MIGRAINE

MEGAN R. THOMAS · 2022 · Case ID: 22053954

MIXED

Summary

The veteran, who served from May 1976 to August 1996, appeals the denial of increased ratings for headaches, lumbar spine degenerative disc disease (DDD), cervical spine disability, right upper extremity sensory dysfunction, left upper extremity radiculopathy, and left lower extremity sensory loss. The Board reviewed the evidence, including VA examinations and private treatment records, and applied the Schedule for Rating Disabilities. For headaches, the Board found the evidence more closely approximated the criteria for a 50 percent rating under DC 8100 for the period from March 18, 2010, to November 9, 2020, granting this higher rating based on very frequent, completely prostrating, prolonged attacks causing severe economic inadaptability, resolving doubt in the veteran's favor. For lumbar spine DDD, the Board found evidence supported a 40 percent rating from December 29, 2009, forward, based on forward flexion to 30 degrees, granting this higher rating and finding the evidence in approximate balance to warrant the benefit of the doubt. For cervical spine disability, the Board denied an increased rating beyond the current 30 percent, finding the evidence did not support ankylosis or its functional equivalent, and that incapacitating episodes did not meet the criteria for a higher rating. For right upper extremity sensory dysfunction and left upper extremity radiculopathy, both rated under DC 8510, the Board found evidence supported moderate incomplete paralysis, granting 40 percent for the right (major) extremity and 30 percent for the left (minor) extremity from March 18, 2010, forward, resolving doubt in the veteran's favor. For left lower extremity sensory loss, rated under DC 8520, the Board found the evidence most closely approximated moderate incomplete paralysis, granting a 20 percent rating from March 18, 2010, forward, also resolving doubt in the veteran's favor.

Rationale

Evidence more closely approximated criteria for 50% rating; Benefit of the doubt resolved in Veteran's favor; Headaches found to cause severe economic inadaptability

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

8100

Docket No.

12-03 478

Full Decision Text

Citation Nr: 22053954
Decision Date: 09/22/22 Archive Date: 09/22/22

DOCKET NO. 12-03 478
DATE: September 22, 2022

ORDER

From March 18, 2010, forward, a 50 percent rating, but not higher, for headaches is granted.

From December 29, 2009, forward, a 40 percent rating, but not higher, for lumbar spine degenerative disc disease (DDD) is granted.

Entitlement to a rating in excess of 30 percent for a cervical spine disability is denied.

From March 18, 2010, forward, a rating of 40 percent, but not higher, for right upper extremity sensory dysfunction is granted.

From March 18, 2010, forward, a rating of 30 percent, but not higher, for left upper extremity radiculopathy is granted.

From March 18, 2010, forward, a 20 percent rating, but not higher, for left lower extremity sensory loss is granted.

FINDINGS OF FACT

1. From March 18, 2010, forward, the Veteran's headaches manifested in very frequent completely prostrating and prolonged attacks productive of severe economic adaptability.

2. From December 29, 2009, forward, the Veteran's lumbar spine disability was characterized by forward flexion to no less than 30 degrees with painful motion, but not ankylosis or the functional equivalent of ankylosis. He has not had any incapacitating episodes requiring bed rest prescribed by a doctor.

3. From March 18, 2010, forward, the Veteran's cervical spine disability has not been characterized by ankylosis or the functional equivalent of ankylosis, and he has not had any incapacitating episodes requiring bed rest prescribed by a doctor.

4. From March 18, 2010, forward, the Veteran's right upper extremity sensory dysfunction more nearly approximated moderate incomplete paralysis of the major extremity, but not severe incomplete paralysis or complete paralysis.

5. From March 18, 2010, forward, the Veteran's left upper extremity radiculopathy more nearly approximated moderate incomplete paralysis of the minor extremity, but not severe incomplete paralysis or complete paralysis.

6. From March 18, 2010, forward, the Veteran's lower left extremity sensory dysfunction more nearly approximated moderate incomplete paralysis, but not moderately severe or severe incomplete paralysis or complete paralysis.

CONCLUSIONS OF LAW

1. From March 18, 2010, forward, the criteria for a disability rating of 50 percent, but no higher, for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100.

2. From December 29, 2009, forward, the criteria for a rating of 40 percent, but not higher, for lumbar spine DDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243.

3. The criteria for a rating in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5242.

4. From March 18, 2010, forward, the criteria for a 40 percent rating, but not higher, for right upper extremity sensory dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8510.

5. From March 18, 2010, forward, the criteria for a 30 percent rating, but not higher, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8510.

6. From March 18, 2010, forward, the criteria for a disability rating of 20 percent, but not higher, for left lower extremity sensory dysfunction have been met. 38 U.S.C. §§ 1155, 5107
4.124a, DC 8510.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant in this case, served on active duty from May 1976 to August 1996.

