Citation Nr: 21031975 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-34 724 DATE: May 25, 2021 ORDER Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a back disability, is denied. Entitlement to service connection for a left leg disability, to include as secondary to a back disability, is denied. Entitlement to service connection for a right leg disability, to include as secondary to a back disability, is denied. Entitlement to service connection for arthritis is denied. Entitlement to service connection for tendonitis is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a left shoulder disability, to include as secondary to a neck disability, is denied. Entitlement to service connection for a right shoulder disability, to include as secondary to a neck disability, is denied. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to a neck disability, is denied. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to a neck disability, is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to an initial rating greater than 20 percent for degenerative disc disease of the lumbar spine, with thoracolumbar strain, retrolisthesis, and spinal stenosis, is denied. Entitlement to an initial rating greater than 10 percent for an old healed fracture of the right 3rd metatarsal is denied. Entitlement to a compensable initial rating for erectile dysfunction is denied. Entitlement to an increased rating greater than 10 percent prior to February 9, 2016, for left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to an increased rating greater than 20 percent from February 9, 2016, to October 26, 2017, for left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to an increased rating greater than 40 percent from October 26, 2017, for left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to an initial rating of 10 percent for left lower extremity radiculopathy of the femoral nerve for the period from April 5, 2011, to January 16, 2018, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial rating greater than 10 percent for left lower extremity radiculopathy of the femoral nerve for the entire time period is denied. Entitlement to a compensable initial rating for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a headache disability, to include as secondary to a back disability, is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance / housebound status is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had right lower extremity radiculopathy or any related disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left leg disability or any related disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a right leg disability or any related disability at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had an arthritis disability or any related disability at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against finding that the Veteran has had tendonitis or any related disability at any time during or approximate to the pendency of the claim. 6. The preponderance of the evidence is against finding that a neck disability began during active service or was otherwise caused by service. 7. The preponderance of the evidence of record is against finding that the Veteran has had a left shoulder disability or any related disability at any time during or approximate to the pendency of the claim. 8. The preponderance of the evidence of record is against finding that the Veteran has had a right shoulder disability or any related disability at any time during or approximate to the pendency of the claim. 9. The preponderance of the evidence is against finding that a left upper extremity radiculopathy disability began during active service or was otherwise caused by service. 10. The preponderance of the evidence is against finding that a right upper extremity radiculopathy disability began during active service or was otherwise caused by service. 11. The preponderance of the evidence is against finding that a right knee disability began during active service or was otherwise caused by service. 12. The Veteran's degenerative disc disease of the lumbar spine, with thoracolumbar strain, retrolisthesis, and spinal stenosis, is manifested by forward flexion greater than 30 degrees. 13. The Veteran's old healed fracture of the right 3rd metatarsal is manifested by pain, weakness, and other symptoms that most closely approximate a moderate foot injury. 14. The Veteran's erectile dysfunction has resulted in a loss of erectile power that limits vaginal penetration and ejaculation, but without penile deformity. 15. Prior to February 9, 2016, the Veteran's left lower extremity radiculopathy of the sciatic nerve was manifested by symptoms more closely approximating mild, incomplete paralysis of the external popliteal nerve or sciatic nerve. 16. From February 9, 2016, to October 26, 2017, the Veteran's left lower extremity radiculopathy of the sciatic nerve was manifested by symptoms more closely approximating moderate, incomplete paralysis of the external popliteal nerve or sciatic nerve. 17. From October 26, 2017, the Veteran's left lower extremity radiculopathy of the sciatic nerve is manifested by symptoms more closely approximating severe, incomplete paralysis of the external popliteal nerve. 18. For the entire period on appeal, the Veteran's left lower extremity radiculopathy of the femoral nerve manifested by symptoms more closely approximating mild, incomplete paralysis of the anterior crural (femoral) nerve. 19. Credible audiometric examinations correspond to no greater than a level III hearing loss for the right ear and no greater than a level III hearing loss for the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity radiculopathy 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 leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for tendonitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for a left upper extremity radiculopathy disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for a right upper extremity radiculopathy disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 12. The criteria for entitlement to a rating greater than 20 percent for degenerative disc disease of the lumbar spine, with thoracolumbar strain, retrolisthesis, and spinal stenosis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 13. The criteria for entitlement to a rating greater than 10 percent for old healed fracture of the right 3rd metatarsal are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, DC 5284. 14. The criteria for a compensable initial rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.115b, DC 7522. 15. Prior to February 9, 2016, the criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy of the external popliteal nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8521. 16. From February 9, 2016 to October 26, 2017, the criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy of the external popliteal nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8521. 17. From October 26, 2017, the criteria for a disability rating in excess of 40 percent for left lower extremity radiculopathy of the external popliteal nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8521. 18. For the period from April 5, 2011, to January 16, 2018, the criteria for a 10 percent rating for left lower extremity radiculopathy of the femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8526. 19. For the entire appellate period, the criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8526. 20. