Veteran had a normal EKG, normal UA on repeat testing, and only one blister of his skin on the left hand and muscle tenderness on the day of the injury.  The examiner added that those injuries were acute and did resolve per the Veteran's reports and as shown in the February 1988 and March 1991 separation examination, which were unremarkable for pertinent findings related to the Veteran's claims.  See STRs.  

Moreover, based on the Veteran's contention that his electric shock caused his heart condition, he underwent a myocardial perfusion study in November 2010.  Based on the study, there was no scintigraphic evidence of ischemia or infarction.  Likewise, left ventricular ejection fraction was normal and there were no wall motion abnormalities noted.  

Furthermore, in a May 2013 VA examination, the examiner indicated that the Veteran had not been diagnosed with a heart condition.  The Veteran stated that the only heart condition he knew of was a heart murmur, but another doctor said he did not have a heart murmur.  The Veteran was evaluated for atypical chest pain, but there was no evidence of myocardial ischemia identified.  The examiner indicated that no cardiac condition had been diagnosed.  On examination, there was no evidence of ischemic heart disease, myocardial infarction, congestive heart failure, cardiac arrhythmia, heart valve condition, or any other cardiac condition.  The Veteran's heart rate and rhythm were normal.  Likewise, his heart sounds were normal.  The examiner indicated that there was no evidence of cardiac hypertrophy or cardiac dilatation based on an EKG test in 2011, a chest x-ray of 2010, and the myocardial perfusion test of November 2010.  

Additionally, in an October 2019 VA examination, the examiner indicated that the Veteran did not have nor ever had a diagnosed heart condition.  During the examination, the Veteran reported that he would get fatigued quickly and had shortness of breath (SOB).  On examination, there was no evidence of ischemic heart disease, atrial fibrillation, myocardial infarction, arrhythmia, heart valve condition, infection heart condition, or pericardial adhesions.  During physical examination, the Veteran had a regular heart rate with normal heart sounds.  The examiner indicated there was no evidence of cardiac hypertrophy or cardiac dilatation based on an echocardiogram performed October 2019.  The Veteran had left ventricular ejection fraction (LVEF) of 60 percent.  There was normal wall motion and thickness.  The examiner reported that the Veteran acknowledged that he was very sedentary and did not have any cardiac specific symptoms.  The examiner believed that the Veteran's self-reported decreased exercise tolerance was related to deconditioning and not a specific cardiac condition.

Furthermore, the examiner explained that the Veteran did not have a current heart condition that could be linked to his military service, including the history of electric shock.  

Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran's claimed heart condition was related to or had its onset during service.  The Board acknowledges the Veteran's contention that he has a heart condition that was related to his electric shock, including the evidence submitted regarding the effects of electric shock.  See Evidence in support.  However, the etiology of a heart condition requires more than a layperson's knowledge and the Veteran has not demonstrated the expertise or training to render such a medical opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Moreover, there was no evidence that the Veteran had ventricular fibrillation or tissue damage as a result of the electric shock injury, as shown in his STRs and the VA examinations following his discharge from service.  Additionally, based on the March 2011 examination, the Veteran's heart condition resulted from his long-standing hypertension, which is not service-connected, rather than his in-service injury.

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019).

3. Entitlement to service connection for a bilateral shoulder disability

Here, the Veteran contends that he suffered a bilateral shoulder injury during reserve service when he was electrocuted by an incorrectly wired microphone.  The Veteran added that his shoulder disability may be related to his cervical spine disability.  Based on the evidence, the Board finds that the Veteran's 

At the outset, the Veteran has current diagnoses of left shoulder rotator cuff tendonitis and right shoulder adhesive capsulitis.  See October 2019 VA examination.  Thus, the first element of service connection is met.  Likewise, the second element is met.  Specifically, in August 1987, the Veteran was electrocuted while performing tower operations at the Army range.  The Veteran received an electrical shock of approximately 440 volts, which caused him to be thrown into a railing and knocked unconscious as well as injured his neck and back.  See STRs.  Therefore, the second element of service connection is met.  

As such, to warrant service connection, there must be evidence of a nexus or link between the Veteran's in-service injury and his current bilateral shoulder condition, which is generally proven by medical evidence.

First, in the April 2010 VA examination, the Veteran reported that his right shoulder bothered him more than his neck and back.  However, on examination there was no evidence of radiation of symptoms of his cervical spine to his right upper extremity.  There was no numbness or tingling down into his arm or fingers.  The examiner stated that there was no pain from the neck into the upper extremity.  No right shoulder diagnosis was provided.

Then, in a September 2012 VA examination, the Veteran reported left shoulder pain during heavy yardwork.  He indicated that his shoulder cap hurt with activity.  However, the examiner indicated that the Veteran did not have any symptoms associated with his electric shock during service.  The examiner opined that the Veteran's left shoulder and bilateral arm condition were less likely than not incurred in or caused by his electrocution during reserve service.  As it related to the Veteran's right arm, the examiner explained that the Veteran denied any chronic right arm conditions on examination and the arm appeared normal; therefore, no opinion for a right arm condition as it related to his electrical shock in service is warranted.  

For the Veteran's left shoulder, the examiner stated that it was less likely as not due to or permanently aggravated beyond its natural progression by his electrical shock during service.  He reasoned that the Veteran's left shoulder symptoms started within the last several years and are most consistent with muscle pain related to acute use and not a chronic condition starting with his electrical shock.  He added that an x-ray in 2010 of the shoulder was normal as were his upper extremity examination in March 1991.  Thus, the examiner concluded that it is less likely than not that the fall the Veteran suffered from his electrical shock resulted in causing a permanent left shoulder condition.  Moreover, the examiner opined that it was less likely as not that the Veteran's left shoulder condition most consistent with intermittent muscle soreness is due to or aggravated by his lumbar spine or cervical spine disability.

In providing his opinion, the examiner reviewed all pertinent treatment records, consulted medical literature, and examined the Veteran.

Furthermore, in the October 2019 VA examination, the Veteran reported pain and aching in his shoulder that started in 2009.  He explained that he did not injure his shoulders but had pain and restriction; specifically, he was unable to reach overhead on the right.  On examination, the Veteran had limited range of motion in both his right and left shoulder.  The diagnosis was left shoulder rotator cuff tendonitis and right shoulder adhesive capsulitis.

The examiner stated that the Veteran's right shoulder adhesive capsulitis is of more recent onset and not related to the electrocution in 1987.  The examiner stated that there was no medical evidence to support such an assertion.  The examiner added that the onset of left shoulder pain was in 2009 and an MRI in 2013 showed evidence of a rotator cuff tendinopathy.  At that time, the orthopedist's clinical impression was adhesive capsulitis.  The examiner remarked that there was no medical evidence to support a connection between the Veteran's current left shoulder condition and the electrocution in 1987.  The examiner also stated that the Veteran's right and left shoulder conditions were not neurologic problems and less likely than not related to the Veteran's cervical spine condition.

