Citation Nr: 21031311 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-27 409A DATE: May 21, 2021 ORDER Entitlement to service connection for a foot disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to an increased rating greater than 40 percent for service-connected musculoskeletal back pain with myofascitis and degenerative changes is denied. Entitlement to an initial increased rating greater than 20 percent for radiculopathy of the left lower extremity, associated with service-connected musculoskeletal back pain, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a foot disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a left ankle disability began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran's musculoskeletal back pain with myofascitis and degenerative changes is manifest by forward flexion of 55 degrees and a combined range of motion of over 120 degrees. 4. The Veteran's radiculopathy of the left lower extremity is manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for a foot disability 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 a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a rating in excess of 40 percent for musculoskeletal back pain with myofascitis and degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1991 until his honorable discharge in March 1998. This appeal to the Board of Veterans' Appeals (Board) arose from October 2013 and September 2016 rating decisions in which the regional office of the Department of Veterans Affairs (VA) denied the claims on appeal. Specifically, in the October 2013 rating decision, the regional office determined that new and material evidence sufficient to reopen previously denied claims of service connection for a foot disability, a left ankle disability, and depression had not been received; the Veteran timely disagreed with those denials and the appeals as to those claims ensued. In the September 2016 rating decision, the RO denied a rating greater than 40 percent for the Veteran's service-connected back disability and awarded service connection for radiculopathy of the left lower extremity, evaluated as 20 percent disabling effective June 30, 2016. The Veteran timely disagreed with and perfected an appeal as to the denial of an increased rating for his back disability and the initially assigned rating for radiculopathy of the left lower extremity. In January 2019, the Veteran testified before Veterans Law Judge (VLJ) Jacqueline Monroe at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. The VLJ who conducted the hearing retired and is no longer employed by the Board. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As that person is no longer available, the appeal was reassigned for a decision. 38 C.F.R. § 20.106(b). A letter explaining this and his right to a new hearing was sent to the Veteran in March 2021. No response was received. In an April 2020 decision, the Board found that new and material evidence was received sufficient to reopen the Veteran's claims for service connection for a left ankle disability and foot disability. The Board then remanded all of the claims currently on appeal for further development. Specifically, the Board instructed the regional office to ensure updated VA treatment records were associated with the file, request information and authorization to obtain private records from the Veteran, and schedule him for VA examinations. The Board also remanded claims of entitlement to service connection for depression, erectile dysfunction, special monthly compensation due to loss of use of a creative organ, and total disability rating based on individual unemployability (TDIU). All four of those claims were granted by the regional office and so are no longer on appeal. After the Board remand, the regional office subsequently sent a development letter to the Veteran in May 2020. The Veteran had VA examinations for his left ankle, foot, back, and radiculopathy disabilities in October 2020. The regional office then requested an addendum opinion for the foot and left ankle disabilities. An addendum was associated with the file in November 2020 and December 2020 for the foot disability and in November 2020 for the left ankle disability. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic disease is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1339. Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for a foot disability. The Veteran asserts that his foot disability began in service as a result of the "military issued boondockers" he was given to wear. See VA Form 9. He asserts that the boondockers caused a curvature in both feet that created pain and made it difficult for him to walk. However, his entrance exam notes that he had pes planus (flat feet) prior to service. 38 U.S.C. § 1111 provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). The Veteran's service treatment records contain occurrences of foot issues; in March 1991 sharp toe pain is noted and in his September 1996 separation exam foot trouble is endorsed and explained as a history of corns none were present upon examination. See Service Treatment Records. There were no references to his pes planus beyond the entrance examination and there were no reported issues at separation beyond a history of corns. The December 2020 VA examiner explained: Pes planus alters the biomechanics of load bearing on the feet which can naturally progress to corn formation. Corns are callous with a hard center and are commonly seen with altered biomechanics, improper footwear, not wearing socks with footwear. The claimant's pes planus has followed natural progression in service. There is no indication of an injury or event that has aggravated the condition beyond natural progression. As the most competent and probative evidence of record does not show an increase in the severity of his pes planus foot disability during service the presumption of aggravation does not attach. Entitlement to service connection must be denied because the Veteran's pre-existing pes planus foot disability was not aggravated by military service. However, the