Citation Nr: A24051663
Decision Date: 09/03/24	Archive Date: 09/03/24

DOCKET NO. 240102-404364
DATE: September 3, 2024

ORDER

Entitlement to an initial rating in excess of 30 percent and an effective date earlier than May 5, 2000, for degenerative arthritis and intervertebral disc syndrome of the cervical spine status post spinal fusion is denied.

Entitlement to an initial rating of 40 percent, but no higher, from May 5, 2000, but no earlier, for intervertebral disc syndrome of the lumbar spine is granted, subject to the laws and regulations governing payment of monetary benefits.

Entitlement to an effective date of May 5, 2000, but no earlier, for bilateral upper extremity radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits.

Entitlement to an initial rating of 40 percent, but no higher, from May 5, 2000, but no earlier, for left lower extremity radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits. 

Entitlement to an initial rating of 20 percent, but no higher, from May 5, 2000, but no earlier, until November 13, 2015, for degenerative changes of the left knee with dislocated semilunar cartilage is granted, subject to the laws and regulations governing the payment of monetary benefits. 

Entitlement to an initial rating of 40 percent, but no higher, from May 5, 2000, but no earlier, until November 13, 2015, for degenerative changes of the left knee with limitation of extension is granted, subject to the laws and regulations governing the payment of monetary benefits. 

Entitlement to a rating in excess of 60 percent from March 1, 2016, for left knee total arthroplasty is denied.

REMANDED

Entitlement to initial ratings in excess of 20 percent for bilateral upper extremity radiculopathy is remanded. 

FINDINGS OF FACT

1. Prior to the receipt of his formal claim on May 5, 2000, the Veteran did not file a formal or informal claim for service connection for degenerative arthritis and intervertebral disc syndrome of the cervical spine status post spinal fusion, to include associated bilateral upper extremity radiculopathy, intervertebral disc syndrome of the lumbar spine, left lower extremity radiculopathy, and degenerative changes of the left knee, which includes the ratings assigned to such disabilities. 

2. As of May 5, 2000, the Veteran's cervical spine disability manifested with associated bilateral upper extremity radiculopathy. 

3. For the entire period on appeal, the Veteran's degenerative arthritis and intervertebral disc syndrome of the cervical spine status post spinal fusion was not manifested by severe IVDS, IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months, or unfavorable ankylosis.

4. For the entire period on appeal, the Veteran's intervertebral disc syndrome of the lumbar spine manifested by severe IVDS, with recurring attacks and intermittent relief, but without more severe manifestations that more nearly approximate pronounced IVDS with little intermittent relief, IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine.

5. For the entire period on appeal, the Veteran's left lower extremity radiculopathy manifested by moderately severe incomplete paralysis of the sciatic nerve, without more severe manifestations more nearly approximating severe incomplete paralysis of the sciatic nerve with marked muscle atrophy or complete paralysis of the sciatic nerve. 

6. From May 5, 2000, to November 13, 2015, the Veteran's degenerative changes of the left knee manifested by limitation of extension to 30 degrees and dislocated semilunar cartilage with frequent episodes of pain and joint effusion, without additional or more severe manifestations that more nearly approximate limitation of extension to 45 degrees, limitation of flexion to 45 degrees, ankylosis, or recurrent subluxation or lateral instability. 

7. From March 1, 2016, the Veteran already has the highest rating available under diagnostic code 5055 for left knee total arthroplasty, and his left knee disability is not so exceptional or unusual as to warrant the award of an extraschedular rating. 

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent and an effective date earlier than May 5, 2000, for degenerative arthritis and intervertebral disc syndrome of the cervical spine status post spinal fusion have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7; 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2000). 

2. The criteria for an effective date of May 5, 2000, but no earlier, for bilateral upper extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 

3. The criteria for an initial rating of 40 percent, but no higher, from May 5, 2000, but no earlier, for intervertebral disc syndrome of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7; § 4.71a, Diagnostic Code 5293 (2000). 

4. The criteria for an initial rating of 40 percent, but no higher, from May 5, 2000, but no earlier, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 

5. The criteria for an initial rating of 20 percent, but no higher, from May 5, 2000, but no earlier, until November 13, 2015, for degenerative changes of the left knee with dislocated semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7; 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2000). 

6. The criteria for an initial rating of 40 percent, but no higher, from May 5, 2000, but no earlier, until November 13, 2015, for degenerative changes of the left knee with limitation of extension have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7; 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2000). 

7. The criteria for a rating in excess of 60 percent from March 1, 2016, for left knee total arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7; 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2000). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1962 to November 1962. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2023 by a Department of Veterans Affairs (VA) Regional Office. In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran testified at a Board hearing in March 2024, a transcript of which is associated with the record. 

Therefore, the Board may only consider the evidence of record at the time of the November 2023 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Earlier Effective Dates

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. For an award of service connection, the effective date is 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(b)(2)(i). The date entitlement arose is the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. 38 C.F.R. § 3.400.

Prior to March 24, 2015, any communication indicating intent to apply for one or more benefits under the laws administered by VA was considered an informal claim. Such informal claim must identify the benefit sought. While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In this regard, a claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). The mere presence of medical evidence or medical treatment, without an attempt to identify that a Veteran is seeking a benefit, cannot be construed as a claim. Brannon at 35. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit-of-the-doubt rule applies when the evidence is in approximate balance or nearly equal. Lynch v. McDonough, 21 F.4th 776 (2021).

1. Entitlement to an earlier effective date for service connection for degenerative arthritis and intervertebral disc syndrome of the cervical spine status post fusion.

2. Entitlement to an earlier effective date for service connection for intervertebral disc syndrome of the lumbar spine.

3. Entitlement to an earlier effective date for left lower extremity radiculopathy.

4. Entitlement to an earlier effective date for degenerative changes of the left knee. 

The Veteran contends entitlement to an earlier effective date for the awards of service connection for degenerative arthritis and intervertebral disc syndrome of the cervical spine, intervertebral disc syndrome of the lumbar spine, left lower extremity radiculopathy, and degenerative changes of the left knee. 

The record reflects the Veteran submitted a VA Form 21-526 Application for Compensation or Pension on May 5, 2000. The record does not reflect the Veteran communicated with the VA, verbally or in writing, prior to May 5, 2000, at all, let alone regarding any benefits sought. Neither the Veteran nor his representative aver that a formal or informal claim was submitted to VA prior to May 5, 2000, nor have they identified any other legal arguments to support their position. 

The Board finds the Veteran first submitted a claim for service connection for degenerative arthritis and intervertebral disc syndrome of the cervical spine, intervertebral disc syndrome of the lumbar spine, left lower extremity radiculopathy, and degenerative changes of the left knee on May 5, 2000, the date of the claims. Therefore, an earlier effective date is not warranted for said claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Lynch, 21 F.4th at 776.

5. Entitlement to an effective date prior to November 5, 2020, for bilateral upper extremity radiculopathy.

The Veteran contends entitlement to an effective date prior to November 5, 2020, for bilateral upper extremity radiculopathy. Service connection for the Veteran's bilateral upper extremity radiculopathy was awarded pursuant to the notes regarding neurological manifestations in the criteria for rating the Veteran's cervical spine disability, discussed below. The Board is cognizant that Note (1) did not exist in the code as of May 5, 2000, but finds that this does not affect the Board's consideration of the scope of claim when considering the evidence and procedural history of this appeal and the Board's duty to maximize benefits throughout the appeal period based on the disability picture. As such claims for service connection are part and parcel of his claim for service connection for his cervical spine disorder, the period on appeal starts on May 5, 2000, the date his claim for service connection for his cervical spine disorder was received by VA. 

The question then becomes, when did the Veteran's bilateral upper extremity radiculopathy associated with his cervical spine disorder first manifest during the period on appeal. As discussed in further detail below, the Veteran was experiencing numbness in his arms and hands in February 2000 even after undergoing cervical spine surgery. In July 2000, the Veteran's co-worker submitted a statement explaining that the Veteran had trouble with his neck and arms for 10 to 15 years. In September 2002, the Veteran's treating physical medicine and rehabilitation specialist submitted a statement that he had a history of a left C8 radiculopathy. A December 2013 VA examiner indicated there was mild bilateral upper extremity radiculopathy affecting the upper, middle, and lower radicular groups (involvement of the C5-T1 nerve roots). The Veteran testified in March 2024, that he stopped working, in part, due to his upper extremity radicular symptoms which were still present in 2000.

The Board finds the Veteran's bilateral upper extremity radiculopathy was manifest as of the date of the claim, May 5, 2000. Consequently, an effective date of May 5, 2000, but no earlier, is warranted for bilateral upper extremity radiculopathy. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Lynch, 21 F.4th at 776.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in the light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. 

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. See also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, Lynch, supra.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

The basis of a disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 

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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 

Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The words "slight," "mild," "moderate," "severe," and "pronounced" as used in the various Diagnostic Codes discussed below are not defined in the Rating Schedule. The Board takes judicial notice of the following definitions: "Slight" means small in amount. "Mild" means not strong in action or effect. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. "Pronounced" means strongly marked or decided. Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary. Accessed July 31, 2024. 

6. Entitlement to an initial rating in excess of 30 percent for degenerative arthritis and intervertebral disc syndrome of the cervical spine status post spinal fusion. 