Based on the preponderance of evidence, the Board finds that the Veteran's bilateral shoulder condition was less likely than not related to the electrocution during service or related/aggravated by a service-connected disability.  Treatment records showed that the Veteran's right and left shoulder pain began decades after his injury during service.  Moreover, the examiners' opinions were competent, credible, and highly probative.  The examiner's reviewed the pertinent medical history, examined the Veteran, accounted for his statements, and provided an opinion based on the evidence and medical principles.  The Board acknowledges the Veteran's assertions regarding the etiology of his bilateral shoulders; however, without appropriate medical training and expertise, which he has not demonstrated, the Veteran is not competent to provide an opinion regarding the etiology of his bilateral shoulder disability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999).

Accordingly, as the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application and the claims must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019).

4. Entitlement to service connection for a bilateral hip disability

The Veteran contends that his bilateral hip disability was caused or incurred in service to include due to his electric shock injury or as secondary to his cervical/lumbar spine disabilities.  Based on a preponderance of evidence, the Board disagrees.

At the outset, the Veteran has a current diagnosis of bilateral hip degenerative joint disease (DJD).  Thus, the first element of service connection is met.  Likewise, the second element is met.  Specifically, the Veteran suffered an electric shock which caused him to be thrown into railings.  He injured his neck and back and claims that his bilateral hip condition was caused by this injury.  Moreover, the first two elements of secondary service connection are met, as the Veteran has a current bilateral hip disability and service-connected disabilities. 

Therefore, to warrant direct service connection there must a nexus or link between the Veteran's in-service injury and his current bilateral hip DJD, which is generally proven by medical evidence.  Likewise, to warrant secondary service connection there must be a nexus between the Veteran's bilateral hip condition and his service-connected disabilities.

In that regard, in the May 2013 VA examination, the Veteran was shown to have bilateral hip DJD.  The Veteran reported pain and stiffness in hips that gradually worsened.  He explained that the left side was worse than the right.  After the examination, the doctor opined that the Veteran's bilateral hip condition was less likely than not secondary to the electrocution suffered in service and/or his service-connected disabilities.  Dr. I.T. reasoned that there was no basis in medical fact identified to make such an assertion.  

Then, in an October 2019 VA examination, the Veteran was shown to have bilateral hip DJD and a bilateral hip strain.  The Veteran reported pain left worse than right that worsened.  He added that he had pain in his buttock region bilaterally that increased with ambulation.  After the examination, Dr. T.L. opined that the Veteran's bilateral hip disability was less likely than not etiologically associated with the Veteran's service, including the electric shock injury.  Dr. T.L. reasoned that the Veteran's bilateral hip condition was of more recent onset and there was no mention in the medical records that the Veteran had hip problems during service.  Dr. T.L. explained that there was no medical evidence to support a connection between the Veteran's hip condition and the electrocution in 1987.

Regarding secondary service connection, Dr. T.L. opined that the Veteran's bilateral hip condition was not caused or aggravated by his service-connected disabilities.  He reasoned that the Veteran's bilateral hip disabilities are soft tissue in nature and not neurologic; thus, they are not associated with his lumbar spine condition.

The Board finds Dr. I.T.'s opinion to be inadequate and thus of little probative value.  Specifically, Dr. I.T.'s rationale is insufficient as he failed to explain why there was no basis in medical fact that the Veteran's bilateral hip condition was not caused by his in-service injury or caused or aggravated by his service-connected disabilities.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (much of a medical opinion's probative value is found in its rationale supporting the conclusion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

Conversely, the Board finds Dr. T.L. opinions to be competent, credible, and highly probative.  Dr. T.L. reviewed the pertinent medical evidence, examined the Veteran, accounted for his lay assertions, then provided an opinion based on the evidence and medical principles.  As to the Veteran's contentions, the Board acknowledges the Veteran's assertions that the electric shock incident or the resulting cervical/lumbar spine condition is the reason for his bilateral hip condition.  However, there was no mention of a bilateral hip condition or even pain in the bilateral hips during service after the electric shock injury.  Moreover, as explained by Dr. T.L., the Veteran's bilateral hip condition is a soft tissue condition not associated with his lumbar spine disability.  Thus, the more probative evidence is against the Veteran's claim.  

Based on the foregoing, the Board finds that service connection on a direct or secondary basis is not warranted.  Accordingly, as the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application and the claims must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019).

5. Entitlement to service connection for a right leg disability

Here, the Veteran contends that his right leg disability was caused by his in-service electric shock injury or secondary to his service-connected cervical/lumbar spine disability.  Based on a preponderance of evidence, the Board disagrees.

At the outset, the Veteran has a current diagnosis of right knee osteoarthritis and knee laxity with instability.  Thus, the first element of direct and secondary service connection is met.  Likewise, the second element for direct and secondary service connection is met.  Specifically, as discussed above, the Veteran suffered an electric shock injury that resulted in him being thrown into railings, which injured his neck and back.  The Veteran is currently service-connected for a cervical and lumbar spine disability.  As such, the second element for both direct and secondary service connection is met.

Therefore, to warrant direct service connection there must a nexus or link between the Veteran's in-service injury and his current right knee disability, which is generally proven by medical evidence.  Likewise, to warrant secondary service connection there must be a nexus between the Veteran's right knee disability and his service-connected cervical/lumbar spine disabilities.

In that regard, in the September 2012 VA examination, the examiner explained that the Veteran denied a chronic leg condition and his lower extremity examination was unremarkable.  Thus, the examiner did not provide an opinion for a relationship between the Veteran's claimed leg condition and his in-service electrical shock.  

In the May 2013 VA examination, the examiner did not diagnose the Veteran with a right knee disability.  The examiner indicated that there was no leg condition of either side secondary to electrocution identified.  On examination, the Veteran had full right knee flexion and extension without objective evidence of painful motion.  He had normal strength, stability, no patellar subluxation/dislocation, no shin splints, or meniscal conditions.  There were no right knee or leg issues noted on examination.  Moreover, there was no evidence of radicular pain or signs or symptoms due to radiculopathy.  The Veteran did report the use a cane, but it was due to poor balance.  The examiner opined that the Veteran's claimed right leg condition was less likely than caused by the electric shock during service or secondary to his service-connected disabilities.  The examiner reasoned that there was no right leg condition diagnosed thus there was no basis in medical fact identified to make such an assertion.  

Moreover, in the February 2015 VA examination, there was no evidence of right leg radiculopathy.  

