Citation Nr: 21041630 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-30 476 DATE: July 9, 2021 ORDER For the entire rating period on appeal, a rating of 40 percent, but no higher, for the service-connected radiculopathy of the left lower extremity is granted. Entitlement to a rating in excess of 10 percent prior to January 16, 2020, for lumbosacral strain, degenerative arthritis, and intervertebral disc syndrome (IVDS) is denied. Entitlement to a rating in excess of 20 percent from January 16, 2020, for lumbosacral strain, degenerative arthritis, and IVDS is denied. Entitlement to a compensable rating for allergic rhinitis is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, for the entire period on appeal, the service-connected radiculopathy of the left lower extremity has been manifested by symptoms that more nearly approximate moderately severe, but no worse, incomplete paralysis of the sciatic nerve. 2. For the period on appeal prior to January 16, 2020, the Veteran's service-connected lumbosacral strain, degenerative arthritis, and IVDS was primarily productive of forward flexion to 70 degrees, and combined range of motion of the lumbar spine of 200 degrees, without any muscle spasms or tenderness resulting in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes of IVDS. 3. Beginning January 16, 2020, the Veteran's service-connected lumbosacral strain, degenerative arthritis, and IVDS is primarily productive of forward flexion to 45 degrees, and combined range of motion of the lumbar spine of 95 degrees, without any muscle spasms or tenderness resulting in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes of IVDS. 4. For the entire period on appeal, the Veteran's allergic rhinitis has not been manifested by polyps, greater than 50-percent obstruction of nasal passage on both sides, or complete nasal obstruction on one side. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 40 percent rating, but not higher, for the service-connected radiculopathy of the left lower extremity are approximated. 38 U.S.C. § §§ 1155, 5107 (2012); 38 C.F.R. § §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2020). 2. For the period on appeal prior to January 16, 2020, the criteria for a rating in excess of 10 percent for lumbosacral strain, degenerative arthritis, and IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5242 (2020). 3. For the period on appeal from January 16, 2020, the criteria for a rating in excess of 20 percent for lumbosacral strain, degenerative arthritis, and IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5242 (2020). 4. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from March 1959 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Phoenix, Arizona, Regional Office, the agency of original jurisdiction (AOJ). In February 2018, the Veteran testified at a Board hearing before a Veterans Law Judge who was thereafter unavailable to participate in this decision. A copy of the transcript of the February 2018 hearing is of record. In correspondence dated in August 2020 the Veteran and her attorney were notified of her right to request an additional Board hearing as to the issues on appeal due to the unavailability of the Veterans Law Judge. The Veteran subsequently declined her right to another hearing. The Board is aware of the Court's decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. To date, the Veteran has not requested another hearing. In July 2018, the Board denied entitlement to an earlier effective date for the grant of service connection for chronic sinusitis, and remanded for further development the service connection claims for a neck disorder, posttraumatic stress disorder (PTSD), chronic headaches, and increased rating claims for previously service-connected chronic lumbar strain with degenerative arthrosis, left lower extremity radiculopathy, allergic rhinitis, and entitlement to a TDIU. In an April 2020 rating decision, the AOJ granted service connection for PTSD, cervical strain, migraine headaches, and granted a 20 percent rating for the Veteran's lumbosacral strain disability, effective January 16, 2020. See Rating Decision dated April 15, 2020. The Board's July 2018 denial of an earlier effective date for service connection for chronic sinusitis is final, and the AOJ's April 2020 grant of service connection for PTSD, cervical strain, and migraine headaches are considered full grants of the benefits on appeal for those claims. As such, these issues are no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). The AOJ's April 2020 grant of an increased rating for the service-connected lumbosacral strain is considered a partial grant of the benefits on appeal for that claim. Therefore, the issue of entitlement for increased ratings for the lumbar spine disability remains on appeal. Id. In November 2020, the Board again remanded the increased rating claims for lumbosacral strain, radiculopathy of the left lower extremity, allergic rhinitis, and entitlement to a TDIU for additional development. The Board also referred a claim for an extraschedular rating for the service-connected chronic sinusitis disability for adjudication by the AOJ, which was denied in a December 2020 rating decision. To date, the Veteran's claim for an increased rating for chronic sinusitis has not been appealed. The Board finds that there has been substantial compliance with its November 2020 remand regarding the Veteran's claim for entitlement to a TDIU. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Nevertheless, for reasons set for below, the Veteran's claim for a TDIU must again be remanded. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 diagnostic codes 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). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The claimant bears the burden of presenting and supporting her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Radiculopathy of the Left Lower Extremity The Veteran's radiculopathy of the left lower extremity has been evaluated as 20 percent disabling under the rating criteria for moderate incomplete paralysis of the sciatic nerve under DC 8620. See Rating Decision dated February 8, 2011; 38 C.F.R. § 4.124a, DC 8620. Under DCs 8520, 8620, and 8720 for impairments of the sciatic nerve, a 20 percent evaluation is assigned for "moderate" incomplete paralysis; a 40 percent evaluation is assigned for "moderately severe" incomplete paralysis; a 60 percent evaluation is assigned for "severe" incomplete paralysis with marked muscular atrophy; and an 80 percent evaluation is assigned for complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DCs 8520-8720. In addition, in rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A Note at the beginning of 38 C.F.R. § 4.124a indicates that disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function, and that with partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie, 30 Vet. App. 211, 219-20 (2018). ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Notably, the Court has held that the rating criteria contemplates impairment of motor or sensory function that would require the use of an assistive devices as part of its rating formula. Spellers, 30 Vet. App. at 218. The term "incomplete paralysis" of this and other peripheral nerve indicates a degree of lost or impaired function substantially less than complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, note at "Diseases of the Peripheral Nerves." Rating Analysis The Board finds that a rating of 40 percent, but no higher, for the Veteran's service-connected left lower extremity radiculopathy is warranted for the entire appeal period. Turning to the evidence, private treatment records dated June 2012 show that the Veteran complained of tingling and weakness, but the physician did not indicate the location of these symptoms. The Veteran denied poor balance. During a private outpatient appointment in January 2013, the Veteran reported back pain with numbness in her left leg. In a March 2013 statement, the Veteran said she was unable to lift her left leg without pain, that she needed a walk-in bathtub or shower due to pain in her left leg and back, and she needed someone to help her clean house. In March 2013, the Veteran was afforded VA peripheral nerves and thoracolumbar spine examinations. The Veteran said she had been experiencing left lower extremity pain for seven to eight months, and that she had fallen three times over the past six months due to left lower extremity pain, which necessitated use of a cane for support, and she used the cane constantly. On examination, the Veteran's gait was described as abnormal, specifically "somewhat Trendelenburg gait" attributed to her lumbar radiculopathy. Muscle strength testing was normal except in the left lower extremities (4/5) for left knee extension, left ankle plantar flexion, left ankle dorsiflexion, and left great toe extension. Deep tendon reflexes were hypoactive at the knees, bilaterally, and hypoactive at the right ankle, absent at the left ankle. Sensory examination was normal on the right; however, there was decreased sensation at the left thigh/knee, lower leg/ankle, and sensation was absent at the left foot/toes. There were no trophic changes. Nerve testing was normal, bilaterally, except for "mild" incomplete paralysis of the left sciatic nerve, "moderate" incomplete paralysis of the left external popliteal nerve, "mild" incomplete paralysis of the left anterior tibial (deep peroneal) nerve, and "mild" incomplete paralysis of the left posterior tibial nerve. See VA peripheral nerves examination dated March 20, 2013. The examiner noted involvement of the L4, L5, S1, S2, and S3 (sciatic) nerve roots, and opined that the Veteran's lower left extremity radiculopathy was of "moderate" severity. See VA thoracolumbar spine examination dated March 20, 2013. In an April 2013 statement, the Veteran described leg numbness and said she was unable to live alone or bath in a regular bathtub, due in part to her left leg symptoms, and that she received assistance from someone who resides in her home. August 2013 correspondence from the Veteran's private treating physician F.G., M.D. notes that the Veteran had persistent low back pain into her left lower extremity with numbness that remained unchanged. Private outpatient treatment notes dated October 2013 reflect that the Veteran endorsed back pain, stiffness, muscle aches, and pain into her left calf. She received injections in her back and hip. She denied difficulty with balance and coordination, numbness, weakness, paralysis, and falls. On examination, there was no deformity or scoliosis of the thoracic or lumbar spine. A neurologic assessment was negative. December 2013 correspondence from Doctor F.G. reported that the Veteran continued to experience persistent low back pain into her left lower extremity with numbness. In a letter dated July 2014, Doctor F.G. noted that the Veteran continued to have chronic low back pain with paresthesias in the left lower extremity, secondary to lumbar