Citation Nr: 22017807 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-18 551 DATE: March 26, 2022 ORDER Entitlement to service connection for a right-hand disorder is denied. Entitlement to an initial rating in excess of 20 percent for a lumbar spine strain is denied. Entitlement to higher staged initial ratings for cervical spine degenerative disease, rated as 10 percent from April 1, 2013, and 30 percent from October 30, 2020, is denied. Entitlement to higher staged initial ratings for radiculopathy of the right upper extremity, rated as 20 percent from January 22, 2020, is denied. Entitlement to higher staged initial ratings for radiculopathy of the left upper extremity, rated as 20 percent from January 22, 2020, is denied. Entitlement to higher staged initial ratings for right elbow limitation of extension, rated as 10 percent from April 1, 2013, and 50 percent from October 30, 2020, is denied. Entitlement to higher staged initial ratings for right elbow pronation, rated as 30 percent from October 30, 2020, is denied. Entitlement to an initial rating in excess of 10 percent for hiatal hernia and gastroesophageal reflux disease is denied. Entitlement to an initial compensable rating for restless leg syndrome is denied. FINDINGS OF FACT 1. The Veteran does not have a present right-hand disorder and has not had one at any time during or proximate to the appeal period; and his right thumb disorder has already been service-connected. 2. The Veteran's lumbar strain has not manifested functional impairment equivalent to forward flexion limited to 30 degrees or any ankylosis of the spine (or its functional equivalent) to the extent that higher staged ratings are appropriate. 3. The Veteran's degenerative disc and joint disease of the cervical spine has not manifested functional impairment equivalent to cervical flexion greater than 15 but not greater than 30 degrees, prior to October 30, 2020, or any ankylosis of the spine (or its functional equivalent) from that time to the extent that higher staged ratings are appropriate. 4. The Veteran's right upper extremity radiculopathy has not manifested functional impairment equivalent to mild incomplete paralysis of the upper radicular group prior to January 22, 2020, or moderate incomplete paralysis after that date. 5. The Veteran's left upper extremity radiculopathy has not manifested functional impairment equivalent to mild incomplete paralysis of the upper radicular group prior to January 22, 2020, or moderate incomplete paralysis after that date. 6. The Veteran's right elbow limitation of extension did not manifest functional impairment equivalent to extension limited to 75 degrees prior to October 30, 2020; and his 50 percent rating from October 30, 2020, is the maximum that may be assigned for limited extension of the elbow under the rating schedule. 7. The Veteran's right elbow pronation did not manifest functional impairment equivalent to the hand being fixed in supination or hyper-pronation or any other impairment to the extent that a higher staged or separate rating may be assigned. 8. The Veteran's gastroesophageal reflux disease and hiatal hernia symptoms did not result in considerable impairment of health to the extent that a 30 percent rating may be assigned at any point during the rating period. 9. The Veteran's restless leg syndrome did not manifest functional impairment equivalent to mild nervous tics to the extent that a compensable rating may be assigned at any point during the rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right-hand disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial rating in excess of 20 percent for a lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 3. The criteria for entitlement to higher staged initial ratings for cervical spine degenerative disease, rated as 10 percent from April 1, 2013, and 30 percent from October 30, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 4. The criteria for entitlement to higher staged initial ratings for radiculopathy of the right upper extremity, rated as 20 percent from January 22, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8510. 5. The criteria for entitlement to higher staged initial ratings for radiculopathy of the left upper extremity, rated as 20 percent from January 22, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8510. 6. The criteria for entitlement to higher staged initial ratings for right elbow limitation of extension, rated as 10 percent from April 1, 2013, and 50 percent from October 30, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003-5207. 7. The criteria for entitlement to higher staged initial ratings for right elbow pronation, rated as 30 percent from October 30, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5213. 8. The criteria for entitlement to an initial rating in excess of 10 percent for hiatal hernia and gastroesophageal reflux disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114, DC 7346. 