Then, in the October 2019 VA examination, the Veteran was diagnosed with right knee osteoarthritis and right knee laxity with instability.  The Veteran reported that he noticed knee instability a couple of years prior.  After the examination, Dr. T.L. opined that the Veteran's right knee was less likely than not etiologically associated with the Veteran's active duty or a service-connected disability.  Dr. T.L. reasoned that the Veteran was not seen for knee complaints while on active duty and only noted the onset of knee problems recently.  He explained that the Veteran's knee instability is not a result of a remote electrocution, as there is not medical evidence to support it.  Additionally, Dr. T.L. reasoned that the Veteran's ligamentous laxity with instability of the right knee is not associated with any neurologic abnormalities, as such, there is no association with his service-connected cervical or lumbar disability.

The Board finds Dr. T.L.'s opinion to be competent, credible, and highly probative.  Dr. T.L. reviewed the pertinent medical evidence, examined the Veteran, accounted for his lay assertions, then provided an opinion based on the evidence and medical principles.  Moreover, Dr. T.L.'s opinion is supported by the VA examinations in 2012, 2013, and 2015, which showed that the Veteran did not have right leg condition.  Importantly, the evidence fails to show that the Veteran's right knee condition was incurred in service or manifested within a year of discharge.  Furthermore, there is little evidence that the Veteran's right knee condition was caused or aggravated by his lumbar or cervical spine condition.  The Board acknowledges the Veteran's contentions; however, there is no evidence of continuity of symptomatology and the Veteran does not have the requisite training to provide a competent etiology opinion for his right knee condition.  

Based on the foregoing, the Board finds that service connection on a direct or secondary basis is not warranted.  Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claims must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019).

Effective Date Claim

Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application for said benefits.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  For claims received within a year after separation from active service, the effective date will be the day following separation from service or date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (B)(2)(i).  An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999).

The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date.  38 U.S.C. § 5110 (b)(3).

The Board notes that effective March 24, 2015, VA amended its rules as to what constitutes a valid claim, requiring that claims be submitted on an application form prescribed by VA.  79 Fed. Reg. 57696 (Sept. 25, 2014); see also 38 C.F.R. §§ 3.1 (p), 3.160.  However, prior to March 24, 2015, VA defined "claim" as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1 (p); see also 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating informal claims).  An "informal claim" was defined as "[a]ny communication or action indicating an intent to apply for one or more benefits."  38 C.F.R. § 3.155 (a).  Thus, for claims filed prior to March 24, 2015, whether formal or informal, the essential elements were (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

6. Entitlement to an effective date prior to February 12, 2015, for the grant of service connection for left lower extremity (LLE) radiculopathy

Here, the Veteran contends that he is entitled to earlier effective date prior to February 12, 2015, for the grant of service connection for his LLE radiculopathy.  Based on the evidence, the Board disagrees. 

The Veteran was granted service connection for LLE radiculopathy in a May 2016 rating decision.  The Board observed that the grant of service connection for radiculopathy was assigned pursuant to Note 1 of the General Rating Formula for Diseases and Injuries of the Spine.  Specifically, entitlement to a separate rating for radiculopathy is part of the appeal for an increased rating for the thoracolumbar spine disability.  Moreover, the Board notes that the issue of entitlement to an increased rating for lumbar spine degenerative joint disease has been pending since December 28, 2009.  As such, consideration of any associated neurological abnormalities, including the Veteran's LLE, is for consideration on and after December 28, 2009.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

In the April 2010 VA examination, the Veteran did not report pain, weakness, or decreased sensation in his left lower extremity.  The Veteran had normal sensation to light touch and straight leg raising (SLR) test was negative bilaterally.  The Board notes that a positive SLR test suggests radiculopathy, often due to disc herniation.  There was no evidence of LLE radiculopathy at that time.

In the September 2012 VA examination, the Veteran denied any chronic neurologic issues associated with his left leg.  On examination, the Veteran's deep tendon reflexes were normal, there was no muscle atrophy in his LLE, and no evidence of muscle weakness.  There was no electrodiagnostic evidence for lumbosacral radiculopathy on the left side.  Likewise, there was no evidence of left peroneal or peripheral polyneuropathy of the left leg.  The examiner concluded that the Veteran had lumbar DJD/DDD with axial lumbar spine pain without radiculopathy.

Again, in the May 2013 VA examination, the Veteran reported a painful and stiff back, but did not report any LLE radicular issues.  On examination, the Veteran's SLR test was negative bilaterally.  There was no evidence of radicular pain or any other signs or symptoms due to radiculopathy.

Importantly, in the February 2015 VA examination, the Veteran reported daily pain that impacts his sleep with episodes of radicular pain into the left groin and lower extremity.  On examination, there was evidence of symptoms due to radiculopathy.  There was mild intermittent pain in the left lower extremity, mild paresthesias and/or dysesthesias, and mild numbness.  The examiner indicated that the sciatic nerve was involved with a mild incomplete paralysis of the LLE.

The Board notes that the Veteran reported the onset of bilateral leg pain in 2006 and 2014; however, the Veteran did not report LLE radicular pain prior to 2015 based on VA treatment records, private records, and the VA examinations.  Additionally, the Veteran's statements regarding the onset of his bilateral leg pain has been inconsistent and thus of less probative value.  

Based on the foregoing, the Veteran's LLE radiculopathy was first ascertainable during the February 12, 2015 VA examination.  38 U.S.C. § 5110 (b)(3).  The Veteran had not complained of left lower extremity radicular symptoms prior to the February 2015 examination.  Prior to February 2015, treatment records, both VA and private, as well as the VA examinations failed to show evidence of LLE radiculopathy.  See, e.g., Private treatment records and VA treatment records.  As such, the earliest date as of which it was ascertainable that the Veteran had symptoms of LLE radiculopathy was February 12, 2015.

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019).

Increased Rating

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2019).  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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

7. Entitlement to an initial rating in excess of 10 percent prior to October 27, 2011; in excess of 10 percent from December 1, 2011 to September 14, 2012; and in excess of 20 percent after September 14, 2012, for cervical spine degenerative disc disease (DDD)

Here, the Veteran contends that his service-connected cervical spine disability warranted a higher rating for the periods on appeal.  Based on the evidence, the Board disagrees.

At the outset, during periods on appeal, the Veteran's cervical spine disability was rated under DC 5243 for intervertebral disc syndrome (IVDS).  The Board notes that the Veteran underwent cervical spine surgery and was given a convalescence rating from October 27, 2011 and prior to December 1, 2011.

The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion.  With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the cervical spine are as follows: a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion (ROM) of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion (ROM) of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine.

A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

Additionally, DC 5243 provides the Formula for Rating Intervertebral Disc Syndrome (IVDS).  A 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  

A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a. 

IVDS is evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, DC 5243 (2019).  Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

The regulations also provide for separate ratings for chronic orthopedic and neurological manifestations.

In the April 2010 VA examination, the Veteran reported pain in his neck with a baseline of 2-3 out of 10 and flares 6-7 out of 10.  On examination, his pain level was a 3.  He described the flares as a burning that happened 2-3 times per week.  The Veteran reported that his condition is relieved with pain medication and rest and aggravated by activity.  