radiculopathy. Doctor F.G. reported that the Veteran received steroid injections along with pain medications for her chronic low back pain. He noted that the Veteran had pain on flexion of the low back with a sensory examination showing decreased pinprick over the lateral aspect of the left lower extremity, which was chronic. During the February 2018 Board hearing, the Veteran said her lower left leg feels numb and as if it is not there, and because of that she falls three to five times a year. She said she also experiences shooting pains in her left leg, and it is difficult to lift the leg to enter the bathtub. She said she regularly uses a cane to steady herself when moving about her home. The Veteran said she is able to sit for about 30 minutes before she must stand up to alleviate symptoms. She can stand up for up to 15 minutes before she must sit down to alleviate symptoms. She said she experienced flare-ups with changes in weather. See Board hearing transcript dated February 8, 2018. VA outpatient treatment records dated April 2019 reflect that the Veteran was establishing care with VA for the first time. She endorsed chronic left leg pain from the calf down. She was using Tylenol, which she said was not giving her adequate relief, and she was asked by her physician to consider taking Duloxetine or Gabapentin. During an April 2019 VA recreational therapy consultation, the Veteran said she and her companion were very active in their retirement community, she frequently cooks for neighbors, and she enjoyed "singing, dancing, water aerobics, and gambling." She said she had enrolled in a 12 week adaptive yoga/Tai-Chi class once per week. June 2019 VA physical therapy notes reflect that the Veteran complained of low back pain described as a six on a severity scale of 10 and reported that she was able to walk only short distances before having to sit down due to endurance issues. She described constant numbness in her left lower leg, and she said her left leg would give out. On examination, the Veteran had an antalgic gait. Patellar and Achilles reflexes were slight, there was no clonus to ankle jerk, and Hoffman's test was negative. June 2019 VA physical therapy notes reflect that the said she had constant numbness in her left lower leg, and that her leg gave out. On examination, the Veteran had an antalgic gait. Patellar and Achilles reflexes were diminished. There was no clonus ankle jerk. Sensation was intact to light touch in bilateral upper limbs. Muscle strength testing of the upper extremities was 5/5 throughout, bilaterally. During a December 2019 VA outpatient appointment, the Veteran reported left leg pain for three weeks described as a six on a severity scale of ten, and left leg numbness and pain from her left heel to her left hip area. She denied recent injury, although she said she fell the previous month when her leg gave out. In January 2020, the Veteran underwent a VA thoracolumbar spine examination. The Veteran endorsed persistent low back and left leg pain and noted that her symptoms had not progressed. The Veteran endorsed constant use of a walker for ambulation due to low back pain and a tendency to fall. The examiner noted that the Veteran's abnormal ROM affected her mobility, ambulation, and resulted in a tendency of the Veteran to fall. The VA examination report does not reflect that muscle strength testing or reflex testing was conducted during the examination. Sensory testing of the upper and lower extremities was normal, bilaterally. The Veteran was negative bilaterally for muscle spasm and muscle atrophy. On examination, the Veteran had guarding that resulted in tight lumbar paraspinal muscles, but which did not result in an abnormal gait. The examiner noted that disturbance of locomotion contributed to the Veteran's lumbar disability, specifically the Veteran walked slowly and deliberately due to low back pain. There was objective evidence of "moderate" tenderness on palpation of the lower lumbar spine or associated soft tissue related to the Veteran's diagnosed back conditions. The examiner noted that the Veteran had radiculopathy of the left lower extremity, specifically moderate, constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness affecting nerve roots of the left L4, L5, S1, S2, and S3 (sciatic nerve). The examiner described the severity of the left lower extremity radiculopathy as "moderate." The Veteran was negative for ankylosis of the spine. The examiner concluded that the Veteran has IVDS; however, the Veteran denied acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician for the past 12 months. See 38 C.F.R. § 4.71, IVDS Formula. The examiner noted that 2010 x-rays revealed arthritis but were negative for vertebral fracture; and a 2010 lumbar MRI revealed mild facet arthropathy. See VA thoracolumbar spine examination dated January 16, 2020. The VA examiner opined that the Veteran's lumbosacral strain progressed into arthritis, IVDS, and radiculopathy as demonstrated by the examination and previous spine imagery. See VA medical opinion dated January 16, 2020. In a statement received in August 2020, the Veteran said she has balance problems, in part, because of pain in her left leg, which caused her to fall four times so far that year. The Veteran said her left leg gave out "more and more," which is why she used a walker. She said at times she lost her balance getting out of bed or going to the bathroom. As noted above, DC 8620 provides for a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. For the entire