Citation Nr: 21028776 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-25 542 DATE: May 12, 2021 ORDER Entitlement to service connection for traumatic brain injury is denied. Entitlement to service connection for mastoiditis in the right ear is granted. Entitlement to service connection for acute serous otitis media of the right ear is granted. Entitlement to service connection for left ear hearing loss is denied. Entitlement to an initial rating in excess of 70 percent prior to December 1, 2020, for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial 20 percent rating prior to January 13, 2021, for lumbar degenerative disc disease is granted. Entitlement to a rating in excess of 20 percent from January 13, 2021, for lumbar degenerative disc disease is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 30 percent for cystic kidney disease with nephrolithiasis and hypertension is denied. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to October 29, 2013, is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a traumatic brain injury, or any residuals, at any time during or approximate to the pendency of the claim. 2. Resolving reasonable doubt in the Veteran's favor, his mastoiditis in the right ear is at least as likely as not related to service. 3. Resolving reasonable doubt in the Veteran's favor, his acute serous otitis media of the right ear is at least as likely as not related to service. 4. The preponderance of the evidence of record is against finding that the Veteran has had a left ear hearing loss disability at any time during or approximate to the pendency of the claim. 5. Prior to December 1, 2020, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment. 6. Prior to January 13, 2021, the Veteran's lumbar spine disability was manifested by flexion limited to 60 degrees, and did not result in incapacitating episodes or associated neurologic abnormalities. 7. From January 13, 2021, the Veteran's lumbar spine disability is manifested by flexion limited to 60 degrees, and does not result in incapacitating episodes or associated neurologic abnormalities other than the service-connected left lower extremity disability. 8. The Veteran's radiculopathy of the left lower extremity is manifested by no more than mild incomplete paralysis. 9. The Veteran's cystic kidney disease with nephrolithiasis and hypertension is manifested by hypertension at least 10 percent disabling under Diagnostic Code 7101. 10. The Veteran is service connected for PTSD, obstructive sleep apnea, cystic kidney disease with nephrolithiasis and hypertension, lumbar spine, tinnitus, chronic sinusitis, bilateral knee, left lower extremity radiculopathy, right lower extremity unequal leg length, and right ear disabilities; he meets the schedular criteria for consideration for TDIU. 11. The Veteran has not been able to maintain substantially gainful employment during this appeal; his service-connected disabilities preclude substantially gainful employment consistent with his educational background and occupational experience. CONCLUSIONS OF LAW 1. The criteria for service connection for traumatic brain injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for mastoiditis in the right ear are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for acute serous otitis media of the right ear are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 6. The criteria for an initial 20 percent rating for the lumbar spine disability are met prior to January 13, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 7. The criteria for a rating in excess of 20 percent for the lumbar spine disability are not met from January 13, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 8. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 9. The criteria for an initial rating in excess of 30 percent for cystic kidney disease with nephrolithiasis and hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, 4.115a, 4.115b, Diagnostic Code 7101-7533. 10. The criteria for TDIU are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1990 to September 1994, and from March 2002 to June 2010. He testified before the undersigned Veterans Law Judge during a January 2020 hearing. This matter is on appeal from a December 2014 rating decision and was previously remanded by the Board of Veterans' Appeals (Board) in August 2020. The Board also remanded the issues of service connection for chronic sinusitis, bilateral knee disabilities, cystic kidney disease, and sensorineural hearing loss. A February 2021 rating decision granted service connection for chronic sinusitis, bilateral knee disabilities, cystic kidney disease, and right ear hearing loss. As such, those issues are no longer on appeal. While service connection for right ear hearing loss was granted, the Board concludes that service connection for left ear hearing loss remains on appeal. The Board's remand also included the issue of an initial compensable rating for nephrolithiasis. The February 2021 rating decision shows that the Veteran's nephrolithiasis is rated with his now service-connected cystic kidney disease and hypertension. The Board has framed the issue to reflect that the increased rating claim is for cystic kidney disease with nephrolithiasis and hypertension. The February 2021 rating decision also granted a 100 percent rating, effective December 1, 2020, for the Veteran's PTSD, and a 20 percent rating effective January 13, 2021, for the lumbar spine disability. As a result of the grants in the February 2021 rating decision, the Veteran's combined disability rating is 100 percent from October 29, 2013. For the reasons below, the Board is granting TDIU based on the combined effects of his disabilities. Considering the combined rating of 100 percent from October 29, 2013, the Board had framed the TDIU claim as being prior to that date. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for traumatic brain injury The Veteran contends that he has a traumatic brain injury due to a vehicle rollover following an improvised explosive device (IED) in 2006. January 2020 Hearing Transcript at 20. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a traumatic brain injury, or any residuals, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The November 2020 VA examiner evaluated the Veteran and determined that, while he reported experiencing cognitive problems, he did not have a diagnosis of a traumatic brain injury. The examiner reported that there was conflicting documentation as to when the Veteran was involved in an IED, 2005 versus 2006. They reported that they were unable to find post-deployment documentation from his deployment in 2006. The examiner reported that a post-deployment questionnaire from December 2005 shows that he denied dizziness, fainting, and light headedness. The examiner reported that the Veteran underwent an MRI in 2009 demonstrating old cerebrovascular infarcts (strokes) and an area of mid-right gliosis, which could represent an ischemic event. The examiner reported that gliosis was a non-specific finding after brain insult that could be representative of conditions such as a stroke or traumatic brain injury. The examiner reported that the Veteran underwent an MRI in 2013 that demonstrated gliosis and encephalomalacia of the right frontal lobe. They reported encephalomalacia was also a finding that might be present after a stroke or traumatic brain injury. The examiner reported that when the Veteran was evaluated by neurology regarding a traumatic brain injury in 2010, it was documented the Veteran reported he sustained a left side head injury due to an IED blast in 2006. The examiner noted that the neurologist deemed the Veteran's MRI to be incidental findings and noted his symptoms were likely due to his strokes. The examiner reported that at the time of that evaluation, the Veteran had a history of hypertension, obesity, and tobacco use disorder, which are all risk factors for having a stroke. The examiner opined that while cerebral infarcts after a traumatic brain injury do rarely occur, that was less likely to have occurred with the Veteran given those individuals typically presented with more severe injuries at the time of the traumatic brain injury, and the Veteran had a strong personal medical history placing him at great risk for a stroke. The examiner concluded that, based on this information, the claimed condition of a traumatic brain injury was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the Veteran also sustained a head injury in 1991 after he had a syncopal episode after he had a vaccination. They reported that documentation did not note symptoms consistent with a traumatic brain injury. The examiner opined that the Veteran's loss of consciousness appeared to be due to the syncopal episode from the vaccination as documentation did not note his loss of consciousness was due to a traumatic brain injury. Further, the same examiner performed a VA headaches examination in November 2020. The Veteran was diagnosed with tension headaches, which he reported developed in 2010 with no inciting event. The examiner opined that they were likely due to personal stressors and eye strain, and were not due to exposures in Southwest Asia. The rationale was that the Veteran developed his headaches in 2010, and not during his time in Southwest Asia, and that his headaches improved after he obtained eyeglasses for his vision. The Board acknowledges that VA treatment records show a diagnosis of history of traumatic brain injury. See, e.g., June 2013 record. The Board accords the November 2020 examiner's opinion that the Veteran does not have a current diagnosis of a traumatic brain injury more probative value, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA treatment records containing a diagnosis do not provide rationales in support of such diagnosis. Consequently, the Board gives more probative weight to the November 2020 VA examiner's findings. While the Veteran believes he has a current diagnosis of traumatic brain injury, and is competent to observe lay symptoms, he does not have the training or credentials to provide a competent opinion as to a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, the Board gives more probative weight to the competent medical evidence failing to show a diagnosis of a traumatic brain injury in denying this claim. 2. Entitlement to service connection for mastoiditis in the right ear The Veteran contends that he has mastoiditis in the right ear that is either secondary to his service-connected sinusitis or is due to the IED explosion in 2006. January 2020 Hearing Transcript at 17. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The January 2021 VA examination shows that the Veteran has a current diagnosis of mastoiditis in the right ear. A service treatment record (STR) dated in May 2010 showed a diagnosis of mastoiditis. Thus, the question becomes whether the current disability is related to service. On this question there is a probative opinion in favor of the claim. The evidence in favor of the claim includes the January 2021 VA examiner's opinion. The examiner opined that there were records in 2014 consistent with a clinical diagnosis of mastoiditis, including imaging studies. They opined that it is at least as likely related to service. The rationale was that the etiology was allergic and/or infectious, and believed to be closely related to the sinusitis. The same examiner's opinion also shows that the Veteran's chronic sinusitis began during service in 2008. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current mastoiditis in the right ear arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for mastoiditis in the right ear is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for acute serous otitis media of the right ear The Veteran contends that he has acute serous otitis media of the right ear that is either secondary to his service-connected sinusitis or is due to the IED explosion in 2006. January 2020 Hearing Transcript at 17. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The January 2021 VA examination shows that the Veteran has a current diagnosis of acute serous otitis media of the right ear in the right ear. An STR dated in May 2010 showed a diagnosis of acute serous otitis media. Thus, the question becomes whether the current disability is related to service. On this question there is a probative opinion in favor of the claim. The evidence in favor of the claim includes the January 2021 VA examiner's opinion. The examiner opined that there were records in 2014 consistent with a clinical diagnosis of acute serous otitis media of the right ear with treatment including ear tubes, including imaging studies. They opined that it is at least as likely related to service. The rationale was that the etiology was allergic and/or infectious, and believed to be closely related to the sinusitis. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acute serous otitis media of the right ear arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for acute serous otitis media of the right ear is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for left ear hearing loss The Veteran contends that he has left ear hearing loss that began in service. January 2020 Hearing Transcript at 19. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left ear hearing loss disability as defined by VA and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The September 2014 and November 2020 VA examiners evaluated the Veteran, and audiometric testing did not reveal a left ear hearing loss disability as defined by 38 C.F.R. § 3.385. Further, despite consistent treatment from June 2013 to March 2020, there is no indication that the Veteran has a left ear hearing loss disability as defined by VA. While the Veteran believes he has a current diagnosis of a left hearing loss disability, and is competent to observe lay symptoms, he does not have the training or credentials to provide a competent opinion as to a diagnosis in accordance with 38 C.F.R. § 3.385, as opposed to observations of hearing loss. Jandreau, 492 F.3d at 1377 n.4. Moreover, there is insufficient lay or medical evidence to suggest that any left ear hearing loss reaches the level of functional impairment of earning capacity. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer, 3 Vet. App. at 225. Consequently, the Board gives more probative weight to the competent medical evidence failing to show a left ear hearing loss disability as defined by VA in this case. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis, however. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In making the below determinations, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 5. Entitlement to an initial rating in excess of 70 percent prior to December 1, 2020, for PTSD The Veteran contends that he is entitled to a higher rating due to the severity of his symptoms. January 2020 hearing Transcript at 6-7. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the September 2014 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating of suicidal ideation; impaired impulse control; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships and symptoms. No symptoms associated with a 100 percent rating were shown. He also had symptoms that are not listed with a specific rating, such as anxiety triggered by the smell of burning oil or trash; social isolation; difficulty passing classes in school; lack of energy, motivation, and interest; nightmares; flashbacks; startled easily by loud noises; and needing to slow down/change lanes when seeing trash on the road. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. No flare-ups in severity have been reported. Further, his symptoms of anxiety triggered by the smell of burning oil or trash; social isolation; difficulty passing classes in school; lack of energy, motivation, and interest; nightmares; flashbacks; startled easily by loud noises; and needing to slow down/change lanes when seeing trash on the road are similar to symptoms of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships, which are contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed thoughts of self-harm, and a persistent danger of self-harm is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran's thoughts of self-harm has not risen to the level contemplated by the 100 percent disability rating. A February 2020 record shows that his thoughts of self-harm were only occasional, and that he would never act on it. The Veteran reported that he wanted to live forever. There is no indication of regular thoughts, intent, or a plan involving self-harm in existing treatment records, and during the September 2014 VA examination. The Board also finds that the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the September 2014 VA examination indicate that the Veteran was disheveled and had poor eye contact. His mood was "anxious," and affect was blunted. He reported to the 2014 VA examiner that he had poor cognition. The Veteran had increased latency of speech, and had a hard time in answering questions readily during the 2014 VA examination. The Veteran did not experience symptoms contemplated by a 100 percent rating, and the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran is being granted TDIU, he was not totally socially impaired. A February 2017 record shows that the Veteran had a group of friends that he saw every week, and that he wanted to increase his social engagements and options. The record also shows that the Veteran lived with his mother. The September 2014 VA examination shows that the Veteran worked part-time at a pizzeria, and was attending school to obtain his associate degree. The evidence does not establish total social impairment. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating prior to December 1, 2020. The criteria for a 100 percent or higher rating are not met prior to December 1, 2020, and the appeal must be denied. 6. Entitlement to an initial rating in excess of 10 percent prior to January 13, 2021, for lumbar degenerative disc disease The Veteran contends that he is entitled to a higher rating because of pain. January 2020 Hearing Transcript at 9. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). The changes under 38 C.F.R. § 4.71a, Diagnostic Code 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under Diagnostic Code 5243 and all other intervertebral disc disabilities under 5242. As such, Diagnostic Code 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010)"; Diagnostic Code 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021, regulations is not required. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board finds that the preponderance of the evidence supports an initial rating of 20 percent, but no higher, for the lumbar spine disability prior to January 13, 2021. The September 2014 VA examination showed flexion to 80 degrees, and a combined range of motion greater than 120 degrees, even after repetition. The examiner opined that the Veteran lost approximately 30 degrees of flexion during flare-ups. Normal flexion for the lumbar spine is to 90 degrees. 38 C.F.R. § 4.71a, Plate V. The examiner's estimate of 30 degrees loss of flexion during flare-ups means that the Veteran's flexion is to approximately 60 degrees, warranting a 20 percent rating. As such, a 20 percent rating is warranted based on the Veteran's flexion during flare-ups. However, an even higher rating is not warranted. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain on movement, weakness, fatigability, and incoordination. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had flare-ups resulting in the disability feeling worse some days, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The September 2014 examination did not show ankylosis, and the Veteran's flexion did not approximate 30 degrees or less. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The September 2014 VA examination showed no IVDS, and the evidence fails to show any prescribed bed rest by a physician. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his spine disability prior to January 13, 2021. The September 2014 VA examination shows no radiculopathy or any other neurologic abnormalities. For the foregoing reasons, the preponderance of the evidence supports an initial 20 percent rating for the Veteran's lumbar spine disability prior to January 13, 2021. 7. Entitlement to a rating in excess of 20 percent from January 13, 2021, for lumbar degenerative disc disease The Veteran contends that he is entitled to a higher rating because of pain. January 2020 Hearing Transcript at 9. The Veteran's disability continues to be rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The criteria were discussed above and will not be repeated. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's lumbar spine disability from January 13, 2021. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, less movement than normal, weakened movement, and disturbance of locomotion. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had flare-ups rated as 7/10, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The January 2021 VA examination showed flexion to 90 degrees, and to 80 degrees after repetition. The Veteran's flexion was estimated to be to 60 degrees during flare-ups. The Veteran reported difficulty with running, lifting, and standing for long periods. There was no ankylosis shown. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The January 2021 VA examination showed that the Veteran did not have IVDS, and there is no evidence showing bed rest prescribed by a physician. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the left lower extremity, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The rating assigned to his left lower extremity is addressed below. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his lumbar spine disability from January 13, 2021. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 8. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity The Veteran contends that he is entitled to a higher rating. This rating was assigned during the pendency of this appeal in conjunction with the spine disability. Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis with paralysis of quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Regarding impairment of motor functions, the January 2021 VA examination showed muscle strength of 4/5 for hip flexion and knee extension. The Veteran had strength of 5/5 for ankle plantar flexion, ankle dorsiflexion, and great toe extension. Regarding trophic changes, none was shown at the January 2021 VA examination. Regarding sensory disturbance, the January 2021 VA examination revealed decreased light touch sensation for the upper anterior thigh and thigh/knee, and normal sensation for the lower leg/ankle and foot/toes. The Veteran also had mild paresthesias and/or dysesthesias, and mild numbness. Regarding loss of reflexes, the January 2021 VA examination showed normal reflexes of 2+. Regarding pain, the January 2021 VA examination revealed no constant pain, but mild intermittent pain. Regarding muscle atrophy, none was shown at the January 2021 VA examination. Regarding complete paralysis, the January 2021 VA examination did not reveal paralysis of quadriceps extensor muscles. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. Further, the January 2021 VA examiner opined that the Veteran's disability was mild in severity. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his left lower extremity disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 9. Entitlement to an initial rating in excess of 30 percent for cystic kidney disease with nephrolithiasis and hypertension The Veteran contends that he is entitled to a higher rating because of recurrent kidney stones. January 2020 Hearing Transcript at 8-9. The Veteran's disability is rated under a hyphenated diagnostic code. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Diagnostic Code 7101 refers to hypertension, while Diagnostic Code 7533, refers to cystic diseases of the kidneys. A 40 percent rating is warranted for hypertension when diastolic pressure is predominantly 120 or more. A 60 percent rating is warranted when diastolic pressure is predominately 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. Diagnostic Code 7533 refers cystic diseases of the kidneys to be rated as renal dysfunction. A 30 percent rating for renal dysfunction is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's kidney disability. September 2014 and January 2021 VA examinations show that the Veteran did not have history of diastolic blood pressure of 100 or more. A 40 percent rating under Diagnostic Code 7101 is warranted when diastolic pressure is predominantly 120 or more, which has not been shown by the examinations or treatment records. The evidence also does not show that the Veteran's kidney disability results in constant albuminuria with some edema or definite decrease in kidney function. A January 2021 VA examination reveals that the Veteran went to the hospital twice a year for kidney stones. His current symptoms included pain and blood in his urine. The examiner reported that the Veteran did not have renal dysfunction, or any signs or symptoms due to renal dysfunction. The examination shows that laboratory studies in December 2020 revealed normal BUN of 11, normal creatinine of 0.87, normal estimated glomerular filtration rate (EGFR), normal red blood cells per high power field (RBC's/HPF), and normal proteinuria (albumin). The examination shows that the Veteran did not have constant albuminuria with some edema. There is no indication in the examination or treatment records that the Veteran has definite decrease in kidney function. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for his kidney disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 10. Entitlement to TDIU prior to October 29, 2013 The Veteran contends that he is unemployable due to his service-connected PTSD and combination of his other service-connected disabilities. December 2015 notice of disagreement. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). In the current appeal, service connection has been granted for PTSD, obstructive sleep apnea, chronic kidney disease with nephrolithiasis and hypertension, lumbar spine, tinnitus, chronic sinusitis, bilateral knee, left lower extremity, right lower extremity, and right ear disabilities; he meets the schedular criteria for consideration for TDIU under 38 C.F.R. § 4.16(a). See February 2021 rating decision. In this case, the evidence suggests that the combined effect of the Veteran's disabilities render him unable to secure or follow a substantially gainful occupation. The September 2014 VA PTSD examination showed that the Veteran was only working part-time at a pizzeria. He reported being one class away from his associate degree. His symptoms included difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The September 2014 VA back examination revealed that the Veteran's disability impacted his ability to work by causing worse pain with activity. Based on a review of the evidence, the Board concludes that TDIU is warranted. There is no indication that the Veteran has been able to follow a substantially gainful occupation throughout this appeal. The evidence reflects only part-time employment. His combined disability rating is 90 percent prior to October 29, 2013. As noted above, the Veteran's PTSD is rated as 70 percent disabling, showing that he has occupational impairment with deficiencies in most areas, such as work. The examinations reflect that the Veteran's PTSD and his lumbar spine disability impact his employability. Considering the combined severity of the Veteran's service-connected disabilities, as evidenced by the 90 percent rating assigned during this appeal, the Board concludes that the evidence indicates that the Veteran has been fundamentally unable to secure or follow a substantially gainful occupation at any time during this appeal. As such, TDIU prior to October 29, 2013, is warranted. This claim is thus granted. 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.