On examination, the Veteran had 60 degrees of flexion with pain noted in extension at 30 degrees.  Right rotation to 50 degrees, with pain noted at 48 degrees, left rotation to 46 degrees, right tilt to 27 degrees and left tilt to 39 degrees.  All ROM testing was done with 3 repetitive motions.  X-rays revealed stable mild multilevel degenerative disc disease.  The examiner indicated that the Veteran would lose an additional 10-15 degrees overall ROM of the cervical spine in addition to pain, fatigability, weakness, lack of coordination due to the increased repetitive movements during flares.  

Then, in the September 2012 VA examination, the Veteran reported that his neck was crooked over to the right.  He had pain in left trapezius area and in the right paraspinal occipital muscle near the attachment to the skull.  Both areas hurt daily.  He noticed that sitting with neck flexed increased his neck pain.  The Veteran did not report flare-ups of his cervical spine.

On examination, the Veteran has forward flexion of 45 degrees, extension at 30 degrees, right lateral flexion (RLF) to 45 degrees, left lateral flexion (LLF) to 35, right lateral rotation (RLR) to 70 degrees, left lateral rotation (LLR) to 70 degrees, with objective evidence of pain in all ROMs except RLR.  The Veteran was able to perform repetitive use testing without an additional loss of ROM.  However, the Veteran had less movement than normal, pain on movement, and the Veteran sat with head laterally flexed to right after repetitive use.  The Veteran had localized tenderness or pain to palpation for joints/soft tissue.  There was guarding or muscle spasm of the cervical spine that resulted in abnormal spinal contour. 

There was evidence of muscle atrophy in the left hand, but the Veteran had normal strength in his bilateral upper extremities (BUE).  Reflex and sensory examination was normal for the BUE.  During the examination, there was no evidence of radicular pain or symptoms of radiculopathy.  Likewise, there were no other neurologic abnormalities.  The Veteran had IVDS of the cervical spine but did not have any incapacitating episodes over the past 12 months due to IVDS.

The Veteran used a cane to assist with walking due to lateral left hip pain as well as back pain.  Additionally, there was evidence of arthritis (DJD), specifically, multilevel DDD most severe at C6-7 where there is a severe spinal canal and bilateral neural foraminal stenosis.  At C5-6 there is moderate to severe spinal canal and bilateral foraminal stenosis.  No definite cord signal abnormality was identified.  

The Veteran reported that sitting for prolonged periods of time with neck flexed caused pain and still felt that his left hand grip is not as strong as it used to be and with repeated gripping he felt spasms of the left hand so those activities needed to be limited.

In the May 2013 VA examination, the Veteran's cervical spine DDD was continued.  The Veteran reported that his neck was painful, stiff, and had limited ROM.  He added that the condition worsened over time and had to be treated with pain medications, exercise, TENs, heating pad and hot tub.  The Veteran reported flare-ups of his cervical spine.  He explained that he had five episodes in the last twelve months, typically lasting one day or less.  ROM reduced 75 percent during flares due to pain.

On examination, the Veteran had forward flexion to 45 degrees, extension to 30 degrees, RLF to 30 degrees, LLF to 30 degrees, RLR to 70 degrees, and LLR to 55 degrees, with objective evidence of pain.  The Veteran was able to perform repetitive use testing without an additional loss of ROM.  However, the Veteran had less movement than normal and pain on movement.  There was no evidence of localized tenderness or pain to palpation for joints/soft tissue.  Likewise, there was no evidence of guarding or muscle spasm of the cervical spine.  The Veteran had normal muscle strength without evidence of muscle atrophy.  

Reflex examination was abnormal for triceps and brachioradialis; however, sensory examination was normal.  There was no evidence of radicular pain or signs or symptoms due to radiculopathy.  Likewise, there were no other neurologic abnormalities.  There was evidence of IVDS but there were no incapacitating episodes over the past 12 months due to IVDS.  

The Veteran used a cane constantly due to poor balance.  As to functional impact, the examiner indicated that the Veteran would be limited in turning his neck when driving.

In a May 2014 addendum opinion, the examiner expected that pain, weakness, fatigability, or incoordination could limit functional ability by 5 degrees for flexion, extension, lateral rotation and lateral flexion bilaterally during flareups or with repeated use of the joint.  

Then, in the February 2015 VA examination, the Veteran continued with degenerative arthritis of the cervical spine and IVDS.  The Veteran stated that his neck had been terrible, flexed to the side and required the Veteran to lift it to keep it straight.  He had daily pain with episodes of sharp pain that would radiate into the upper extremities with tingling in the fingers but with no particular distribution.  He did have LUE weakness and had a hard time opening up a packet of ketchup.  He explained that his hands would cramp up and he had to straighten them out on table.  Any repetitive bending or twisting was aggravating for him.  Furthermore, the Veteran reported flare-ups where he could not do anything but lay down.  

On examination, the Veteran had forward flexion to 45 degrees, extension to 30 degrees, RLF to 20 degrees, LLF to 15 degrees, RLR to 45 degrees, LLR to 55 degrees, with objective evidence of pain.  Pain was noted on the examination that caused functional loss.  There was evidence of pain with weight bearing.  There was objective evidence of tenderness to palpation over C5-7 spinous processes, bilateral semispinalis, left trapezius muscle and levator scapula and rhomboid muscles.  

The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or ROM based on the Veteran's statements describing functional loss with repetitive use over time.  The examiner did not state whether pain, weakness, fatigability, or incoordination limit functional ability with repeated use over a period of time.  Regarding flare-ups, the examination was not performed during a flare-up, but based on the Veteran's reported moderate to severe flare-ups for two to three weeks when he overexerts himself.  The examiner stated that pain, weakness, fatigability, incoordination, and lack of endurance significantly limited functional ability with flare-ups.  The examiner estimated that flexion would be limited to 45 degrees, extension to 25 degrees, RLF to 15 degrees, LLF to 10 degrees, RLR to 40 degrees, and LLR to 50 degrees.  

There was evidence of muscle spasm and localized tenderness that did not result in abnormal gait or abnormal spinal contour.  There was no evidence of guarding.  The Veteran had interference with sitting and standing.  The Veteran did not have muscle atrophy.  Reflex examination was normal on the right side but hypoactive on the left side.  Additionally, sensory examination was normal.  There was evidence of sign or symptoms of radiculopathy.  There was mild intermittent pain, paresthesias/dysesthesias, and numbness of the LUE.  There was no evidence of ankylosis, or any other neurologic abnormalities.  There was evidence of IVDS but no episodes of acute signs and symptoms due to IVDS that required bed rest.

Finally, in the October 2019 VA examination, the Veteran's diagnosis of cervical spine DDD and radiculopathy of LUE was continued.  The Veteran reported pain in his neck even after surgery in 2011.  He reported flare-ups described as increased pain in neck and shoulders.  He explained that he was limited in looking to the side and upward.  