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.85, DC 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army National Guard from July 2003 to February 2004 and from October 4, 2009, to October 23, 2009 with additional National Guard or Reserve training participation including state controlled active duty in 2004-2006 as a recruiting and retention counselor. The Veteran has contended that his service included combat operations in Southwest Asia during Operation Enduring Freedom and Operation Iraqi Freedom. The Veteran's service personnel records do not support such service. Service Connection 1. Entitlement to service connection for right lower extremity radiculopathy 2. Entitlement to service connection for a left leg disability 3. Entitlement to service connection for a right leg disability 4. Entitlement to service connection for arthritis 5. Entitlement to service connection for tendonitis 6. Entitlement to service connection for a headache disability 7. Entitlement to service connection for a neck disability 8. Entitlement to service connection for a left shoulder disability 9. Entitlement to service connection for a right shoulder disability 10. Entitlement to service connection for left upper extremity radiculopathy 11. Entitlement to service connection for right upper extremity radiculopathy 12. Entitlement to service connection for a right knee disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability, comparing it to the current level of disability, and showing that the secondary condition was not due to the natural progression of a disease. 38 C.F.R. § 3.310(b). The Veteran contends that he has right lower extremity radiculopathy, right knee, right and left upper extremity radiculopathy, left and right leg, arthritis, tendonitis, right and left shoulder, and neck disabilities that were incurred in service, were otherwise caused by service, or were caused or aggravated by a service-connected disability. The Veteran qualified as a paratrooper during initial training. There is no record of periodic jumps during recruiter duty which was state ordered duty. The Veteran's service treatment records do not include complaints, treatment, or diagnoses of arthritis, tendonitis, bilateral shoulder, bilateral leg, neck, or bilateral upper extremity disabilities. A March 2007 Report of Medical Examination was normal as to all claimed systems. In an October 2009 Report of Medical History, the Veteran described problems with the bilateral knees, hips, and feet, but indicated that all were functional and the examiner concluded that no further evaluation was needed. In a March 2013 statement, the Veteran claimed that his tension headaches and bilateral leg pain was secondary to his service-connected back disability. The Veteran underwent a VA knee examination in March 2016. The examiner diagnosed right and left patellofemoral pain syndrome. The Veteran reported bilateral keen pain beginning in 2003 that was intermittent and moderate in nature. He discussed a particular jump carrying extra weight, but denied any other specific trauma to the knees. The Veteran reported that symptoms had slightly worsened. Currently, he was experiencing intermittent bilateral knee pain, with the left worse than the right. The symptoms had persisted since jump school. He had daily pain in both knees that was worsened by kneeling or bending. The Veteran denied swelling. The Veteran treated the condition occasionally with Advil. The examiner concluded, "There is no objective evidence to support a current diagnosis for the claimed right knee condition at this time." In an October 2017 statement, the Veteran indicated that his head, neck, legs, and knee disabilities were due to a "ruck run" during infantry school and a bad night parachute jump. About 1 to 2 months after the parachute jump injury the Veteran began to experience headaches/migraines. Initially, the headaches occurred once or twice per month, but since had progressed to 5 to 6 per month. In support of his claim, the Veteran submitted a research study regarding parachuting injuries. The majority of parachuting injuries occurred to the ankles, but also involved the leg, back, arm, shoulder, and chest. Closed head injuries also represented a significant proportion of injuries, reflecting the vulnerability of the brain to impact. He submitted multiple other articles showing similar findings. In March 2018, the Veteran reported back and neck pain starting around 2005. A July 2018 EMG study of the left upper extremity was normal. In an October 2018 statement, the Veteran reported moderate to severe muscle pain in the shoulders, mid-back, lower back, buttocks, thighs, and both legs. The Veteran reported joint pain in the upper and lower back, hands, elbows, knees, and feet. The pain resulted in weakness, loss of the ability to use his limbs, fatigue, pain, impaired coordination, and loss of balance resulting in falls. The Veteran was afforded a VA neck examination in February 2020. The Veteran was diagnosed with degenerative arthritis of the spine. Following examination, the examiner concluded that it was less likely than not that the Veteran's currently diagnosed neck disability was incurred in or caused by service. The rationale noted that there were no service treatment records indicating problems with the neck or upper extremities during service. Moreover, there were no post-traumatic findings on imaging. Instead, his degenerative joint disease and degenerative disc disease of the cervical spine were time and age-related disabilities. A February 2020 VA peripheral nerves examination report included a diagnosis of left lower extremity radicular pain. On examination, there were no symptoms related to right or left upper extremity or right lower extremity radiculopathy. Following examination, the examiner concluded that it was less likely than not that the Veteran had currently diagnosable right or left upper extremity radiculopathy. The Veteran no longer had signs, symptoms, or findings of radiculopathy in the upper extremities. Moreover, a July 2018 EMG study of the upper extremities was normal. In addition, there was no mention of neck or upper extremity problems in the service treatment records. The Veteran was afforded a VA right knee examination in February 2020. The examiner diagnosed patellofemoral pain syndrome in the bilateral knees. The Veteran reported some back and neck problems in service, but did not discuss in-service knee problems. Currently, the Veteran had right knee problems if standing for over 30 minutes. Following examination, the examiner concluded that it was less likely than not that the Veteran's right knee patellofemoral pain syndrome was incurred in or caused by service. The rationale noted the absence of any service treatment records discussing right knee problems, the absence of post-service traumatic findings on imaging, and the fact that the x-rays showed mild age-related degenerative changes of limited significance. The Veteran underwent a February 2020 VA shoulder examination. The examiner concluded after examination, however, that the Veteran did not have a diagnosed right or left shoulder disability. The Veteran denied any significant current shoulder joint problems. Examination of the shoulders was normal. A February 2020 VA examination for the right leg and left leg claim concluded that the Veteran did not have current right or left leg disabilities other than his currently service-connected disabilities. Multiple October 2020 VA medical opinions are of record. As to the claimed neck disability, the examiner stated, "I could find no evidence that [degenerative joint disease] and [degenerative disc disease] of cervical spine, [was] proximately due to or aggravated beyond natural progression by a different medical condition." As to the right and left upper extremity radiculopathy claims, the medical professional indicated that there was no evidence of upper extremity radiculopathy symptoms until a neurosurgery evaluation in 2018. The medical professional indicated that other than the non-service connected cervical spine disabilities there was no evidence of a condition causing the upper extremity radiculopathy. The medical professional concluded that it was less likely than not that the Veteran had upper extremity radiculopathy that began during service, manifested within 1 year of discharge from service, was noted during service with continuity of symptoms from service, or is otherwise related to service. As to the right knee disability, the medical professional concluded that it was less likely than not that the right knee patellofemoral pain syndrome that began during service, manifested within 1 year of discharge from service, was noted during service with continuity of symptoms from service, is otherwise related to service, was proximately due to a different medical condition, or