rating period on appeal, the Veteran's symptoms are commensurate with a 40 percent rating for a moderately severe disability. Although the March 2013 and January 2020 VA examiners characterized the severity of the Veteran's left lower extremity radiculopathy as "moderate," the March 2013 and January 2020 VA examiners both acknowledged the Veteran's tendency to fall, and this tendency as well as her constant use of a cane and walker for ambulation has been attributed to symptoms of her left lower extremity radiculopathy, namely numbness and weakness. While these symptoms have, at times, varied, the treatment records reflect that the Veteran has experienced falls throughout the rating period even with use of an assistive device such as a cane or walker. As discussed above, the Court has held that the rating criteria applicable to a claim such as this one contemplates impairment of motor or sensory function that would require the use of an assistive device. Spellers, 30 Vet. App. at 218. Therefore, on review of the relevant evidence, both lay and medical, the Board finds that the Veteran's symptoms more nearly approximate moderately severe incomplete paralysis. However, during this period, the Veteran has not demonstrated severe incomplete paralysis "with marked muscle atrophy," as required for a higher 60 percent rating. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 40 percent rating, but no higher, for radiculopathy of the left lower extremity is warranted for the entire period on appeal. Lumbosacral Strain The Veteran's lumbosacral strain, degenerative arthritis of the spine, and IVDS, is currently rated as 10 percent disabling under DC 5242 from the commencement of the rating period in April 2012 based on painful motion, and 20 percent disabling from January 16, 2020 based on painful motion, limited motion, and abnormal gait or spinal contour. See Rating Decisions dated February 8, 2011 and April 15, 2020; 38 C.F.R. § 38 C.F.R. § 4.71a, DC 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. IVDS can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined 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. Id. at Note (1). Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 and 5243 were not to the rating schedule itself but added instructions to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the Veteran's lumbosacral strain, degenerative arthritis of the spine and IVDS under the pre- and post-February 7, 2021 regulations is not required. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Analysis Turning to the evidence, private treatment notes dated June 2012 reflect that the Veteran complained of back pain, stiffness, and muscle aches. She denied muscle weakness and loss of strength. She had full range of motion (ROM) of all joints. Private treatment notes dated January 2013 reflect that the Veteran reported back pain and numbness in her left leg. During a February 2013 appointment with a private physician, no deformity or scoliosis of the thoracic or lumbar spine was indicated. In March 2013, the Veteran endorsed joint tenderness, but she denied back pain, stiffness, muscle weakness, poor balance, falls, and numbness. In March 2013, the Veteran underwent a VA examination. The diagnosis was chronic lumbar strain. The Veteran reported that her back injury dated from 1959 when she fell down steps. She said she required constant use of a cane for locomotion and support, and she was taking Hydrocodone for back pain as needed twice a week. On examination, ROM testing of the lumbar spine revealed forward flexion to 80 degrees; extension to 30 degrees; right lateral flexion to 30 degrees, left lateral flexion to 25 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 20 degrees. The combined ROM was 215 degrees. Pain was objectively indicated in all planes of motion and following repetitive motion. There was additional limitation of motion after three repetitions, i.e., extension to 70 degrees; and left lateral flexion to 20 degrees. Additionally, the examiner noted functional loss after repetitive use testing, specifically: less movement than normal; weakened movement; incoordination; pain on movement; instability of station; interference with sitting, standing, and or weight-bearing; and using the side of her bed for support. The Veteran endorsed flare-ups, during which she said she was unable to do some household chores, such as cooking, and spent the day sitting. The Veteran was negative for muscle spasm, muscle atrophy, and guarding. There was localized tenderness to palpation of the joints or soft tissue of the thoracolumbar spine. The Veteran was negative for guarding or muscle spasm that resulted in abnormal gait. Muscle strength testing was normal except in the left lower extremities (4/5) for left knee extension, left ankle plantar flexion, left ankle dorsiflexion, and left great toe extension. Deep tendon reflexes were hypoactive at the knees, bilaterally, and hypoactive at the right ankle, absent at the left ankle. Sensory examination was normal on the right; however, there was decreased sensation at the left thigh/knee, lower leg/ankle, and sensation was absent at the left foot/toes. The straight leg raising test was positive on the left. The Veteran was negative for radiculopathy of the right lower extremity; however, she endorsed mild constant pain, mild intermittent pain, and moderate numbness of the left lower extremity. The examiner noted involvement of the L4, L5, S1, S2, and S3 nerve roots. The examiner opined that