On examination, the Veteran's cervical spine manifested with forward flexion to 40 degrees, extension to 20, RLF to 30, LLF to 30, RLR to 60, and LLR to 50.  Functional loss was described as limited ability to look up and on either side.  There was no pain noted on examination.  There was no evidence of pain with weight bearing.  The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or ROM based on his reports.  Pain caused functional loss with repeated use over time.  Dr. T.L. estimated forward flexion to 30 degrees, extension to 15, RLF to 20, LLF to 20, RLR to 50, and LLR to 40.  The examination was not conducted during a flare-up; however, Dr. T.L explained that pain caused functional loss based on the Veteran's report.  Dr. T.L. estimated that the Veteran would have forward flexion to 30 degrees, extension to 15, RLF to 20, LLF to 20, RLR to 50, and LLR to 40, during a flare-up.  

There was no evidence of guarding or muscle spasm of the cervical spine.  There was no indication of additional contributing factors of the disability.  There was normal strength in the BUE, but evidence of muscle atrophy of the left hand.  Reflex examination showed that the Veteran had hypoactive deep tendon reflexes bilaterally.  Sensory examination was normal.  Moreover, the Veteran had weakness in the left hand due to moderate radiculopathy.  There was no evidence of ankylosis or any other neurologic abnormalities.  Additionally, there was no IVDS noted.  As to functional impact, the Veteran was limited in his ability to look up and to the sides.  Additionally, there was left hand weakness that resulted in significant impairment of grasp and fine motor.  Dr. T.L remarked that there was no objective evidence of pain on non-weight bearing.

Based on the foregoing, prior to October 2011 and from December 1, 2011 to September 14, 2012, the Veteran's cervical spine disability most closely approximated a 10 percent disability.  The Veteran's cervical spine manifested with forward flexion to 60 degrees.  A higher evaluation was not warranted as there was no evidence of cervical spine flexion greater than 15 degrees but not greater than 30 degrees; or, the combined ROM of the cervical spine not greater than 170 degrees.  Additionally, the Veteran was service-connected for his LUE radiculopathy based on this cervical spine disability.

Furthermore, from September 2012, the Veteran's cervical spine disability did not warrant a rating in excess of 20 percent.  The Veteran's cervical spine manifested with flexion to 45 degrees, with objective evidence of pain and muscle spasm and guarding severe enough to result in abnormal spinal contour.  However, a higher evaluation is not warranted as there was no evidence of forward flexion 15 degrees to less; or, favorable ankylosis of the entire cervical spine.  As such, a higher evaluation is not warranted.

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019).

8. Entitlement to an initial rating in excess of 10 percent prior to October 10, 2019; and in excess of 20 percent thereafter for degenerative joint disease (DJD) and scoliosis of the lumbar spine

Here, the Veteran contends that his lumbar spine disability warrants a higher rating for the period on appeal.  Based on the evidence, the Board disagrees.

At the outset, the Veteran's lumbar spine disability was rated at 10 percent prior to October 2019, and in excess of 20 percent thereafter under DC 5242.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 

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.  38 C.F.R. § 4.71a, Note (2). 

In the April 2010 VA examination, the Veteran reported that he was pain free with his back unless it is flaring.  The flares ranged from 6-7 out of 10.  He described the pain as cracking or burning, which occurred two to three times per week lasting until he took pain medication.  Walking or running on uneven ground aggravated it, but medication and rest alleviated the pain.  He stated that he could walk four or five blocks before his back started hurting.  He denied any mechanical popping or clicking.  He denied any radiation of pain, numbness or tingling down either leg, and noted no true incontinence of urine or stool.

On examination, he exhibited levoscoliosis of the thoracolumbar spine when he bent over.  There was no tenderness to palpation in the sacroiliac and paraspinal musculature bilaterally.  Deep tendon reflexes were normal bilaterally and symmetrical in the patellar and Achilles tendon.  Sensation to touch was intact.  SLR test was negative bilaterally.  

The Veteran had flexion to 88 degrees, extension to 20 degrees, right rotation to 40 degrees, left rotation to 45 degrees, right tilt to 24 degrees and left tilt to 22 degrees.  All ROM testing was done with at least three repetitions.  X-ray results showed mild-to-moderate degenerative changes and mild to moderate dextroscoliosis centered around T12.

The examiner remarked that the Veteran would lose another 10-15 degrees over all ROMs in addition to pain, fatigability, weakness, lack of coordination due to increased repetitive movements during flares.

In the May 2013 VA examination, the Veteran's DJD of the lumbar spine was continued.  The Veteran reported a painful and stiff back, which he treated with pain medications, exercise, TENs, and heating pad and hot tub.  The Veteran reported flare-ups.  He explained that in the last 12 months he had two flares, typical duration 12 days each episode.  During a flare, ROM reduced 95 percent due to pain.

On examination, the Veteran had forward flexion to 80 degrees, extension to 20 degrees, RLF to 25 degrees, LLF to 25 degrees, RLR to 30 degrees, LLR to 30 degrees, with objective evidence of pain.  On repetitive use testing, there was no additional limitation in ROM.  The Veteran had less movement than normal and pain on movement.  There was evidence of tenderness in the lumbar region upon palpation.  Yet, there was no evidence of guarding or muscle spasm of the thoracolumbar spine.  The Veteran had full strength in his lower extremities and no evidence of muscle atrophy.  

Reflex examination was hypoactive for the knees and normal for the ankles.  Sensory examination was normal.  SLR test was negative bilaterally.  There was no evidence of radicular pain or any other signs or symptoms due to radiculopathy.  There was evidence of IVDS, but the Veteran did not have any incapacitating episodes over the past 12 months due to IVDS.  As to functional impact, the Veteran was limited in lifting and squatting.

In a May 2014 addendum opinion, the examiner expected that pain, weakness fatigability, or incoordination could limit functional ability by 10 degrees for flexion and extension, and 5 degrees for lateral rotation and lateral flexion bilaterally, during flareups or with repeated use of the joint.

Then, in the February 2015 VA examination, the Veteran's diagnosis of DA of the lumbar spine with IVDS was continued.  Additionally, he was diagnosed with LLE radiculopathy.  The Veteran reported daily pain that impacted his sleep with episodes of radicular pain in the left groin and lower extremity.  He had difficulty with his balance and found himself stumbling at times.  Prolonged sitting was aggravating for him and felt that he was sitting on his tailbone.  He felt that his body was twisted.  He reported flare-ups where he would have to lay down and was unable to lift anything.  