Veteran was also diagnosed with onychomycosis which was not noted at entrance to service and so the presumption of soundness attaches. Furthermore, in March 1991, the Veteran was diagnosed with bilateral tinea pedis and fissures. See Service Treatment Records. As such, the Veteran has met the first and second elements of service connection. Unfortunately, there is no nexus or connection between the Veteran's in-service tinea pedis and fissures and his current foot disabilities. His in-service occurrences where acute and transitory. The Veteran continued to receive care for other medical conditions during service without further reference to his tinea pedis and fissures. The original VA examination in October 2020 diagnosed the Veteran with mild bilateral onychomycosis, a fungal infection of the toenails. The RO then asked for an addendum opinion and rationale in November 2020. The examiner stated that the Veteran was seeking service connection for curved toenails, but no such disability was noted in service. The examiner also stated that there was no treatment for onychomycosis, fungal infection of the toenails, in service. There was only treatment for tinea pedis during service which is a fungal infection of the skin. After service, the Veteran has had several issues with his feet. He has been diagnosed with gout, fungal infections, and swelling of the skin and skin breakdown between the fourth and fifth toes on the right foot diagnosed as a fungal infection. See July 2015 VA Treatment Records. There is no connection between the Veteran's post-service injuries and his acute and transitory in-service tinea pedis and fissures. He was not diagnosed with fissures after service and his tinea pedis in service was treated and not mentioned again. Furthermore, the Veteran did not assert that his in-service tinea pedis has lasted since March 1991. He explained at his hearing that he was diagnosed with "curvature of the toes" in-service which became infected. His service treatment records, VA examinations, and VA treatment records do not discuss such a disability. The disabilities mentioned above occurred over two decades later and were diagnosed during an emergency room visit after his pain had increased over several days. An August 2015 treatment addendum note states that his toe dermatitis healed. Another August 2015 VA treatment record notes that tinea pedis ulcers between the toes had healed. There is no connection between the Veteran's in-service tinea pedis and his current, post-service onychomycosis and so his claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left ankle disability. The Veteran asserts that he injured his left ankle during bootcamp in March or April 1991 when he sprained his ankle and was bed ridden for three days. See May 2018 Form 9. The Veteran was diagnosed with a left ankle strain in his October 2020 VA examination and has a history of gout. See October 2020 and November 2020 VA Examinations. VA Treatment records establish that the Veteran began seeking treatment for gout in June 2010 and that he has pain in his left ankle. As a result, he has met the first element of service connection. The Veteran's service treatment records establish that he had sharp toe pain, fissures, and skin problems in March 1991, but do not reference a left ankle injury. See March 1991 Service Treatment Records. Furthermore, the records regarding the incident where he fell off a chair only refer to the right ankle and the Veteran was given crutches in order to walk, implying that he had not injured his left ankle. See December 1997 Service Treatment Records. At separation, there were no findings of swollen or painful joints; broken bones; arthritis, rheumatism, or bursitis; or lameness. See September 1996 Separation Examination. Although he referenced foot problems, those were explained as "corns." The Veteran did experience various injuries in service and is given the benefit of the doubt. As a result, he has met the second element of service connection. The Veteran injured his right ankle during service and has been awarded service connection for a right ankle disability which is reflected in the service treatment records. The October 2020 opinion states that the Veteran injured his left ankle in service; after an exhaustive review of the STRs no left ankle injury was found but pain in the left lower extremity is noted in June 1992. See Service Treatment Records. The November 2020 addendum opinion stated that the "medical record does not show a complaint of a left ankle condition during active service." During his time in service, the Veteran was suffering from a lower back disability that caused problems with his lower extremities. He also received treatment for high blood pressure, an elbow injury, and a right ankle injury. However, despite receiving regular treatment, there is no mention of a left ankle injury, disability, or trauma. There are several accidents that occurred during service, the Veteran fell off a chair injuring his right ankle, fell and exacerbated his lower back pain, and was in a car accident further injuring his back. None of these incidents refer to a left ankle injury. Furthermore, the Veteran completed a medical screening for firefighting training where he endorsed that he did not have fractures, sprains, splints, or casts. See October 1994. He also had a medical board review in December 1995 after a motor vehicle accident and there were no findings regarding a left ankle disability. The fact that he was treated for other conditions but not a left ankle condition constitutes negative evidence against the claim. The Veteran was also not treated for a left ankle disability until June 2010. A mental health report stated that there was a left ankle injury when he fell off a chair in service and stated he was service connected for an ankle injury, which at that time was the right ankle. See August 2010 VA Treatment Records. He reported pain in his ankles when he walked, but both ankles were "unremarkable" upon physical examination. See June 2010 VA Treatment Records. At that time the Veteran weighed over 230 pounds and was diagnosed as morbidly obese. Id. He was not treated for ankle pain again for three years where x-rays showed degenerative joint disease of both ankles. See December 2013 VA Treatment Records. The treatment records then go on to say, "reports right ankle pain ... [patient] complains of pain and swelling for the last [two] days in the right ankle only ... old injury to the right ankle." See December 2013 VA Treatment Records. At this time, he weighed just under 300 pounds and was diagnosed with acute gout of the ankles. Although arthritis is a disability entitled to presumptive service connection as a chronic disability, the Veteran does not meet the requirements of such a grant because his disability was not manifest within one year of service as it was first treated in June 2010. 