This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

In October 2016, in support of these claims, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge. A transcript of the hearing is of record. The judge who held the October 2016 hearing has since retired, and the Veteran was notified in a March 2022 letter that he could have another hearing before a different Board judge who, in turn, would decide the appeal. See 38 C.F.R. § 20.207. The Veteran responded that he did not want another hearing.

These issues were previously denied by the Board in a March 2021 decision.

The Veteran timely appealed the March 2021 Board decision to the higher United States Court of Appeals for Veterans Claims (Court). In February 2022 the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order in March 2022, partially vacating the Board's decision and remanding the claims to the Board for further development and re-adjudication in compliance with directives specified.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

Increased Ratings

Of initial note, VA received the Veteran's claim for increased ratings for his lumbar spine, cervical spine, left upper extremity radiculopathy, and headaches on March 18, 2010. Given the one year look back period for increased ratings claims, the earliest possible effective date for the award of any increased rating granted in this decision is March 18, 2009, if supported by the medical evidence of record as worsening as of then.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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.

When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart
4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

1. Entitlement to a rating in excess of 10 percent for headaches prior to November 10, 2020.

The Veteran contends that for the period prior to November 10, 2020,
event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

1. Entitlement to a rating in excess of 10 percent for headaches prior to November 10, 2020.

The Veteran contends that for the period prior to November 10, 2020, his headaches were more severe than contemplated by the currently assigned 10 percent rating. The Board notes that the Veteran is in receipt of a 50 percent rating for headaches from November 10, 2020, onward, and such rating period is not part of the present appeal. See February 2022 JMPR.

The Veteran in receipt of service-connection for cervicogenic headaches, rated by analogy to migraine headaches under DC 8100. As noted in the February 2022 JMPR, the Board in the March 2021 decision denied entitlement to a rating in excess of 10 percent for headaches prior to November 10, 2020 because the evidence did not show that the Veteran's headaches were manifested by characteristic prostrating attacks occurring once a month on average the diagnostic criteria for a higher 30 percent rating for migraine headaches. See 38 C.F.R. § 4.124a, DC 8100. However, the JMPR directs that the Board must explain why strict adherence to the Diagnostic Code is warranted, and here, the Board finds that it is not. Strictly requiring an unlisted condition to demonstrate the same objective symptoms as the analogous condition is an error. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). Thus, for the reasons discussed below, the Board is awarding a higher 50 percent rating for the Veteran's headaches for the period from March 18, 2010 to November 9, 2020.

Under DC 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the maximum schedular rating available under DC 8100.

The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable to DC 8100. Id.

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The rating criteria for a 50 percent rating contain several phrases which are not specifically defined. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraine attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Finally, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a
" generally means that the migraine attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Finally, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

The Board concludes that the Veteran's headaches were more akin to migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability during the period on appeal prior to November 10, 2020, corresponding to the criteria for a 50 percent rating under DC 8100.

In April 2010, the Veteran underwent a VA headache examination. The Veteran indicated that when he has headaches, on average of 10 times per day lasting an hour each, he has to lay in bed and is unable to do anything. His symptoms included chronic pain, flexed neck muscle spasm, tenderness, weakness, and that they are constantly present. He also stated that his headaches have caused him to be out of a job.

At the October 2016 hearing, the Veteran testified that he has headaches constantly, rating the pain a ten out of ten. He stated that if a headache occurs while he is working, he has to leave work and he has an outside bench where he goes to lay down, and that when he gets home, he goes straight to bed. He continued to endorse sensitivity to light and sound.

In September 2017, the Veteran underwent an additional VA headache examination. The Veteran reported constant pulsating or throbbing pain that worsens with physical activity. The Veteran also stated that his headaches cause sensitivity to light and sound and cause lightheadedness. The examiner found that the Veteran's headaches were not very prostrating and did not cause severe economic inadaptability, and did not indicate that his headaches had lessened in severity since the April 2010 VA examination.

The Veteran is competent to report his readily observable symptoms such as the frequency and subjective severity of his headaches. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran's lay statements concerning his headaches to be credible, as his statements concerning the severity have been consistent throughout the lengthy period on appeal.

Considering all relevant evidence of record, the Board finds that the medical and lay evidence of record is more closely analogous with the criteria for a 50 percent rating for migraine headaches. While the September 2017 VA examiner found that the Veteran's headaches were not very prostrating and did not produce severe economic inadaptability, that examiner did not explain why the headaches had apparently lessened in severity since the April 2010 VA examination, nor did he comment on the Veteran's continued reports of constant severe headache pain. Further, an unlisted condition, including the Veteran's cervicogenic headaches, is not required to demonstrate the same objective symptoms as the analogous condition, here, migraines. See Stankevich, 19 Vet. App. at 472-73. So, while the Veteran reported that his headaches were prostrating at the April 2010 VA examination and again at the October 2016 hearing, awarding a higher 50 percent rating for the Veteran's headaches is not precluded by the September 2017 VA examiner's finding that the Veteran's headaches were not prostrating. Finally, the Veteran has continued to indicate that his headaches impact his ability to work, supporting that his headaches cause economic inadaptability, similar to the diagnostic criteria for a 50 percent rating under DC 8100.