aggravated beyond its natural progression by a different medical condition. In a November 2020 statement, the Veteran indicated that the February 2020 VA medical opinions were inadequate. He also discussed how his parachute jumps resulted on traumatic pressure on the joints, knees, feet, ankles, hips, head, neck, and lower back. Thus, the Board concludes that the Veteran does not have a current disabilities of right lower extremity radiculopathy, right or left leg, right or left shoulder, arthritis, or tendonitis disabilities 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). As discussed by the February 2020 VA examiner, there was no pain, no problems, and no findings on examination or in the medical records demonstrating disabilities of the hips, thighs, calves, ankles, or feet identified by the Veteran or the examiner. The Board acknowledges that at one point in the August 2014 VA examination the examiner indicated that the Veteran had symptoms of right lower extremity radiculopathy, but later in the report the examiner specifically indicated that the Veteran did not have right lower extremity radiculopathy symptoms. Given the inconsistencies in that report, the Board affords greater weight to the other medical evidence of record. In concluding that the Veteran does not have current diagnoses as to the above-claimed disabilities, the Board has considered the holding of the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In this case, however, as discussed above and in greater detail below, the Veteran's symptoms either have been attributed to service-connected disabilities (such as his back and left lower extremity radiculopathy) or that the symptoms do not reach a demonstrated level of a functional impairment of earning capacity. As such, the award of service connection is not warranted herein. In addition, the Board has considered the Veteran's contentions that he served in Southwest Asia and, as such, that the provisions of 38 C.F.R. § 3.317 for undiagnosed illnesses would warrant entitlement to service connection. The personnel records show that in 2005 and 2007, the Veteran was screened for an overseas deployment, but the record showed multiple "no-go" determinations and medical issues. During this time, he was assigned state ordered duty as a recruiter. As noted above, however, the Veteran's personnel records fail to document any service in Southwest Asia. As such, consideration of 38 C.F.R. § 3.317 is not necessary. As to the Veteran's right knee, right and left upper extremity radiculopathy, and neck disabilities, he has current disabilities for the claimed disorders. The relevant question, therefore, is whether either disability was incurred in service, is otherwise caused by service, or was caused or aggravated by a service-connected disability. The Board concludes that they were not. As to granting either claim on a direct or secondary basis, the February 2020 and October 2020 medical opinions universally concluded that the Veteran's neck and right knee disabilities were solely due to the natural aging process and not caused by service or caused or aggravated by a service-connected disability. The Board finds these opinions the most probative evidence of record as to the etiology of the Veteran's neck and right knee disabilities. The Board has considered the Veteran's contentions that his current neck and/or right knee disabilities were incurred in service, otherwise caused by service, or caused or aggravated by his service-connected back disabilities. The Veteran is competent to report physically-observable symptoms, such as neck pains from 2005, but given the greater level of education, training, and experience of the medical professionals the Board affords significantly greater probative weight to the above conclusions. In light of the foregoing, the Board finds that the preponderance of the evidence is against the service connection claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeals must therefore be denied. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 13. Entitlement to an initial rating greater than 20 percent for degenerative disc disease of the lumbar spine, with thoracolumbar strain, retrolisthesis, and spinal stenosis The Veteran's low back disability is rated as 20 percent disabling under DC 5242. He alleges his low back disability is more severe than currently rated. Specifically, he alleges that due to his recently diagnosed spinal stenosis, that spinal fusion surgery had been recommended, and the overall severity of his disability that a higher or separate rating is warranted. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term "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"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Spine conditions rated under DC 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. "Incapacitating episodes" was defined in Note (1) as 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. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. Effective February 7, 2021, 38 C.F.R. § 4.71a was revised, including DCs 5242 and 5243. Relevant to the low back claim, DC 5242 was revised from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome" and DC 5243 was received from "intervertebral disc syndrome" to "intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Regardless of whether the Veteran had diagnosed intervertebral disc syndrome with disc herniation, as the Veteran does not have incapacitating episodes due to his low back disability sufficient to warrant a compensable rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes the Board will consider the claim solely under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran was afforded a VA examination in September 2011. The Veteran reported a limitation in walking up to a half mile in 30 minutes. He experienced falls due to the spine condition. The Veteran had stiffness, fatigue, decreased motion, paresthesia, and numbness. The Veteran denied bowel problems. He reported that the pain was severe in nature and worsened with physical activity. During flareups, the Veteran had pain, cramping, numbness, and limitation of motion. The Veteran denied any incapacitating episodes. On examination, the Veteran had no muscle spasms, but did have tenderness. There also was guarding and weakness. The guarding resulted in an abnormal gait. Straight leg raising test was negative bilaterally. There was no muscle atrophy or ankylosis. Thoracolumbar range of motion testing showed forward flexion to 65 degrees, with pain onset at 65 degrees; extension to 15 degrees, with pain onset at 15 degrees; right and left lateral flexion to 18 degrees, with pain onset at 18 degrees; and right and left lateral rotation to 15 degrees, with pain onset at 15 degrees. There was no further loss of motion with repetitive use. The Veteran underwent a VA examination in August 2014. The Veteran reported sharp pain down the left leg with numbness in the left leg and foot. The Veteran had flareups that kept him from standing upright. Thoracolumbar range of motion testing showed forward flexion to 40 degrees, with pain onset at 30 degrees; extension to 15 degrees, with pain onset at 10 degrees; and right and left lateral flexion and rotation to 15 degrees, with pain onset at 10 degrees. There was no further loss of motion with repetitive use. There was functional loss due to less movement than normal and pain on movement. There was no guarding or muscle spasm. Muscle strength was normal and there was no muscle atrophy. Reflexes were normal and sensation was normal except in the foot/toes where sensation was decreased. There were no neurologic abnormalities (such as bowel or bladder problems). The Veteran did have intervertebral disc syndrome, but had incapacitating episodes over the previous 12 months totaling less than 1 week. He did not use assistive devices. The occupational impact of the disability was that it would take the Veteran mildly increased time to complete certain occupational tasks such as climbing, stooping, kneeling, and crouching, as well as decreased standing and ambulation secondary to pain. Gait and posture were within normal limits. Flareups