7. Entitlement to an initial rating in excess of 20 percent for intervertebral disc syndrome of the lumbar spine.

The Veteran contends entitlement to an initial rating in excess of 30 percent for degenerative arthritis and intervertebral disc syndrome of the cervical spine status post spinal fusion (cervical spine disability) and in excess of 20 percent for intervertebral disc syndrome of the lumbar spine (lumbar spine disability). The period on appeal starts on May 5, 2000, the date service connection was awarded for both disabilities. 

For the entire period, the Veteran's cervical spine disability is rated as 30 percent disabling and his lumbar spine disability is rated as 20 percent disabling. The AOJ rated such under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). However, the General Rating Formula only came into effect on September 26, 2003, when the rating criteria for evaluating disabilities of the spine was amended. 68 Fed. Reg. 51456 (Aug. 27, 2003). The rating criteria in effect at the beginning of the period on appeal was also amended effective September 23, 2002, (67 Fed. Reg. 54345 (Aug. 22, 2002)), and it was amended again effective February 7, 2021 (83 Fed. Reg. 230 (Nov. 30, 2020)). 

The rating criteria that was not in effect until well after May 5, 2000, cannot be used to rate the Veteran's cervical and lumbar spine disabilities as of May 5, 2000. The newer or amended criteria cannot be used to rate a period prior to their respective effective dates, but if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3- 2000. See also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. 

Rating Criteria Effective May 5, 2000

Under the rating criteria in effect on May 5, 2000, DC 5286 allows for a 100 percent rating for complete bony fixation (ankylosis) of the spine of unfavorable angle, with marked deformity regardless of other joint involvement (Marie-Strumpell or Bechterew type). A 60 percent rating is warranted for complete bony fixation (ankylosis) of the spine of favorable angle. Under DC 5287, unfavorable ankylosis of the cervical spine warrants a 40 percent rating, while favorable ankylosis of the cervical spine warrants a 30 percent rating. Under DC 5288, unfavorable ankylosis of the lumbar spine warrants a 50 percent rating, while favorable ankylosis of the lumbar spine warrants a 40 percent rating. 38 C.F.R. § 4.71a, DCs 5286, 5287, 5288 (2000).

Under DC 5290, severe limitation of motion of the cervical spine warrants a 30 percent rating, moderate limitation of motion warrants a 20 percent rating, and slight limitation of motion warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5290 (2000). Under DC 5292, severe limitation of the lumbar spine warrants a 40 percent rating, moderate limitation of motion warrants a 20 percent rating, and slight limitation of motion warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5292 (2000).

Under DC 5293 intervertebral disc syndrome (IVDS) which is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to the side of the diseased disc with little intermittent relief warrants a 60 percent rating. IVDS which is severe with recurring attacks with intermittent relief warrants a 40 percent rating. IVDS which is moderate with recurring attacks warrants a 20 percent rating. IVDS which is mild warrants a 10 percent rating. Postoperative, cured intervertebral disc syndrome warrants a zero percent or noncompensable rating. 38 C.F.R. § 4.71a, DC 5293 (2000).

To warrant an initial rating in excess of 30 percent for cervical spine disability for this period on appeal, the evidence must show either 1) IVDS which is at least severe with recurring attacks with intermittent relief, or 2) unfavorable ankylosis of the cervical spine. 

To warrant an initial rating in excess of 20 percent for lumbar spine disability for this period on appeal, the evidence must show either: 1) IVDS which is at least severe with recurring attacks with intermittent relief; 2) severe limitation of motion of the lumbar spine; or 3) ankylosis of the lumbar spine which is at least favorable. 

In February 2000, an examination showed there was no kyphoscoliosis of the Veteran's spine. At that appointment, it was noted that the Veteran complained of continued numbness in his arms and hands, even after neck surgery and that he had some problems with walking and his right leg slipping out. In May 2000, the Veteran followed up for his neck and upper and lower extremity symptoms with spondylosis of the cervical spine and probable generalized osteoarthritis with the surgeon who performed his neck surgery. The Veteran complained of stiffness and pain. He said he was comfortable with his current chronic and stable symptoms. The surgeon noted he was no longer using a cane and had been issued a parking permit for his disability. 

In September 2002, the Veteran's treating physical medicine and rehabilitation provider stated that the Veteran was on permanent restrictions effective October 1996 for cervical and lumbar spondylosis but did not further elaborate as to what the restrictions were. 

In July 2000, a coworker that had known the Veteran for over 30 years and worked with him for 27 years submitted a statement. He said the Veteran had problems with his back and legs most of the years they worked together and had trouble with his neck and arms for the past 10 to 15 years. He said the Veteran was in pain most of the time, having trouble walking, and at times was falling because of weakness in his legs. 

Upon review, the Board finds the that from May 5, 2000, the Veteran's cervical spine disability was not manifested by severe IVDS or unfavorable ankylosis. The record does show some neurological symptoms related to the Veteran's cervical spine disability, but it does not reflect recurring attacks with intermittent relief at the beginning of the period on appeal. Rather, it shows the Veteran's cervical spine symptomatology was relatively stable, which is not indicative of recurring attacks. The record also does not reflect any ankylosis of the Veteran's cervical spine at the beginning of the period on appeal. Consequently, an initial rating in excess of 30 percent for cervical spine disability is not warranted at the beginning of the period on appeal.

The Board also finds that from May 5, 2000, the Veteran's lumbar spine disability was manifested by severe IVDS, with recurring attacks and intermittent relief, but without more severe manifestations that more nearly approximate pronounced IVDS with little intermittent relief, or unfavorable ankylosis of the lumbar spine. The record reflects that at the beginning of the period on appeal, the Veteran was experiencing lower extremity weakness or symptoms compatible with sciatic neuropathy, which was recurring with intermittent relief. The Veteran's lower extremity weakness was causing falls, but he was not using a cane or pursuing further treatment with his surgeon, either of which could be indicative of little intermittent relief. Consequently, an initial rating of 40 percent, but no higher, from May 5, 2000, is warranted. 

As noted above, the pertinent rating criteria were also amended September 23, 2002. The Board has carefully review this but finds no basis for increased ratings based on this criteria. 

Rating Criteria Effective September 26, 2003

On September 26, 2003, the rating criteria for the spine underwent a major amendment. DCs 5235 to 5242 for vertebral fracture or dislocation, sacroiliac injury and weakness, lumbosacral or cervical strain, spinal stenosis, spondylolisthesis or segmental instability, ankylosing spondylitis, spinal fusion, and degenerative arthritis of the spine are to be evaluated under the General Rating Formula for Disease and Injuries of the Spine, unless DC 5243 is evaluated under the Formula for Rating IVDS. The General Rating Formula includes those disabilities with or without symptoms such as pain (whether it radiates or not), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, The Spine. 

Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. 

Disability of the thoracolumbar and cervical spine segments should be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. at Note 6. 

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note 2. 

IVDS (preoperatively or postoperatively) is to be evaluated under the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), using whichever method results in the higher evaluation. Id. at The Spine. IVDS (preoperatively or postoperatively) is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under §?4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrants a 40 percent rating. IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants a 20 percent rating. IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5293. 

For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 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 incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 5243, Notes 1 and 2. 

As noted above, as of February 7, 2021, the rating criteria for the musculoskeletal system was amended again. DC 5242 was assigned for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome, rather than degenerative arthritis of the spine as was listed under DC 5242 previously. However, the substantive rating criteria for The Spine did not change. The General Rating Formula and IVDS Formula remained in effect as discussed above through the date of the rating decision on appeal. 

To warrant a rating in excess of 30 percent under the criteria the Veteran's cervical spine is originally rated under in May 2000, the evidence must show either 1) IVDS which is at least severe with recurring attacks with intermittent relief; or 2) unfavorable ankylosis of the cervical spine.

To warrant a rating in excess of 30 percent for cervical spine disability under the criteria effective September 26, 2003, the evidence must show either: 1) IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; or 2) unfavorable ankylosis of the entire cervical spine. 

To warrant a rating in excess of 40 percent under the criteria the Veteran's lumbar spine is originally rated under in May 2000, the evidence must show either: 1) pronounced IVDS with little intermittent relief, or 2) unfavorable ankylosis of the lumbar spine. 

To warrant a rating in excess of 40 percent for lumbar spine disability under the criteria effective September 26, 2003, the evidence must show either: 1) IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months; or 2) unfavorable ankylosis of the entire thoracolumbar spine.

As noted above, the Board shall apply the rating criteria that is most beneficial to the Veteran for the period from September 26, 2003. 38 U.S.C. § 5110(g); VAOPGCPREC 3- 2000; Kuzma, supra; VAOPGCPREC 7-2003.

In September 2008, a magnetic resonance image (MRI) of the Veteran's lumbar spine was ordered due to bilateral lower extremity weakness. In April 2011, the Veteran's orthopedist thought that a lot of his hip, radiating leg pain, and left knee pain was secondary to his probable lumbar nerve root compression syndrome. 

In July 2012, the Veteran testified that moving around and getting through his day was bad and his falls were from weakness in his legs. He said his legs would quit working and he would fall if he was not thinking about his walking. He reported a cane and had trouble getting off the couch sometimes. He said sitting was painful and he had dreaded driving to the hearing. He stated his neck was terrible and he had to twist his whole body around when driving the car to see. He said his hands were still going numb. He explained his neck hurt terribly and it was hard to even hold his head up. 