Resolving all reasonable doubt in his favor concerning the severity of his headaches from March 18, 2010 to November 9, 2020, a 50 percent rating is warranted for the Veteran's headaches pursuant to DC 8100. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not
to the diagnostic criteria for a 50 percent rating under DC 8100.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

2. Entitlement to rating in excess of 20 percent prior to September 8, 2017, and in excess of 40 percent thereafter, for a lumbar spine disability.

The Veteran's lumbar spine DDD is currently rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). He is in receipt of a 20 percent rating prior to September 8, 2017 and a 40 percent rating thereafter, for his lumbar spine disability.

DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

Of note, effective February 7, 2021, DC 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The rating criteria were otherwise unchanged. The Veteran has a confirmed diagnosis of IVDS in his lumbar spine.

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1.

Under the General Rating Formula for Diseases and Injuries of the Spine, 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 spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

In this case, the Veteran was afforded a VA examination for his lumbar spine in April 2010. The examiner noted that the Veteran had been prescribed "12 weeks days" bed rest by a physician owing to his IVDS. When asked to clarify whether he meant 12 weeks or 12 days, the examiner stated the incapacitating episode was 12 days long.

Both the JPMR and the Veteran's attorney cite to a February 2010 private treatment record, indicating that Family Medical Leave Act (FMLA) paperwork was completed, as evidence supporting that the Veteran had 12 weeks off of work owing to his spine. However, a review of the record, while not containing the actual FMLA paperwork, supports a finding that the FMLA paperwork was authored only in regard to the Veteran's cervical spine, as the February 2010 private treatment record only references the cervical spine. Furthermore, nothing in the February 2010 private treatment record indicates that the Veteran had 12 weeks off of work, or any incapacitating episode requiring bed rest prescribed by a physician, due to any spine condition. Thus, the February 2010 private treatment record does not show any incapacitating episode owing to his lumbar spine, and does not support a higher rating for the lumbar spine disability.

Thus, the medical evidence of record does not show that the Veteran had any incapacitating episode, i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician, due to his lumbar spine disability during the period on appeal, and as such, increased ratings under the General Formula for Rating IVDS Based on Incapacitating Episodes are not warranted.

As to whether a higher rating is warranted under the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's lumbar spine from December 29, 2009.

A December 29, 2009 private treatment record indicates that the Veteran had forward flexion of the lumbar spine to 30 degrees, consistent with a 40 percent rating. Thus, the Board finds that from December 29, 2009 onward, the Veteran is entitled to a 40 percent rating for his lumbar spine disability. Because this December 29, 2009 record constitutes medical evidence showing a worsening of the Veteran's lumbar spine disability within the one year look back period from his filing a claim for an increased rating, December 29, 2009 is the correct effective date for the award of this higher rating. There is no evidence of a worsening of the Veteran's lumbar spine disability prior to December 29, 2009.

However, an even higher rating is not warranted at any point during the appeal period as the only available higher rating under the General Rating Formula for Diseases and Injuries of the Spine requires unfavorable ankylosis of the entire spine. The Veteran has consistently been able to perform range of motion testing and has not been found to have favorable or unfavorable ankylosis of the spine, or symptoms or functional impairment analogous to favorable or unfavorable ankylosis of the spine.

Resolving all reasonable doubt in his favor concerning the severity of his lumbar spine disability, the Board finds that the evidence supports a higher 40 percent rating for the entire period on appeal, however entitlement to an even higher rating is not supported by the evidence. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here there is a nearly equal balance of evidence, for versus against the claim, to warrant invoking the benefit-of-the-doubt doctrine or rule concerning a 40 percent rating for the entire period on appeal. See Lynch, 21 F.4th at 776. As such, entitlement to a 40 percent rating, but not higher, for the Veteran's lumbar spine disability from December 29, 2009, but not earlier, is granted.

Regarding neurological impairment, the Veteran has already been granted service connection for sensory dysfunction of the right and left lower extremities both secondary to his lumbar spine disability. Those disabilities are discussed below. There is no evidence of any other neurological manifestations of the lumbar spine disability.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra.