the Veteran's lower left extremity radiculopathy was of "moderate" severity. Veteran positive for IVDS; however, she denied incapacitating episodes over the past 12 months due to IVDS. Imaging studies of the Veteran's low back revealed arthritis but were negative for vertebral fracture. Regarding functional impact, the examiner noted that the Veteran's lumbar strain and left lower extremity pain impeded her ability to secure and maintain employment requiring physical activity. See VA thoracolumbar spine examination dated March 20, 2013. Private treatment notes dated May 2013 reflect that the Veteran endorsed joint tenderness, but there was no deformity or scoliosis of the thoracic or lumbar spine. She denied poor balance and falls. Correspondence dated August 2013 from private physician F.G., M.D. reflects that F.G. provided neurologic care for the Veteran since April 1980 and noted that she had persistent low back pain into the left lower extremity that remained unchanged since last seen in March 2013. During a private doctor's appointment in October 2013, the Veteran reported back pain, stiffness, and muscle aches, and pain down into her left leg. She received injections to her back and hip. She denied difficulty with balance and coordination. She denied numbness, falls, and paralysis. On examination, there was no deformity or scoliosis of the thoracic or lumbar spine. The Veteran endorsed joint tenderness at trigger points in her back. In December 2013 correspondence, private physician F.G., M.D. noted that the Veteran had persistent low back pain into the left lower extremity that remained unchanged. Notably, F.G. opined that the Veteran "is totally and permanently disabled." In July 2014, Doctor F.G. reported that the Veteran continued to have chronic low back pain that radiated into her left leg. F.G. noted that the Veteran received steroid injections along with pain medications for her chronic low back pain. On examination, the Veteran had pain on flexion of the low back. A motor examination revealed no weakness. Doctor F.G. opined that the Veteran was unable to function in any type of work setting and, at present, is totally and permanently disabled due to back pain. October 2017 correspondence from Doctor F.G. reflects a September 2017 MRI that revealed multi-level degenerative disc disease of the lumbar spine with disc bulges and foraminal narrowing at multiple levels with no change from a previous MRI in July 2014. F.G. noted that the Veteran was taking only Motrin intermittently and was receiving chiropractic and physical therapy. F.G. indicated that the Veteran's back symptomatology had progressively worsened throughout the years and her low back pain was described as severe and chronic. F.G. noted that there was limited ROM of the low back in flexion. Straight leg raising was positive on the left at 30 degrees; positive on the right at 60 degrees. Motor examination showed weakness on dorsiflexion of the left foot which was chronic and unchanged. Sensory examination showed decreased pin sensation over the lateral aspect of the left lower extremity, unchanged and chronic. Her gait was slow and mildly unsteady, unchanged. The impression, as relevant here, was chronic low back pain with paresthesias in the left lower extremity, secondary to lumbar radiculopathy. Notably, F.G. opined that the Veteran was chronically and "totally and permanently disabled and unable to function in any type of work setting" due to her back symptoms. During the February 2018 Board hearing, the Veteran described constant back pain, and difficulty getting in and out of her bathtub, which necessitated remodeling of her bathroom to have a walk-in tub. She said she had trouble doing house cleaning, and she has a friend who resided in her home who assists her with such things. The Veteran said at times she was able to pick up folded laundry and other times unable to do so due to back pain. She described having to live with almost constant back pain. She said when her back pain increases, she uses medication, and when the pain gets to a seven or eight on a scale of ten, she used a transcutaneous electrical nerve stimulation (TENS) unit, and typically uses the unit at least three times a week. The Veteran said that because of her back pain she must take pills to get to sleep. The Veteran endorsed flare-ups caused by physical activity and changes in the weather. She described how after 15-20 minutes of physical activity she would experience back pain and have to use valium or her TENS unit to alleviate the pain. She said she has a TENS unit at work. In a February 2018 memorandum, the Veteran's representative asserted that the Veteran's lumbar spine disability was of greater severity than indicated by the currently assigned ratings, emphasizing that the March 2013 VA examination reflects that she was using a cane due to ambulation difficulties and unsteadiness and falls. See Veteran's Posts Hearing Memorandum received February 22, 2018. VA outpatient treatment notes dated April 2019 reference lumbosacral spine x-rays that show normal alignment and no sign of acute injury. The impression was moderate degenerative changes, with the most severe changes shown at T12 through L2 vertebrae. Notably, during an April 2019 VA recreational therapy consultation, the Veteran said she and her companion are very active in their retirement community, she frequently cooks for neighbors, and she "enjoys singing, dancing, water aerobics, and gambling." It was noted that she enrolled in a 12 week