The September 2008 and April 2011 medical records and July 2012 testimony of the Veteran do not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. This evidence does show cervical neurological symptomatology, which is addressed in the ratings of the Veteran's bilateral upper extremity radiculopathy, but it does not show recurring attacks of these symptoms with little intermittent relief. This evidence does not show that was any bedrest prescribed by a physician. The Veteran's testimony that he essentially cannot turn his neck to drive would at best, support a finding of favorable ankylosis or severe limitation of motion, but not a finding of unfavorable ankylosis. It is reflective of at most moderate IVDS with recurring attacks under the rating criteria in effect in May 2000, which would not warrant an increased or staged rating. This evidence does not show a factual worsening of the Veteran's cervical spine disability since the beginning of the period on appeal and the assignment of the initial rating to warrant an increased or staged rating. Rather the evidence shows the Veteran's cervical symptomatology was essentially stable or consistent when compared to the evidence from the earlier period on appeal.

The September 2008 and April 2011 medical records and July 2012 testimony of the Veteran also do not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. The Veteran's lower extremity symptomatology is addressed in the ratings for bilateral lower extremity radiculopathy. Such symptomatology does not reflect a factual worsening of the Veteran's lumbar spine symptomatology, separate from his bilateral leg disability. The symptomatology described in this evidence is essentially the same symptomatology he had been experiencing since he stopped working and this disability was initially rated. This evidence does not show a factual worsening of the Veteran's lumbar spine disability after assignment of the initial rating at the beginning of the period on appeal to warrant an increased or staged rating. 

In September 2012, the Veteran underwent a private independent medical examination. He reported headaches, cervical pain with burning pins and needles in both upper extremities, thoracolumbar pain with aching and pins and needles in both lower extremities, burning in his bilateral knees, and symptoms in his feet. He said he retired due to his legs giving out and leg weakness. The Veteran reported that his pain was present constantly in his cervical, thoracic and lumbar spine which tended to be moderate to severe. The private examiner stated that pain symptoms tended to restrict some activities of daily living due to the symptomatology. The Veteran said his cervical, thoracic, and lumbar pain ranged from a two to an eight on a pain scale to ten. He reported using over the counter and prescription medications daily to manage his symptomatology.

On examination, a pain restricted gait of the left lower extremity and compensatory of the right lower extremity was noted, along with the use of a self-prescribed cane. Positive orthopedic tests for the cervical spine showed foraminal compression bilaterally. There was cervical spine tenderness with hypertonicity or spasm of the muscles. Orthopedic tests for the lumbosacral spine revealed Laseque's at 50 degrees bilaterally. Straight leg raise test was positive at 60 degrees bilaterally. Goldthwaite's was positive bilaterally and Bechterew's was positive at 70 degrees bilaterally. There was lumbothoracic spine tenderness with hypertonicity or spasm of the muscles and tenderness upon deep palpation of the bilateral sacroiliac notch. 

His lumbar flexion was 50 degrees, extension was 20 degrees, left lateral flexion was 20 degrees, and right lateral flexion was 20 degrees. His cervical flexion was 55 degrees, extension 15 degrees, left lateral flexion 20 degrees, right lateral flexion 25 degrees, left rotation 25 degrees, and right rotation 25 degrees. There was decreased sensation in the left lower extremity. Bilateral upper extremity sensation was normal. There was slightly reduced muscle strength in the bilateral triceps and wrist flexors, otherwise all other tested muscle strengths in the bilateral upper extremities were normal. There was slightly decreased muscle strength in the left hip extensor, knee extensor, and foot inversion, otherwise, all other tested muscle strengths in the bilateral lower extremities were normal. The Veteran's left thigh measured 2 centimeters less than his right, though the private examiner did not state that this reflected a muscle atrophy. 

The private examiner stated the Veteran experienced moderate restrictions in self-care/personal hygiene, communications, and travel, and severe restrictions in physical activity, sensory function, and sleep, without any additional information as to what those restrictions were or which disability caused them. The private examiner's opinion regarding the rating of the Veteran's cervical and lumbar spine disorders is unclear: "Regardless of the cervical spine being claimed, the claimant was rated with 5243 for IVD syndrome and due to the incapacity of at least 4 weeks and duration, less than 6 weeks in the past 12 months, he would note 40% whole person impairment for the thoracolumbar spine, due to the fact that the claimant has a herniated nucleus pulposus protrusion variety at L5-S1." They offered no other specific opinion regarding the rating of these disabilities.

The private examiner cited no evidence that showed incapacitating episodes requiring bedrest prescribed by a physician and treatment by a physician. The record also does not show any evidence of such prior to the private examiner's report. The Board cannot afford the private examiner's opinion in this regard significant probative weight as such is based on a factual inaccuracy; there is no evidence to support that the Veteran required any physician prescribed bedrest from September 2003 until the September 2012 independent medical examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

The September 2012 private examination does not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. The Veteran reported that his symptoms were constant, which does not indicate recurring attacks, and there clearly was not any unfavorable ankylosis of the cervical spine noted by the examiner. While there was evidence of muscle spasm relevant to cervical IVDS, the Veteran's description of his pain and symptomatology is relatively unchanged from the prior evidence of record. This evidence does not reflect a factual worsening of the Veteran's cervical spine symptomatology to warrant an increased or staged rating. 

The September 2012 private examination does not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. Again, the Veteran reported his symptoms were constant and essentially, his overall reported symptomatology is relatively unchanged from the prior evidence of record. This evidence does not reflect a factual worsening of the Veteran's lumbar spine symptomatology to warrant an increased or a staged rating. 

In October 2012, the Veteran was prescribed a back brace for low back pain. In July 2013, the Veteran underwent an initial consultation with a non-VA orthopedist for right hip pain, left knee pain, and low back pain which he described as going down the side of his hip to his leg. He said it was the worst pain he had ever felt, even when sitting. He was ambulating with a cane and his straight leg raise test was positive. The physician diagnosed end stage osteoarthritis of the left knee and lumbar degenerative disc disease with spondylosis and radiculopathy. Immediate treatment focused on his left knee, which will be discussed further below. 

He followed up with the non-VA orthopedist again a few weeks later and complained of lumbar pain down his left leg. His straight leg raise test was positive and he experienced shooting pain with forward bending. He was given injections of prescription medication for arthritis and pain into his right buttock and referred to physical therapy. In July 2013, the Veteran underwent an initial physical therapy evaluation. He reported back pain since the 1970s and that he had always been weak. He said he had sharp pain at his low back running down his right leg to his foot. He said anything caused pain and that he could only walk for short distances. He described right sided low back pain at eight of ten on a pain scale to ten. He said the pain would wake him up at night. He said he had talked to his primary care provider about bladder leakage and that he also had some loss of bowel control. 

On examination, he had rounded shoulder posture and tightness and pain on palpation of the bilateral piriformis. His trunk flexion was described as 30 percent, trunk extension as 5 percent, right rotation as 35 percent, left rotation as 15 percent, right side bending as 15 percent and left side bending as 10 percent. His sensation to the bilateral L3-S1 dermatomes was intact to light touch. His bilateral hip flexion, knee extension, and dorsiflexion plantar flexion strengths were slightly reduced. Straight leg raise testing caused increased pain at the right leg but was negative at the left leg. 

Still in July 2013, the Veteran was assessed by a rehabilitation provider for low back pain. He reported a several year history of low back and lower extremity pain. He said around May 2013 he had a flare up in his lumbar symptoms and had remained symptomatic. The Veteran said he had pain in his right lower lumbar region and right buttock radiating to his right hip and right thigh, occasionally extending to the calf. He reported numbness of the right leg and weakness of the bilateral lower extremities, with generalized muscle weakness since he was a child. He said he had used a cane since 2012. He reported pain at eight out of a pain scale to ten, exacerbated by lying down, standing, and walking. The Veteran's prescription list included an anti-inflammatory, muscle relaxer, and a nerve pain medication. He also reported neck pain and his history of neck surgery. 

On examination, the Veteran's gait was antalgic on the right. There was no limitation of motion of the bilateral upper extremities, with normal strength and tone, with no atrophy. There was pain with extension of the left knee, and slightly reduced strength of the left quadriceps, left anterior tibialis, and left gastrocnemius. There was slightly reduced strength of the right gastrocnemius. There was tenderness of the right lower lumbar region. Lumbar flexion was limited to 70 degrees with pain. Straight leg raise was positive on the right while sitting and negative on the left. Deep tendon reflexes were abnormal in the bilateral upper and lower extremities, worse in the lower. Overall sensation to light touch was intact. 

An MRI of the Veteran's lumbar spine was reviewed. The doctor diagnosed lumbosacral spondylosis, lumbar disc displacement, lumbar and sacroiliac disc degeneration, low back pain, and lumbosacral/thoracic neuritis/radiculitis. The Veteran received a lumbar epidural spine injection. The Veteran followed up about a month later and reported that the injection reduced his symptoms 70-80 percent for two weeks, but that his pain returned to its prior intensity. He reported his pain ranged between a seven to ten out of a pain scale to ten. He received another lumbar epidural steroid injection. 

The Veteran followed up with the rehabilitation provider again in September 2013. The diagnosis was lumbosacral spondylosis and lumbar degenerative disc. The Veteran reported 2 weeks of excellent relief from his prior injection and a reoccurrence of pain. He received another lumbar epidural steroid injection. 

The Veteran followed up in October 2013 with the orthopedist who noted he was without much improvement. He reported that his second spine injection did not help at all. He was requesting a referral to a spine surgeon, which was done. His straight leg raise test was positive and he had pain with forward bend. He was able to reach his midthigh.