On examination, the Veteran had forward flexion to 75 degrees, extension to 20 degrees, RLF to 25 degrees, LLF to 20 degrees, RLR to 30 degrees, and LLR to 40 degrees.  The Veteran had pain with decreased ROM, which caused functional loss.  There was pain with weight bearing and tenderness to palpation over L4-L5-S1 spinous processes, bilateral quadratus lumborum and bilateral sacroiliac joint.

The Veteran was able to perform repetitive-use testing, which resulted in loss of ROM due to pain.  The Veteran had flexion to 70 degrees, extension to 20, RLF to 25, LLF to 20, RLR to 30, and LLR to 40.  However, the examiner did not indicate if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time.  The Veteran's flare-ups occurred with overexertion that was moderate to severe.  The flare-ups typically lasted two weeks.  The examiner stated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-ups.  The examiner estimated forward flexion to 65 degrees, extension to 15, RLF to 20, LLF to 15, RLR to 25, and LLR to 35.

There was evidence of localized tenderness to pain and guarding that did not result in abnormal gait or abnormal spinal contour.  The Veteran had interference with sitting and standing.  The Veteran had normal strength in his RLE but slightly less strength in his LLE.  There was no evidence of muscle atrophy.  Reflex examination was abnormal (hypoactive) bilaterally.  However, sensory examination was normal.  Likewise, SLR test was negative bilaterally.  There was evidence of mild LLE radiculopathy.  Moreover, there was no evidence of ankylosis or any other neurologic abnormalities.

The Veteran did have IVDS, but no episodes of acute signs and symptoms due to IVDS.  He reported that he wore a brace occasionally.  The examiner indicated that the Veteran had positive left-sided pelvic rock test.  Likewise, there was documented evidence of arthritis, but no loss of thoracic vertebral fracture with loss of 50 percent or more of height.

Finally, in the October 2019 VA examination, the Veteran's diagnosis of lumbar spine DJD and LLE radiculopathy was continued with a new diagnosis of scoliosis.  The Veteran reported pain in both legs and low back that was getting worse.  He added that he suffered from flare-ups.  He explained that he had increased pain in his back and legs after a walk with his dog.  As to functional loss, the Veteran was unable to lift, bend, and lie on his back.  Likewise, the Veteran was limited in sitting, standing, and walking.

On examination, the Veteran had forward flexion to 70 degrees, extension to 20, RLF to 20, LLF to 20, RLR to 20, and LLR to 20.  The Veteran was limited in bending and twisting on examination.  Pain was noted in all ROMs and caused functional loss.  There was objective evidence of localized tenderness or pain on palpation of the low lumbar spine.  There was evidence of pain with weight bearing.

The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or ROM based on the Veteran's reports.  Dr. T.L. added that pain would cause functional loss and limitation in ROM.  He estimated that the Veteran would have forward flexion to 50 degrees, extension to 15, RLF to 15, LLF to 15, RLR to 15, and LLR 15.  The examination was not conducted during a flare-up but Dr. T.L. explained that pain would limit ROM during a flare-up.  He estimated that the Veteran's flexion would be 50 degrees, extension to 15, RLF to 15, LLF to 15, RLR to 15, and LLR to 15, during a flare-up.

There was no evidence of guarding and muscle spasm.  The Veteran had disturbance of locomotion, interference with sitting and standing.  Likewise, he was limited in his ability to stand, walk, or sit.  The Veteran had normal strength bilaterally and no evidence of muscle atrophy.  Reflex examination was hypoactive bilaterally.  Conversely, sensory examination was normal.  Moreover, SLR test was negative bilaterally.  There was no evidence of radicular pain or signs or symptoms of radiculopathy on the examination.  Likewise, there was no evidence of ankylosis or other neurologic abnormalities.  Furthermore, there was evidence of IVDS but no episodes of acute signs and symptoms due to IVDS.

During the examination, the Veteran did not report the use of assistive devices.  Dr. T.L. remarked that the Veteran had mild scoliosis.  The Veteran had documented evidence of multilevel facet arthritis and DDD, but no thoracic vertebral fracture with loss of 50 percent or more of height.  As to functional impact, the Veteran was limited in lifting, bending, and twisting.  He was unable to walk to walk far, stand, or sit very long.  Dr. T.L remarked that there was evidence of pain in non-weight bearing.  There was no objective evidence of pain on passive ROM.

Based on the foregoing, prior to October 10, 2019, the Veteran's lumbar spine disability most closely approximated a 10 percent disability rating.  The Veteran's lumbar spine had forward flexion between 70 and 88 degrees with objective evidence of pain.  However, a higher evaluation was not warranted as there was no evidence of forward flexion between 30 and 60 degrees; or, that he had muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour.  The Board acknowledges that the Veteran suffered from flare-ups that limited his ROM but even with the estimations of additional limitation in ROM during a flare-up, a higher evaluation would not be warranted.  Additionally, in one instance, the Veteran explained that in the last 12 months he had two flares that lasted 12 days for each episode and caused a 95 percent reduction in ROM due to pain.  However, although the Veteran's report is similar to 20 percent rating for IVDS, as explained in Note (1) DC 5243, there was no prescribed bed rest or treatment by a physician for this condition.  Specifically, the Veteran's VA and private treatment records from 2012 to 2013 fail to show that he reported this condition to a physician or that a physician prescribed bed rest or treated him for this condition.  

Lastly, prior to October 2019, an increase in evaluation is not warranted for neurologic abnormalities, as the Veteran is already service-connected for LLE radiculopathy.

From October 2019, the Veteran's lumbar spine disability did not warrant a rating in excess of 20 percent disabling.  The Veteran had forward flexion to 70 degrees with objective evidence of pain and a diagnosis of mild scoliosis.  However, a higher evaluation is not warranted as the Veteran's lumbar spine did not manifest with forward flexion 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019).

9. Entitlement to an initial rating in excess of 10 percent for left lower extremity (LLE) radiculopathy

Here, the Veteran contends that his left lower extremity radiculopathy warranted a higher evaluation than 10 percent disabling.  Based on the evidence, the Board disagrees.  

At the outset, the Veteran's LLE radiculopathy is rated at 10 percent disabling under DC 8520.  For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular 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 (2019), Diseases of the Peripheral Nerves.  When the involvement is wholly sensory, the rating should be for the mild or at most the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  See 38 C.F.R. § 4.124a.

DC 8520 provides ratings for incomplete paralysis of the sciatic nerve.  DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and moderately severe incomplete paralysis is rated 40 percent disabling.  

Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. 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, is rated 80 percent disabling.  DC 8620 refers to neuritis of the sciatic nerve, while DC 8720 refers to neuralgia of the sciatic nerve.

Descriptive words such as "slight," "moderate" and "severe" are not defined in the Rating 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 descriptive terminology by medical examiners, 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.  38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6.

In this instance, in the February 2015 VA examination, the Veteran reported daily pain that impacts his sleep with episodes of radicular pain into the left groin and lower extremity.  On examination, there was evidence of symptoms due to radiculopathy.  There was mild intermittent pain in the left lower extremity, mild paresthesias and/or dysesthesias, and mild numbness.  The examiner indicated that the sciatic nerve was involved with a mild incomplete paralysis of the LLE.