3. Entitlement to a rating in excess of 30 percent rating a cervical spine disability

The Veteran is in receipt of a 30 percent rating for a cervical spine disability under 38 C.F.R. § 4.71a, DC 5010-5242. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis
right and left lower extremities both secondary to his lumbar spine disability. Those disabilities are discussed below. There is no evidence of any other neurological manifestations of the lumbar spine disability.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra.

3. Entitlement to a rating in excess of 30 percent rating a cervical spine disability

The Veteran is in receipt of a 30 percent rating for a cervical spine disability under 38 C.F.R. § 4.71a, DC 5010-5242. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated DC represents arthritis (DC 5010) and degenerative arthritis or DDD other than IVDS (DC 5242). DC 5242 directs that a rating be assigned under the General Rating Formula for Diseases and Injuries of the Spine.

The criteria for evaluating spine disabilities were amended effective February 7, 2021, however the rating criteria for DC 5242 were unchanged.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id.

Turning to the evidence, a March 2010 private treatment record shows that the Veteran had cervical spine flexion to 20 degrees, extension to 10 degrees, and bilateral rotation to 30 degrees, each with pain at the end of the range of motion.

In April 2010 the Veteran underwent a VA cervical spine examination. The examiner explained that his cervical spine disability causes stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. The Veteran indicated that he did have one incapacitating episode owing to his cervical spine disability in the year preceding the examination. The examination report states that the Veteran had an incapacitating episode of "12 weeks days." The February 2022 JMPR states that the prior Board decision misquoted this part of the examination report, and that the Board failed to address a February 2010 private treatment record showing an incapacitating episode of 12 weeks. Further, the JMPR states that the Board "incorrectly stated that the examiner reported 12 days with bed rest.'"

To address the JMPR, the Board notes that the April 2010 VA examiner provided an addendum clarifying whether he meant that the Veteran's incapacitating episode lasted 12 days or 12 weeks. The examiner clarified that the incapacitating episode was 12 days long. The JMPR, however, states that private treatment records show that the Veteran was out of work for 12 weeks.

A review of the record shows that in a February 2010, the Veteran complained of neck pain. He indicated that he had FMLA paperwork completed by a doctor owing to his neck pain. Unfortunately, the record does not include the actual FMLA paperwork pertaining to the Veteran's cervical spine. However, private treatment records from February 2010 and March 2010 show that the same doctor who completed the FMLA paperwork also recommended that the Veteran seek chiropractic care. A March 2010 private treatment record from Capitol Spine & Pain Centers shows that the doctor recommended chiropractic care and then, if that did not work, to proceed with interventional pain management. This record does not indicate that the Veteran had been prescribed bedrest previously, nor does this record prescribe bedrest. The Board points this out because the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes states that a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, Note 1 to the rating formula states that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note 1.

In this instance, the Veteran was seeking treatment by multiple physicians for his cervical spine IVDS, and the record reflects that he was given FMLA paperwork excusing him from attending work. However, the same doctor who authored the FMLA paperwork then suggested that the Veteran seek chiropractic care, and there is no indication in the record that the Veteran was ever prescribed bed rest, despite taking a break from work for medical reasons. As such, the Board finds that even considering that FMLA paperwork was completed related to his cervical spine disability, he was not actually prescribed bed rest as a result of his cervical spine disability or related symptoms and functional impairments. Therefore, this is not a qualifying incapacitating episode for purposes of a higher rating based on incapacitating episodes of IVDS. See Id., Note 1.

At the October 2016 hearing, the Veteran testified that he has to turn his entire body to turn his head due to his neck stiffness. However, a January 2017 VA treatment record shows that the Veteran had a full range of flexion and extension in his neck and he was able to perform ear to shoulder testing without any limitation in range of motion.

The Veteran underwent an additional VA cervical spine examination in September 2017. At this examination, the Veteran stated that he has excruciating neck pain daily and trouble turning his neck. Upon examination, the examiner observed that the Veteran had no ankylosis and that his IVDS resulted in no incapacitating episodes, meaning he does not meet the criteria for a higher 40 percent rating for his cervical spine disability. Of note, the Veteran had cervical spine flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation each to 5 degrees. While this shows significant limitation in range of motion of the cervical spine, it also shows that the Veteran was able to perform range of motion testing and had some remaining range of motion that is inconsistent with ankylosis.

The Veteran again attended a VA cervical spine examination in November 2020. The Veteran had forward flexion to 5 degrees, extension to 35 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 20 degrees. The examiner found that the Veteran's limitation in range of motion causes functional loss in that he has limited neck range of motion owing to pain and neck fusion surgery. There was additional 10 degree loss in range of motion in both extension and lateral rotation upon repetitive use over time and as estimated during flare ups; however, this still demonstrates some remaining range of motion in the cervical spine. The examiner indicated that there was no ankylosis of the cervical spine present.