The Veteran was also treating with a non-VA chiropractor at this time. At his first visit in October 2013, he reported right leg pain and low back pain, acute for the last six months. Upon examination, there was L4 and L5 joint inflammation, right sciatic nerve inflammation, and some weakness in the hip muscles. The chiropractor stated that their plan was to remove pressure from the right sided nerve roots to reduce his pain, but that based on the amount of degeneration, his pain will likely continue to cause him some problems in the future. 

In November 2013, the Veteran followed up at his primary care provider's office with a new doctor. He said he felt over medicated and wanted to get off some medications. He reported chronic pain due to a history of spinal stenosis and said he did not want to take chronic pain medication. He said he had been told by a surgeon that he was very risky to operate on. The nerve pain medication, anti-inflammatory, and muscle relaxer prescriptions were no longer on his current medication list. He was prescribed a narcotic pain medication for his pain. 

The medical treatment records from October 2012 to November 2013 do not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. The Veteran did not discuss his cervical spine symptomatology with his providers during this time period and this evidence does not show a factual worsening of the Veteran's cervical spine disability to warrant an increased or staged rating. 

The medical treatment records from October 2012 to November 2013 do not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. While the records state that the Veteran was experiencing a flare up in his lumbar spine symptomatology, the Veteran's reports of his pain levels and other symptomatology are relatively unchanged from prior to this period. His examination findings also remained relatively unchanged from those during the prior period. His reported ability to function also remained relatively unchanged from the prior period. This evidence does not show a factual worsening of the Veteran's lumbar spine disability to warrant an increased or staged rating. 

In December 2013, the Veteran underwent VA examinations of his cervical and lumbar spine. Starting with the cervical spine examination, the VA examiner diagnosed degenerative disc disease and severe neural foraminal stenosis status post cervical laminectomy and fusion. The Veteran reported experiencing in progressive increasing pain and loss of function of the cervical spine with the development of bilateral radicular upper extremity pain with associated referred occipital pain. He denied any acute change in bowel or bladder function and his 1995 cervical spine surgery was noted. He reported mild to severe pain, constant, with aching, throbbing, burning, dull, grinding, sharp, and sore pain. 

The Veteran reported flare ups in his cervical spine as a consequence of walking more than 100 feet, standing more than 15 minutes, lifting more than seven to ten pounds at a time, sitting more than 10 to 15 minutes, and driving. He said he avoided reaching, stairs, inclines, and declines. He said he was unable to do repetitive bending of the spine, pushing, pulling, ladders, foot and hand controls, and work overhead. The Veteran said he could not change a light bulb because of neck pain when looking up. He said that his flare ups occurred daily secondary to activities of daily living, lasting for 15 minutes to 24 hours. The Veteran reported a 30 to 40 percent loss of normal function during flare ups. He said his pain was partially relieved by ceasing aggravating activity, ice, self-imposed rest, and non-steroidal anti-inflammatory and narcotic and non-narcotic analgesic non-narcotic pain medications. 

On examination, his cervical spine flexion was 35 degrees with painful motion at 35 degrees, extension was 10 degrees with pain at 10 degrees, right lateral flexion was 10 degrees with pain at 10 degrees, left lateral flexion was 25 degrees with pain at 25 degrees, right lateral rotation was 20 degrees with pain at 20 degrees, and left lateral rotation was 20 degrees with pain at 20 degrees. 

The Veteran was able to perform repetitive-use testing with three repetitions. There was no change in his post-testing range of motion or no additional limitation in the range of motion of his cervical spine following repetitive-use testing. The contributing factors to his functional loss, functional impairment, and/or additional limitation of range of motion after repetitive use were less movement than normal, weakened movement, excess fatiguability, incoordination and impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weightbearing, and lack of endurance. 

The Veteran had localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. He did not have muscle spasms, but he did have guarding that did not result in abnormal gait or abnormal spinal contour. His strength was slightly reduced in his bilateral upper extremities, and there was no muscle atrophy. His deep tendon reflexes were absent bilaterally. His bilateral upper extremity sensation was normal to light touch. The Veteran had radicular pain or other signs or symptoms due to radiculopathy which will be discussed further below. There was no ankylosis of the spine, nor any other neurological abnormalities related to a cervical spine condition. The VA examiner stated the Veteran did not have IVDS of the cervical spine and that he did not use an assistive device. They also noted there was documented arthritis on imaging studies of the Veteran's cervical spine. As to the impact on the Veteran's ability to work, the VA examiner restated the Veteran's activity tolerances as reported to cause flare ups. 

As to the thoracolumbar spine, the VA examiner diagnosed degenerative disc disease of the thoracic and lumbar spine, degenerative joint disease of the thoracic spine, diffuse idiopathic skeletal hyperostosis of the thoracic and lumbar spine, intervertebral disc syndrome of the thoracic and lumbar spine, and neuroforaminal stenosis with severe root compression of the lumbar spine. The Veteran reported experiencing increasing back pain, radicular right lower extremity pain, and loss of function. The VA examiner noted he had been treated non-operatively with steroid injection. The Veteran reported moderate to severe pain, continuous, with aching, throbbing, burning, dull, sharp, and sore pain. Use of prescription narcotic use history for chronic benign pain was noted. The VA examiner also noted the Veteran required assistance for dressing. 

The Veteran reported flare ups of his thoracolumbar spine pain as a result of walking, standing, lifting more than seven to ten pounds at a time, sitting, and driving/riding. He said he was unable to squat/kneel, repetitively bend the spine, push/pull, and use ladders. He said he avoided working overhead and stairs/inclines/declines. He said he could not change a light bulb. The Veteran reported a loss of 90 to 100 percent of his normal function during a flare up and that they occurred daily secondary to activities of daily living. He said his flare ups were continuous. He stated that his pain was partially relieved by ceasing aggravating activity, ice, self-imposed bedrest or use of a recliner with knee elevated, nonsteroidal anti-inflammatory medications and both analgesic non-narcotic and narcotic mediation. 

The Veteran lumbar flexion was 35 degrees with pain at 35 degrees, extension was 15 degrees with pain at 15 degrees, right lateral flexion was 10 degrees with pain at 10 degrees, left lateral flexion was 10 degrees with pain at 10 degrees, right lateral rotation was 25 degrees with pain at 25 degrees, and left lateral rotation was 25 degrees with pain at 25 degrees. 

The Veteran completed repetitive-use testing with three repetitions. There was no change to his range of motion testing and no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The factors that contributed to functional loss, functional impairment, and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use were less movement than normal, weakened movement, excess fatiguability, incoordination and impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weightbearing, lack of endurance, and right leg pain. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine at L3-S1. There was no muscle spasm, but there was guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. 

The Veteran's bilateral lower extremity strength testing was abnormal, but there was no muscle atrophy. Deep tendon reflexes were absent bilaterally. The Veteran's sensation to light touch was normal in his bilateral lower extremities. Straight leg raise testing was positive on the right and negative on the left. The Veteran did have radicular pain or other signs or symptoms due to radiculopathy, which are discussed further below. 

The VA examiner stated there was favorable ankylosis of the entire thoracolumbar spine. There was IVDS of the thoracolumbar spine, and the VA examiner stated there had been incapacitating episodes having a total duration of at least six weeks during the past 12 months. The VA examiner said the Veteran used a brace occasionally and a cane constantly, both for his back. The VA examiner noted arthritis was documented on imaging studies of the thoracolumbar spine. As to the impact on the Veteran's ability to work, the VA examiner restated the Veteran's activity tolerances as reported to cause flare ups.

Like the private independent medical examiner, the VA examiner's opinion includes no evidence showing there had been physician prescribed bedrest to constitute an incapacitating episode as defined by Note 1 to the IVDS Formula. The VA examiner noted self-imposed bedrest for the thoracolumbar spine, but the record is devoid of any evidence showing physician prescribed bedrest during this period on appeal. The record also does not show any evidence of such prior to the VA examiner's report. The Board cannot afford the VA examiner's opinion in this regard significant probative weight as such is based on a factual inaccuracy; there is no evidence to support that the Veteran required any physician prescribed bedrest from September 2003 until the December 2013 VA examination. Nieves-Rodriguez, supra. 

The December 2013 VA examination does not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. The VA examiner stated the Veteran did not have IVDS and there was no ankylosis of the cervical spine. While the examination findings show more limitation of motion than prior examinations, such does not represent unfavorable ankylosis of the cervical spine to warrant an increased or staged rating. His symptomatology reports are generally consistent with his earlier reports. 

The December 2013 VA examination also does not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. As explained above, there is no evidence of record showing that any physician has prescribed bedrest for an acute episode of IVDS. The Veteran's reports regarding his lumbar spine symptomology are generally consistent with his earlier reports. While the examinations findings show more limitation of motion than prior examinations, such does not represent unfavorable ankylosis of the lumbar spine to warrant an increased or staged rating. 

In March 2016, the Veteran testified primarily regarding the bilateral leg symptomatology that he was experiencing when he stopped working. He also discussed his left knee pain. He did not provide any specific testimony about his neck or back symptomatology. 

In April 2017, the Veteran established care with a new primary care provider. He reported that he had not fallen in the past 12 months. He reported that he did not need assistance with any of his activities of daily living, but he did require occasional assistance with heavy work domestic help. The intake nurse noted that no assistive device was in use. When he saw the primary care provider, he reported chronic osteoarthritis, a left knee replacement, and right knee, right hip, and low back pain worse with activities of daily living. He denied urinary symptoms, immobility, loss of musculoskeletal function, paresthesias, numbness, weakness, or other sensory or motor dysfunction or loss. 

