Citation Nr: 23040982 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 19-05 837 DATE: July 26, 2023 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a disability rating of 40 percent, but no higher, for a lumbar disability is granted. Entitlement to a separate 10 percent disability rating, but no higher, for left lower extremity radiculopathy, for the period prior to May 23, 2017, is granted. Entitlement to a separate 10 percent disability rating, but no higher, for right lower extremity radiculopathy, for the period prior to May 23, 2017, is granted. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy from May 23, 2017, is denied. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy from May 23, 2017, is denied. FINDINGS OF FACT 1. The record does not reflect a current diagnosis for right or left ear hearing loss for VA purposes. 2. Throughout the appeal period, the Veteran's back disability has resulted in the functional equivalent of favorable ankylosis of the thoracolumbar spine, but not unfavorable ankylosis of the spine. 3. For the period prior to May 23, 2017, the Veteran's left and right lower extremity radicular symptoms have been manifested by mild incomplete paralysis of the sciatic nerve, but not moderate, moderately severe, or severe incomplete paralysis or complete paralysis. 4. For the period beginning on May 23, 2017, the Veteran's left and right lower extremity radicular symptoms have been manifested by moderate incomplete paralysis of the sciatic nerve, but not moderately severe or severe incomplete paralysis or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1154, 5103, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to a disability rating of 40 percent, but no higher, for the Veteran's back spine disability have been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5243. 3. The criteria for a separate disability rating of 10 percent, but not higher, for radiculopathy of the left lower extremity for the period prior to May 23, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8520. 4. The criteria for a separate disability rating of 10 percent, but not higher, for radiculopathy of the right lower extremity for the period prior to May 23, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8520. 5. The criteria for a separate disability rating in excess of 20 percent for radiculopathy of the left lower extremity for the period beginning on May 23, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8520. 6. The criteria for a separate disability rating in excess of 20 percent for radiculopathy of the right lower extremity for the period beginning on May 23, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from July 1967 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2021. A transcript of that proceeding is associated with the claims file. This matter was previously before the Board in April 2022 and was remanded for development. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, the Board notes that there were additional issues on appeal, which included entitlement to service connection for a psychiatric disorder, migraine headaches, pseudofolliculitis barbae, and a left shoulder disability. In April 2022, the Board granted service connection for migraine headaches and pseudofolliculitis barbae. Additionally, the AOJ awarded service connection for insomnia in November 2017 and PTSD in April 2023. As this represents a full grant of the benefits sought, these claims are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Meanwhile, the Board denied service connection for a left shoulder disability in the April 2022 decision. Thus, this issue is no longer on appeal. Additionally, the Board notes that the AOJ awarded separate ratings in August 2017 for left and right sciatica neuralgia/lumbar radiculopathy and assigned a 20 percent rating for each extremity effective May 23, 2017. This award falls within the scope of the Veteran's increased rating claim for his lumbar disability. As higher ratings are potentially available, the Board finds that the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38?U.S.C. §?1110; 38?C.F.R. §?3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.?38?C.F.R. §?3.385. 7. Entitlement to service connection for bilateral hearing loss The Veteran maintains that he has bilateral hearing loss due to his active duty service. However, the Board finds that the elements of service connection have not been satisfied. With respect to an in-service incurrence, the Veteran reported that he was exposed to excessive noise through his work in field artillery. He elaborated that he experienced ringing and decreased hearing in the ears after being exposed to excessive noise from weapons firing during service. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6?Vet. App.?465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as they are consistent with military personnel records showing that the Veteran was a cannon crew member and a fire support specialist. These occupational specialties have a high probability of noise exposure. Military personnel records also reveal that the Veteran was awarded expert rifle and grenade badges. Based on the foregoing, the Board finds that the in-service incurrence element of this claim. Although an in-service incurrence has been established, the Board finds that the record does not support a finding of a current disability. In reaching this conclusion, the Board notes that the Veteran underwent audiological examinations in September 2015 and December 2022. During these examinations, the Veteran did not exhibit auditory thresholds above 40 decibels in at least one frequency or above 26 decibels in at least three frequencies between 500 and 4000 hertz in either ear. These audiological results are inconsistent with a finding of hearing loss as a disability for VA purposes. 38 C.F.R. § 3.385. The September 2015 VA examiner diagnosed the Veteran with normal hearing in the right ear and sensorineural hearing loss in the right ear (in the frequency range of 500-4000 hertz). Additionally, the December 2022 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss (in the frequency range of 500-4000 hertz). However, these examiners concluded that the Veteran's hearing loss does not constitute a disability under VA regulations. 38 C.F.R. § 3.385. The Board notes that 38 C.F.R. § 3.385 has been upheld by the Court as a valid exercise of VA's regulatory authority. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, all hearing loss claims must meet the regulatory definition of hearing loss in § 3.385 to constitute a disability for VA purposes. While the Board acknowledges the Veteran's frustration, unfortunately, without a current disability, service connection for hearing loss cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 224 (1992) (a current diagnosis is a cornerstone of a service connection claim). As such, the claim for service connection for bilateral hearing loss is denied. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).?38?U.S.C. §?1155;?38?C.F.R. §§?4.1, 4.2, 4.10.? In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1?Vet. App.?589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38?C.F.R. §§?4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.? Otherwise, the lower rating will be assigned.?See?38?C.F.R. §?4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor.?38?C.F.R. §?4.3.? Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.?Hart v. Mansfield, 21?Vet. App.?505.? Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.?See?Francisco v. Brown,?7?Vet. App.?55, 58 (1994).? Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.?See?Hart v. Mansfield, 21?Vet. App.?505 (2007).? 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. §?3.102. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.? It is?essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.? The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§?4.10, 4.40, 4.45;?see also?DeLuca v. Brown,?8?Vet. App.?202 (1995).? The provisions of?38?C.F.R. §?4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flareups.?The provisions of 38?C.F.R. §?4.40 and 38 C.F.R. §?4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.?See Johnson v. Brown, 9?Vet. App.?7 (1996).? Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or?malaligned?joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.?See?38?C.F.R. §?4.59;?Burton v. Shinseki, 25?Vet. App.?1 (2011).? Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the?musculoskeletal system.?Mitchell v. Shinseki, 25?Vet. App.?32 (2011).? Moreover, functional impairment must be supported by adequate pathology.?Id.;?Johnson v. Brown, 9?Vet. App.?7, 10 (1996) (both citing to 38?C.F.R. §?4.40).? 1. Entitlement to an increased rating for a lumbar disability The Veteran's application for an increased rating was received on May 1, 2015. Accordingly, the current appeal period begins on May 1, 2014, one year prior to the date of receipt of his increased rating claim. 38?C.F.R. §?3.400 (o)(2). The Veteran is in receipt of a 20 percent rating for a low back strain, degenerative disc disease, and intervertebral disc disease under Diagnostic Code 5243 for the entire appeal period. Diagnostic Code 5243 is attributed to intervertebral disc syndrome (IVDS), which is assigned when there is evidence of disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses. IVDS is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The?General Rating Formula provides for a 20 percent rating where there is 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 is not greater than 120 degrees, or there is 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 evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less.?The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating.? Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.?38?C.F.R. §?4.71a, General Rating Formula, Note (1).? For VA compensation purposes,?normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation.?The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation.?38?C.F.R. §?4.71a, General Rating Formal, Note (2) and Plate V.? Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.?See?38?C.F.R. §?4.71a, General Rating Formula, Note (5).? In April 2021, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e.,?functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34?Vet. App.?1 (2021). Under the Formula for Rating?Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months.?A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months.?A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.? 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.?38?C.F.R. §?4.71a, Formula for Rating?Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).?If?intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation of that segment.?Id., Note (2). Factual Background The Veteran was provided numerous VA examinations to assess the nature and severity of the Veteran's back disability. In September 2015, a VA examiner provided diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran reported having back pain that radiates into his left leg and foot. He also reported tingling at the bottom of the left foot that occurs approximately twice a week. Additionally, the Veteran reported that he cannot bend, sit, or stand for any length of time. Upon range of motion testing, the Veteran exhibited forward flexion to 35 degrees, extension to 25 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 10 degrees. There was objective evidence of pain on motion, but the examiner concluded that it did not result in functional loss. However, the examiner concluded that abnormal range of motion itself contributes to functional loss manifested by difficult navigating movements. With respect to repetitive use, the examiner noted that the Veteran was able to perform repetitive use testing without additional loss in range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time. She concluded that pain significantly limits functional ability, but she concluded that she could not offer an estimate of this loss in terms of range of motion. The examiner concluded that the Veteran did not experience flare ups. However, the Veteran reported that he sometimes has to lie down until the pain goes away and that he needs support to get out of a chair. With respect to radiculopathy, the examiner concluded that the Veteran did not exhibit radicular pain or any signs or symptoms due to radiculopathy. However, the Veteran exhibited decreased sensation in the right thigh, right lower leg/ankle, and left foot/toes. Additionally, the examiner noted that the Veteran had mild constant pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity, as well as mild numbness in the right lower extremity. The examiner also noted involvement of the sciatic nerve root on the left. Ultimately, the examiner indicated that the severity of radiculopathy in the right and left lower extremities was mild. On examination, the Veteran also exhibited tenderness to palpation of the spine, muscle spasm not resulting in abnormal gait or spinal contour, and decreased strength in the bilateral lower extremities. The examiner noted the presence of IVDS, but she concluded that the Veteran has not had any episodes of acute signs or symptoms requiring bed rest prescribed by a physician in the past 12 months. The examiner also noted that the Veteran did not use an assistive device for locomotion. Otherwise, the Veteran exhibited normal reflexes and did not exhibit muscle atrophy, positive straight leg raise testing, ankylosis, or thoracic vertebral fracture with loss of 50 percent or more height. Less movement than normal was an additional factors contributing to disability. Additionally, the examiner concluded that the functional impact of the Veteran's lumbar disability causes inability to lift more than 5 pounds, walk further than 50 feet, kneel, or stoop. The examiner also noted that the Veteran requires frequent breaks from sitting and standing and has difficulty twisting his body. In July 2017, the Veteran was provided a VA examination to assess the nature and severity of his lumbar radiculopathy. At this time, the Veteran reported having intermittent radiating and throbbing pain into both legs that had progressively worsening in the prior three to four years. He elaborated that he has taken gabapentin for his symptoms since 2014 and recently started taking hydrocodone. He also reported having flare ups of radicular pain several times a week that he treats with rest. The examiner noted the presence of mild constant pain and mild numbness in the bilateral lower extremities. The examiner also noted the presence of moderate paresthesias and/or dysesthesias and moderate intermittent pain in the bilateral lower extremities. On examination, the Veteran exhibited decreased sensation in the bilateral foot and toes. Otherwise, the examination was normal with intact strength and reflexes, normal gait, no atrophy or trophic changes, and negative straight leg raise testing. Ultimately, the examiner concluded that the Veteran has incomplete paralysis of the sciatic nerve of moderate intensity. The Veteran was provided another VA examination in January 2023 to assess the nature and severity of the Veteran's back disability. The examiner provided diagnoses of low back strain, degenerative disc