9. The criteria for entitlement to an initial compensable rating for restless leg syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.124a, DC 8103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1993 to March 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Board previously remanded these matters in February 2019 and September 2021. In September 2021, the Board asked the agency of original jurisdiction (AOJ) to, among other things, attempt to procure private medical records and to obtain a medical opinion discussing whether the Veteran has another right-hand disorder that is separate from his already service-connected right thumb disability. The AOJ sent the Veteran a letter asking him to submit an authorization for VA to obtain the indicated private medical records in September 2021. The Veteran did not respond to the AOJ's letter or otherwise provide the requested information. The Board finds that the AOJ has substantially complied with its directives in that regard. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it when his own actions are essential in obtaining the evidence). The AOJ obtained a VA examination in December 2021. After reviewing the opinion, the Board finds that it substantially complies with the remand directives. As the Veteran, his representative, and the appellate record have not raised any other issues pertaining to the duty to assist, the Board will proceed with a decision on the merits. Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board observes that the AOJ granted a separate initial 10 percent rating for degenerative disease of the cervical spine from April 1, 2013, and a 30 percent rating for the same from October 30, 2020; increased the rating for right elbow limitation of extension to 50 percent from October 30, 2020; granted service connection for right elbow pronation and assigned a 30 percent rating from October 30, 2020; increased the initial rating for the lumbar strain from non-compensable to 20 percent from April 1, 2013; and increased the initial rating for GERD and hiatal hernia from non-compensable to 10 percent from April 1, 2013. See Rating Decision Narrative, December 2020. These are considered partial grants of the appeal. The claims for higher staged ratings remain at issue. The Board notes that the Veteran filed a separate claim of service connection for radiculopathy of the cervical spine in February 2020. An April 2020 rating decision granted service connection for radiculopathy of the right upper extremity and radiculopathy of the left upper extremity and assigned 20 percent ratings each from January 22, 2020, the date VA received an intent to file. 38 C.F.R. § 3.400(o). The Veteran's radiculopathy has been found related to his service-connected cervical spine disability. See Rating Decision Narrative, April 2020. Therefore, the Board finds that the ratings for left, and right upper extremity radiculopathy are a part and parcel of the pending claim for higher staged initial ratings for cervical spine degenerative disease. See 38 C.F.R. § 4.71a, DC 5237-5243, Note (1) ("Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code"). The Board has taken appellate review over them and will herein decide the merits of those issues. 1. Entitlement to service connection for a right-hand disorder Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a VA compensation claim. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or proximate thereto. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Turning to the evidence, the Board has reviewed the VA examination and medical opinion in December 2021. The examiner, S.J., a nurse practitioner, evaluated the Veteran and found no evidence of a right-hand disability. She reviewed the claims file and provided the following opinion: "Veteran does not have a right-hand disorder separate from his already service connected right thumb disability. VT is SC for right thumb degenerative cartilage damage, Incurred Static Disability 0% from 04/01/2013. VT did had injury to right hand which caused him to have right hand pain in 2009, 2012 from playing basketball, but these were acute only, no chronic diagnosis or treatment for right hand injury in available C file. VT did not had any further right hand injury after service and there is no right-hand disorder separate from his already service-connected right thumb disability. A nexus is not established." The Board has reviewed VA examination reports in 2012 and 2020. Neither of these showed reports or findings of a right-hand disability resulting in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that pain must result in a functional loss of earning capacity in order to be considered a disability for VA purposes). The 2012 VA examiner noted that "there is no diagnosis because there is no pathology to render a diagnosis." The 2020 VA examiner only diagnosed residuals of a right thumb injury. VA medical records show complaints of hand pain in the bilateral extremities. For example, the Veteran reported bilateral hand pain in December 2019. See CAPRI, February 2020 (p.15, 24). A subsequent X-ray showed "some old injury" but the clinician did not provide other details. The Board notes that the records do not specify where in the hand the Veteran's pain is located, and that service connection is already in effect for a right thumb disorder. See Rating Decision Codesheet, December 2020. The Board also