Then, in the February 2020 VA examination, the Veteran reported pain down his leg in 2006 that was gradual and intermittent.  The Veteran had symptoms of mild intermittent pain of the LLE.  There was no evidence of paresthesias, dysesthesias, constant pain, or numbness.  The Veteran had full strength in his LLE and no evidence of muscle atrophy.  Reflex examination was normal; likewise, sensory examination was normal.  The examiner indicated that the sciatic nerve was normal for the LLE.  The examiner remarked that the Veteran had an intermittent condition that was quiescent or asymptomatic at the time of the examination.  

Moreover, the Board notes that private and VA treatment records provide little evidence that the Veteran's LLE radiculopathy warranted a rating in excess of 10 percent disabling.  The Veteran did not exhibit moderate symptoms of LLE radiculopathy based on available treatment records.

Based on the foregoing, the Veteran's LLE radiculopathy most closely approximated a 10 percent disability rating for the period on appeal.  There was evidence of mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness.  The examiner indicated that the sciatic nerve was involved noting that the severity was mild.  Importantly, there was no evidence of moderate pain, numbness, or paresthesias/dysesthesias or muscle atrophy to warrant a higher rating.

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019).

10. Entitlement to an initial rating in excess of 70 percent disabling for major depressive disorder (MDD), not otherwise specified

Here, the Veteran contends that his MDD warranted a rating in excess of 70 percent disabling.  Based on the evidence, the Board disagrees.

At the outset, the Veteran's MDD is rated at 70 percent disabling under DC 9434, 38 C.F.R. § 4.130.  Under DC 9434, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships.  Id.

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; 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 closes relatives, own occupation, or own name. 

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  See 38 C.F.R. § 4.130.

In addition, the Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5.  Although the DSM-5 no longer utilizes the GAF scale, the scores remain informative as to how physicians have assessed the Veteran's functionality during the period under review.

GAF range of 91-100 indicates superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.

GAF range of 81-90 indicates an absence or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities. Socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g. an occasional argument with family members).

GAF range of 71-80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily failing behind in schoolwork).

GAF range of 61-70 indicates some mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

GAF range of 51-60 indicates moderate symptoms, or any moderate difficulty in social, occupational, or school functioning.  

A GAF of 41-50 would indicate "serious" symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF of 31-40 would indicate "major impairment" in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).

In the November 2013 VA examination, the Veteran had a diagnosis of depressive disorder not otherwise specified.  The Veteran described symptoms of depression that were characterized primarily by helplessness, hopelessness, irritability/anger, and insomnia (due to pain and physical discomfort).  The examiner noted that the Veteran's record showed long-standing mental health concern that had remained fairly consistent over time.  The Veteran described significant psychological distress due to his decreased physical functioning and pain related to his back injury.  The Veteran received a GAF score of 52.  

The examiner indicated that there was only one mental disorder that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  

In the February 2015 VA examination, the Veteran was diagnosed with recurrent major depression as the only mental disorder diagnosed.  The examiner indicated that the Veteran's psychiatric condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  The Veteran endorsed symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood.

On behavioral observations, the Veteran was neatly groomed but ambulated with use of a cane.  He was cooperative with interview, but dysphoric mood with irritability.  The Veteran stated he had an "attitude problem," with some history of interpersonal conflicts.  He reported sleep is disrupted with 2 to 3 hours of sustained sleep.  Activities were limited due to physical limitations, with the Veteran reporting history of several falls.  He reported a narrow range of daily activities, some estrangement from family/friends.  There was no evidence of homicidal or suicidal ideation.

The Board notes that private treatment records showed that the Veteran complained that he was not able to get along with anyone and was easily angered.  He complained of chronic depression and anger issues, due to his inability to be physically active.  He also reported anxiety.  

In an October 2016 private psychiatric evaluation, the Veteran was diagnosed with depressive disorder unspecified with anxious distress.  The examiner indicated that the Veteran's condition resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, speech intermittently illogical, obscure or irrelevant, impaired judgment, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, impaired impulse control, persistent delusions or hallucinations, grossly inappropriate behavior, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living.

Then, in a February 2020 VA examination, the Veteran's diagnosis of MDD recurrent, severe with anxious distress.  The examiner indicated that his anxiety and sleep issues with self-esteem were accounted for in the diagnosis.

The examiner summarized the Veteran's condition as total occupational and social impairment.  The Veteran reported difficulty falling and staying asleep, felt vigilant constantly, felt guarded and jumpy.  He was suspicious of others and felt complete apathy.  He reported numb emotions.  He felt a loss of connection with other and was depressed most days.  He felt a loss of interest and pleasure in usual activities, loss of sexual libido, loss of appetite, significant weight alteration and fatigue.  He reported lethargy and psychomotor retardation, along with shame and guilt.  He had difficulty with focus and concentration and slowed thinking.  He had frequent times of excess ive anxiety and worry that he found difficult to control.  He felt restless and on edge and suffered from fidgeting, shakes and jitters.  He reported being easily fatigued, difficulty concentrating, highly irritable with verbal explosiveness daily.  Panic episodes reported two times per month.  During panic attacks, heart races, tight chest with labored breathing.  He also felt disoriented with tunnel vision, dizziness, and loss of strength.  

The examiner indicated that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and longterm memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficult adapting to stress circumstances, inability to establish and maintain effective relationships, impaired impulse control, persistent delusions or hallucinations and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene.

The Veteran was appropriately oriented, naming the day, date, month, year, and place.  He knew the examiner by his role and estimated time within an acceptable range of error.  He demonstrated immediate memory within normal limits by repeating five digits forward and working memory within normal limits by reversing four.  The Veteran demonstrated the ability to understand and follow directions within the normal range by executing a five-step direction presented.  He completed serial 7s successfully, showing persistence.  He repeated two complex sentences with no errors, indicating attention and basic verbal fluency within the normal range.  He remembered 2/3 objects after a five-minute distraction, demonstrating generally normal delayed memory.  The Veteran identified essential similarities between three pairs of objects, solved proverbs indicating average abstraction skills, and provided a limited course of action to address a crisis that involved public risk.  He spelled WORLD forward and backwards.  He wrote down a lot of the things he needed to remember.

On behavioral observation, the Veteran was dressed in casual clothes appropriate for the weather.  He was alert and oriented to person, place, time, and situation.  His thought process was logical, and goal directed.  His speech pattern was slow and deliberate.  The Veteran was able to make and maintain good eye contact.  His recent and remote memory appeared to be intact.  He was able to track the conversation during the interview and provide a coherent history.  He did not experience any word finding difficulties or parapraxis.  His mood was dysphoric, and his affect was flat.