disease, spinal stenosis, and IVDS. The Veteran reported having continued back pain that radiates into his bilateral lower extremities. He reported that the pain is sharp and rated his pain level at a 9 on a scale from 1 to 10. He further reported having flare ups where he is confined to bed for one to two days approximately twice a month due to sharp and stabbing pain. He also reported that he has a hard time working and has to alternate between sitting and standing. Upon range of motion testing, the Veteran exhibited forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. There was objective evidence of pain on motion, weightbearing, non-weightbearing, active motion, and at rest/non-movement. However, the examiner concluded that abnormal range of motion itself does not contribute to functional loss. The examiner noted that the Veteran was able to perform repetitive use testing and exhibited additional functional loss with forward flexion to 40 degrees. The examiner noted that the Veteran was not being examined immediately after repetitive use over time. He concluded that pain, fatigability, weakness, and lack of endurance significantly limits functional ability. In terms of range of motion, the examiner provided the following estimates: forward flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. With respect to flare ups, the examiner noted that the Veteran was not being examined during a flare up. However, he concluded that pain, fatigability, weakness, and lack of endurance significantly limits functional ability during flare ups. In terms of range of motion, the examiner provided the following estimates: forward flexion to 40 degrees, and extension, right and left lateral flexion, and right and left lateral rotation to 10 degrees. With respect to radiculopathy, the examiner concluded that the Veteran has radicular pain or other signs and symptoms due to radiculopathy. Specifically, the examiner documented moderate constant pain and numbness bilaterally. The examiner noted involvement of the sciatic and femoral nerve roots bilaterally. Additionally, the Veteran exhibited absent sensation in the bilateral upper anterior thigh and decreased sensation in the bilateral thigh/knee on examination. In addition to these findings, the Veteran exhibited tenderness to palpation of the spine, muscle spasm not resulting in abnormal gait or spinal contour, decreased strength in the bilateral lower extremities, hypoactive reflexes in the bilateral knees, and positive straight leg raise testing bilaterally. The examiner also noted the presence of IVDS, but he concluded that the Veteran has not had any episodes of acute signs or symptoms requiring bed rest prescribed by a physician in the past 12 months. The examiner also noted that the Veteran did not use an assistive device for locomotion. Otherwise, the Veteran did not exhibit crepitus, muscle atrophy, ankylosis, or thoracic vertebral fracture with loss of 50 percent or more height. Additionally, the examiner concluded that the functional impact of the Veteran's lumbar disability caused up to one week of work time lost in the past 12 months. The examiner further concluded that the Veteran's lumbar disability results in difficulty walking, running, standing, or sitting for long periods of time, as well as lifting heavy objects, bending, and squatting. In addition to this evidence, treating records reveal that the Veteran has been received frequent and consistent care for chronic back pain during the entire appeal period. In treating visits, he consistently classified his pain at a level 8 to 10 on a scale from 1 to 10. In November 2014, magnetic resonance imaging (MRI) showed noticeable degeneration at L4-L5 with slight posterior protrusion. The spinal cord was widely patent. However, the Veteran had degenerative facet joint disease markedly on right at L4-L5 and a disc herniation at L4-L5, which his doctor noted can irritate the nerve root and cause pain down the left leg. Then, in December 2014, the Veteran complained of severe pain radiating down the legs with numbness and tingling. At this time, he rated his pain level at a 10. He was evaluated by neurosurgery in January 2015. At this time, he reported having flare ups every other week and indicated that something as simple as a sneeze can result in a flare up. He also reported difficulty with lifting, bending, and getting out of a chair. On examination, he exhibited limited motion in all directions. Otherwise, his examination was normal with intact neurological functioning. Throughout 2015 and 2016, the Veteran continued to complain of back pain radiating into his lower left extremity. He presented in treating visits with moderate discomfort and was prescribed narcotic medication for his symptoms. During one visit, he exhibited decreased sensation to pin prick in the left leg and complained of a burning sensation. In 2017, the Veteran complained that his radicular symptoms had progressed. In one visit, he reported twisting his back that resulted in extreme pain down to the right foot. He indicated that his radicular symptoms come and go, and that he stays off