The February 2022 JMPR directs the Board to discuss whether the Veteran's limitation in range of motion of his cervical spine is the functional equivalent of ankylosis. The criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). This includes consideration of whether there is functional equivalent of ankylosis when the Veteran's symptoms are most prevalent (i.e., during "flare ups") or during prolonged or repeated use of his cervical spine. Therefore, ankylosis can be shown via functional loss akin to it. See 38 C.F.R. §§
present.

Here, though, the Board finds that the Veteran's cervical spine disability does not produce a functional equivalent of unfavorable ankylosis. As noted above, the Veteran has been able to perform range of motion testing throughout the period on appeal, meaning he has some range of motion. Further, this range of motion testing shows that the Veteran starts his range of motion in a neutral spine, meaning at 0 degrees and not in flexion or extension, and then performs range of motion testing. To reiterate, unfavorable ankylosis requires the entire cervical spine to be fixed in flexion or extension, in addition to other symptoms. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note 5. There is no evidence of record supporting that the Veteran's limitation in range of motion is the functional equivalent of fixation in either flexion or extension. Ultimately, even if the Veteran's cervical spine disability resulted in the functional equivalent of ankylosis, which the Board finds it does not, it would be favorable ankylosis as the Veteran's cervical spine remains in a neutral position, not flexion or extension. This is consistent with his current 30 percent rating for his cervical spine disability.

Regarding neurological impairment, the Veteran has already been granted service connection for sensory dysfunction of the upper right extremity and radiculopathy of the upper left extremity, both secondary to his cervical spine. Those disabilities are discussed below. There is no evidence of any other neurological manifestations of the cervical spine disability.

Accordingly, the most probative evidence of record persuasively weighs against this claim of entitlement to a rating in excess of 30 percent for a cervical spine disability. And, as the most probative evidence of record persuasively weighs against this claim, the benefit-of-the-doubt rule does not apply since the evidence for versus against the claim is not in relative (i.e., approximate) balance. See Lynch, 21 F.4th at 776; Ortiz, 274 F.3d at 1361.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra.

4. Entitlement to a rating in excess of 20 percent for right upper extremity sensory dysfunction.

5. Entitlement to a rating in excess of 20 percent rating for left upper extremity radiculopathy.

The Veteran is in receipt of separate 20 percent ratings for right upper extremity sensory dysfunction and left upper extremity radiculopathy. While the Veteran's right upper extremity and left upper extremity neurological disabilities are categorized differently, they are both rated under DC 8510, for paralysis of the upper radicular group.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. The Board acknowledges that on recent examinations, the Veteran has indicated that he is ambidextrous; however, the April 2010 VA examination report indicates that the Veteran reported that his right hand is dominant. As only on hand can be considered dominant and the April 2010 VA examination report indicates that the right hand is dominant, the Board finds that the Veteran's right hand is his dominant, or major, extremity. Neither upper extremity disability is found to be more severe than the other, so the Veteran is not prejudiced by the assignment of his right upper extremity as the dominant extremity.

Paralysis of the upper radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4
Board acknowledges that on recent examinations, the Veteran has indicated that he is ambidextrous; however, the April 2010 VA examination report indicates that the Veteran reported that his right hand is dominant. As only on hand can be considered dominant and the April 2010 VA examination report indicates that the right hand is dominant, the Board finds that the Veteran's right hand is his dominant, or major, extremity. Neither upper extremity disability is found to be more severe than the other, so the Veteran is not prejudiced by the assignment of his right upper extremity as the dominant extremity.

Paralysis of the upper radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8510. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a.

Of note, for the period prior to September 8, 2017, the Veteran's bilateral upper extremity disabilities were each rated as 10 percent disabling under DC 8515, for paralysis of the median nerve.

Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8515. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Id.

The words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

Regulations provide that ratings for peripheral neurological disorders are to be assigned based upon 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. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. 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, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

Turning to the evidence, a February 19, 2010 treatment record reflects that the Veteran cannot grasp, had loss of motor skills, was unable to use his arms or hands, and had weakness in his arms and hands.

During the April 2010 VA examination, the Veteran reported constant, severe, neck pain that travels to the left arm and is exacerbated by physical activity and prolonged laying or sitting. He endorsed having flare-ups of pain, tingling of the left arm, and numbness in the face. He also reported loss of motor skills and sensory impairment, and inability to lift, hold, and grasp. The examiner found no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone and atrophy of the limbs. Cranial nerves were normal; coordination and motor function were within normal limits, and reflexes were normal bilaterally. Sensory function using pin prick testing was abnormal with findings of partial sensory deficit in the bilateral forearms, thumbs, and index fingers; there was also sensory deficit of the left long, ring
physical activity and prolonged laying or sitting. He endorsed having flare-ups of pain, tingling of the left arm, and numbness in the face. He also reported loss of motor skills and sensory impairment, and inability to lift, hold, and grasp. The examiner found no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone and atrophy of the limbs. Cranial nerves were normal; coordination and motor function were within normal limits, and reflexes were normal bilaterally. Sensory function using pin prick testing was abnormal with findings of partial sensory deficit in the bilateral forearms, thumbs, and index fingers; there was also sensory deficit of the left long, ring, and little fingers. Reflex testing and motor function were within normal limits. Upon examination, right and left hand dexterity was within normal limits. The examiner diagnosed cervical IVDS and opined that the "most likely [involved] peripheral nerve is the Radial Nerve and Ulnar Nerve." The examiner indicated these nerves were impacted bilaterally.