38 C.F.R. § 3.309 and 3.307(a)(2). Unfortunately, there is no nexus between the Veteran's in-service injuries and his left ankle disability. A VA examination conducted in November 2015 has the Veteran reporting a medical history where he reported injuries only to the right ankle. The examiner found that he had full range of motion of the left ankle upon passive examination and observed repetitive use. However, diagnostic testing did show degenerative arthritis in the left ankle at that time. See November 2015 VA Examination. He weighed over 300 pounds at that time. See August 2015 VA Treatment Records. The Veteran asserts that he injured his left ankle in service when he fell off a stool and has had pain ever since. The objective medical evidence of record fails to support this assertion. The November 2020 VA addendum opinion found that the "medical record does not show a complaint of a left ankle condition during active service." The examiner stated that there had been no additional treatment of gout since 2016 and that the Veteran "is morbidly obese with pes planus and which likely affect the mobility of both ankles causing pain in the joint." See November 2020 VA Addendum Examination. The Board notes that the Veteran first sought medical treatment for left ankle pain in June 2010 and at the same time and for the entire period he was treated for such pain he was diagnosed as morbidly obese. As a result, the Board finds that there is no nexus between the Veteran's left ankle gout and service and so his claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 3. Entitlement to an increased rating greater than 40 percent for service-connected musculoskeletal back pain with myofascitis and degenerative changes. The Veteran asserts that his musculoskeletal back pain should be rated above 40 percent. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran currently has staged ratings of 10 percent effective March 17, 1998, 20 percent effective June 18, 2001, and 40 percent thereafter. Musculoskeletal back pain can be found in 38 C.F.R. § 4.71a under diagnostic code 5242. The relevant rating criteria is as follows: Unfavorable ankylosis of the entire thoracolumbar spine. [50 percent] Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. [40 percent] Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. [30 percent] 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. [20 percent] 38C.F.R. §4.71a. The Veteran filed his claim for an increased rating of musculoskeletal back pain, radiculopathy of the lower left extremity, and TDIU in October 2012. Although he had appealed his musculoskeletal back pain rating in the past, the most recent previous rating decision from July 2010 had become final as he had not appealed that decision and new evidence had not been received. As a result, the relevant time period for consideration is one year before the claim was filed. Hart, 21 Vet. App. 505 at 509. The Veteran has had a rating of 40 percent for the entire period on appeal. The Veteran has not worked during the period on appeal and he reported in his September 2015 VA examination that he was not working because he was unable to sit for prolonged periods of time or lift heavy objects. The Veteran had three VA examinations during this period. The first was in September 2015 where he was diagnosed with degenerative arthritis of the spine. He reported worsening low back pain interfering with walking and constant pain with no alleviating factors. The examiner was unable to test his range of motion due to his level of pain. The examiner found that the pain significantly limited functional ability with repeated use over a period of time and that he was not able to bend at all during this current flare. The Veteran exhibited an abnormal gait or spinal contour due to muscle spasm, localized tenderness, and guarding. However, his muscle strength and sensory tests were normal; and atrophy, radicular pain, ankylosis, neurologic abnormalities, and intervertebral disc syndrome (IVDS) were not present. Imaging showed arthritis and multilevel, generally mild degenerative disc disease. The next VA examination in June 2016 diagnosed the Veteran with a lumbosacral strain. Again, range of motion testing was not possible due to pain and weakness of the lower left extremity. The examiner attempted to have the Veteran use the wall but had to stop as the Veteran displayed instability. He reported functional impairment due to an inability to walk or sit for long periods. There was pain with weight bearing and tenderness with palpation of the lumbar spine. Repetitive use testing was not performed due to pain. Flare ups were evident by pain, weakness, and lack of endurance. Localized tenderness and guarding resulted in abnormal gait or abnormal spinal contour. The examination noted the presence of instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Like the last examination, muscle strength, reflex, and sensory exams were normal; and atrophy, ankylosis, neurologic abnormalities, and IVDS were not present. Unlike the prior examination however, the straight leg raising test was positive and mild radiculopathy and numbness of the left lower extremity were noted. Furthermore, the examiner characterized the degenerative changes as severe. The