observes that it previously denied entitlement to service connection for a left-hand condition. See BVA Decision, September 2021. After reviewing the appellate record, the Board finds that the evidence is persuasively against the presence of a current right-hand disability resulting in functional impairment at any time during the rating period. S.J. found that the Veteran does not have a current right-hand disability separate from the already service-connected residuals of a thumb injury. She provided a cogent medical opinion based on her consideration of the Veteran's medical history and her own professional expertise. Her findings are entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA medical records do not show a right-hand disability, to include pain resulting in functional impairment of earning capacity, to the extent required to support a grant of service connection. 38 C.F.R. § 3.303. Moreover, the VA examinations weigh against such a finding, considering that they found no functional impairment of the right-hand (other than the right thumb) in 2012, 2020, and 2021. The Veteran's lay reports were considered. Lay evidence is considered competent to report matters, including pain, that are capable of ordinary observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, such pain must rise to the level of a functional loss of earning capacity before it may be considered a disability for VA purposes. See Saunders, 886 F.3d at 1367-68. In this case, multiple examinations have found no evidence of functional loss of the right hand to the extent that the Board may find the existence of a disability. See Brammer, 3 Vet. App. at 225. In summary, the Board finds that the evidence is persuasively against the existence of a present right-hand condition at any time during the rating period. The current disability element of service connection has not been met. The appeal is denied. 2. Entitlement to an initial rating in excess of 20 percent for a lumbar spine strain Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board will consider this appeal under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, at 38 C.F.R. § 4.71a, a 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a 10 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In the aforementioned revision, DC 5242 was designated for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. DC 5243 was designated for IVDS where there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, the disability should be evaluated under DC 5242. Regardless of any change to the rating criteria, there is no evidence of incapacitating episodes prescribed by bed rest to warrant application of the formula for rating IVDS. Therefore, the Board will evaluate the Veteran's lumbar spine disability under the General Rating Formula. The February 7, 2021, revision made no changes to the General Rating Formula. After careful review of the appellate record, the Board finds that a rating in excess of 20 percent is not applicable for the lumbar spine strain at any time during the rating period. In reaching this conclusion, the Board has reviewed the medical evidence, including VA examination reports in 2012 and 2020. The Veteran's forward flexion, at its lowest, was found to be 50 degrees in October 2020. Such impairment is not consistent with a higher rating. 38 C.F.R. § 4.71a, DC 5237. The Veteran's reports of functional loss during flare-ups and after repeated use over time were considered. There was no change following repetitive-use testing on examination in October 2020 or October 2012. At the October 2020 examination he had muscle spasms and guarding resulting in abnormal gait, however, there is no indication his symptoms more nearly approximated the next higher evaluation. The October 2020 VA examiner considered the Veteran's reports of symptoms during flare-ups and after repeated use over time but found that such periods would not result in pain, weakness, fatigability, or incoordination that would significantly limit functional ability. This does not suggest functional impairment during such periods to the extent necessary for a higher rating. See Mitchell, 25 Vet. App. at 43. Moreover, the Board notes that the Veteran denied having any flare-ups during the 2012 VA examination, which weighs against assigning a rating based on flare-ups proximate to that time. There was no evidence of ankylosis in October 2020 or October 2012. The Board finds that there is no evidence of lumbar ankylosis or its functional equivalent at any time during the rating period. 38 C.F.R. § 4.71a, DC 5237. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Specifically, at the 2012 and 2020 examinations, there was no evidence of radiculopathy, or incontinence of bowel or bladder due to his lumbar spine disability. As such, the record does not show any other neurological abnormalities associated with the Veteran's lumbar spine. Accordingly, a separate rating for a neurological disability is not warranted. A higher rating under the criteria for IVDS is not applicable. The appellate record, including VA examination reports in 2012 and 2020, shows no evidence of IVDS or incapacitating episodes to the extent required to support a higher rating. The Veteran's lay reports were considered. Disability rating are determined by the application of the rating schedule, which does not support higher staged ratings in this case. 38 C.F.R. § 4.1. The Veteran has manifested painful limited flexion in excess of 30 degrees, which is consistent with his assigned 20 percent rating. In summary, the evidence is persuasively against assigning a rating in excess of 20 percent for the lumbar strain at any time during the rating period. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. 3. Entitlement to higher staged initial ratings for cervical spine degenerative disease, rated as 10 percent from April 1, 2013, and 30 percent from October 30, 2020 Disabilities of the cervical spine are evaluated under the General Rating Formula at 38 C.F.R. § 4.71a. Therein, a 20 percent rating is assigned when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine does not exceed 170 degrees, or there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30-degree rating is assigned for forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The Board again notes that the February 7, 2021, changes did not alter the General Rating Formula. The Board will evaluate the cervical spine under those criteria. After careful review of the appellate record, the Board finds that higher staged ratings for cervical spine degenerative disease may not be granted. For the period prior to October 30, 2020, the Veteran's cervical spine degenerative disease manifested functional impairment equivalent to painful limited motion that is not separately compensable. For example, the VA examination in 2012 found normal range of motion, no radiculopathy, no IVDS, and no ankylosis. Such a level of impairment is consistent with a 10 percent rating. 38 C.F.R. § 4.71a, DC 5242. The Board has reviewed VA medical records. They do not show functional impairment equivalent to forward flexion of the cervical spine limited to greater than 15 degrees but not greater than 30 degrees or other impairment to the extent that a higher rating may be assigned prior to October 30, 2020. From October 30, 2020, the Veteran was assigned a 30 percent rating based on a VA examination occurring on that date showing forward flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5242. The Veteran's reports of functional loss with flare-ups and after repeated use over time were considered. The Veteran denied having flare-ups of the cervical spine in 2012. In October 2020, the VA examiner considered the Veteran's reports of flare-ups and functional loss after repeated use over time, but found, consistent with her examination of the Veteran and her medical expertise, that the Veteran would not suffer additional lost range of motion during such periods. Such findings do not suggest that a higher rating is appropriate. See Mitchell, 25 Vet. App. at 43. To receive the next higher evaluation of 40 percent, there must be unfavorable ankylosis of the entire cervical spine. The Board finds that there is no evidence of cervical ankylosis or its functional equivalent at any time during the rating period. 38 C.F.R. § 4.71a, DC 5237. Accordingly, an evaluation greater than 30 percent is not warranted at any time. A higher rating under the criteria for IVDS is not applicable. The VA examination in 2012 found no evidence of IVDS. While the 2020 VA examination report shows a diagnosis of IVDS, the examiner clarified that the Veteran did not exhibit any incapacitating episodes to the extent required to support a higher rating. See 38 C.F.R. § 4.71a, DC 5243 Note (1) (defining an "incapacitating episode" 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). The Board has reviewed VA medical records. Nevertheless, such records do not show functional impairment to the extent that higher staged ratings may be assigned. 38 C.F.R. § 4.1. In summary, the evidence is persuasively against the claim of higher staged initial ratings for degenerative disease of the cervical spine. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. 4. Entitlement to higher staged initial ratings for radiculopathy of the right upper extremity, currently rated as 20 percent from January 22, 2020 5. Entitlement to higher staged initial ratings for radiculopathy of the left upper extremity, currently rated as 20 percent from January 22, 2020 As discussed in the introduction, the Board finds that it has the ability to review the separate ratings for cervical radiculopathy as part and parcel of the claim for an increased rating for cervical spine degenerative disc and joint disease. See Chavis v. McDonough, 34 Vet. App. 1, 4 (2021) (holding that the Board did not err when it took jurisdiction over an increased rating for radiculopathy in a pending increased rating claim for the spine). The Board will consider both the question of an earlier effective date than January 22, 2020, for the separate evaluation for cervical radiculopathy and ratings in excess of 20 percent as part of its review. The Veteran's radiculopathy of the right and left upper extremities is evaluated under 38 C.F.R. § 4.124a, DC 8510. Such code provides for rating paralysis of the upper radicular group of the major and minor extremity. The major (dominant) extremity is entitled to a rating of 20 percent for mild incomplete paralysis, a 40 percent rating for moderate incomplete paralysis, a 50 percent rating for severe incomplete paralysis, and a 70 percent rating for complete paralysis manifested by all shoulder and elbow movements lost or severely affected. The minor (non-dominant) extremity is entitled to a rating of 20 percent for mild incomplete paralysis, a 30 percent rating for moderate incomplete paralysis, a 40 percent rating for severe incomplete paralysis, and a 60 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8510. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The term ''incomplete paralysis,'' with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. After careful review of the appellate record, the Board finds that the evidence is persuasively against higher staged ratings for radiculopathy of the bilateral upper extremities. The Board has carefully reviewed the medical evidence. The VA examination report in 2012 did not document any symptoms or objective findings of radiculopathy. This evidence weighs against assignment of a higher rating. The Veteran's VA medical records do not show reports, symptoms, treatment, or diagnoses of radiculopathy prior to January 22, 2020, to the extent required to support a compensable rating. Notably, examinations of the extremities and neurological system found no symptoms of upper extremity radiculopathy in September 2013, November 2015, and July 2016. See CAPRI, December 2016 (p.27, 54, 81). A VA orthopedic consultation in December 2018, and neurological exams in November 2018, August 2019, and December 2019 did not document any radiculopathy of the upper extremities. Rather, sensory testing showed intact function to temperature and vibration, and the Veteran did not report any symptoms of upper extremity radiculopathy. See CAPRI, December 2019 (p.6, 41, 131, 164). If the Veteran had been suffering from upper extremity radiculopathy, it stands to reason that he would have reported when seeking medical treatment. Such evidence weighs against the assignment of a compensable rating. 38 C.F.R. § 4.7. In March 2020, a VA examiner diagnosed cervical radiculopathy of the bilateral upper extremities. The Veteran endorsed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the bilateral upper extremities. Sensory and reflex testing were normal. Muscle strength testing showed active movement against some resistance in the right pinch (thumb to index finger) but otherwise normal results. There were no trophic changes. The clinician documented mild incomplete paralysis of the bilateral upper radicular group. Accordingly, the AOJ resolved reasonable doubt in the Veteran's favor and granted a 20 percent rating each for radiculopathy of the left and right upper extremities from January 22, 2020, the date VA received an intent to file a claim. 38 C.F.R. § 3.400(o). The Board finds that no earlier effective date of benefits may be granted. As discussed previously, the evidence is against finding that the Veteran had compensable symptoms of radiculopathy of the upper extremities prior to January 22, 2020. 38 C.F.R. § 3.400(o). The Board has considered whether a rating in excess of 20 percent may be granted. The evidence does not suggest that the Veteran's radiculopathy showed functional impairment equivalent to moderate incomplete paralysis during the rating period. See 38 C.F.R. §§ 4.7, 4.124a, DC 8510. Specifically, at the March 2020 VA exam, the Veteran endorsed mild symptoms of upper extremity cervical radiculopathy, muscle strength testing was normal (except for right pinch), there were no trophic changes, and sensory and reflex testing were both normal. This does not suggest functional impairment equivalent to moderate incomplete paralysis. VA treatment records were reviewed. They do not show functional impairment to the extent that a higher rating is appropriate. For example, the Board is aware that the Veteran did not report any radiculopathy symptoms during a telephone consultation with his primary care doctor in June 2020. Also, an examination by a VA emergency department showed "no focal deficits" of the neurological system in May 2021, and a physical examination at the diabetes clinic showed no findings or reports of upper extremity radiculopathy symptoms. See CAPRI, July 2020 (p.10); see also CAPRI, September 2021 (p.23, 82). This evidence weighs against a rating in excess of 20 percent for upper extremity cervical radiculopathy. The Veteran's lay statements were considered. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support a higher rating in this case. 38 C.F.R. § 4.1. In summary, the persuasive weight of the evidence is against ratings in excess of 20 percent for bilateral upper extremity cervical radiculopathy, or an effective date of benefits prior to January 22, 2020. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. 