The Veteran followed up with his VA primary care provider again in June 2018. He reported he had not fallen in the past 12 months. There were no changes to his ability to complete his activities of daily living independently pertinent to his neck and back issues. When he saw the primary care provider, he reported pain in his hips and knees, and it was noted that he was using a cane. In December 2018, the Veteran followed up with his VA primary care provider. The only new addition to their discussion was that a history of neck pain and stiffness was included. 

The March 2016 testimony and the April 2017 to December 2018 VA medical records do not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. This evidence does not show a factual worsening of the Veteran's lumbar spine disability to warrant an increased or staged rating. The Veteran's reports are generally consistent with his prior reports regarding his symptomatology.

The March 2016 testimony and the April 2017 to December 2018 VA medical records do not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. This evidence does not show a factual worsening of the Veteran's cervical spine disability to warrant an increased or staged rating. The Veteran's reports are generally consistent with his prior reports regarding his symptomatology.

In February 2019, the Veteran underwent another independent medical examination with the same private examiner as in September 2012. The private examiner reviewed new medical history since the last examination. The Veteran reported pain and symptoms varying when present were up to 100 percent of the day, moderate to severe. He said pain symptoms tended to restrict some of his activities of daily living. The Veteran reported when his pain was present in the cervical, thoracic, and lumbar spine, it was at a two to eight out of a pain scale to ten. He reported using daily mediations to manage his symptomatology, though in the private examiner's medication list only asprin would address pain. 

The private examiner noted minimal restrictions to non-specialized hand activities, moderate restrictions to self-care or personal hygiene, communication, and travel, and severe restriction in physical activity, sensory function, and sleep, without any additional information as to what the restriction was or what disability caused it. 

On examination, there was pain restricted gait of the left lower extremity and compensatory of the right lower extremity, slightly lurching. He was using a walker and it was noted that he used a cane at times. Positive orthopedic tests for the cervical spine revealed foraminal compression bilaterally and there was tenderness of the cervical spine. There was cervical muscular hypertonicity or spasm. 

Positive orthopedic tests for the lumbosacral spine revealed Laseque's at 30 degrees on the right and 40 degrees on the left. Straight leg raise testing was positive at 55 degrees bilaterally. Goldthwaite's was positive bilaterally and Bechterew's was positive at 55 degrees bilaterally. There was spinal tenderness of the thoracolumbar spine and hypertonicity or spasm of the paraspinal musculature and tenderness upon deep palpation of the bilateral sacroiliac. 

Other than decreased triceps reflexes bilaterally, the other reflexes for the bilateral upper extremities were essentially normal. Patellar reflexes were absent bilaterally, and the achilles reflexes were slightly reduced. There was decreased sensation of the left lower extremity, but not of the bilateral upper extremities. There was a 1 centimeter difference in the measurement of the Veteran's thighs and a 2 centimeter difference in the measurement of the Veteran's calves, which the private examiner did not describe as muscle atrophy. Likewise, there were a few 1 centimeter or less differences in the measurements of the Veteran's bilateral upper extremities, which the private examiner did not describe as muscle atrophy. 

The Veteran's lumbar flexion was 45 degrees, extension was 5 degrees, left lateral flexion was 20 degrees and right lateral flexion was 10 degrees. His cervical flexion was 30 degrees, extension was 15 degrees, left lateral flexion was 30 degrees, right lateral flexion was 15 degrees, left rotation was 15 degrees, and right lateral rotation was 35 degrees. His bilateral triceps and wrist flexors strength was slightly decreased, otherwise his upper extremity muscle strengths were normal. There was slightly decreased strength in the left hip extensor, knee extensor, and foot inversion, otherwise his lower extremity muscle strength was normal. 

The private examiner opined that the Veteran's lumbothoracic spine should be rated under DC 5243 "with noted and documented intervertebral disc with restricted range of motion with noted residuals. The formula for rating intervertebral disc syndrome based on incapacitating episodes. 60% W.B. The claimant was noted for the spine to having an incapacitating episodes of a total duration of at least 6 weeks during the past 12 months." 

As to the Veteran's cervical spine, the private examiner opined that such should be rated under DC 5242 "with noted and documented restricted range of motion with then noted residuals following an anterior fusion of June 12, 1995 of C5-C6. 20% W.B."

The Board cannot afford the private examiner's opinion regarding the lumbar spine rating significant probative weight as such is based on a factual inaccuracy; there is no evidence to support that the Veteran required any physician prescribed bedrest from September 2003 until the February 2019 private independent medical examination, nor does the private examiner cite to any such evidence. Nieves-Rodriguez, supra. 

The February 2019 private examination does not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. The initial rating assigned for the Veteran's cervical spine disability is higher than the rating opined by the private examiner. This examination does not show a factual worsening of the Veteran's cervical spine symptomatology since the assignment of the initial rating. The Veteran's reports of his symptoms are essentially the same as his prior reports. While the examination findings are slightly more severe than prior examinations, they do not more nearly approximate the rating criteria for higher ratings. 

The February 2019 private examination does not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. This evidence does not show a factual worsening of the Veteran's lumbar spine symptomatology. His reports of his symptomatology are essentially the same as his prior reports, showing a relatively static and constant symptomatology. While the examination findings are slightly more severe than prior examinations, they do not more nearly approximate the rating criteria for higher ratings. 

The Veteran underwent a VA examination of his cervical spine in November 2020. The VA examiner diagnosed cervical degenerative arthritis, IVDS, and spinal fusion and discectomy. The Veteran reported decreased range of motion and increased frequency and intensity of pain since the onset of his symptoms. His current symptoms were chronic pain and decreased range of motion. The Veteran was prescribed a nerve pain medication daily. He did not report flare ups and explained that he could not turn his head due to pain.

The Veteran declined range of motion testing and repetitive use testing due to severe pain in all directions. The VA examiner stated there was no evidence of pain with weightbearing. There was moderate pain with light palpation to the posterior side of his left neck in the lower cervical region. Pain significantly limited functional ability with repeated use over a period of time, and the VA examiner described this in terms of range of motion in all planes to 5 degrees. The examination was not being conducted during a flare up. Pain, weakness, fatiguability, or incoordination did not significantly limit functional ability with flare up and the VA examiner did not provide an estimated range of motion during a flare up, likely because the Veteran did not report flare ups. 

There was no localized tenderness, guarding, or muscle spasm of the cervical spine, nor were there any additional contributing factors to disability. Strength testing of the Veteran's bilateral upper extremities was essentially normal, with only slightly reduced strength of the right wrist noted. The Veteran's reflexes were normal. His sensation to light touch was decreased in the right shoulder area and right inner/outer forearm. Radicular pain or other signs or symptoms of radiculopathy were noted, which will be discussed further below in regard to the ratings of the Veteran's radiculopathies. 

There was no ankylosis of the spine. The VA examiner stated the Veteran had IVDS of the cervical spine, but that he had not had any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. No use of an assistive device was noted. Imaging studies documented arthritis. The VA examiner stated that the Veteran's cervical spine condition did not impact his ability to work. They also said there was objective evidence of pain when the spine was in non-weightbearing. 

The November 2020 private examination does not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. The examination findings are relatively consistent with the immediate prior examinations of the Veteran and his reports regarding his symptomatology are generally the same as prior reports. This evidence does not show a factual worsening of the Veteran's cervical spine disability. 

In May 2022, the Veteran called his VA provider to report severe back pain radiating down his right leg, weakness, and the inability to stand. He was advised to go to the emergency room. In December 2022, the Veteran called his VA provider to report severe neck pain. He said it felt like his neck was separating from his body, like something came loose or apart from his neck surgery. He said it was worse when laying down. He said it was the worst pain he had ever had. He was advised to go to the emergency room. 

In October 2023, the Veteran's VA provider referred him to physical therapy for increased falls and weakness. He was using a walker. At the physical therapy consultation, it was noted he was being seen for generalized weakness, falls, and unsteady gait. The Veteran said he usually walked with a cane, but that he started using a walker about a month prior. He said he had fallen twice a week for the last six months due to both loss of balance and his legs giving out. He said his activity level was decreasing. 

Sensation was intact in his bilateral upper and lower extremities. His reflexes were normal in his bilateral lower extremities, but there was decreased strength in the bilateral lower extremities. He was ambulating with a walker. They noted he was a high fall risk due to severe deconditioning, muscle power deficits in his bilateral lower extremities, and poor balance and righting responses. They noted he was unsafe when walking unsupervised. The Veteran started receiving in-home care and several recommendations for home modifications were made by his VA providers. 

In March 2024, the Veteran testified at a Board hearing. His son and a woman assisted him in providing testimony due to his difficulties hearing, and they both provided testimony of their own. The Veteran testified that his neck bothers both of his hands which felt like there was electricity running into them. He said his neck pain was at a five or a six, but that in the morning he was almost screaming from the pain in his right arm. He said his pain was not the same all of the time and it varied, but sometimes it made him want to scream. He said it was worse in the morning when raising his arms up. He said he had this pain when he had to have his hands up for something for the past couple years or so. He said he had no grip and could not button his pants or shirt and had very weak hands. He said he could hold a glass of water.

The Veteran further testified that he used over the counter medication for pain and that pain interrupts his sleep. He said the over the counter medication helped some. His son testified that the Veteran had a high tolerance for pain medications. The Veteran also explained that his bilateral arm symptoms had been going on since 2000. 