would range from mild to severe, with a corresponding difference in additional loss of motion. Theoretically, an extremely severe flareup could prevent any movement whatsoever. The Veteran was afforded a VA examination in February 2016. The Veteran reported flare-ups that involved his inability to walk more than a couple blocks. In addition, he was "always" catching his left foot on things. There was functional loss due to left lower extremity weakness. Thoracolumbar range of motion testing showed forward flexion to 68 degrees, extension to 23 degrees, and right and left lateral flexion and rotation to 30 degrees. There was no pain noted on examination. There was tenderness to palpation. There was no further loss of motion with repetitive use. Tenderness and guarding did not result in an abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. There were no neurologic abnormalities (such as bowel or bladder problems). The Veteran did not have intervertebral disc syndrome. He did not use assistive devices. The associated scar was 17cm by 0.5cm and was not painful or unstable. The spine disability would make any labor tasks unsafe and problematic. Sedentary work would be okay if he was allowed to move about often. A January 2018 MRI of the lumbar spine showed mild lumbar spondylosis with disc bulge osteophyte complexes at L3-L4 through L5-S1 with mild neuroforaminal stenosis. There also was scoliosis and an annular disc tear at L5-S1. The Veteran underwent a VA examination in February 2018. There were diagnoses of lumbosacral strain, spinal stenosis, degenerative disc disease, and retrolisthesis. The Veteran had chronic back pain with sharp pain down the left leg to the left foot. There were flare-ups that involved the Veteran being only able to walk a short distance and frequently lost his balance. There was functional loss due to weakness in the left leg. Thoracolumbar range of motion testing showed forward flexion to 65 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. The decreased thoracolumbar range of motion did not contribute to any functional loss. Pain was noted on extension. There was mild tenderness to the paralumbar muscles. There was pain with weight bearing, but there was no further loss of motion with repetitive use testing. There was functional loss due to weakness, lack of endurance, and incoordination. The functional loss resulted in decreased extension (including during flare ups) to 15 degrees, left lateral flexion to 15 degrees, and left lateral rotation to 20 degrees. Ranges of motion otherwise were unaffected. There was muscle spasm due to degenerative disc disease that did not result in abnormal gait or abnormal spinal contour. There was instability of balance and the Veteran lost his balance and fell every few months. The Veteran did not have intervertebral disc syndrome. In a November 2020 statement, the Veteran contended that a higher rating than 20 percent was warranted. The Veteran contended that VA failed to explain why his newly diagnosed spinal stenosis did not warrant a rating higher than 20 percent. He noted that the recommendation for fusion surgery demonstrated that a higher rating was warranted and shoulder have been considered. The Board concludes that a rating greater than 20 percent is not warranted under DC 5242 for any period on appeal. The evidence does not demonstrate favorable or unfavorable ankylosis of the thoracolumbar spine, as the Veteran retains the ability to move his back, despite some pain and loss of motion. Moreover, forward flexion of the spine is not to 30 degrees or less. In light of the foregoing, a rating greater than 20 percent under DC 5242 is not warranted for any period on appeal. The Board acknowledges the Veteran's argument that a higher rating is warranted based on the recommendation for spinal fusion surgery, but given that the Veteran's overall functioning does not meet the criteria for a higher rating under DC 5242 the Board is unable to assign a higher rating. Similarly, the Veteran is not entitled to a greater rating under any other DC. As the Veteran's spinal stenosis does not result in symptoms not contemplated by the original 20 percent rating, a separate rating is not warranted for the more recently diagnosed spinal stenosis. As discussed above, a separate or higher rating under DC 5243 is not applicable. Under DC 5003 degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. In this case, even with a current diagnosis of degenerative arthritis, a separate rating under DC 5003 would not be warranted. The Veteran's 20 percent rating under DC 5242, as discussed above, is based on pain on movement and a separate rating under DC 5003 would be for the same symptomatology. As separate ratings may not be assigned for the same symptomatology, a separate 10 percent rating under DC 5003 for the Veteran's painful motion is not warranted. Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. In this case, the Veteran is rated separately for left lower extremity radiculopathy and an increased rating claim for that disability is adjudicated herein. As discussed above, the Veteran does not have a diagnosed right lower extremity radiculopathy disability and, as such, further consideration of that claim herein is not necessary. As noted, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In this case, the Veteran consistently has denied related bowel or bladder problems. The Veteran is rated separately for his erectile dysfunction associated with his service-connected low back disability and will be discussed further separately. The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the back. 38 C.F.R. §§ 4.40, 4.45. The evidence indicates that the Veteran has had ranges of motion on testing that are consistent with the current ratings assigned for the respective time periods. The Board acknowledges that the some of the testing results document pain on range of motion but not the point in each arc of motion where the pain started. In any case, repetitive motion testing (to the extent it was able to be performed) has not shown any increased loss of motion on repetition to the point that a higher rating would be warranted and there is no evidence of muscle atrophy. The current rating assigned contemplates the Veteran's pain and associated difficulties. The current evaluation contemplates limitation of flexion to 31 degrees. In order to warrant a higher evaluation flexion must be functionally limited to 30 degrees or less. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Neither the lay nor medical evidence establishes that flexion is functionally limited to 30 degrees or less due to any factor. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. Accordingly, the preponderance of the evidence is against assignment of an increased disability rating greater than 20 percent under DC 5242 for the Veteran's service-connected low back disability. The Board has considered whether staged ratings were appropriate in the present case but concludes that the current rating most closely reflects the Veteran's disability and that staged ratings are not warranted for any period on appeal. 14. Entitlement to an initial rating greater than 10 percent for an old healed fracture of the right 3rd metatarsal The Veteran's right great toe disability is rated as 10 percent disabling under DC 5284. The Veteran contends that his right foot disability is more severe than currently rated. Disabilities of the foot are rated under DCs 5276 through 5284. As an initial matter, neither of the Veteran's right foot disability has been shown to be associated with pes planus, weak foot, claw foot, metatarsalgia, hallux rigidus, hallux valgus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones. Accordingly, the DCs pertaining to those disabilities are not applicable in the instant case. See 38 C.F.R. § 4.71a, DCs 5276, 5277, 5278, 5279, 5280, 5281, 5282, 5283. Under DC 5284, moderate residuals of other foot injuries warrant a 10 percent rating. A 20 percent rating requires moderately severe residuals. A 30 percent rating requires severe residuals. 