adaptive yoga/Tai-Chi class once per week. A week later, the Veteran reported that she attended one VA recreational therapy session but had decided not to return to the class because it increased the pain in her neck and back. In May 2019, the Veteran reported ongoing neck and back pain. She said she was taking Talwin and Tylenol for pain. On examination, she had "extremely limited" range of motion of the neck, and tender to palpation diffusely During a June 2019 VA physical therapy consultation, the Veteran complained of low back pain she described as a six on a scale of ten, and she reported being unable to walk short distances before having to sit down due to endurance issues. She was issued a TENS device at that time. In July 2019, the Veteran reported an increase in back pain. VA physical therapy notes from June 2019 reflect that the Veteran complained of low back pain described as a six on a severity scale of 10 and reported that she was able to walk only short distances before having to sit down due to endurance issues. She described constant numbness in her left lower leg, and she said her left leg would give out. On examination, the Veteran had an antalgic gait. Patellar and Achilles reflexes were slight, there was no clonus to ankle jerk, and Hoffman's test was negative. During a December 2019 VA outpatient appointment, the Veteran reported left leg pain for three weeks described as a six on a scale of ten, and left leg numbness and pain from her left heel to her left hip area. She denied recent injury, although she said she fell the previous month. In January 2020, the Veteran was afforded a VA examination. The diagnoses were lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran told the examiner that she has experienced persistent low back and left leg pain, but that the symptoms had not progressed. The Veteran endorsed constant use of a walker for ambulation due to low back pain and a tendency to fall. On examination, ROM testing of the lumbar spine revealed forward flexion to 45 degrees; extension to 10 degrees; right lateral flexion to 10 degrees, left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees. The combined ROM was 95 degrees. Pain was objectively indicated in all planes of motion. The passive ROM was the same as active ROM, with pain in all plains of motion. Pain was objectively indicated following repetitive motion; however, the examiner concluded that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. There was no additional limitation of motion after three repetitions and the examiner opined that there would be no additional loss of ROM after repeated use over time. There was no evidence of pain with weight-bearing; however, the examiner observed evidence of pain in non-weight bearing. The Veteran denied flare-ups. The examiner concluded that the Veteran's abnormal ROM affected her mobility, ambulation, and resulted in a tendency of the Veteran to fall. The examiner noted that there was objective evidence of "moderate" localized tenderness on palpation of the joint or associated soft tissue of the lower lumbar spine related to the diagnosed back conditions. The examination report does not reflect that muscle strength testing or reflex testing was conducted during the examination. Sensory testing of the upper and lower extremities was normal, bilaterally. The Veteran was negative bilaterally for muscle spasm and muscle atrophy. She had guarding that resulted in tight lumbar paraspinal muscles, but which did not result in abnormal gait or abnormal spinal contour. The examiner noted that disturbance of locomotion contributed to the Veteran's lumbar disability, specifically the Veteran walked slowly and deliberately due to low back pain. There was objective evidence of "moderate" tenderness on palpation of the lower lumbar spine or associated soft tissue related to the Veteran's diagnosed back conditions. The examiner noted that the Veteran had radiculopathy of the left lower extremity, specifically moderate, constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness affecting nerve roots of the left L4, L5, S1, S2, and S3 (sciatic nerve). The examiner described the severity of the left lower extremity radiculopathy as "moderate." The Veteran was negative for ankylosis of the spine. The examiner concluded that the Veteran has IVDS; however, the Veteran denied acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician for the past 12 months. The examiner noted that 2010 x-rays revealed arthritis but were negative for vertebral fracture; and a 2010 lumbar MRI revealed mild fact arthropathy. See VA thoracolumbar spine examination dated January 16, 2020. The VA examiner opined that the Veteran's lumbosacral strain persists and has progressed into arthritis, IVDS, and radiculopathy as demonstrated by the examination and previous spine imagery. See VA medical opinion dated January 16, 2020. In an August 2020 statement, the Veteran said back pain rendered her unable to clean her house and she needed a housekeeper to clean the house for her. She described balance problems she attributed to her back and left leg disabilities that, combined with her left leg giving out, resulted in falls. After review of the evidence, both lay and medical, the Board finds that the next-higher ratings of 20 percent for the rating period prior to January 16, 2020, and 40 percent thereafter are not warranted. Prior to January 16, 2020, the Veteran's disability has not been shown to be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees; a