his feet when he has flare ups. He also reported that he was exercising consistently two times a week on a treadmill, bicycle, and elliptical. In May 2017, a private doctor provided a disability benefits questionnaire (DBQ) assessing the Veteran's radiculopathy. The physician noted the presence of mild constant/intermittent pain, paresthesias, and numbness of the right lower extremity. The physician further noted the presence of moderate constant/intermittent pain, paresthesias, and numbness of the left lower extremity. The physician attributed these symptoms to neurogenic claudication and concluded that the Veteran had incomplete paralysis of the bilateral lower extremities, which was mild on the right and moderate on the left. Despite these deficits, the Veteran exhibited normal strength, reflexes, sensation, muscle tone, and gait. In June 2017, a treating physician noted that the Veteran has a documented history of degenerative disc disease and IVDS, which are major risk factors for the development lumbar radiculopathy to the lower extremities. The physician elaborated that the Veteran's current examination findings were consistent with a clinical diagnosis of sciatica neuralgia/lumbar radiculopathy. From 2019 through 2022, the Veteran continued to receive treatment for lumbar pain and radiculopathy of the bilateral lower extremities. An MRI done in November 2020 showed significant interval changes. The imaging revealed collapse and narrowing at the L5-S1 and L4-L5 disc spaces and very little cerebrospinal fluid around the nerve roots. The imaging also showed marked hypertrophy of the facet joints at L4-L5 contributing to spinal stenosis. Decompression surgery was discussed with the Veteran, but he declined. Subsequent treating records reveal that the Veteran continued with pain management but received limited relief from medication. In addition to this evidence, the Veteran testified in November 2021 to persisting chronic back pain and lower extremity radiculopathy that continued to worsen. Notably, he reported having at least incapacitating episodes where he was unable to get out of bed in the prior 12 months. Analysis Based on the foregoing, the Board finds that a 40 percent rating, but no higher, is warranted due to functional loss caused by the Veteran's flare ups. In reaching this conclusion, the Board notes that the September 2015 VA examiner concluded that the Veteran did not experience flare ups. However, the Veteran told this examiner that his pain is so severe sometimes that he has to lie down, and he needs support to get out of a chair. Additionally, the Veteran's forward flexion was limited to 35 degrees on examination and the examiner concluded that the Veteran is unable to lift more than 5 pounds, walk further than 50 feet, kneel, or stoop. The examiner also concluded that the Veteran requires frequent breaks from sitting and standing and has difficulty twisting the body. In addition to this evidence, an MRI performed in November 2014 documented significant finding of degeneration and a disc herniation. Additionally, the Veteran reported to a neurosurgeon in January 2015 that he was having flare ups every other week and something as simple as a sneeze could bring on an episode. He also reported difficulty with lifting, bending, and getting out of a chair. On examination, he exhibited limited motion in all directions. Meanwhile, the Veteran continued to complain of chronic back pain throughout treating visits from 2015 through 2022. An MRI performed in 2020 documented significant interval changes and decompression surgery was discussed. However, the Veteran opted for pain management instead. In addition to this evidence, the Veteran testified in November 2021 that he had at least six incapacitating episodes in the prior 12 months where he was unable to get out of bed. Similarly, the Veteran told a VA examiner in January 2023 that he had flare ups twice a month and was confined to his for approximately two days at a time. On examination, the Veteran's forward flexion was significantly reduced, and the examiner concluded that the Veteran would have even more limited motion with flare ups and repeated use over time due to pain, fatigability, weakness, and lack of endurance. Ultimately, the examiner concluded that the Veteran's lumbar disability results in difficulty walking, running, standing, or sitting for long periods of time, as well as lifting heavy objects, bending, and squatting. This evidence supports a finding that the Veteran has experienced the functional equivalent of ankylosis during flare ups throughout the appeal period and a 40 percent rating is warranted. In reaching this conclusion, the Board notes that the September 2015 VA examiner concluded that the Veteran does not have flare ups at all. Additionally, none of the VA examiners concluded that the Veteran had ankylosis on examination. However, the Board finds that these opinions are not probative as treating and examining records demonstrate that the Veteran's has had flare ups throughout the entire appeal period that have been incapacitating and require bed rest. Furthermore, the Veteran reported at his hearing in November 2021 and VA examination in January 2023 that his symptoms increased in frequency, duration, and severity. The Veteran is competent to report the frequency and severity of her symptoms and the Board finds no reason to doubt the credibility of these statements. 