38 C.F.R. § 4.71a, DC 5284. A note to DC 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. See id. The words "marked," "severe," and "pronounced" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. 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 Veteran underwent a VA examination in September 2011. The Veteran reported right foot pain 4 times per week and lasting for 8 hours. The pain was aching and cramping that was described as 7 out of 10. The pain worsened with physical activity. Right ankle range of motion testing was normal. There was tenderness to palpation and painful motion of the right foot. Alignment of the Achilles tendon was normal and there was no pes planus, pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, or hallux rigidus. The Veteran did not require supports for his shoes. The Veteran was afforded a VA examination in August 2014. The examiner diagnosed right third metatarsal fracture (healed). The Veteran reported pain and discomfort in the right foot that was unchanged since the in-service injury. There was dull pain on the top of the foot to sharp pain and cramps. There was no functional loss due to the foot disability. On examination, the examiner described the right foot disability as mild. The condition did not compromise weight bearing. He did not require arch support. There was mildly decreased standing and ambulation potential secondary to pain. In his January 2016 substantive appeal, the Veteran indicated that he had weakness in the right foot and that combined with back and leg injuries he had difficulty maintaining a steady gait thereby placing a heavy burden on an already weak foot. After consideration of all of the evidence of record, the Board finds that a rating greater than 10 percent is not warranted under DC 5284 for any period on appeal for the Veteran's right foot disability. The Veteran has right foot pain with painful motion, but the pain does not affect functioning of the foot in terms of weight bearing or arch support. The examiners have noted that the Veteran has mildly decreased standing and walking potential due to the right foot disability. None of the foregoing suggests symptomatology more severe than the current 10 percent rating based on moderate symptomatology. As the Veteran's right foot disability rating is not based on limitation of motion of a joint, the Board finds that the provisions of Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 10 percent under DC 5284 for the right foot disability. Furthermore, the Board concludes that in light of the consistent symptomatology during this appellate period and the absence of the necessary criteria for a higher rating at any point other than that discussed above, that further staged ratings are not for application. 15. Entitlement to a compensable initial rating for erectile dysfunction The Veteran seeks a compensable rating for his erectile dysfunction. The Board notes that there is no specific disability rating for erectile dysfunction. The closest analogous code is 38 C.F.R. § 4.115b, DC 7522, which rates deformity of the penis with loss of erectile power. The Board can find no other DC provision that would be more appropriate in rating the Veteran's disability. There is no evidence that he has had removal of half or more of his penis, or that glans have been removed, such that would warrant consideration under DCs 7520 or 7521, respectively. Therefore, DC 7522 is most appropriate to rate this disability. Pursuant to DC 7522, two distinct elements are required for a compensable, 20 percent, disability rating: penile deformity and loss of erectile power. As the Veteran is not shown to have both penile deformity and loss of erectile power, the Board finds that a compensable evaluation for erectile dysfunction is not warranted. Furthermore, he has been awarded special monthly compensation under 38 U.S.C. § 1114, subsection (k), 38 C.F.R. § 3.350(a), due to loss of use of a creative organ, so he is in fact being compensated for loss of use. In any event, a compensable rating is not warranted under DC 7522. The Veteran was afforded a VA examination in August 2014. The Veteran reported an unchanged condition since 2005. The Veteran did not take medication, have a history of orchiectomy, or a voiding dysfunction. The Veteran had erectile dysfunction and was unable to achieve an erection sufficient for penetration and ejaculation. There was no retrograde ejaculation or history of chronic epididymitis or prostatitis. On examination, the penis, testes, and epididymis all were normal. The prostate was not examined. There was no varicocele, tenderness, or mass noted on examination. In his January 2016 substantive appeal, the Veteran indicated his belief "that there is a deformity and loss of erectile power which is greater than 0%." The Veteran was afforded a VA examination in February 2016. The examiner noted a diagnosis of erectile dysfunction since 2012. The Veteran reported experiencing erectile dysfunction since a surgery to his back. He had not tried any medication for the disability. He had not had an orchiectomy. The Veteran did not have any renal or voiding dysfunction. There was no retrograde ejaculation, chronic epididymitis, or prostatitis. The Veteran declined a physical examination. There were no associated tumors or scars. The erectile dysfunction did not impact his ability to work. Thus, there is no objective evidence of penile deformity. The Board acknowledges the Veteran's January 2016 report of penile deformity, but there was no deformity shown on physical examination in August 2014 and the Veteran declined physical examination in February 2016. Given that the Veteran declined a physical examination to look for penile deformity in February 2016 and the normal penile examination in August 2014, the Board affords extremely limited probative weight to the Veteran's lay representations of penile deformity. The Veteran has not explained how he believes his situation approximates penile deformity and the medical evidence is against a finding of penile deformity. The evidence does not otherwise indicate penile deformity during the appellate time period. The Board recognizes that the Veteran's erectile dysfunction causes significant problems with sexual activities, although he has not sought medication for the problem. However, as noted above, in order to obtain a compensable disability rating there must be evidence of penile deformity. The Veteran is being separately compensated for the loss of use of a creative organ or, in this case, his difficulties obtaining and maintaining an erection sufficient for intercourse and ejaculation. With respect to the matter at hand, the Board concludes that the most probative evidence of record weighs strongly against finding that he has any penile deformity. The Board certainly is extremely sympathetic to the Veteran's erectile problems and associated difficulties; however, as noted above, the current awarded special monthly compensation under 38 U.S.C. § 1114, subsection (k), 38 C.F.R. § 3.350(a), due to loss of use of a creative organ, compensates the Veteran for these difficulties. The Board further finds that, since the effective date of service connection, there were no distinct periods of time during which the Veteran's disability was compensable. He is accordingly not entitled to receive a staged rating. As the preponderance of the evidence is against the claim for a compensable rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 16. Entitlement to an increased rating greater than 10 percent prior to February 9, 2016, for left lower extremity radiculopathy of the sciatic nerve 17. Entitlement to an increased rating greater than 20 percent from February 9, 2016, to October 26, 2017, for left lower extremity radiculopathy of the sciatic nerve 18. Entitlement to an increased rating greater than 40 percent from October 26, 2017, for left lower extremity radiculopathy of the sciatic nerve 19. Entitlement to an initial rating greater than 10 percent for left lower radiculopathy of the femoral nerve The Veteran's radiculopathy of the left lower extremities originally was rated under DC 8520 for paralysis of the sciatic nerve. In a March 2018 rating decision, the rating was changed to DC 8521 at 10 percent prior to February 9, 2016, at 20 percent from February 9, 2016, to October 26, 2017, and at 40 percent from October 26, 2017, for incomplete paralysis of the external popliteal nerve. In addition, the Veteran has a 10 percent rating under DC 8526 for mild, incomplete paralysis of the anterior crural nerve. The Veteran claims that these ratings do not adequately quantify his level of impairment and contends he is entitled to a higher rating. DC 8521 provides for a 40 percent rating for complete paralysis of the external popliteal nerve (common peroneal) where there is foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; and anesthesia covers the entire dorsum of foot and toes. 38 C.F.R. § 4.124a. A 30 percent evaluation is warranted for severe incomplete paralysis. Id. A 20 percent evaluation is assigned where there is moderate incomplete paralysis, and a 10 percent evaluation is warranted for mild incomplete paralysis. Id. DC 8526 provides for a 40 percent rating for complete paralysis of the anterior crural nerve for paralysis of the quadriceps extensor muscle. 