A June 2010 private medical record indicates that the Veteran had bilateral weakness in his upper extremities.

A March 2011 private medical record indicates that there was weakness in the Veteran's bilateral hand grip.

An April 2011 VA physical medicine rehabilitation treatment note indicated that the Veteran had chronic neck pain, with constant cervical and upper shoulder region spasm and stiffness. On examination, no sensory deficits or weakness were noted.

A December 2012 treatment record notes the Veteran's report of right arm pain. Examination found no sensory disturbances or numbness.

A May 2014 treatment record includes the Veteran's report of back and neck pain after a fall. Examination showed normal cranial nerves, coordination, sensation, and reflexes.

A May 2015 treatment record shows normal strength of the upper extremities.

During the October 2016 Board hearing, the Veteran testified that he experiences left hand and arm shaking "on many occasions." He also testified that he gets "shooting pains down [his] arms every now and then."

A January 2017 treatment record notes the Veteran's report of persistent paresthesias of both upper extremities. Examination showed upper extremity sensation was intact; Spurling's compression test was negative.

A February 2017 treatment record shows the Veteran reported neck pain that travels down his arms. Examination showed normal sensation, strength, and reflexes of the upper extremities. The assessment was cervical region spondylosis without myelopathy or radiculopathy.

A March 2017 treatment record notes the Veteran's report of central neck pain that radiates to both upper trapezius/shoulders. Examination of both upper extremities found normal strength, intact sensation to light touch, and normal reflexes. Localized pain was noted on Spurling's compression test. The diagnosis was cervicalgia.

The Veteran was afforded a VA cervical spine examination in September 2017. Left upper extremity radiculopathy and right upper extremity sensory dysfunction were diagnosed. The Veteran reported shooting pain from his neck and numbness into his hands. He also reported that his hand shakes when writing or using fine motor skills. Strength, reflex, and sensory tests were normal, with the exception of the right hand and fingers which had decreased (but not absent) sensation. The Veteran reported bilateral mild intermittent pain and numbness. The examiner opined that that the C5/C6 nerve roots (upper radicular group) were involved, and that the severity was mild bilaterally. The examiner noted that the Veteran's fine motor movements appeared normal when not being examined, such as when retrieving his shoes from the floor after the examination.

In the September 2017 VA peripheral nerves examination report, the examiner reiterated the complaints and findings from the September 2017 cervical spine examination report. The examiner opined that the Veteran has mild incomplete paralysis of the right (but not left) median nerve. The examiner indicated that the radial nerve and upper radicular group were normal bilaterally.

In November 2020, the Veteran was afforded a VA cervical spine examination. Bilateral upper extremity sensory dysfunction was diagnosed. The Veteran reported neck pain radiating from his neck to both shoulders and arms. Strength, reflex, and sensory tests were normal, except for decreased sensation of the right hand/fingers. The Veteran reported moderate intermittent pain and mild numbness of both upper extremities. The examiner opined that that the C5/C6 nerve roots (upper radicular group) were involved, and that the severity was mild bilaterally. The examiner explained that radiculopathy of the left upper extremity was asymptomatic on examination. "However, the Veteran complains of radicular pain radiating to both upper extremities, therefore
November 2020, the Veteran was afforded a VA cervical spine examination. Bilateral upper extremity sensory dysfunction was diagnosed. The Veteran reported neck pain radiating from his neck to both shoulders and arms. Strength, reflex, and sensory tests were normal, except for decreased sensation of the right hand/fingers. The Veteran reported moderate intermittent pain and mild numbness of both upper extremities. The examiner opined that that the C5/C6 nerve roots (upper radicular group) were involved, and that the severity was mild bilaterally. The examiner explained that radiculopathy of the left upper extremity was asymptomatic on examination. "However, the Veteran complains of radicular pain radiating to both upper extremities, therefore the service connected diagnosis, radiculopathy left upper extremity is maintained."