combined ROM 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, which is required by the 20 percent rating criteria. See 38 C.F.R. § 4.71a. As reflected above, during the period on appeal prior to January 16, 2020, the Veteran's flexion of the thoracolumbar spine has been no worse than 70 degrees and the combined ROM was 200 degrees (as reflected in the March 2013 VA examination, taking into account the additional limitation of motion after three repetitions). For the rating period from January 16, 2020, the Veteran's disability has not been shown to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, which is required by the 40 percent rating criteria. See 38 C.F.R. § 4.71a. As reflected above, during the period on appeal from January 16, 2020, the Veteran's flexion of the thoracolumbar spine has been no worse than 45 degrees and the Veteran was negative for ankylosis of the thoracolumbar spine (January 2020 VA examination report). Additionally, during the January 2020 VA examination, the Veteran denied flare-ups, and the examiner concluded that there would be no additional loss of ROM after repeated use over time. Throughout the rating periods, the medical evidence does not reflect any muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. Further, and even considering any additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the lumbar spine disability more nearly approximates the criteria for the next-higher disability ratings. Such factors that may additionally limit motion and function were considered and assessed by the VA examiners; however, on repetitive motion testing, the additional loss indicated, at worst, flexion to 70 degrees after repetitive motion testing during the March 2013 VA examination does not approximate a 20 percent rating. While the Veteran endorsed flare-ups that affected her ability to do household chores, reduced ROM was not indicated. During the January 2020 VA examination, there was no additional loss of ROM after three repetitions and the Veteran denied having flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (holding that a VA examiner must elicit relevant information as to a veteran's flare-ups and estimate the veteran's functional loss due to flare-ups based on all the evidence of record). The Board finds that the currently assigned 10 percent rating for the period prior to January 16, 2020 and the 20 percent rating thereafter adequately compensate the Veteran for any functional loss she may possess on account of her lumbosacral strain. Therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, do not provide a basis for a higher evaluation. Likewise, higher ratings are not warranted under the IVDS Formula. While the Veteran has been diagnosed with IVDS, there is no medical or lay evidence reflecting that she has had any incapacitating episodes of IVDS, let alone any having a total duration of at least two weeks but less than four weeks in a 12-month period during the appeal period. Accordingly, a rating higher than 10 percent for the lumbosacral strain prior to January 16, 2020 or 20 percent thereafter is not warranted under DC 5243 based on the IVDS Formula. In addition to consideration of the orthopedic manifestations of the low back disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which the Board has done in its assessment above of the severity of the separately rated radiculopathy of the left lower extremity. Allergic Rhinitis The RO has assigned a noncompensable disability rating for the Veteran's allergic rhinitis, effective October 14, 2008, under DC 6522 based on an absence of evidence of polyps and obstructed nasal passage. 38 C.F.R. § 4.97, DC 6522. The Veteran claims that a higher rating is warranted. A 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6522. A 30 percent rating is warranted for allergic rhinitis with polyps. Id. The evidence includes correspondence from private physician M.W., M.D. dated May 2012 noting that the Veteran had three episodes of sinusitis so far that year with a reoccurring mass in nostril. See Correspondence dated May 23, 2012 from M.W., M.D. However, no treatment records from Doctor M.W. that are of record reflect sinusitis episodes or the presence of a mass. During a May 2012 VA examination, the examiner noted diagnoses of allergic rhinitis and chronic sinusitis. The Veteran said her sinusitis symptoms onset during service, and she underwent an attempted surgical procedure while in Germany. At the time of the 2012 VA examination, the Veteran said her symptoms were treated with Amoxicillin as often as every three months, but there was no indication of treatment for allergic rhinitis. On examination, the Veteran was tender to palpation of the right frontal and right maxillary sinuses. Further examination revealed not greater than 50 percent obstruction of both nasal passages, no permanent hypertrophy of the nasal turbinates, and no nasal polyps. The Veteran was negative for tumors and neoplasms. The VA examiner concluded that the Veteran's rhinitis symptoms do not affect her employability. See VA sinusitis/rhinitis examination and addendum dated May 24, 2012. Private treatment records of M.W., M.D. dated June and August 2012 reflect that the Veteran denied nasal congestion, nasal drip, and sinus pressure. Additionally, treatment records of M.W., M.D. dated January, March, and May 2013 reflect that the Veteran denied nasal congestion, nasal drip, and sinus pressure. In correspondence dated May 2013, M.W., M.D. indicated that the Veteran suffered ongoing