6. Entitlement to higher staged initial ratings for right elbow limitation of extension, rated as 10 percent from April 1, 2013, and 50 percent from October 30, 2020 7. Entitlement to higher staged initial ratings for right elbow pronation, rated as 30 percent from October 30, 2020 Disabilities of the elbow are generally rated under the relevant codes at DC 5205-5213. The Veteran's degenerative joint disease of the right elbow limitation of extension is rated under 38 C.F.R. § 5003-5207. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under DC 5206, a noncompensable rating is warranted where flexion of the major forearm is limited to 110 degrees; a 10 percent rating is warranted where flexion is limited to 100 degrees; a 20 percent rating is warranted where flexion is limited to 90 degrees; a 30 percent rating is warranted where flexion is limited to 70 degrees; a 40 percent rating is warranted where flexion is limited to 55 degrees; and a 50 percent rating is warranted where flexion is limited to 45 degrees. Under DC 5207, a 10 percent rating is warranted where the extension of the major forearm is limited to 60 degrees; a 20 percent rating is warranted where the extension is limited to 75 degrees; a 30 percent rating is warranted where the extension of the forearm is limited to 90 degrees; a 40 percent rating is warranted where the extension of the forearm is limited to 100 degrees; and a 50 percent rating is assigned where extension of the major elbow is limited to 110 degrees. The Veteran's right elbow limitation of pronation is evaluated under DC 5213. Such code allows, for the major extremity, a 10 percent rating for supination limited to 30 degrees or less; a 20 percent rating for limitation of pronation equivalent to motion lost beyond last quarter of arc, the hand does not approach full pronation; a 30 percent rating for motion lost beyond the middle of arc. For loss of pronation and supination, a 20 percent rating is assigned when the hand is fixed near the middle of the arc or moderate pronation, a 30 percent rating for the hand being fixed in full pronation, and a 40 percent rating for the hand being fixed in supination or hyper-pronation. See 38 C.F.R. § 4.17a, DC 5213. The Board notes that the diagnostic codes relevant to limited motion of the elbow were not changed by the revisions to the rating schedule in February 2021. The record shows that the Veteran is right-handed. Therefore, the disability will be considered under the criteria applicable to the major (dominant) extremity. The Veteran has received a 10 percent rating for right elbow limitation of extension from April 1, 2013, and a 50 percent rating from October 30, 2020, both under DC 5003-5207, and a separate 30 percent rating for right elbow pronation under DC 5213 from October 30, 2020. See Rating Decision Codesheet, December 2020. The question for the Board is whether higher staged or separate ratings are appropriate. The Board concludes that the evidence is persuasively against higher staged or separate ratings at any time during the rating period on appeal. Regarding limited motion, the Board concludes that the Veteran's right elbow manifested functional impairment equivalent to painful, but not otherwise compensable, limited motion from April 1, 2013, to October 29, 2020. Such a level of impairment is consistent with a 10 percent rating. See 38 C.F.R. § 4.71a, DC 5207; Burton, 1 Vet. App. at 5. Specifically, the VA examination in October 2012 showed that the Veteran's right elbow range of motion was within normal limits. There was no ankylosis of the elbow, and no evidence of impairment of supination or pronation. This does not suggest that a higher rating than 10 percent may be applied proximate to that time. VA medical records likewise do not show evidence of functional impairment to the extent that a higher rating may be assigned prior to October 30, 2020. For example, a VA primary care vesting appointment showed no complaints of right elbow symptoms in September 2013; an orthopedic consultation was silent for any complaints or findings of elbow symptoms in November 2013; and VA physical exams were silent for right elbow symptoms in November 2015 and July 2016. See CAPRI, December 2016 (p.27, 54, 74, 81). Also, a VA orthopedic consultation in December 2018 was silent for any findings of right elbow symptoms. See CAPRI, December 2019 (p.131). If the Veteran had been experiencing right elbow symptoms and functional impairment, it is reasonable to expect that he would have reported it to his VA clinicians, particular his orthopedic specialist. Such evidence weighs against the assignment of a higher rating. 38 C.F.R. § 4.7. The Veteran underwent another VA examination in October 2020. His right elbow range of flexion was 0 to 120 degrees, extension 120 to 0 degrees, forearm supination 0 to 35 degrees, and forearm pronation 0 to 40 degrees. He performed repetitive use testing without additional functional loss. There was no ankylosis of the elbow, or flail joint, joint fracture, or impairment of supination or pronation. Based on the findings of the October 2020 VA examination, the AOJ assigned a 50 percent rating based on a finding that "extension is limited to 110 degrees or more". See Rating Decision Narrative, December 2020. This appears to be a significant AOJ rating error. The examination report found extension of 120 degrees to 0, which means that the Veteran's extension was within 25 degrees of being normal. 