He said he was discussing spine surgery with his doctors, both for his neck and lower back. He explained that his lower back operated on his legs and that a surgeon showed him it was a pinched nerve or spinal cord. He testified that he could not walk. He and his son and the woman all testified that he was essentially forced to retire because his employer put him on desk job with a computer that he was unfamiliar with because they were afraid he would hurt himself falling at work. 

The VA medical records from May 2022 to October 2023 and the March 2024 hearing testimony do not support a finding of severe cervical IVDS with recurring attacks with intermittent relief, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine. The screaming pain the Veteran reported in his arms is addressed in his ratings for bilateral upper extremity radiculopathy discussed below. As far as his actual neck pain goes, this evidence reiterates the same cervical symptomatology that he has been reporting for years. This evidence does not show a factual worsening in the Veteran's cervical spine disability. 

The VA medical records from May 2022 to October 2023 and the March 2024 hearing testimony do not support a finding of pronounced lumbar IVDS with little intermittent relief, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine. The Veteran's reports of increased falls are better attributed to his bilateral lower extremity disabilities which result in weakness. As far as low back symptomatology, the Veteran's reports are generally consistent with his prior reports of such. The examination findings are also generally stable from prior examination findings, with the exception of the legs, which is addressed in the separate ratings for bilateral lower extremity radiculopathy. This evidence does not show a factual worsening of the Veteran's lumbar spine condition. 

Upon review of the record, the Board finds that the Veteran's cervical spine disability is not manifested by severe IVDS with recurring attacks with intermittent relief, IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months, or unfavorable ankylosis of the cervical spine to warrant a rating in excess of 30 percent under either the rating criteria in effect in May 2000 or the rating criteria effective September 26, 2003. As detailed above, the Veteran's symptomatology has remained relatively stable since the evidence used to establish his rating at the beginning of the period. While his examination findings have become more severe over time, they still do not more nearly approximate the criteria required for a higher rating. The evidence since the initial rating is established does not show a factual worsening of the Veteran's cervical spine disability. Consequently, a rating in excess of 30 percent for cervical spine disability is not warranted for the entire period on appeal. 

Upon review of the record, the Board also finds that, the Veteran's lumbar spine disability is not manifested by pronounced IVDS with little intermittent relief, IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months, or unfavorable ankylosis of the lumbar or entire thoracolumbar spine to warrant a rating in excess of 40 percent under either the rating criteria in effect in May 2000 or the rating criteria effective September 26, 2003. As detailed above, the Veteran's lumbar spine disability has remained relatively stable since the evidence used to establish his rating and the beginning of the appeal period. The Veteran's symptomatology reports have more frequently focused on his bilateral leg symptoms than any more specific low back pain, and such is captured by the ratings assigned for his bilateral lower extremity radiculopathy. The Veteran's overall examination findings have also shown some change in severity since the evidence supporting the initial rating assigned, but such does not more nearly approximate the criteria required for higher ratings. The evidence since the initial rating is established does now show a factual worsening of the Veteran's lumbar spine disability. Consequently, a rating in excess rating in excess of 40 percent for lumbar spine disability is not warranted for the entire period on appeal. 

In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with his cervical and lumbar spine disabilities. The Veteran's history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's testimony and lay statements concerning matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected disability at issue.  

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected asthma; however, as noted above, the Board finds that his symptomatology has been relatively stable throughout the period on appeal. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Consequently, an initial rating in excess of 30 percent for cervical spine disability is not warranted for the entire period on appeal, and an initial rating of 40 percent, but no higher, for lumbar spine disability is warranted for the entire period on appeal. In reaching the foregoing determinations, the Board has applied the benefit-of-the-doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in the partial award assigned herein. However, insofar as the Board has denied higher ratings, the probative evidence persuasively weighs against such aspects of the Veteran's claims. Therefore, the benefit-of-the-doubt doctrine is not applicable, and his initial rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th at 776.

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8. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 

The Veteran contends entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 

As an initial matter, the Board notes the Veteran's right lower extremity radiculopathy was found to be directly connected to his service, and not secondarily service connected to any service-connected disability. The rating decision on appeal and other documentation from the AOJ indicates that the Veteran's left lower extremity radiculopathy was awarded service connection as secondarily service connected or as associated with is service-connected lumbar spine disorder, pursuant to the notes in the criteria for rating the spine, as discussed above. However, the November 2023 Board decision which awarded service connection for the Veteran's left lower extremity radiculopathy was an award of direct service connection, not secondary service connection. Therefore, the Board will proceed with the understanding that the Veteran's left lower extremity radiculopathy is directly service connected, just as his right lower extremity radiculopathy is directly service connected. 

For the entire period on appeal, the Veteran's left lower extremity radiculopathy is rated as 10 percent disabling under DC 8520, for paralysis of the sciatic nerve. The Board is also cognizant that the Veteran's right lower extremity radiculopathy is rated as 40 percent disabling under the same DC for the same time period. Under DC 8520, complete paralysis of the sciatic nerve warrants an 80 percent rating and is described as: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 

Incomplete, severe paralysis of the sciatic nerve, with marked muscular atrophy warrants a 60 percent rating. Incomplete, moderately severe paralysis of the sciatic nerve warrants a 40 percent rating. Incomplete, moderate paralysis of the sciatic nerve warrants a 20 percent rating. Incomplete, mild paralysis of the sciatic nerve warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8520. 

Ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture of complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be mild, or at most, moderate. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. 

Additional or separate ratings may be warranted for left lower extremity radiculopathy affecting other lower extremity nerves. As discussed below, the evidence does not support a finding that the Veteran's left lower extremity radiculopathy affects those other nerves to warrant an additional or separate rating for such. Id. 

While much of this evidence was discussed above in relation to the Veteran's lumbar spine disability, the Board will briefly review it again. Evidence from February 2000 shows the Veteran was having problems with walking and his right leg slipping out. Evidence from May 2000 shows the Veteran was not using a cane, but he did have a parking permit. The Veteran's co-worker submitted a statement in June 2000 explaining that they had observed the Veteran's leg give away from under him while walking or getting up from a chair, but they did not state which leg. Another co-worker submitted a statement in July 2000 that the Veteran was falling at work due to weakness in his legs. Bilateral lower extremity weakness was cited as the reason for his September 2002 MRI of his lumbar spine. 

In April 2011, the Veteran described pain that radiated down his legs. In July 2012, the Veteran testified that he was falling at work because his back would not let his legs work. He said moving around and getting through his day was bad and he would fall from weakness. He said his legs quit and he would fall if he was not thinking about walking. He stated that he used a cane and had to stop and rest sometimes. 

The Veteran underwent a private independent medical examination in September 2012. The private examiner did not offer an opinion on the rating that should be assigned for the Veteran's left lower extremity radiculopathy. The Veteran reported aching and pins and needles in both lower extremities and symptoms in his feet. He said his legs were giving out at work. On examination, he had a pain restricted gait of the left lower extremity and compensatory of the right lower extremity. He was using a cane. The examination showed a positive straight leg raise at 60 degrees bilaterally and decreased left lower extremity sensation. His left lower extremity strength was also abnormal. 

In July 2013, two straight leg raise tests on different dates were positive, and he was ambulating with a cane. The Veteran reported pain going down his left leg and lumbar radiculopathy was diagnosed. Another straight leg raise test was positive in October 2013. In December 2013, the Veteran underwent a VA examination. His bilateral lower extremity strength and reflex exam were both symmetric with significant abnormalities. His sensory examination was normal, and the straight leg raise test was negative on the left. The VA examiner stated the Veteran had radicular pain or other signs or symptoms due to radiculopathy. The Veteran did not report any symptoms of his left lower extremity, only his right. The VA examiner found involvement of the sciatic nerve on the right but not the left, which they stated was not affected by radiculopathy. 

In March 2016, the Veteran testified that he had to stop working because his legs were flying out and he could not walk straight. In April 2017, a VA nurse noted that leg pain weakness was a physical limitation of the Veteran. In February 2019, The Veteran underwent another examination with the same private independent medical examiner from 2012. Again, the private examiner did not offer an opinion on the rating that should be assigned for the Veteran's left lower extremity radiculopathy. On examination a pain restricted gait of the left lower extremity and compensatory of the right lower extremity was noted with slight lurching. Patellar reflexes were absent bilaterally and his achilles reflexes were reduced bilaterally as well. There was some decreased left lower extremity strength. 

In November 2020, the Veteran underwent a VA examination for peripheral nerve conditions. As noted below, the Board finds this examination to be inadequate for rating the Veteran's bilateral upper extremity radiculopathy. Given the significant inadequacies in this examination as noted below, the Board shall not consider this VA examination in rating the Veteran's left lower extremity radiculopathy. However, the Board finds the other evidence of record is adequate to rate the Veteran's left lower extremity radiculopathy for the entire period on appeal at this time.

June 2023 evidence shows the Veteran was experiencing bilateral leg pain that was interfering with his movement and sleep. He said he was falling several times a day with an inability to bear weight on his left leg due to left knee pain. By October 2023, the evidence shows the Veteran was using a walker instead of a cane. In October 2023, the Veteran underwent a physical therapy evaluation with VA providers. He reported his falls were due to a mix of loss of balance and his legs giving out. On examination, sensation was intact and symmetric in the bilateral lower extremities, and his reflexes in the bilateral lower extremities were also intact. There was decreased strength in his bilateral lower extremities. 