most recent, post remand VA examination in October 2020 found that the Veteran had the following diagnoses: degenerative arthritis of the spine, radiculopathy of the left and right lower extremities, myofascitis, and chronic musculoskeletal back pain. The Veteran reported that flare ups were severe, lasted all day, were precipitated by prolonged sitting or standing, and could not be alleviated. A flare-up did not occur during the examination and so range of motion testing was completed for the first time; the results are as follow: forward flexion 55 degrees, extension 15 degree, right lateral flexion 15 degrees, left lateral flexion 15 degrees, right lateral rotation 15 degrees, and left lateral rotation 15 degrees. The examiner found that range of motion did not contribute to functional loss and did not explain. Repetitive use testing occurred with no change in range of motion and there was no guarding, muscle spasms, or additional factors noted. Similar to prior examinations, there was no atrophy, ankylosis, neurological abnormalities, or IVDS; and reflex, sensory and muscle testing were normal. The straight leg raising test was negative. Radiculopathy was present in both the lower right and left extremities. The examiner found that the functional impact manifested in the Veteran's inability to stand, walk, or climb up and down stairs for long periods. He could not sit or drive for prolonged periods and could not lift, push, or pull heavy objects over 20 pounds. Unlike in the September 2015 examination where the Veteran was using a cane constantly and the June 2016 examination where he was using a cane constantly and a back brace as needed, the October 2020 examiner found that no assistive device was used. The Veteran is not entitled to the next rating of 50 percent because there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. While the Veteran is receiving the maximum rating based upon limitation of motion, the Board has also considered whether the Veteran can receive a higher rating based upon the impact of functional loss in his right shoulder due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness to determine if his functional loss was equivalent to ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, as he still had some range of motion in his thoracolumbar spine, and his symptoms are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, the October 2020 VA examiner did not find any additional loss of motion or functioning after flare-ups, repetitive testing, or weight bearing that would warrant a higher rating based upon functional ankylosis. The most recent range of motion testing would normally place the Veteran within the 20 percent rating as his forward flexion was 55 degrees, his combined range of motion was over 120 degrees, and there was no muscle guarding or spinal contour that caused an abnormal gait as was the case in past examinations. However, although recent evidence shows some improvement in the condition, sustained improvement has not been definitively established. While the October 2020 VA examination showed improvement in his back, he has now held the 40 percent evaluation for over 10 years. A periodic future examination has not been scheduled as he will be over age 55 by the time the future review examination is actually conducted. 38 C.F.R. § 3.327. As a result, his 40 percent rating is continued. 4. Entitlement to an initial increased rating greater than 20 percent for radiculopathy of the left lower extremity, associated with service-connected musculoskeletal back pain. The Veteran asserts that he should have a higher rating for his radiculopathy of the left lower extremity. The Veteran has only had a rating of 20 percent for his radiculopathy disability effective June 30, 2016. Radiculopathy of the sciatic nerve can be found in 38 C.F.R. § 4.124a under diagnostic code 8520. The relevant rating criteria is as follows: incomplete paralysis, severe with marked muscular atrophy 60 percent, moderately severe 40 percent, moderate 20 percent, and mild 10 percent. Service connection for the radiculopathy disability was granted by the RO in the September 2016 rating decision and the Veteran was awarded a 20 percent rating. The first VA examination in September 2015 showed no radiculopathy in either lower extremity. This changed in June 2016 at the Veteran's second VA examination where the examiner found signs or symptoms of radiculopathy in his left lower extremity and his straight leg raising test was positive. The June 2016 VA examination noted moderate constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. No symptoms were noted for the lower right extremity at that time. The radiculopathy was of the sciatic nerve located in the L4, L5, S1, S2, and S3 nerve roots. The overall severity of the radiculopathy of the left lower extremity was noted as moderate. This places the Veteran within the 20 percent rating criteria. The Veteran was again diagnosed with radiculopathy of the left lower extremity at his October 2020 VA examination. The examiner noted moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity. The radiculopathy was of the sciatic nerve located in the L4, L5, S1, S2, and S3 nerve roots. Again, the overall severity of the radiculopathy of the left lower extremity was noted as moderate. This places the Veteran within the 20 percent rating criteria. The October 2020 examination also noted mild radiculopathy in the right lower extremity for which the Veteran has been awarded service connection for and is not on appeal. The Veteran's VA treatment records are silent regarding his radiculopathy during the appeal period except for the VA examinations included in those records. There is no objective medical evidence of record that would indicate that his disability is worse than that indicated in his VA examinations. He is not entitled to the next highest rating of 40 percent because there is no objective medical evidence that his radiculopathy is moderately severe. As a result, his claim for an increased rating is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.