Citation Nr: 24004635 Decision Date: 01/30/24 Archive Date: 01/30/24 DOCKET NO. 20-15 623 DATE: January 30, 2024 ORDER Entitlement to an effective date prior to July 12, 2018, for the grant of service connection for right lower extremity radiculopathy is denied. Entitlement to an effective date prior to July 12, 2018, for the grant of service connection for left lower extremity radiculopathy is denied. Entitlement to an effective date prior to July 12, 2018, for the grant of a 40 percent rating for a back disability is denied. Entitlement to a 20 percent rating, but no higher, for right lower extremity radiculopathy from July 12, 2018, is granted. Entitlement to a 20 percent rating, but no higher, for left lower extremity radiculopathy from July 12, 2018, is granted. Entitlement to a rating in excess of 40 percent for a back disability from July 12, 2018, is denied. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. As to the claims for effective dates prior to July 12, 2018, for the grants of service connection for right and left lower extremity radiculopathy, claims were not received by the agency of original jurisdiction (AOJ) earlier than July 12, 2018. 2. As to the claim for an effective date prior to July 12, 2018, for the grant of a 40 percent rating for a back disability, the April 2015 rating decision confirmed and continued a 10 percent rating for the back disability; this decision became final when the Veteran did not appeal, new and material evidence was not received by the AOJ within the one-year appeal period of the decision, the AOJ did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period which are new and material evidence, and a claim for clear and unmistakable error was not made as to the decision. 3. A claim for an increased rating for a back disability was not received by the AOJ earlier than July 12, 2018, and the most probative evidence of record shows that there was not a factually ascertainable worsening of this disorder in the one-year period prior to July 12, 2018. 4. The most probative evidence of record shows that the Veteran's right and left lower extremity radiculopathy are manifested by moderate incomplete paralysis of the sciatic nerve, but not moderately severe, at all times from July 12, 2018. 5. The most probative evidence of record shows that the Veteran's back disability is not manifested by at least unfavorable ankylosis of the entire thoracolumbar spine even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor incapacitating episodes having a total duration of at least 6 weeks during any 12 months period during the pendency of the appeal at all times from July 12, 2018. CONCLUSIONS OF LAW 1. The criteria for effective dates prior to July 12, 2018, for the grant of service connection for right and left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.156, 3.400. 2. The criteria for an effective date prior to July 12, 2018, for the grant of a 40 percent rating for a back disability have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.105, 3.151, 3.156, 3.400, 4.1, 4.2, 4.3, 4.7, 4.14, 4.71a, 20.200, 20.201, 20.202, 20.302. 3. The criteria for 20 percent ratings, but no higher, for right and left lower extremity radiculopathy have been met from July 12, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 40 percent for a back disability have not been met from July 12, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243; 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1976 to October 1980. This appeal comes to the Board of Veterans' Appeal (Board) from a November 2018 rating decision that granted the Veteran service connection for right and left lower radiculopathy effective from July 12, 2018, assigned the right and left lower radiculopathy 10 percent ratings effective from July 12, 2018, and granted the back disability an increased, 40 percent rating, effective from July 12, 2018. As to the claims for increased ratings for right and left lower extremity radiculopathy, the Board finds that the issues before us are staged rating claims because the regional office (RO) thereafter rerated the right and left lower extremity radiculopathy as 20 percent disabling effective from July 12, 2018 (see rating decision dated April 2019), 0 percent disabling effective from August 1, 2020 (see rating decision dated May 2020), confirmed and continued the right lower extremity radiculopathy as 0 percent disabling effective from August 1, 2020 (see rating decision dated August 2022), and granted the left lower extremity radiculopathy a 10 percent rating effective from August 1, 2020 (see rating decision dated August 2022). See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Also see AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). However, as to the claim for an increased rating for the back disability, the Board finds that the issue before us is as listed above (i.e., Entitlement to a rating in excess of 40 percent for a back disability from July 12, 2018) because, while the RO thereafter rerated the back disability as 20 percent disabling effective from August 1, 2020 (see rating decision dated May 2020), it subsequently granted it a 40 percent rating effective from July 12, 2018 (see rating decision dated August 2022). Id. Next, the Board finds that the record raises a claim for a TDIU. See Report of General Information dated in November 2018; Also see Rice v. Shinseki, 22 Vet. App. 447 (2009). I. The Earlier Effective Date Claims The Veteran asserts, in substance, that he is entitled to effective dates prior to July 12, 2018, for service connection for right and left lower extremity radiculopathy as well as the 40 percent rating for his back disability. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Moreover, because the claim on appeal was filed after March 24, 2015, the term "claim" means a formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A formal claim was one that had been filed on the form prescribed by VA. Id. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. If a Veteran file's a claim for benefits with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020) the United States Court of Appeals for the Federal Circuit removed the sufficient knowledge of the existence of the VA records requirement in Turner. The finality of that rating decision can also be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). a. The Service Connection Earlier Effective Date Claims As to the claims for effective dates prior to July 12, 2018, for the grants of service connection for right and left lower extremity radiculopathy, the record shows that a November 2018 rating decision granted the Veteran service connection for them effective July 12, 2018, because this was the date it received his VA Form 21-0966, Intent to File. Also see VA Form 21-526EZ, Fully Developed Claim, received on September 30, 2018. In this regard, the Board finds that the record does not include any writings from the Veteran and/or his representative that acts as earlier claims as defined by 38 C.F.R. § 3.1(p) (i.e., a specific claim in the form prescribed by the Secretary) for service connection for right and left lower extremity radiculopathy. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Moreover, and notwithstanding any claim to the contrary, an effective date of an award of service connection is not based on the earliest medical evidence showing treatment or a diagnosis of the disability including treatment records for the service connected back disability that caused the radiculopathy. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). Likewise, and notwithstanding any claim to the contrary, an effective date of an award of service connection is not based on earlier claims for increased ratings, such as this Veteran's claim for an increased rating for his back disability, even when the already service-connected disability caused the newly service-connected disabilities because claims for increased ratings are distinct and unique claims that are different than claims for service connection. See, e.g., 38 U.S.C. § 1155; 38 C.F.R. § 4.1; but see 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Therefore, the Board finds that VA is precluded from granting earlier effective dates for the newly service connected right and left lower extremity radiculopathy and the appeal as to these issues is denied. See 38 U.S.C. § 7104(c) (holding that the Board is bound by the laws enacted by Congress, the regulations of the Department, the instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department); Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (holding that the Board must apply "the law as it exists ... and cannot 'extend... benefits out of sympathy for a particular [claimant].'"). b. The Increased Rating Earlier Effective Date Claim As to the claim for an effective date prior to July 12, 2018, for the grant of a 40 percent rating for the back disability, the record shows that the RO in an April 2015 rating decision confirmed and continued a 10 percent rating for the disability. The Veteran did not appeal the April 2015 rating decision. See 38 C.F.R. §§ § 3.1(q), 20.200, 20.302(c). Likewise, the record is negative for statements from the Veteran, VA medical records generated in the one-year appeal period, or private treatment records received in the one-year appeal period following the April 2015 rating decision that are new and material evidence. See 38 C.F.R. § 3.156(b); Turner, supra; Lang, supra. Similarly, the Veteran has never claimed CUE in the April 2015 rating decision. See 38 C.F.R. §§ 3.104, 3.105. Therefore, the Board finds that the April 2015 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Accordingly, the Board finds that the grant of an increased rating for the back disability can be no earlier than the date that the RO received the Veteran's subsequent claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this regard, the record shows that a November 2018 rating decision thereafter granted the Veteran's back disability a 40 percent rating effective from July 12, 2018, because this was the date it received his VA Form 21-0966, Intent to File. Also see VA Form 21-526EZ, Fully Developed Claim, received on September 30, 2018. In this regard, the Board finds that the record does not include any writing from the Veteran and/or his representative that acts as an earlier claim as defined by 38 C.F.R. § 3.1(p) (i.e., a specific claim in the form prescribed by the Secretary) for an increased rating for the back disability. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In this regard, and notwithstanding any claim to the contrary, the Board again finds that an effective date of an award of an increased rating is not based on the earliest medical evidence showing treatment for the disability. See Lalonde, supra. However, because the effective date for an increased rating can be up to one-year prior to receipt by the RO of the claim, the Board will next consider whether there was a factually ascertainable worsening of the Veteran's service-connected back disability in the one-year period prior to July 12, 2018. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98. In this regard, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Initially, the Board notes that while VA's recently amendment to some of its' criteria for rating musculoskeletal disabilities, these amendments do not apply to this pre-July 12, 2018, time period because they were not effective until February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Next, the Board notes that the rating criteria in place during one-year period prior to July 12, 2018, provided as follows; the Formula for Rating Intervertebral Disc Syndrome provided a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. Next, the Board notes that under the General Rating Formula for Disease and Injuries of the Spine provided that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) provides that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. In this regard, the Board notes that when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In Chavis v. McDonough, 34 Vet. App. 1 (2021) the Court subsequently held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. With the above criteria in mind, the Board notes that the record does not show that the Veteran was afforded a back VA examination during the one-year look back period (i.e., July 12, 2017, to July 12, 2018). Next, the Board notes that VA treatment records were generated during the one-year look back period (i.e., July 12, 2017, to July 12, 2018). Moreover, the Board also notes that a few of these treatment records document the Veteran's complaints and treatment for back problems including an emergency room visit in January 2018 due to back pain and subsequent physical therapy. However, the Board finds that none of these treatment record show that the Veteran's adverse back symptomatology included at least 4 weeks of incapacitating episodes and/or forward flexion of the thoracolumbar spine being 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra) at any time from July 12, 2017, to July 12, 2018. See Owens, supra. Given the above, the Board finds that the most probative evidence of record shows that there was not a factually ascertainable worsening of the Veteran's symptoms such that he met the criteria for a 40 percent rating for his back disability at any time during one-year look back period (i.e., July 12, 2017, to July 12, 2018). See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98; Owens, supra. Accordingly, the Board also finds that that the most probative evidence of record shows that the Veteran is not entitled to an effective date earlier than July 12, 2018, for the award of a 40 percent rating for his back disability under 38 C.F.R. § 4.124a even with application of the one-year look back period rules. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98; Owens, supra. Therefore, the Board finds that VA is precluded from granting an earlier effective date for the grant of a 40 percent rating for his back disability and the appeal as to this issue is also denied. See 38 U.S.C. § 7104(c); Owings, supra. The Rating Claims The Veteran contends that his right and left lower extremity radiculopathy as well as his back disability are more severely disabling than represented by the ratings assigned at all times during the appeal. a. Right and Left Lower Extremity Radiculopathy As noted above, the Veteran's right lower extremity radiculopathy is rated as 20 percent disabling effective from July 12, 2018, and 0 percent disabling effective from August 1, 2020, both under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Likewise, and as also noted above, the Veteran's left lower extremity radiculopathy is rated as 20 percent disabling effective from July 12, 2018, 0 percent disabling effective from August 1, 2020, and 10 percent disabling rating effective from August 1, 2020, all under 38 C.F.R. § 4.124a, Diagnostic Code 8520. In this regard, Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity. A 20 percent rating for moderate incomplete paralysis of the sciatic nerve in either lower extremity. A 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. i. As to at least 20 percent ratings for the right and left lower extremity radiculopathy from July 12, 2018 As to at least 20 percent ratings for the right and left lower extremity radiculopathy from July 12, 2018, the Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, the Board finds that when adjudicating the severity of the Veteran's right and left lower extremity radiculopathy from July 12, 2018, it may consider all evidence of record including the September 2018 Back DBQ that the RO relied upon in the April 2019 rating decision that granted him 20 percent ratings. Id. In this regard, the Board finds it significant that the September 2018 Back DBQ opined that the Veteran's adverse symptomatology caused moderate incomplete paralysis of the sciatic nerve and this opinion is supported by the following bilateral adverse symptomatology: 1+ reflexes in the ankles; 4/5 muscle strength in the feet/toes; decreased sensation in the