38 C.F.R. § 4.71a, Plate I. Extension limited to 110 degrees would mean that the forearm could not extend beyond 110 degrees from the shoulder, which is not what the examination report found. Nevertheless, considering the non-adversarial nature of the VA claims process and resolving reasonable doubt in the Veteran's favor, the Board will not disturb the favorable rating herein. The AOJ also assigned a separate 30 percent rating based on "limitation of pronation: motion lost beyond the middle of the arc" from October 30, 2020. The Board notes that the VA examination report found range of motion equivalent to forearm supination 0 to 35 degrees and pronation 0 to 40 degrees. However, the examiner also checked the box indicating that there was no "impairment of supination and proration." Considering that the rating criteria under DC 5213 mirror the language on the VA examination report when considering impairment of supination and proration, this again raises a potential AOJ rating error. However, as above, the Board will resolve reasonable doubt in the Veteran's favor and will not disturb the favorable grant of a separate 30 percent rating. The Board has considered whether a separate rating for supination may be assigned prior to October 30, 2020. After reviewing VA treatment records, and consistent with its previous analysis, the Board finds that such a rating is not available. The Board has considered a rating in excess of 50 percent. Nevertheless, a 50 percent rating is the maximum allowed by the rating schedule for limited motion of the elbow. 38 C.F.R. § 4.71a, DC 5207. The appellate record does not reflect any ankylosis of the right elbow, flail joint, impairment of supination or pronation, or other impairment to the extent that a separate rating may be assigned. The Veteran's reports of flare-ups and functional loss after repeated use over time were considered. The Veteran denied having flare-ups of the right elbow in 2012. In October 2020, the VA examiner considered the Veteran's reports of flare-ups and functional loss after repeated use over time, but found, consistent with her examination of the Veteran and her medical expertise, that the Veteran would not suffer additional lost range of motion during such periods. Such findings do not suggest that a higher rating is appropriate. See Mitchell, 25 Vet. App. at 43. The Veteran's lay statements were considered but are not indicative of higher ratings under the rating schedule. In summary, the evidence is persuasively against assigning higher staged or separate ratings for the right elbow disorder. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. 8. Entitlement to an initial rating in excess of 10 percent for hiatal hernia and gastroesophageal reflux disease The Veteran's hiatal hernia and gastroesophageal reflux disease (hereinafter "GERD") is rated under 38 C.F.R. § 4.114, DC 7346. Under that code, a 10 percent rating is warranted for two or more of the following symptoms: epigastric distress; dysphagia (difficulty swallowing); heartburn; regurgitation; or sub-sternal, arm, or shoulder pain. A 30 percent rating is warranted when these symptoms produce considerable impairment of health. A maximum 60 rating is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Veteran has received a 10 percent rating for the entirety of the rating period. See Rating Decision Codesheet, December 2020. The question for the Board is whether a higher rating is appropriate at any time during the rating period. After reviewing the appellate record, the Board finds that the evidence is persuasively against assigning higher staged ratings for the Veteran's hiatal hernia and GERD. In reaching this conclusion, the Board has reviewed the medical evidence, including VA examination reports in 2012 and 2020. In 2012, the Veteran reported symptoms of pyrosis (heartburn), for which he took medication, but no other symptoms. There was no esophageal stricture, esophageal spasm, or acquired diverticulum. There were no other pertinent physical findings. In 2020, the Veteran reported having acid reflux that had stayed the same since its onset but was helped by medication. The examiner described the reflux as "under control" with medication. The Veteran reported the following signs and symptoms due to his condition: infrequent episodes of epigastric distress, sleep disturbances occurring more than 4 times per year but lasting less than 1 day, and nausea occurring more than 4 times per year but lasting less than 1 day. There was no esophageal stricture, esophageal spasm, acquired diverticulum, or any other pertinent physical findings related to the disorder. The Board has reviewed VA treatment records. Such records show that the Veteran was prescribed medication for GERD symptoms and that the disorder is listed in his medical history as an active condition. However, the Veteran has not reported to his VA clinicians that he suffers significant impairment due to his GERD. For example, in November 2015, a clinician described the Veteran's GERD as "stable." See CAPRI, December 2016 (p.54). In January 2020, a clinician listed GERD as a condition in the assessment and noted that the Veteran was on a proton pump inhibitor. No other symptoms or impairment were listed as result of the disorder. The Board finds that the totality of the appellate record does not suggest that a higher rating may be assigned. The record simply does not suggest that the Veteran's GERD and hiatal hernia produce "considerable impairment of health" as contemplated by applicable regulations. 