Initially, the Board points out that the evidence regarding the characterization of the nerve(s) involved throughout the period on appeal is somewhat conflicting. At the April 2010 examination, the median nerve was not implicated and the examiner explained that the most likely involved peripheral nerve is the radial and ulnar nerve bilaterally. The Board notes, however, that the rating during this period was assigned under DC 8515, for median nerve paralysis. At the September 2017 cervical spine examination, the examiner opined that the upper radicular group nerves were involved bilaterally; then, the examiner opined on a peripheral nerve examination on the same date that the Veteran has mild incomplete paralysis of the right, but not left, median nerve, and that the radial nerve and upper radicular group were normal bilaterally. At the November 2020 cervical spine examination, the examiner concluded that that the upper radicular group nerves were involved.

Upon review of the evidence of record, including the conflicting characterization of the nerves implicated, and affording the Veteran the benefit of the doubt, the Board finds that from March 18, 2010, the date of this claim, a 40 percent rating is warranted for moderate incomplete paralysis of the right upper extremity (major extremity) and a 30 percent rating is warranted for moderate incomplete paralysis of the left upper extremity (minor extremity) under DC 8510.

The Board acknowledges that the disabilities were assigned 10 percent ratings each under DC 8515 (for median nerve involvement) prior to September 8, 2017, but finds that during that period, and throughout the entire period for consideration (based on symptoms shown and nerves implicated) the disabilities are more properly rated under DC 8510. Importantly, the April 2010 examiner did not implicate the median nerve. Although the right (but not left) median nerve was implicated on the September 2017 peripheral nerve examination, that same examiner implicated the upper radicular group nerves bilaterally on a cervical spine examination on the same day. Most recently, the November 2020 examiner implicated the upper radicular group nerves.

The Board finds that from February 19, 2010 onward, the right and left upper extremity nerve disabilities each most closely approximate moderate, but not greater, incomplete paralysis of the upper radicular groups. Of note, VA examiners diagnosed mild incomplete paralysis in September 2017 cervical spine and peripheral nerves examinations, and in the November 2020 cervical spine examination; no VA examiner diagnosed moderate or greater incomplete paralysis of either upper extremity.

The Board recognizes the evidence favorable to the Veteran that was identified in the JMPR. This evidence includes the February 19, 2010 private treatment record showing the Veteran cannot grasp, has loss of motor skills, and was unable to use and had weakness of his arms and hands; the June 2010 private medical record showing bilateral weakness in the upper extremities; and the March 2011 private record where the examiner indicated the Veteran had a weak bilateral hand grip. However, the Board finds that the Veteran's upper extremity peripheral nerve disabilities are no more than moderate in severity, such that an even higher rating is not warranted under DC 8510. In support of this finding, the Board points out that the private medical evidence dated February 2010, June 2010, and March 2011 showing that the Veteran has bilateral hand weakness, loss of motor skills, and inability to grasp, is inconsistent with the findings of multiple VA examiners who observed the Veteran's upper extremity function in person at the examinations, including the April 2010 VA examination report which was contemporaneous to the referenced private treatment records. In addition, the evidence as consistently reflected that muscle strength and reflex testing has been normal bilaterally, and sensation testing has revealed limited, but still present, sensation. The Board finds that this evidence of objective test results for sensation, muscle strength, and reflexes due to nerve impairment outweighs the Veteran's lay reports of and weakness, loss of motor skills
0, June 2010, and March 2011 showing that the Veteran has bilateral hand weakness, loss of motor skills, and inability to grasp, is inconsistent with the findings of multiple VA examiners who observed the Veteran's upper extremity function in person at the examinations, including the April 2010 VA examination report which was contemporaneous to the referenced private treatment records. In addition, the evidence as consistently reflected that muscle strength and reflex testing has been normal bilaterally, and sensation testing has revealed limited, but still present, sensation. The Board finds that this evidence of objective test results for sensation, muscle strength, and reflexes due to nerve impairment outweighs the Veteran's lay reports of and weakness, loss of motor skills, and inability to grasp, as the Veteran is not competent to attribute such symptoms to his peripheral nerve condition versus other possible etiologies. Further, severe paralysis is defined as loss of all shoulder and elbow movements lost or severely affected due to peripheral nerve disability, which is not shown by the evidence of record. The Veteran, while he has symptoms and functional impairments of his upper extremities, has not shown that his use of his upper extremities is so restricted due to his peripheral nerve conditions that it constitutes severe incomplete or complete paralysis. As such, even higher ratings under DC 8510 for severe incomplete or complete paralysis of the upper radicular group (upper extremities) are not warranted.

For these reasons, and resolving all reasonable doubt in the Veteran's favor, a rating of 40 percent rating is warranted for the right upper extremity sensory dysfunction and a 30 percent rating is warranted for the left upper extremity radiculopathy from March 18, 2010, forward, both under DC 8510. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The approximate balance of evidence for versus against the claim here warrants invoking the benefit-of-the-doubt doctrine or rule and thus, these claims are granted. See Lynch, 21 F.4th at 776.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra.