38 C.F.R. § 4.124a. A 30 percent evaluation is warranted for severe incomplete paralysis. Id. A 20 percent evaluation is assigned where there is moderate incomplete paralysis, and a 10 percent evaluation is warranted for mild incomplete paralysis. Id. The Board observes that the words "mild," "moderate," and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. 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 Veteran underwent a VA examination in August 2014. The Veteran reported sharp pain down the left leg with numbness in the left leg and foot. Straight leg raising test was negative. There was evidence of bilateral lower extremity radiculopathy, with mild constant pain, intermittent pain, paresthesias, and numbness in the right and left lower extremity. The Veteran was afforded a VA examination on February 9, 2016. The Veteran reported flare-ups that involved his inability to walk more than a couple blocks. In addition, he was "always" catching his left foot on things. There was functional loss due to left lower extremity weakness. Left ankle dorsiflexion and great toe extension was 4 out of 5, but otherwise left lower extremity strength was normal. There was muscle atrophy of the left calf that was 27cm rather than 30cm. Left knee reflex was normal, but left ankle reflexes were hypoactive. Sensation was normal. Straight leg raising testing was positive. There was mild left lower extremity intermittent pain and numbness. The Veteran also had left foot drop. The Veteran underwent a VA examination in May 2017. The examiner diagnosed left lower extremity radiculopathy. The Veteran reported left leg numbness and one area that was "hot" all the time. He could squat, but put most of his weight on the right leg when doing that. He denied pain in either leg. The examiner indicated that the Veteran had mild left lower extremity paresthesias and numbness. Muscle strength testing showed knee extension of 4 out of 5, ankle plantar flexion of 5 out of 5, and ankle dorsiflexion of 4 out of 5. There was no muscle atrophy. Left lower extremity reflexes were hypoactive. Sensation in the left upper thigh and knee was normal, but was decreased in the lower leg/ankle and foot/toes. There were no trophic changes. The Veteran limped favoring the left leg due to concerns about the left leg "buckling" on him. The examiner concluded that the Veteran had mild, incomplete paralysis of the left sciatic, musculocutaneous, anterior tibial, posterior popliteal, and anterior crural (femoral) nerves. The peripheral nerve disability did not affect the Veteran's ability to work. The examiner noted that the Veteran did not have noted foot drop, but did have some decreased strength to dorsiflexion of the left foot and extension of the knee. That said, range of motion of the left and right ankles were the same. The Veteran was afforded a February 2018 VA examination. The diagnoses were incomplete paralysis of the left femoral and sciatic nerves. Left lower extremity symptoms included mild constant pain, moderate intermittent pain, mild paresthesias, and mild numbness. Left lower extremity muscle strength was normal other than ankle dorsiflexion, which was 4 out of 5. There was atrophy in the left calf that was 26cm versus 30cm in the other calf. Reflexes were normal except for hypoactive bilateral ankle reflexes. Sensation was normal, except in the left foot/toes that was decreased. There were no trophic changes, but the Veteran had an antalgic gait. There was mild, incomplete paralysis of the left sciatic, anterior tibial, and anterior crural nerves. The Veteran would fall every few months, had a left foot drop, and would have difficulty with any work that included physical activity. In November 2018, left lower extremity muscle strength was 3 out of 5. A February 2020 VA examination report is of record. The Veteran had worked a deputy sheriff and patrolman from 2006 to 2012 before back surgery in 2013. He had not worked since that time. The Veteran walked up to a mile per day and was involved in chores and childcare for 3 hours per day. He could walk for a quarter mile at a time, could stand for 20 minutes, climb 1 flight of stairs, lift from 10 to 25 pounds from the floor and carry it across the room, drive for 1 hour, and probably could lift a gallon container above his head with the right and left arms. During service, the Veteran reported experiencing a hard landing on a night parachute jump with dizziness, but no loss of consciousness. The following day, he was able to complete his final scheduled parachute jump. During service, the Veteran had some soreness in his back and neck, but continued without medical treatment. The Veteran denied any specific injuries during service, but from 2006 had ongoing back and neck pain, as well as headaches. After service, while working as a sheriff patrolman he developed worsening back problems and increased left leg symptoms. On examination, the Veteran had moderate intermittent pain in the left lower extremity, but did not have constant pain, numbness, or paresthesias. Muscle strength was normal in the left lower extremity and there was no muscle atrophy. Reflexes and sensation were normal. The Veteran had a normal gait and negative Phalen's and Tinel's sign. The Veteran used no assistive devices. The Veteran's left lower extremity radiculopathy did not affect the Veteran's ability to work. In a November 2020 statement, the Veteran argued that the 40 percent rating should extend back to the date of his claim for benefits. He also argued that a 60 percent rating was warranted because the Veteran had documented muscle atrophy. For the period prior to February 9, 2016, the Board concludes that the Veteran's left lower extremity radiculopathy is no greater than mild, thus a rating greater than 10 percent under DC 8521 prior to February 9, 2016, is not warranted. For that period, the Veteran had mild constant pain, intermittent pain, paresthesias, and numbness in the right and left lower extremity. Thus, prior to February 9, 2016, the medical evidence as a whole supports a disability picture consistent with no more than mild incomplete paralysis of the external popliteal nerve. For the period from February 9, 2016, to October 26, 2017, the Board concludes that the Veteran's left lower extremity radiculopathy is no greater than moderate, thus a rating greater than 20 percent under DC 8521 from February 9, 2016, to October 26, 2017, is not warranted. The Veteran's symptoms included mild left lower extremity intermittent pain and numbness, as well as decreased muscle strength, sensation, and reflexes. There is conflicting evidence regarding left foot drop during this period, as one examiner found foot drop while the second examiner found that the Veteran did not have left foot drop. The Veteran certainly had increased symptoms and problems from the period prior to February 9, 2016, but this is represented in the increased 20 percent rating. Each of these symptoms are mild to moderate in nature and, viewed in their totality, the Board does not find that they constitute a disability picture that more accurately approximates