38 C.F.R. § 4.114, DC 7346. The VA examination reports show functional impairment equivalent to occasional heartburn and epigastric distress. Such a level of impairment is contemplated by a 10 percent rating. 38 C.F.R. § 4.7. The lay evidence was considered, including the Veteran's assertions that he has regurgitation and arm and shoulder pain that cause considerable impairment of health. See VA Form 9, February 2017. However, the Board finds that his testimony is not consistent with his reports to VA examiners and medical providers, which do not reflect a significant level of impairment due to GERD symptoms. If the Veteran had, in fact, been suffering from these symptoms, it is reasonable to expect that he would have reported them to VA medical providers when seeking treatment. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may consider internal consistency, and consistency with other evidence of record, when determining the credibility of lay evidence). The Board finds that the Veteran's symptomatic reports lack credibility and are not entitled to weight. In summary, the evidence is persuasively against assigning higher staged ratings for GERD and hiatal hernia. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. 9. Entitlement to an initial compensable rating for restless leg syndrome The Veteran's restless leg syndrome is rated under 38 C.F.R. § 4.124a, DC 8103. Such code rates nervous tics, with mild tics evaluated as 10 percent, moderate tics evaluated as 20 percent, and severe tics evaluated as 30 percent. The Veteran has received a non-compensable rating for restless leg syndrome for the entirety of the rating period. See Rating Decision Codesheet, December 2020. The question for the Board is whether higher staged ratings may be assigned. The Board finds that evidence is persuasively against a compensable rating for restless leg syndrome for the entirety of the rating period. See 38 C.F.R. §§ 4.7, 4.124a, DC 8103. The VA examination report in 2012 shows that the Veteran reported taking medicine for the condition after it was discovered on a polysomnogram. He denied symptoms of pain, paresthesias/dysesthesias, and numbness in the lower extremities. Nerve testing showed normal lower extremity nerves on both occasions. The Veteran's gait was normal and there were no trophic changes. Sensory and reflex testing were both normal. VA treatment records were reviewed. However, such records do not show that the Veteran's restless leg syndrome resulted in functional impairment to the extent that a compensable rating may be assigned. For example, in July 2016, a sleep clinic consultation documented that the Veteran was taking Requip for his restless leg syndrome and was "feeling better." See CAPRI, December 2016 (p.25). Restless leg syndrome continued to be listed in the Veteran's active conditions, but the Veteran did not report significant functional impairment due to his disorder, and VA medical records do not document the same. The VA examination report in 2020 shows that the Veteran again denied symptoms of pain, paresthesias/dysesthesias, and numbness in the lower extremities. Nerve testing showed normal lower extremity nerves on both occasions. The Veteran's gait was normal and there were no trophic changes. Although muscle strength testing was active movement against some resistance in the knees and ankles in 2020, and the Veteran's reflexes were hypoactive in the bilateral ankles and knees, the examiner did not specify whether such symptoms were due to restless leg syndrome. Even assuming they were, such a level of impairment does not rise to the level of mild chronic nervous tics to the extent contemplated by a 10 percent rating and consistent with the entirety of the appellate record. 38 C.F.R. § 4.2. The Board has considered the Veteran's lay statements. Although he asserted generally in his VA Form 9 that he should receive a thirty percent rating because his "condition began during active military service" and "remains to be an ongoing issue", the Board emphasizes that disability ratings are determined by the actual functional impairment of earning capacity caused by service-connected disabilities. See 38 C.F.R. § 4.1 ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations"). The mere fact that a restless leg syndrome has been diagnosed and is an ongoing condition, without more, does not suggest functional impairment of earning capacity to the extent required to support a compensable rating. 38 C.F.R. § 4.124a, DC 8103. In summary, the evidence is persuasively against assigning a compensable rating for restless leg syndrome at any point during the rating period. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. Elena Skiouris Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.