6. Entitlement to a rating in excess of 10 percent for left lower extremity sensory loss.

The Veteran is in receipt of a 10 percent rating for lower left extremity sensory dysfunction under 38 C.F.R. § 4.71a, DC 8520, applicable to paralysis of the sciatic nerve. He contends that his lower left extremity sensory dysfunction is more severe than contemplated by the current 10 percent rating.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

As detailed above, the words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6.

During the April 2010 VA examination, the Veteran reported pain in his lumbar spine and both legs, exacerbated by physical activity and laying or sitting for too long. His gait was normal; walking was steady. There was no difficulty with weight-bearing, balancing, or ambulation. Neurological examination of the lower extremities showed motor function was within normal limits; there was no lumbosacral motor weakness. Sensory function was abnormal "with findings of partial sensory loss of the left leg and foot." Cutaneous reflexes were normal. The diagnoses included peripheral nerve involvement of "the sciatic nerve which affects the left side of the body." The examiner found that there were no complications.

A June 2010 private treatment record indicates that the Veteran had weakness in his bilateral lower extremities.

A March 2011 private treatment record reflects the Veteran's complaint of weakness in his lower left extremity.

At the October 2016 Board hearing, the Veteran testified that he has the sensations of cramps and "pins and needles" in his legs in bed and gets up to "try to walk it off," or has his wife massage his legs
. Sensory function was abnormal "with findings of partial sensory loss of the left leg and foot." Cutaneous reflexes were normal. The diagnoses included peripheral nerve involvement of "the sciatic nerve which affects the left side of the body." The examiner found that there were no complications.

A June 2010 private treatment record indicates that the Veteran had weakness in his bilateral lower extremities.

A March 2011 private treatment record reflects the Veteran's complaint of weakness in his lower left extremity.

At the September 2017 VA lumbar spine examination, the Veteran reported numbness and tingling in both lower extremities. Strength, reflex, and sensory testing was normal. Straight leg raising test was positive bilaterally. The Veteran reported bilateral mild intermittent pain, paresthesias and dysesthesias, and numbness. The examiner diagnosed bilateral mild radiculopathy, but no other neurologic abnormalities.

The September 2017 VA peripheral nerves examination report reflects similar symptoms as were reported in the September 2017 VA lumbar spine examination report. The examiner diagnosed bilateral mild incomplete paralysis of the sciatic nerve.

At the November 2020 VA lumbar spine examination, the Veteran reported experiencing back pain that radiates to both legs, sciatic pain, and a feeling of pins and needles on both feet. Strength and reflex tests were normal. Sensory testing showed decreased, but not absent, sensation in the left lower leg/ankle and foot/toes. Straight leg testing was negative bilaterally. The Veteran reported left lower extremity moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness. The examiner opined that the left lower extremity radiculopathy was mild. The examiner opined that left lower extremity radiculopathy is a more accurate diagnosis than sensory dysfunction.

Upon full review of the evidence, the Board finds that a rating of 20 percent for left lower extremity sensory dysfunction is warranted for the entire period on appeal, beginning March 18, 2010. While the VA examinations of record reflect that the Veteran's lower left extremity sensory dysfunction was mild in nature, meaning minimal in severity, the private treatment records show that, at least at times, he also suffered from weakness and numbness in his left lower extremity, impacting his ability to sleep. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left lower extremity sensory dysfunction most nearly approximates moderate incomplete paralysis for the entire period on appeal, such that a 20 percent rating is warranted under DC 8520.

However, the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscular atrophy, or complete paralysis, which are required for higher ratings under DC 8520. The evidence of record reflects that the Veteran's left lower extremity sensory dysfunction is wholly sensory in nature, such that a rating for more than moderate incomplete paralysis is not warranted. To the extent that the Veteran has reported experiencing left lower extremity weakness, the Board finds that he is not competent to opine on the etiology of any such weakness, as this is a complex medical determination. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis, consistent with a 20 percent rating under DC 8520.

The Board has considered all other potentially applicable DCs, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves of the left lower extremity. Therefore, a separate or higher rating under a different DC is not warranted.

Resolving all reasonable doubt in the Veteran's favor, a 20 percent rating, but no higher, is warranted under DC 8520 for the left lower extremity sensory dysfunction for the entire period on appeal, beginning March 18, 2010. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The approximate balance of evidence for versus against the claim here warrants invoking the benefit-of-the-doubt doctrine or rule and thus, this claim is granted. See Lynch, 21 F.4th at 776.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra.

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Pak

The Board's decision in this case is binding only with respect to the instant matter decided. This decision

Analyze in VA Law Explorer