In March 2024, the Veteran testified that he stopped working because his legs were giving out on him while walking. He said he had been using a cane for years, then used a walker, and at that point he was using a wheelchair. He said his left leg was very painful and part of why he retired. 

Upon review, the Board finds the Veteran's left lower extremity radiculopathy manifested by moderately severe incomplete paralysis of the sciatic nerve, without more severe manifestations more nearly approximating severe incomplete paralysis of the sciatic nerve with marked muscle atrophy or complete paralysis of the sciatic nerve during the entire period on appeal. The Veteran's reports of his bilateral lower extremity symptomatology have been generally the same throughout the period on appeal which does not support a different severity finding for the Veteran's left leg from his right. There have been times when the Veteran has reported his left leg symptomatology was worse than his right and vice versa. The Veteran experiences intermittent weakness, but evidence of marked muscle atrophy is not found in the record. Nor is there any evidence of record showing foot drop or no active movement of the muscles below the knee which could be indicative of complete paralysis of the sciatic nerve. Furthermore, the Veteran's more recent use of a walker and falls is due to a combination of loss of balance, leg weakness, and left knee disability, which does not warrant a more severe evaluation of the Veteran's left lower extremity radiculopathy alone. 

In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disability and notes that his lay testimony is competent to describe certain symptoms associated with his left lower extremity radiculopathy. The Veteran's history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's testimony concerning matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected disabilities at issue. 

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's left lower extremity radiculopathy. The evidence shows the Veteran's left lower extremity radiculopathy has been somewhat stable during the 24-year period on appeal, with some more severe symptomatology only partially attributable to this disability more recently. However staged ratings are not appropriate. The rating assigned herein is based on more recent evidence of the Veteran's symptomatology, reflecting the most severe manifestations noted throughout the entire period on appeal. Even the evidence showing the most severe manifestations of the Veteran's disability during the lengthy period on appeal do not show severe incomplete paralysis of the sciatic nerve with marked muscular atrophy or complete paralysis of the sciatic nerve. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the rating claim adjudicated herein. Doucette, 28 Vet. App. at 366.

Consequently, a rating of 40 percent, but no higher, for left lower extremity radiculopathy is warranted for the entire period on appeal. In reaching the foregoing determinations, the Board has applied the benefit-of-the-doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in the partial award assigned herein. However, insofar as the Board has denied higher rating, the probative evidence persuasively weighs against such aspects of the Veteran's claim. Therefore, the benefit-of-the-doubt doctrine is not applicable, and his initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th at 776.

9. Entitlement to an initial compensable rating for degenerative changes of the left knee from May 5, 2000, and to a rating in excess of 60 percent from March 1, 2016, for left knee total arthroplasty. 

The Veteran contends entitlement to an initial compensable rating for degenerative changes of the left knee from May 5, 2000, until a temporary total rating of 100 percent was assigned while the Veteran underwent a total knee replacement on November 13, 2015. The Veteran also contends entitlement to a rating in excess of 60 percent from March 1, 2016, after the temporary total rating ended. 

The period on appeal starts on May 5, 2000, the date service connection was awarded. As noted above, the rating criteria for the musculoskeletal system were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). However, these amendments did not change the criteria for rating the Veteran's left knee replacement under DC 5055. The rating criteria in effect in May 2000 apply to the initial rating of the Veteran's left knee disability until his knee replacement in November 2015. 

Regarding knee ratings generally, separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (DC 5260), limitation of extension (DC 5261), instability and subluxation (DC 5257), and meniscal conditions (DCs 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56, 703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). 

As discussed below, the evidence of record does not demonstrate an impairment of the Veteran's tibia and fibula or genu recurvatum at any time during the pendency of the appeal. Therefore, DCs 5262 and 5263 both before and after February 7, 2021, are not applicable to the instant rating claim. 

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. DC 5256 allows for a 60 percent rating for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more. A 50 percent rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. A 40 percent rating is warranted for ankylosis of the knee in flexion between 10 and 20 degrees. A 30 percent rating is warranted for ankylosis of the knee with a favorable angle in full extension or in slight flexion between zero and ten degrees. 38 C.F.R. § 4.71a, DC 5256 (2000). 

Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). 

Limitation of flexion warrants 0, 10, 20, and 30 percent ratings when limitation is to 60 degrees, 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, DC 5260 (2000). Limitation of extension warrants 0, 10, 20, 30, 40, and 50 percent ratings when limitation is to 5 degrees, 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, DC 5261 (2000). 

A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, DC 5003 (2000); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims).

Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, DCs 5258, 5259 (2000). The Board initially observes that, under the old rating criteria, objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. English v. Wilkie, 30 Vet. App. 347 (2018).

As an initial matter, the Board is cognizant that the Veteran has experienced significant leg pain due to bilateral lower extremity radiculopathy during the entire period on appeal. This more generalized leg pain is captured in the rating for the Veteran's left lower extremity radiculopathy discussed above, as supported by the medical evidence, to include generalized weakness and falls from the Veteran's leg giving out. The Board shall limit this discussion to the Veteran's symptoms attributable left knee disability. To that end, Veteran's leg giving out and falls will only be discussed below when they are attributable at least in part to the Veteran's left knee disability. 

In December 2009, the Veteran discussed his left knee pain with his non-VA orthopedist. He said it had been bothering him for about a year and a half with no previous treatment. The said it bothered him mostly when walking for an extended period of time and said that about halfway through a trip to the store his knee felt like it wanted to give out. On examination there was bony prominences indicative of osteophyte formation, pain with palpation, and full flexion. An X-ray showed almost bone on both arthritis, and he received a steroid injection. 

He followed up with the non-VA orthopedist again in April 2011 to discuss his left knee pain. On examination there was pain to palpation and some deformity with varus orientation. The ligaments were stable and range of motion did not produce significant discomfort. X-rays showed osteoarthritis in the left knee. He was given another steroid injection. The diagnosis was ostearthritis of the left knee. His next follow up was in November 2012, and he asked for another steroid injection, which was provided. Another X-ray was taken showing almost bone on bone arthritis and significant osteoarthritis behind the patellofemoral region. 

In July 2012, the Veteran testified that his left knee was very painful, and he could feel it slipping up and down. He said he was receiving injections and that he was discussing a replacement with his doctor. In September 2012, the Veteran underwent a private independent medical exam. He reported left knee derangement and that his left knee gave out. On examination, he had a pain restricted gait of the left lower extremity and compensatory of the right lower extremity. The private examiner said he was using a cane due to decreased gait stability mostly in the lower left extremity. Range of motion testing showed left knee flexion to 100 degrees and flexion contracture of 10 degrees (or extension limited to 10 degrees). Left lower extremity strength was slightly decreased at the hip and knee extensors and foot inversion. The Veteran reported moderate to severe pain present up to 100 percent of the day in the neck, back, and left knee which restricted some activities of daily living due to symptomatology. The Veteran reported his neck, back, and left knee pain to be a two to eight on a scale to ten. As noted above, the private examiner noted several restrictions in activities of daily living without any information as to which disability or disabilities caused them. The private examiner stated the Veteran's left knee should be rated at 30 percent whole person impairment under DC 5256 with noted and documented restricted range of motion with the noted residuals. 

The Board cannot give this opinion regarding the evaluation that should be assigned for the Veteran's left knee disability any probative weight as it is based on a factual inaccuracy. Nieves-Rodriguez, supra. Under DC 5256 a 30 percent rating would be warranted for ankylosis at a favorable angle in full extension or in slight flexion between zero and ten degrees. Certainly, the flexion contracture noted on examination shows a loss of range of motion, but it does not show immobility or ankylosis left knee, as there was significant ability to flex the knee. The Veteran's orthopedist never described any ankylosis of the Veteran's left knee, either before or after this independent medical examination. However, the examination findings from this examination are entitled probative weight. 

In December 2013, the Veteran underwent a VA examination. The VA examiner diagnosed osteoarthritis of the bilateral knees. The Veteran reported experiencing progressive pain and loss of function of the bilateral knees. He described continuous severe left knee pain, aching, throbbing, burning, grinding, sharp, and sore. He reported flare ups of left knee pain secondary to activities of daily living. He said that during the flare ups of his left knee, he lost 90 to 100 percent of his normal function. He said his left knee flare ups were continuous. He stated that his pain was partially relieved by ceasing aggravating activity, self-imposed bedrest, use of a recliner with knee elevated, and non-steroidal anti-inflammatory and non-narcotic and narcotic analgesic medications. The Veteran said the flare ups occurred due to walking more than 50 to 60 feet, standing, lifting more than seven to ten pounds, sitting, and driving or riding. He reported avoiding stairs, inclines, and declines, and that he was unable to squat or kneel, push or pull, or use ladders and foot controls. 

On examination, the Veteran's left knee range of motion testing showed flexion to 90 degrees with pain at 90 degrees and extension to 30 degrees with pain at 30 degrees. There was no additional limitation in range of motion following repetitive use testing. The contributing factors to the Veteran's bilateral knee disabilities were less movement than normal, weakened movement, excess fatiguability, incoordination and impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, atrophy of disuse, disturbance of locomotion, and interference with sitting, standing, and weightbearing. There was tenderness or pain to palpation for joint line or soft tissues of both knees. The Veteran bilateral knee strength was slightly reduced for both extension and flexion. Bilateral anterior and posterior instability testing was normal, but medial-lateral instability testing was abnormal bilaterally. 