lower legs/ankles as well as the feet/toes; positive straight leg raising; and moderate lower extremity constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness. See Owens, supra. Therefore, the Board finds that when considering the adverse symptomatology identified by the September 2018 Back DBQ as well as when considering the Veteran's competent reports of his observable adverse symptomatology (see Davidson, supra) and when resolving all reasonable doubt in his favor, the most probative evidence of record is the September 2018 Back DBQ and it shows that the claimant's adverse symptomatology approximates the criteria for at least 20 percent ratings because of moderate incomplete paralysis of the sciatic nerve at all times from the July 12, 2018. See 38 C.F.R. § 4.124a, Diagnostic Code 8520; Owens, supra; Tatum, supra; Young, supra; Fenderson, supra; Hart, supra. ii. As to ratings in excess of 20 percent for the right and left lower extremity radiculopathy from July 12, 2018 As to ratings in excess of 20 percent rating for the right and left lower extremity radiculopathy from July 12, 2018, the Board finds that even when considering the Veteran's competent report of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating under Diagnostic Code 8520 because the record, including the September 2018 Back DBQ, August 2019 VA examination, and the October 2019 Back DBQ do not show adverse symptomatology that equates to at least "moderately severe" incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a; Owens, supra. In this regard, the Board finds it significant that the September 2018 Back DBQ shows that Veteran's adverse symptomatology was limited to, bilaterally, 1+ reflexes in the ankles but 2+ in the knees, 4/5 muscle strength in the feet/toes, decreased sensation in the lower legs/ankles as well as the feet/toes, positive straight leg raising, and no muscle atrophy as well as only moderate lower extremity constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness; as opposed to, at least, "moderately severe" adverse symptomatology to include absent reflexes, muscle strength, and sensation. See Owens, supra. The Board also finds it significant that the August 2019 VA examiner opined that the Veteran did not have radiculopathy in either lower extremity with 2+ reflexes in the ankles and knees, 5/5 muscle strength in the feet/toes, normal sensation in the lower legs/ankles as well as the feet/toes, and negative straight leg raising. Id. Likewise, the Board finds it significant that the October 2019 Back DBQ opined that the Veteran's adverse symptomatology caused only "moderate" incomplete paralysis of the sciatic nerve and this opinion is supported by the following bilateral adverse symptomatology: 4+ reflexes in the ankles and the knees; 3/5 muscle strength in the hip, ankles, and knees and 4/5 in the feet and great toe; muscle atrophy; decreased sensation in the thigh/knee, lower legs/ankles as well as the feet/toes; decreased vibration and cold sensation; positive straight leg raising; severe lower extremity constant pain, intermittent pain, and dull pain, and numbness; and moderate paresthesias and/or dysesthesias; as opposed to, at least, "moderately severe" adverse symptomatology to include absent reflexes, muscle strength, and sensation. Id. Next, while not controlling, the Board finds it significant that based on the above findings the examiners opined that, at its' worst, the adverse symptomatology caused by his service-connected the right and left lower extremity radiculopathy did not amount to more than "moderate" incomplete paralysis of the sciatic nerve. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position). Lastly, the Board finds that nothing in the Veteran's treatment records show his adverse symptomatology to be worse than what was reported by the above examiners. See Colvin, supra. Additionally, the Board finds the above examiners opinions as to the severity of the Veteran's right and left lower extremity radiculopathy more probative than any lay claims from the appellant and his wife to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Therefore, while the term "moderately severe" incomplete paralysis of the sciatic nerve is not defined by regulation, the Board finds that it must equate to more significant adverse symptomatology than the mostly moderate symptomatology seen at the above examinations. See Owens, supra. This finding takes into consideration the Veteran's complaints. In fact, it is the Veteran's statements that are, in part, the basis of the 20 percent findings. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not meet the criteria for ratings in excess of 20 percent for his right and left lower extremity radiculopathy from July 12, 2018. See 38 C.F.R. § 4.124a; Fenderson, supra; Hart, supra. b. The Back Disability As noted above, the Veteran's back disability has been rated as 40 percent disabling effective from July 12, 2018, 20 percent disabling effective from August 1, 2020, and 40 percent disabling effective from July 12, 2018, all under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Therefore, the question before the Board is whether the Veteran's back disability meets the criteria for a rating in excess of 40 percent at any time from July 12, 2018. Initially, and as noted above, VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Moreover, the regulation does not provide for retroactive application. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. §?4.71a). Therefore, the Board finds that they are not applicable to the pre-February 7, 2021, time-period. Accordingly, the Board will apply the old rating criteria for the entire appeal period and the new rating criteria from its' effective date, and whatever criteria is more favorable to the Veteran will be applied. However, the Board cannot apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As to back disabilities, the only amendment pertinent to the Veteran's claim is a notation to Diagnostic Code 5243 stating that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Therefore, the Board finds that none of the amendments change how this Veteran's back disability is rated. See Owens, supra. i. Correia and Sharp Compliance Next, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back disorders, the Board has not overlooked the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in these cases because the August 2019 VA examiner provided, in substance, the range of motion of the back that considered his complaints of pain as well as with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See Owens, supra. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination is not required. See Sabonis, supra. ii. The Merits of the Back Rating Claim As to a rating in excess of 40 percent for the Veteran's back disability under the Formula for Rating Intervertebral Disc Syndrome at any time from July 12, 2018, 26, 2015, the Board notes that while the record documents the Veteran's complaints and treatment for his back disability, However, the Board finds that the record, including the September 2018 Back DBQ, August 2019 VA examination, and October 2019 Back DBQ, do not show he ever had a total of at least 6 weeks of incapacitating episodes during any 12-month period from July 12, 2018. See 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In reaching the above conclusion, the Board has not overlooked the fact that the October 2019 Back DBQ reported that the Veteran's back disability caused a need for bedrest. However, the October 2019 Back DBQ did not include a specific number of weeks of bed rest caused by the Veteran's back disability in any 12-month period during the pendency of the appeal. Similarly, neither the September 2018 Back DBQ, the August 2019 VA examiner, nor any of the Veteran's treatment records document his having, at least, a total of 6 weeks of incapacitating episodes during any 12-month period since July 12, 2018. See Colvin, supra. Moreover, Board finds that the Veteran as a lay person is not competent to provide this medical finding as to bedrest because he does not have the required training. See Davidson, supra. Consequently, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's service-connected back disability under the Formula for Rating Intervertebral Disc Syndrome due to incapacitating episodes at all times from July 12, 2018. See 38 C.F.R. § 4.71a; Owens, supra; Fenderson, supra; Hart, supra. As to a rating in excess of 40 percent for the back disability under the General Rating Formula for Disease and Injuries of the Spine at any time from July 12, 2018, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Chavis, Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering his competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 50 percent, rating due to "unfavorable" ankylosis of the entire thoracolumbar. See Owen, supra. The Board has reached this conclusion because the Veteran's treatment records as well as the September 2018 Back DBQ, August 2019 VA examination, and October 2019 Back DBQ, are negative for a diagnosis of ankylosis much less "unfavorable" ankylosis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, the September 2018 Back DBQ, August 2019 VA examination, and October 2019 Back DBQ specifically opined that the back was not ankylosed. Moreover, in reaching the above conclusion the Board has not overlooked the fact that the October 2019 Back DBQ reported that the Veteran's back had 0 degrees of pain free motion. However, both the earlier September 2018 Back DBQ and the August 2019 VA examiner both reported that the Veteran's back had some pain free motion. Likewise, while the Veteran's treatment records document his complaints and/or treatment for back problems they are likewise negative for a total loss in back motion due to pain or a diagnosis of "unfavorable" ankylosis of the entire thoracolumbar. The Board also finds that the Veteran is not competent to provide the missing diagnosis of "unfavorable" ankylosis of the entire thoracolumbar because this is a medical finding. See Davidson, supra. Given this regard, the Board finds that the October 2019 Back DBQ report's that the Veteran's back had 0 degrees of pain free motion has limited probative value because it is neither supported by the earlier September 2018 Back DBQ or the August 2019 VA examination nor the appellant's treatment records. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Therefore, the Board finds that the most probative evidence of record are the September 2018 Back DBQ, the August 2019 VA examination, and the appellant's treatment records that shows that the Veteran's back has some pain free range of motion. See Owens, supra. In this regard, the Board also finds it significant that the criteria for an increased rating specifically requires "unfavorable" ankylosis of the entire thoracolumbar spine and the record on appeal, including the September 2018 Back DBQ, the August 2019 VA examination, the October 2019 Back DBQ, and the appellant's treatment records are negative for a diagnosis of "unfavorable" ankylosis of the entire thoracolumbar or symptoms that equate to "unfavorable" ankylosis of the entire thoracolumbar despite the absence of all pain free range of motion reported by the October 2019 Back DBQ. Id. Accordingly, because ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure (see Lewis v. Derwinski, 3 Vet. App. 259 (1992)) and because the most probative evidence of record documents at least some back motion as well as because the record is negative for a diagnosis nor symptoms that equate to requires "unfavorable" ankylosis of the entire thoracolumbar spine, the Board finds that the Veteran does not meet the criteria for a rating in excess of 40 percent for his service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine at all times from July 12, 2018. See 38 C.F.R. § 4.71a; Owens, supra; Fenderson, supra; Hart, supra. Conclusion In reaching the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence of record is against the claims to the extent outlined above (i.e., the evidence for and again the claim is not approximately in balance), the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Lynch, supra. REASONS FOR REMAND Entitlement to a TDIU is remanded. As noted above, the record raises a claim for a TDIU. See Rice, supra. Moreover, the Board notes that that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) because his service-connected back disability and right and left lower extremity radiculopathy count as a single 60 percent disability because they have a common etiology. See 38 C.F.R. § 4.16(a)(2); Also see 38 C.F.R. § 4.25, Table I-Combined Rating Table. However, the Board finds that the existing record, including the September 2018 Back DBQ, August 2019 VA examination, October 2019 Back DBQ, and Dr. Steven W. Etheron's December 2020 letter, are not adequate to adjudicate the claim. See Owens, supra; Guerrieri, supra. In this regard, the Board finds that Dr. Etheron's December 2020 letter standing alone is not adequate to adjudicate the TDIU claim because, while Dr. Etheron stated that he had a consultation with the Veteran in December 2020, the results from that consultation were not made part of his December 2020 letter. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Likewise, the Board finds that the existing record is not adequate to adjudicate the TDIU claim because, while the United States Court of Appeals for the Federal Circuit in Jandreau, supra, held that in evaluating the evidence the Board is charged with the duty to assess the credibility and weight given to evidence, from the existing record it cannot reconcile the minimal employment handicap the September 2018 Back DBQ and the August 2019 VA examiner opined that they would cause with employment (i.e., "[d]ue to the flareups and severity of this condition, sedentary occupation is recommended" and "back pain, stiffness, limited range of motion, difficulty with heavy lifting, bending, prolonged walking or climbing stairs") with the subsequent December 20202 opinion by Dr. Etheron (i.e., "...being unable to maintain substantial gainful employment as a result of his service-connected [back disability and radiculopathy]..."). Therefore, the Board finds that a Remand is required to provide the Veteran with a new VA examination to obtain needed medical opinion evidence as to the impairment the Veteran's service connected back disability and bilateral leg radiculopathy cause with sedentary and non-sedentary employment. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 4.16(a); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006); Also see Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Also while this issue is in Remand status, any other outstanding VA and private treatment records should be obtained and associate with the record. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit any new and pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination with a suitably qualified medical professional to obtain a medical opinion as to the severity of his service-connected back disorder as well as his right and left lower radiculopathy. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all back as well as right and left lower radiculopathy pathology. (b) The examiner should thereafter provide a medical opinion as to the functional impact the Veteran's back disability as well as his right and left lower radiculopathy have, individually and collectively, on the activities required (i.e., activities such as lifting, standing, sitting, driving, etc...) for both sedentary and non-sedentary employment. In providing the opinion the examiner should consider the Veteran's and his wife's competent lay claims regarding observable symptomatology. In providing the opinion the examiner should consider and discuss, among other things, Dr. Etheron's December 2020 letter and the opinion regarding the Veteran's employability. In providing the opinion the examiner should articulate the reasoning underpinning all conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Werner, Neil T. 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.