38?C.F.R. §?3.303(a); see also Jandreau, 492 F.3d at 1377. Consistent with his reports, diagnostic imaging documented significant interval changes and treating records note continued functional limitation due to back pain. Accordingly, the Board finds that the Veteran's reports, considered in combination with treating and examining records, is more probative than the VA examiners' opinions. Accordingly, the Board finds that a 40 percent rating is warranted for the functional equivalent of ankylosis for the entire appeal period. However, the Board finds that a disability rating in excess of 40 percent is not warranted. A rating higher than 40 percent is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine that results in one of the additional symptoms set forth in Note 5 under the General Rating Formula. Here, there is no evidence that the Veteran satisfies these criteria. None of the Veteran's VA examinations, lay statements, or treatment records show symptoms that approximate the thoracolumbar spine fixed in a bent position or other symptoms such as limited line of vision and restricted opening the mouth, impaired breathing, or gastrointestinal problems. Additionally, the VA examinations do not show evidence of ankylosis. While the Veteran has difficulty sitting, standing, or walking for prolonged periods, bending repeatedly, and lifting objects, these restrictions are adequately compensated by the 40 percent rating. As the Veteran has some range of motion, although significantly limited due to pain, he does not exhibit unfavorable ankylosis or the functional equivalent of the entire thoracolumbar spine. With respect to the Veteran's IVDS, which was diagnosed by the VA examiners, the Board finds that a compensable rating is not warranted because there is no evidence of incapacitating episodes with acute signs and symptoms that required bed rest prescribed by a physician for at least a week or more. The Board notes that the regulations of the spine were amended effective February 7, 2021, to state that the Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have IVDS with evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. In sum, the Board finds that a disability rating of 40 percent, but no higher, for the Veteran's lumbar disability is warranted for the entire appeal period. Additionally, the Board finds that entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the record in connection with the Veteran's increased rating claim. While the Veteran contends that his lumbar disability makes it difficult to work, this is not equivalent to being unable to sustain gainful employment. Therefore, the Board finds that entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the record. 2. Entitlement to a separate disability rating for left lower extremity radiculopathy 3. Entitlement to a separate disability rating for left lower extremity radiculopathy In Chavis, the Court held that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement as to the radiculopathy ratings. Chavis, 34?Vet. App. at?1. Therefore, the Board finds that it has jurisdiction to adjudicate entitlement to a separate disability rating for radiculopathy. In connection with the Veteran's increased rating claim, the AOJ granted service connection for bilateral lower extremity radiculopathy in August 2017, and it assigned a 20 percent disability rating for each extremity effective May 23, 2017. Accordingly, at issue here is whether a separate disability rating is warranted for left and right lower extremity radiculopathy prior to May 23, 2017, and whether a disability rating in excess of 20 percent is warranted beginning on May 23, 2017. Under this Diagnostic Code, a 10 percent rating should be assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is contemplated for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating applies for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is assigned where there is complete paralysis of the sciatic nerve. When there is complete paralysis of the sciatic nerve, symptoms include the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Court in Chavis v. McDonough held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis v. McDonough, 34 Vet. App. 1 (2021) ("Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011))). "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited Oct. 16, 2021). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a). The Board also finds that "mild" corresponds to symptoms, however slight, sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, this level of severity is limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. "Moderate" symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The "moderately severe" evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy, see the criteria for a "severe" evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Finally, the "severe" evaluation level is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, Diagnostic Code 8520), marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). Analysis Based on a review of the medical evidence, the Board finds that a separate rating of 10 percent, but no higher, for lumbar radiculopathy of the left and right lower extremity is warranted for the period prior to May 23, 2017. Additionally, the Board finds that a disability rating in excess of 20 percent is not warranted for the period beginning on May 23, 2017. In reaching this conclusion, the Board notes that the September 2015 VA examiner concluded that the Veteran did not have radicular pain, or any signs or symptoms related to radiculopathy. However, the examiner concluded that the Veteran had radiculopathy in both lower extremities of mild severity. On examination, the Veteran exhibited decreased sensation in the right thigh, right lower leg/ankle, and left foot/toes and decreased strength in the bilateral lower extremities. Additionally, the examiner also noted that the Veteran had mild constant pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity, as well as mild numbness in the right lower extremity. The examiner also noted involvement of the sciatic nerve root on the left. In addition to this evidence, treating records reveal the Veteran complained of pain radiating into his legs. This pain was attributed to a disc herniation at the L4-L5 spinal region on an MRI in November 2014, and he was prescribed gabapentin for radicular symptoms. Additionally, the Veteran continued to complain of radicular pain into the lower extremities throughout 2015 and 2016. In at least one visit, he exhibited decreased sensation to pin prick in the left leg and complained of a burning sensation. Based on the foregoing, the Board finds that the VA examiner opinion that the Veteran does not have any signs of radiculopathy is not probative. To the contrary, the Veteran's reports and the clinical findings on record demonstrate that the Veteran has had radiculopathy of the lower extremities since 2014. Overall, this evidence demonstrates that the Veteran's bilateral lower extremity radiculopathy was mild in severity for the period prior to May 23, 2017. In reaching this conclusion, the Board notes that the September 2015 VA examiner only documented mild symptoms of pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity and mild numbness in the right lower extremity. Otherwise, the Veteran exhibited intact reflexes, full strength, negative straight leg raise testing, and no muscle atrophy in the lower extremities. Additionally, treating records document the Veteran's complaints of lower extremity pain, but he only exhibited decreased sensation on the left during one visit. Given these findings, the Board concludes that the Veteran's right and left lower extremity radiculopathy was only mild in nature prior to May 23, 2017. See 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Codes 8520. The Board also finds that the Veteran has had more than moderate bilateral lower extremity radiculopathy since May 23, 2017. At most, the July 2017 VA examiner documented moderate paresthesias and/or dysesthesias and intermittent pain in the bilateral lower extremities and the Veteran exhibited decreased sensation in the bilateral foot and toes on examination. The remainder of the examination was normal with intact strength and reflexes, normal gait, no atrophy, no trophic changes, and negative straight leg raise testing. Based on these findings, the VA examiner concluded that the Veteran has incomplete paralysis of the sciatic nerve of moderate intensity bilaterally. Similarly, a private physician concluded that the Veteran's radiculopathy manifested as incomplete paralysis of mild severity on the right and moderate severity on the left. This physician noted mild constant/intermittent pain, paresthesias, and numbness of the right lower extremity and moderate constant/intermittent pain, paresthesias, and numbness of the left lower extremity. Meanwhile, the Veteran exhibited normal strength, reflexes, sensation, muscle tone, and gait on examination. Additional deficits were noted in the January 2023 VA examination, including diminished sensation, decreased strength, and positive straight leg raise testing bilaterally. However, this examiner noted no more than moderate symptoms of pain and numbness. Given these findings, the Board finds that the Veteran's right and left lower extremity radiculopathy is no more than moderate in nature for the period beginning on May 23, 2017. See 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Codes 8520. Accordingly, the Board finds that a separate 10 percent disability rating, but no higher, for left and right lower extremity radiculopathy for the period prior to May 23, 2017, is warranted. However, the Board finds that a disability rating in excess of 20 percent for left and right lower extremity radiculopathy for the period beginning on May 23, 2017, is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.