severe, incomplete paralysis for the period between February 9, 2016, and October 26, 2017. For the period from October 26, 2017, the Board concludes that the Veteran's left lower extremity radiculopathy most closely approximates complete paralysis of the external popliteal nerve under DC 8521 from October 26, 2017. For that period, there is conflicting evidence as to whether the Veteran had left foot drop, as foot drop was found in the February 2018 examination but not in the February 2020 examination. In addition, there was muscle atrophy in the left calf during the February 2018 examination, but not in the February 2020 examination. There was moderate pain and at most slightly decreased muscle strength, sensation, and reflexes. The 40 percent rating is the maximum rating under DC 8521. A higher rating is available under DC 8520 for paralysis of the sciatic nerve, but as discussed above there is no evidence of severe or complete paralysis of the sciatic nerve. None of the Veteran's symptoms during this period would warrant the higher rating under DC 8520. The Veteran's symptoms were not described as severe in nature by the medical professionals and while the Veteran had muscle atrophy in the February 2018 examination, there was no muscle atrophy in the February 2020 examination. Similarly, the foot drop was not noted in February 2020. In any case, the foot drop is contemplated by the 40 percent rating under DC 8521. In light of the foregoing, the Board finds no evidence for granting a rating higher than 40 percent under DC 8521 or any other DC. In addition to the rating under DC 8521, the RO granted a separate 10 percent rating under DC 8526 for mild, incomplete paralysis of the anterior crural (femoral) nerve. The rating was effective January 16, 2018, as the RO concluded that an increased rating claim was received on that date. As the RO appears to consider the claim for an increased rating for left lower extremity radiculopathy to have been on appeal for the entire time period (i.e. from April 5, 2011), based on the September 2018 Statement of the Case (SOC). As the Veteran is presumed to be requesting the highest rating possible, the Board concludes the rating for the femoral nerve is on appeal for the entire time period. In that regard, the May 2017 VA examination report found mild, incomplete paralysis of the femoral nerve. The prior VA examinations did not specifically indicate what nerves encompassed by the left lower extremity radiculopathy disability. As such, the Board will afford the Veteran the benefit of the doubt and assign the 10 percent rating under DC 8526 from April 5, 2011. A rating higher than 10 percent is not warranted for any period on appeal, as the medical evidence universally indicates that the Veteran femoral nerve paralysis is mild in nature. The Board has considered whether an increased evaluation could be assigned under an alternative DC used in rating disease of the peripheral nerves for any of the periods on appeal. 38 C.F.R. § 4.124a. However, the Board finds that DC 8520 and DC 8526 are most appropriate for evaluating the Veteran's left lower extremity radiculopathy disabilities. The Board notes that there are diagnoses of other nerves in the left lower extremity. That said, the symptoms reported are fully contemplated in the current ratings assigned and the Board finds that additional separate ratings under any other DCs would constitute impermissible pyramiding. As such, an increased rating is not warranted under an alternative DC for any period on appeal. Accordingly, the preponderance of the evidence is against assignment of a higher rating than noted above for any period on appeal. As the greater weight of evidence is against the claims, there is no doubt on this matter that could be resolved in the Veteran's favor. 20. Entitlement to a compensable initial rating for a bilateral hearing loss disability The Veteran contends that he is entitled to a higher rating because the severity of his hearing loss is not accurately reflected in the current noncompensable rating. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran underwent a VA audiometric evaluation in April 2016. The Veteran reported that at times it was difficult to hear the radio and other things. The Veteran also had trouble hearing in a room with a lot of people, as speech seemed muddled. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 20 15 45 35 LEFT 20 20 40 55 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 88 percent for the right ear and 96 percent for the left ear. The average of the pure tones between 1000-4000 Hz was 29 for the right ear and 34 for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and I for the left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment, but these do not apply. See 38 C.F.R. § 4.86(a) & (b). The Veteran underwent a VA audiometric evaluation in September 2017. The Veteran reported that in crowded areas when facing away it was difficult to hear and understand conversation. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 15 25 70 70 LEFT 25 30 85 95 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 88 percent for the right ear and 86 percent for the left ear. The average of the pure tones between 1000-4000 Hz was 45 for the right ear and 58.75 for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and III for the left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment, but these do not apply. See 38 C.F.R. § 4.86(a) & (b). In January 2018, the Veteran presented with a moderate to profound sensorineural hearing loss bilaterally. Bilateral hearing aids were ordered to remediate the hearing loss. The January 2018 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 55 75 90 LEFT 55 90 105 105 Pure tone threshold averages were 65.0 decibels (dB) in the right ear and 88.75 dB in the left ear. Speech discrimination scores were 92 percent in the right ear and 78 percent in the left ear. The audiologist found that, as for the right ear, the Veteran had normal hearing. The assessment for the left ear was sensorineural hearing loss beginning at 4000 Hz. Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluations, the 2018 audiometric testing revealed Level II hearing in the right ear and Level V hearing in the left ear, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The January 2018 audiogram demonstrates an exceptional pattern of hearing loss in the left ear, as the audiogram shows pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more at all specified frequencies. While under Table VIA this would result in Level VIII hearing in the left ear, but still would not warrant a rating greater than 10 percent. Therefore, even using 38 C.F.R. § 4.86 does not result in a rating greater than 10 percent. The Veteran underwent a VA audiometric evaluation in February 2018. The Veteran reported that sometimes he had to concentrate on what was being said and had difficulty understanding if multiple individuals were speaking or otherwise in situations with significant background noise. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 55 80 90 95 LEFT 55 95 105 105+ Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent for the right ear and 86 percent for the left ear. The average of the pure tones between 1000-4000 Hz was 80 for the right ear and 90 for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and IV for the left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment. See 38 C.F.R. § 4.86(a) & (b). That said, the examiner indicated that the speech reception thresholds were not in agreement with pure-tone averages in either ear. The Veteran had been reinstructed and retested. The Veteran was claiming a significant decrease in hearing in both ears in the last 4 or 5 months. The examiner concluded, "Based on speech recognition thresholds and recent auditory results, it is believed hearing is better in the lower frequencies than claimed." As such, the Board finds the use of the alternative rating scheme for exceptional patterns of hearing impairment is not appropriate. The Veteran underwent a VA audiometric evaluation in July 2018. The Veteran reported having to ask people to repeat themselves and that his wife yelled at him a lot for not hearing him. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 25 45 75 85 LEFT 45 60 90 100 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 90 percent for both the right ear and the left ear. The average of the pure tones between 1000-4000 Hz was 58 for the right ear and 74 for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of III for both the right ear and the left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86(a) & (b). In a November 2020 statement, the Veteran stated that due to his decreased hearing acuity he had trouble understanding speech, particularly in noisy areas. The Veteran also reported dizziness and balance problems. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss disability is not warranted. In reaching that conclusion the Board acknowledges that the January 2018 audiogram and the February 2018 VA examination report findings would warrant a 10 percent rating for the Veteran's bilateral hearing loss disability. That said, the February 2018 examiner specifically found that the Veteran's responses and the resulting findings were not accurate. Such a conclusion is supported by the findings in the preceding September 2017 and subsequent July 2018 VA examinations. Given the noted inaccuracies in the January 2018 and February 2018 audiograms, the Board concludes that a compensable rating is not warranted for any period on appeal. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty understanding when others speak to him. He also has difficulty when watching television and greater difficulty understanding conversation in the presence of background noise. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Veteran's report of dizziness and balance manifestations associated with hearing loss are not supported in any medical records including examinations when it would have been appropriate to report them. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, 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). REASONS FOR REMAND 1. Entitlement to service connection for a headache disability The Veteran contends that he had a headache disability that was incurred in service, is otherwise related to service, or was caused or aggravated by a service-connected disability. 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. 38 U.S.C. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In a March 2007 Report of Medical History, the Veteran reported a history of migraines since 1995. In an October 2009 Report of Medical History, shortly after entering his second period of active service the Veteran reported current problems with frequent headaches. He reported 2 headaches per month. A June 2016 medical opinion concluded that it was less likely than not that the Veteran's headaches were proximately due to or the result of his service-connected back disability. The rationale indicated that service treatment records showed that the Veteran did not complain of headaches at the time of his back starting to hurt with overuse related to being a paratrooper. In December 2002, the Veteran denied a history of frequent or severe headaches. In March 2007, the Veteran reported onset of headaches in 1995. In addition, the medical literature about various types of headaches did not indicate a medical nexus between any type of headaches and low back pain or injury. In support of his claim, the Veteran submitted a research study titled, "Mild Head Trauma and Chronic Headaches in Returning US Soldiers." The study concluded, "A history of mild head trauma, usually caused by exposure to blasts, is found in almost half of returning US combat troops who receive specialized care for headaches." Additional provided studies noted similar findings of headaches associated with in-service head trauma, including in Army paratroopers. In August 2018, the Veteran reported debilitating occipital headaches starting in the neck and radiating up into the head and out the eye. The headaches had been present since 2003. In an October 2018 treatment record, the Veteran reported having experienced headaches as a teenager and head trauma during service with a brief loss of consciousness. His first severe headache was in 2002. He also discussed neck pain that would radiate to the eyes and left arm. The assessment was consistent with chronic migraine with autonomic and occipital involvement, without aura. The Board remanded the claim in December 2018 for a VA examination. During a subsequent February 2020 VA headache examination the examiner noted a diagnosis of migraine headaches from 1995. The Veteran reported headaches beginning before service in 1995 and his mother also had a history of migraine headaches. The Veteran reported episodes of headaches during basic training and advanced infantry training. He also described an undocumented hard parachute landing during a night jump during advanced infantry training, but finished his final parachute jump the following day to complete his training. The Veteran did have a well documented stress fracture to the foot during service, but no medical records discussing headaches or head/neck injury. The Veteran denied any injuries during his deployment to Afghanistan and Iraq. In March 2007, the Veteran reported a prior history of migraine from 1995, but no mention of neck pain or head injury during service. As such, the examiner concluded that it was less likely than not that the Veteran's currently diagnosed headache condition was incurred in or caused by service. The rationale indicated that the headaches existed prior to service, beginning in 1995, and no record of traumatic brain injury or treatment for headaches in service. Based on the currently available information, the Veteran's currently diagnosed headache condition clearly and unmistakably existed prior to military service and was less likely than not aggravated beyond its natural progression by service. An October 2020 VA medical opinion concluded, "It is my opinion that the Veteran's migraine headache disability is less likely than not [] aggravated beyond its natural progression by a different medical condition, regardless of whether the condition is currently service connected." The foregoing opinions failed to use the correct standard for a preexisting condition. Moreover, the opinion failed to address whether the headache disorder was caused or aggravated by a service-connected disability. As such, a remand is necessary. 2. Entitlement to SMC for aid and attendance / housebound status The SMC claim is potentially intertwined with the headache claim. As such, adjudication of this claim is deferred pending the requested development of the headache claim. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate medical professional on the Veteran's headache disability claim. Following a complete review of the electronic claims file, the reviewing professional is requested to provide an opinion on the following questions: (a) Is it clear and unmistakable (i.e. undebatable) that a headache disorder preexisted military service? Please state upon what facts and medical principles the opinion is based. (b) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a headache disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the disease. Please state upon what facts and medical principles the opinion is based. (c) If a response above is negative, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran currently has a headache disorder that is related to the disease manifested in active service. (d) If a response above is negative, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran currently has a headache disorder caused OR aggravated beyond its natural progression by a service-connected disability. To reiterate, a complete rationale for each opinion offered must be included in the report, and an explanation of the medical principles involved would be of considerable assistance to the Board. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. (continued next page) 2. After the above is complete and undertaking any additional development deemed necessary, readjudicate the claims, including the SMC claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.