The VA examiner stated there was no evidence or history of recurrent patellar subluxation or dislocation and that the Veteran did not have or ever have shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. They stated that the Veteran had a meniscus condition with frequent episodes of locking, joint pain, and joint effusion of the left knee. The VA examiner noted the Veteran used a cane constantly for his back and knees. Diagnostic imaging was reviewed which the VA examiner stated did not show degenerative or traumatic arthritis or evidence of patellar subluxation. As to the functional impact of the Veteran's left knee disability, the VA examiner reiterated the Veteran's statements regarding flare ups. 

The Veteran underwent a total knee arthroplasty or replacement on November 13, 2015. In March 2024, the Veteran testified that his knees were weak in 2000 and his legs would giveway when he was walking. 

While there is scant evidence regarding the severity of the Veteran's left knee disability at the beginning of the period on appeal, the evidence reflects such has progressively worsened over time up until the knee replacement became necessary. As such, the Board finds it may proceed and shall rate the Veteran's disability back to the beginning of the period on appeal by relying on the evidence closer in time to the November 2015 knee replacement when such disability was most severe. To be clear, there is not indicated that the Veteran's left knee disability improved from the beginning of the appeal period to the knee replacement. This resolves any doubt in the Veteran's favor by assigning the most severe rating available through November 13, 2015, to the beginning of the period on appeal. 

Upon review, the Board finds from May 5, 2000, to November 13, 2015, the Veteran's degenerative changes of the left knee manifested by limitation of extension to 30 degrees and dislocated semilunar cartilage with frequent episodes of pain and joint effusion, without other or more severe manifestations such as limitation of extension to 45 degrees, limitation of flexion to 45 degrees, ankylosis, or recurrent subluxation or lateral instability. The Veteran's description of constant flare ups of the left knee at the December 2013 VA examination more accurately represents a baseline left knee symptomatology, as he did not describe such improving and worsening periodically or temporarily similar to a flare up. As noted above, the Veteran's flexion contracture of 10 degrees at the September 2012 private examination reflects a limitation of extension to 10 degrees, but not ankylosis. The record is devoid of any evidence showing ankylosis during this period of the appeal. It also does not include any evidence of recurrent subluxation or lateral instability that can be distinguished from the Veteran's general reports of his left knee and left leg giving way. The Veteran's description of feeling his knee "slipping up and down" is more indicative of semilunar cartilage dislocation than a lateral or side to side instability. These symptoms are captured by the frequent episodes of locking pain rated under DC 5258. As such, a separate additional rating under DC 5257 is not warranted. However, a 20 percent rating is warranted under DC 5258 and a 40 percent rating, but no higher, is warranted under DC 5261, from May 5, 2000, to November 13, 2015. 

The Veteran testified in March 2016 that his knee had improved since the replacement, but he was still having some pretty serious issues. He said that he had pain in his left knee shooting into his thigh. He said his left knee was not as flexible and he had trouble getting his pants on and off due to this. In February 2019, the Veteran underwent another private independent medical examination with the same examiner from 2012. On examination, there was pain restricted gait of the left lower extremity and compensatory of the right lower extremity, slightly lurching. His left knee flexion was 90 degrees and flexion contracture was ten degrees. He reported moderate to severe neck, back, and knee pain rated from two to eight on a scale to ten. Again, the private examiner noted a number of restrictions in activities of daily living without explaining which disabilities caused such restrictions. 

The private examiner opined the Veteran's left knee disability should be rated as "60 percent W.B." under DC 5055 with noted chronic residuals of weakness and severe painful motion and restricted range of motion. 

In November 2020, the Veteran underwent a VA examination of his knees. The Veteran reported no current issues with his left knee, and he had full range of motion on examination. The Veteran said his left knee was sore at times, but that it had improved since the replacement. He did not report flare ups of his left knee or any functional loss or impairment. There was no pain noted on the examination of his left knee, including with weight bearing. There was no objective evidence of crepitus. There was no additional loss of function or range of motion after three repetitions. The VA examiner stated that pain, weakness, fatiguability, or incoordination did not significantly limit functional ability of the Veteran's left knee with repeated use over a period of time or with flare ups. 

Left knee strength was normal and there was no muscle atrophy. Joint instability testing of the left knee was normal. There was no ankylosis, history of recurrent subluxation or history of lateral instability. The VA examiner stated the Veteran did not have or ever have recurrent patellar dislocation, shin splints, stress fractures, or chronic exertional compartment syndrome, any other tibial or fibular impairment, or meniscal condition. The VA examiner stated there were no residuals from the Veteran's left knee replacement. They also stated that the left knee disability did not impact the Veteran's ability to perform any type of occupational task. 

In June 2023, the Veteran called his VA provider to report bilateral leg pain and swelling in his left knee interfering with movement and sleep. He said he was falling several times a day, which was not new. He said his left knee was giving out and he had an inability to bear weight on it sometimes. The record reflects at that time the Veteran was using a cane, but then progressed to using a walker and then a wheelchair. In March 2024, the Veteran testified that his knees flare up for a short while and then they get sore again.

The Veteran is in receipt of a 60 percent rating under DC 5055 for his left knee disability from March 1, 2016, for chronic residuals consisting of severe painful motion or weakness in the affected extremity after a knee joint replacement. This is the highest schedular rating available under DC 5055 or any other DC pertinent to the knee. The Veteran avers entitlement to a rating in excess of 60 percent from March 1, 2016, which can only be accomplished with an extraschedular rating. Though to be clear, neither the Veteran nor his representative have specifically averred entitlement to an extraschedular rating. 

The Board finds that an extraschedular rating is not warranted. An extraschedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). The Board finds the rating schedule is adequate to rate his left knee total arthroplasty symptoms, as discussed above, without any symptoms left unaddressed. Thun v. Peake, 22 Vet. App. 111 (2008). As such, a rating in excess of 60 percent for left knee total arthroplasty from March 1, 2016, is not warranted. 

In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his left knee disability and notes that his lay testimony is competent to describe certain symptoms associated with such. The Veteran's history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the assigned disability rating. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony concerning matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected disability at issue. 

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's left knee disability both before and after his left knee replacement. However, prior to his left knee replacement, the Board has rated his left knee disability at the beginning of the period on appeal based on the most severe evidence of record closer in time to the knee replacement. The evidence shows that after the Veteran's knee replacement, his symptomatology has been relatively stable. As such, staged ratings before and after the temporary total rating are not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Based on the foregoing, the competent, probative evidence persuasively weighs against a rating in excess of 40 percent for degenerative changes of the left knee with limitation in extension and in excess of 20 percent for degenerative changes of the left knee with dislocated semilunar cartilage from May 5, 2000, to November 13, 2015, and in excess of 60 percent for total knee arthroplasty from March 1, 2016. The benefit-of-the-doubt doctrine is not applicable, and the claim for an increased initial rating must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th at 776.

Other Considerations

The Veteran contends entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Subsequent to the rating decision on appeal and the March 2024 Board hearing, the Veteran was awarded a TDIU as of September 16, 2021. Based on the grants above, the Veteran will be in receipt of a 100 percent rating throughout the appeal period. Neither the Veteran, his representative, nor the evidence raise the issue of statutory housebound; that is the evidence does not reflect TDIU based on one service-connected disability alone. Therefore, the Board finds that the issue of TDIU need not be further addressed as part of this appeal.

REASONS FOR REMAND

Entitlement to an initial rating in excess of 20 percent for bilateral upper extremity radiculopathy. 

The Veteran contends entitlement to an initial rating in excess of 20 percent for bilateral upper extremity radiculopathy. 

The Veteran underwent a VA examination of his cervical spine in December 2013, which includes findings regarding bilateral upper extremity radiculopathy. The Veteran reported mild constant pain, intermittent pain, paresthesias and dysesthesias, and numbness in his bilateral upper extremities. The VA examiner reported involvement of the C5-C6 nerve roots or upper radicular group, C7 nerve roots or middle radicular group, and C8-T1 nerve roots or lower radicular group all bilaterally and mild in severity. 

In November 2020, the Veteran underwent another VA examination of his cervical spine, but he also underwent a VA examination specifically for peripheral nerve conditions. Despite being conducted by the same examiner, there are significant inconsistencies between the VA cervical spine examination findings that the VA peripheral nerve examination findings. There are also significant internal inconsistencies in the VA peripheral nerve examination. For example, the record is clear that the Veteran was using a cane at this time. In the VA peripheral nerve examination, use of cane is noted in one section, but no use of an assistive device is another section. The cervical spine examination indicated involvement of the only right middle radicular group of moderate severity, but the peripheral nerve examination indicated involvement of the right radial nerve, ulnar nerve, and upper, middle, and lower radicular groups, all of mild severity. 

The Board finds that the November 2020 VA examinations are inadequate as they related to the Veteran' bilateral upper extremity radiculopathy and an adequate examination is necessary to rate the current severity of the Veteran's disability. Failure to provide an adequate examination is a pre-decisional duty to assist error. Remand is warranted to correct said error and obtain an adequate examination.

The matter is REMANDED for the following action:

Afford the Veteran an appropriate examination to determine the nature and severity of his service-connected bilateral upper extremity radiculopathy. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. 

The examiner should describe the nature and severity of all manifestations of the Veteran's bilateral upper extremity radiculopathy, to include the functional effects associated with such disability.

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A rationale for any opinion offered should be provided.

 

 

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sasha Larie Boersma

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.