sinus infections. However, this correspondence is inconsistent with M.W.'s prior treatment records dating from June 2012, discussed above. Therefore, regarding the Veteran's allergic rhinitis and other nasal symptoms, the Board finds the May 2013 correspondence of no probative value. A July 2014 non-VA MRI of the Veteran's head revealed that her paranasal sinuses are well aerated. A field distortion artifact was noted in the right facial region. Orbital soft tissue structures are grossly unremarkable. See Medical Imaging Report dated July 17, 2014. During the February 2018 Board hearing, the Veteran said she is unable to breathe through the right side of her nose, and that her treating physicians have informed her that she has polyps in the right side of her nose, but they are not of sufficient size to require removal. See Board hearing transcript dated February 8, 2018 at pgs. 26-27. VA treatment records dated April 2019 reflect that the Veteran reported sinus pressure and headaches. VA treatment notes dated November 2019 reflect that she reported congestion and sore throat with no significant post-nasal drip. The assessment was throat discomfort possibly due to congestion. During a January 2020 VA sinusitis/rhinitis examination, the examiner noted diagnoses of allergic rhinitis and chronic sinusitis. The Veteran described nasal drainage and congestion and said she used Benadryl to treat the symptoms. The VA examiner noted that the Veteran's allergic rhinitis and sinusitis are distinct disabilities, with separate symptoms; however, the symptoms are similar and cannot be differentiated from one another. On examination, the Veteran was negative for complete obstruction of the right or left nasal passage due to rhinitis, there was no permanent hypertrophy of the nasal turbinates, and no nasal polyps. The examiner opined that the Veteran's rhinitis symptoms had no effect on her employability. See VA sinusitis/rhinitis examination dated January 16, 2020. The Board has reviewed the remaining evidence of record, and in considering the evidence, the Board finds that a compensable rating for the Veteran's allergic rhinitis is not warranted. This is so because at no time during the appeal period have the Veteran's nasal passages been obstructed greater than 50-percent on both sides or completely obstructed on one side. Further, the evidence of record does not reflect a medical determination that the Veteran has nasal polyps. To the extent that the Veteran offered her statements as competent evidence of diagnosis of polyps, such attempt fails. Although the Veteran is competent to report observable symptoms, she, as a lay person, is not competent to diagnose nasal polyps, as she has not been shown to have the requisite medical knowledge, training, or experience. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Even taking into account the ameliorative effects of the Veteran's use of medications, if any, to treat her nasal symptoms (e.g., Fluticasone) the record is devoid of evidence of nasal passage obstruction greater than 50-percent on both sides, complete nasal obstruction on one side, and polyps at any time during the appeal period. As such, the preponderance of the evidence is against the claim, and an initial compensable rating for allergic rhinitis is not warranted. REASONS FOR REMAND The record as presently developed does not include sufficient evidence upon which to adjudicate the Veteran's TDIU claim. On review, the Board observes that the Veteran's TDIU application received in May 2020 is incomplete. First, some sections of the application form were left blank. Second, information contained in the form is inconsistent with other evidence of record. Specifically, the work history section is inconsistent with the Veteran's work history reflected elsewhere in the record. For example, during the February 2018 Board hearing, the Veteran described her constant use of a TENS unit, and said she uses one "at work." See Board hearing transcript dated February 8, 2018 at pg. 23. Her employment at that time is not reflected in the five year work history section of the May 2020 TDIU, although it is relevant to the time period reflected in the application. As such, the May 2020 TDIU application is not substantially complete, frustrating Board review and adjudication of the claim. The Board emphasizes that VA's "duty to assist is not always a one-way street," and a claimant has an obligation to provide VA information necessary to substantiate the claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Furthermore, in weighing credibility, the Board may consider factors such as inconsistent statements, internal inconsistency, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). As the Veteran's TDIU applications include inconsistent information, clarification from the Veteran is necessary, to include the submission of an updated TDIU application form. The matter is REMANDED for the following action: 1. Implement the Board's decision herein granting an increased rating for radiculopathy of the left lower extremity. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Provide the Veteran with another application for entitlement to TDIU (VA Form 21-8940) and request that she complete and return an updated application to help ensure that VA has all pertinent information regarding her educational background and employment history, including the details of her employment at the time of the February 2018 Board hearing. 4. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.