Based on the foregoing, the Veteran's psychiatric impairment most closely approximated a 70 percent disability rating.  The Veteran's MDD resulted in occupational and social impairment with deficiencies in most areas.  The Veteran endorsed symptoms of near-continuous panic or depression, intermittently obscure or stereotyped speech, impaired impulse control, inability to establish and maintain effective relationships, chronic sleep impairment, difficulty in adapting to stressful circumstances, and memory issues, among other issues.  

However, a higher evaluation is not warranted as the Veteran did not endorse grossly inappropriate behavior, persistent danger of hurting himself or others, memory loss of close relatives, occupation or name, or disorientation to time or place.  The Board recognizes that the Veteran endorsed symptoms that would fall into the 100 percent rating, but the totality of his psychiatric examinations as well as his treatment records indicate his psychiatric impairment did not result in total occupation and social impairment.  In the examinations, the Veteran was always appropriately dressed, oriented to time and place, recalled his previous occupation, name and relatives and did not show gross impairment in thought process or communication.  Moreover, there was no indication of suicidal or homicidal ideation.  

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019).

11. Entitlement to an extension of a temporary total disability rating for convalescence, currently from October 27, 2011 to December 1, 2011, following cervical spine surgery

Here, the Veteran contends that his temporary total disability rating for convalescence should be extended beyond October 27, 2011 to December 1, 2011, following his cervical spine surgery.  Based on the evidence, the Board disagrees.

At the outset, the Veteran was assigned a temporary total rating for his cervical foraminotomy from October 27, 2011, the date of his surgery, to December 1, 2011.  Thereafter, he was assigned a 10 percent disability rating for his cervical spine disability.  38 C.F.R. § 4.71a, DC 5243.

A temporary total (100 percent) disability rating for convalescence purposes will be assigned, for up to three months, without regard to other provisions of the Rating Schedule, when it is established that treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for home confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30 (a)(1)-(3).  An extension of one, two, or three months of a temporary total evaluation may be granted based on the factors enumerated above.  38 C.F.R. § 4.30 (b).  Extensions of one to six months beyond the initial six-month temporary total evaluation may be made upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30 (b)(2). 

"Convalescence" is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury."  See Felden v. West, 11 Vet. App. 427, 430 (1998) (defining "recovery" as "the act of regaining or retuning toward a normal or healthy state").  The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation.  38 C.F.R. § 4.30.  Thereafter, any chronic residual disability after surgery is rated under the schedular criteria for the disability, and not rated under 38 C.F.R. § 4.30.

A review of the Veteran's treatment records reflected that the Veteran underwent a cervical foraminotomy on October 27, 2011.  The Veteran was discharged the same day and later given instructions for light activity for 4 weeks and no lifting over 10 pounds for 4 weeks.  He was told he could shower in a few days following the surgery and there were no diet restrictions.  

Treatment records immediately following his surgery showed that the Veteran was able to use his thumb, pointer, and middle fingers on left hand.  He continued to have limited movement in 4th and 5th fingers.  He was informed that as swelling diminished he might have increased movement on 4th and 5th fingers.  He was instructed to leave the dressing on his neck until he showers October 29th.  Veteran was again instructed to light activity for 4 weeks and to not lift anything heavier than 10 pounds.  Then, in a November 2011 treatment record, it was shown that the Veteran's wound was well healed.  He had good range of motion of his neck.  He had 5/5 strength in all upper extremity muscles bilaterally except the left abductor digiti minimi, abductor pollicis brevis, and grip, which were 4/5.  There was marked atrophy of the left hand and a radial drift to the wrist, but no wrist extension weakness.  The neurosurgeon remarked that not unexpectedly, no immediate improvement after left C8 foraminotomy.  The possibility of another diagnosis as ALS, etc. persists as there is no numbness as would be expected with a C8 root impingement.  The neurosurgeon stated that the Veteran did not have any immediate complication following his surgery.  

The weight of competent evidence is that a further extension beyond December 1, 2011 of the Veteran's temporary total evaluation is not warranted.  Although the Veteran continued to experience impairment beyond this date, the evidence reflects that the surgical procedure, after October 27, 2011, did not (1) result in incompletely healed surgical healed wounds, stumps or recent amputations; (2) require therapeutic immobilization of one major joint or more; (3) necessitate house confinement or the use of a wheelchair or crutches (regular weight bearing prohibited); or (4) necessitate immobilization by cast.  The Board notes that the Veteran was fitted for soft splint for his left wrist, but this was continuation of treatment and not a severe post-operative residual.  Importantly, a temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continues to be symptomatic following surgery.  The appropriate schedular rating is intended to cover this situation and as previously noted, the Veteran is in receipt of the schedular evaluation of 20 percent under the applicable DC 5243 and a 30 percent evaluation for LUE radiculopathy under DC 8512.  

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019).

REASONS FOR REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019).

Entitlement to service connection for a right-hand disability is remanded.

Per the Board remand from July 2018, the Veteran underwent an examination for his right hand.  In the October 2019 VA examination, the Veteran was diagnosed with degenerative arthritis (DA) of the right hand.  The Veteran reported pain and stiffness in the joints.  However, he had full ROM of his right hand.  Although the Veteran was diagnosed with degenerative arthritis, Dr. T.L. did not opine on whether the Veteran's hand disability was etiologically associated with service or a service-connected disability.  Dr. T.L. stated that the Veteran did not describe any functional limitation related to the right hand despite reports of pain and stiffness.  He added that the Veteran did not have any functional impairment in the right hand.  

The Board finds that Dr. T.L. did not provide an adequate opinion for the Veteran's right-hand degenerative arthritis.  Although Dr. T.L. was correct that the Veteran did not have any functional impairment during the examination, the diagnosis of degenerative arthritis and the Veteran's complaints of pain and stiffness warranted an etiology opinion.  Given that Dr. T.L. failed to provide an etiology opinion for the Veteran's DA of the right hand, the Board finds that a remand is necessary.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 29, 2012

Here, the claim for entitlement to a TDIU prior to November 29, 2012, is inextricably intertwined with the issue of entitlement to service connection for a right-hand DA, which is being remanded for further evidentiary development.  Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered now.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

The matters are REMANDED for the following action:

1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran.  All records and/or responses received should be associated with the claims file.

2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of his right-hand degenerative arthritis.  A copy of this REMAND must also be provided to the VA examiner.  All necessary tests and studies should be accomplished, and all clinical findings reported in detail.

The VA examiner should address the following:

(a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right hand disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, including the electric shock injury.

(b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right-hand disability was caused by his service-connected disabilities.

(c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right-hand disability is aggravated (i.e. worsened beyond normal progression) by his service-connected disabilities.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability."  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

(Continued on the next page)

 

3. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given.  If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation.

4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal.  If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	I. Umo, 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.