Citation Nr: 1745522 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 09-42 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for a low back disorder, rated 10 percent disabling until October 8, 2011, 20 percent disabling from October 8, 2011 until September 13, 2014, and 40 percent disabling thereafter. 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1959 to May 1963. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a July 2008 rating decision issued by the Regional Office (RO) in Little Rock, Arkansas and a September 2013 rating decision. The increased rating issues were remanded by the Board for additional development in July 2011 and August 2014. The case has now been returned to the Board. In March 2012 the Appeals Management Center granted a 20 percent rating for the low back disorder, effective October 8, 2011. In a September 2016 rating decision, the RO awarded a 40 percent disability rating for the low back disorder, effective September 13, 2014. Because both increases are not an award of the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Finally, a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the RO denied a claim of entitlement to a TDIU in a December 2016 rating decision. Thereafter, the Veteran through his representative has argued that the Veteran is unable to work as a result of his service-connected low back disorder. See September 2017 appellate brief. The Board finds that the issue is implicitly on appeal. See also VA Adjudication Procedures Manual M21-1, Part IV, Subpart ii, Chapter 2, Section F.4.m. The Veteran also has perfected an appeal of issues of entitlement to service connection for hearing loss, tinnitus, right knee disability, and right leg disability. However, as he has a pending hearing for these issues they will not be addressed by the Board at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a TDIU prior to September 13, 2014, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. With resolution of doubt in the Veteran's favor, prior to October 8, 2011, the Veteran's service-connected low back disorder was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. Prior to September 13, 2014, the Veteran's service-connected low back disorder was not manifested by forward flexion of the thoracolumbar spine limited 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. From September 13, 2014, the Veteran's service-connected low back disorder did not result in unfavorable ankylosis of the thoracolumbar spine or in incapacitating episodes having a total duration of at least 6 weeks in a year 4. The Veteran's right lower extremity sciatica has produced manifestations including numbness, pain, and decreased sensation resulting in moderate incomplete paralysis and has not approximated moderately severe incomplete paralysis of the sciatic nerve. 5. Beginning September 13, 2014, the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to October 8, 2011, the criteria for a disability rating of 20 percent, but not higher for a low back disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, DCs 5235 to 5243 (2016). 2. Prior to September 13, 2014, the criteria for a disability rating in excess of 20 percent for a low back disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, DCs 5235 to 5243 (2016). 3. From September 13, 2014, the criteria for a rating in excess of 40 percent for a low back disorder have not been met. 38 U.S.C.A. §§ 1155; 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, DCs 5235 to 5243 (2016). 4. The criteria for an initial disability rating in excess of 20 percent for right lower extremity sciatica have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), DC 8520 (2016). 5. The criteria for TDIU have been met beginning September 13, 2014. 38 U.S.C.A. § 1155 (West 2014), 38 C.F.R. §§ 3.340 , 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist First, for the Veteran's claim of entitlement to a TDIU, the benefit sought is either being granted or remanded in the instant decision. Therefore, any error in VA's duty to notify and assist is harmless. For the Veteran's claim of entitlement to an increased rating for his low back disorder, VA's duty to notify was satisfied by a November 2007 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Next, the Veteran is challenging the evaluation assigned in connection with the grant of service connection for sciatica of the right lower extremity. Where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated, and there is no need to provide additional § 5103 notice or prejudice from absent notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); VAOPGCPREC 8-2003 (Dec. 22, 2003). In addition, the duty to assist the Veteran has also been satisfied for the claims decided herein. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein. The Veteran was afforded multiple VA examinations in connection with his claims in November 2007, October 2011, September 2014, and September 2015. The Board finds that the VA examination reports, when taken together, are adequate to decide the case because they are predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. In addition, the examinations, when taken together, fully address the rating criteria that are relevant to rating the disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a) (2014). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). Based on the foregoing, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. Finally, the Board finds compliance with the prior remand. A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the 2014 remand directed the RO to provide examinations for the Veteran's low back and right lower extremity disorders. Examinations were provided on remand. Thus, there has been compliance with the prior remand. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Low Back Disorder Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2016). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, less or more movement than normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Mitchell, 25 Vet. App. 32; 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2016) The Board notes that recently, the United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However the appeal period before the Board is prior to September 13, 2014, retroactive range of motion testing cannot be performed. Moreover, from September 13, 2014, the Veteran is in receipt of a 40 percent rating for his low back disorder. As discussed further below, a higher rating than 40 percent for the diagnostic criteria for the Veteran's low back necessarily precludes consideration of all range of motion measurements. Consequently, because it is either no longer possible to determine the Veteran's range of motion in the manner now required by Correia prior to September 2014, remand would not be productive. In fact, an examiner's assessment of the range of motion findings required by that case would, at this point, amount to pure speculation on the part of any examiner. The Board points out that the Court in Correia stated "its decision today will be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted." Id. at *8 n.7. In this case, those tests can simply not be conducted with respect to the period prior to September 13, 2014. Similarly, since range of motion after September 13, 2014, is irrelevant, compliance with Correia with a more current VA examination would also be non-productive. The Veteran's service-connected lumbar spine disability has been rated by the RO under the provisions of DCs 5235 through 5243. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). Under the General Rating Formula, a 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) instructs VA to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a. Note (5) provides that, 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. The Board will also consider application of DC 5243 for rating intervertebral disc syndrome. Under DC 5243, a 20 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. A 60 percent disability rating is assigned for intervertebral disc syndrome with incapacitating episodes that have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Factual History The Veteran submitted a claim for an increased rating for his low back disability in October 2007. Shortly thereafter, the Veteran presented for a VA examination in November 2007. At that time, he complained of having pain that would occur two to three times per week in his low back. The pain was located in his lumbar spine and it did not radiate from that location. Pain episodes would last for approximately one day at a time, and their onset was not related to any precipitating factor. The Veteran would take over-the-counter medications and use a heating pad. He denied bowel or bladder dysfunction or motor deficits. The Veteran reported being able to walk two blocks and not using an assistive device. He denied the use of a brace or an orthotic. The examiner also indicated that there were no flare-ups, episodes of physician ordered bedrest, or exacerbations in the past 12 months. Range of motion testing of the lumbar spine showed forward flexion up to 80 degrees, extension up to 30 degrees, lateral rotation up to 20 degrees bilaterally, and up to 20 degrees of bilateral lateral bending. Active and passive range of motion testing yielded the same results. There was no pain in motion noted. The Veteran was tender to palpation diffusely about the lumbar spine. However, there was no crepitus or instability. Contemporaneous X-rays of the lumbar spine showed mild spondylosis. The examiner further explained that there was mild discomfort associated with the examination. He noted that it was conceivable that pain could further limit function as described, particularly with repetition. However, it was not feasible to attempt to express this in terms of any additional limitation of motion, as such a determination could not be made with any degree of medical certainty. Of record is a December 2007 note from Dr. A.R., the Veteran's doctor. Dr. A.R. explained that the Veteran's 10 percent rating for his low back disorder should be increased due to the problems he was having. He was in constant pain, and on some days he could "barely walk due to the pain." In an undated buddy statement from the Veteran's nephew, his nephew described that the Veteran's low back condition had progressively worsened over time to the point where his ability to stay busy working on cars and perform chores around his house had been limited. The Veteran's neighbor submitted a buddy statement dated in January 2008 that described how the Veteran was in a lot of pain due to back and hip injuries. He had difficulty when trying to work or walk. At his hearing in December 2010, the Veteran testified that he had more limited motion in his back than he did at the time of his previous VA examination in November 2007. He also testified that he had fallen in July 2010. Of record is a January 2011 treatment note from the Northeast Arkansas Baptist clinic. The Veteran presented with complaints of recurring back pain, but no further insight was provided into the Veteran's disability picture. VA treatment records from this time are also of record, but they do not otherwise provide insight into the severity of the Veteran's low back disorder. The Veteran presented for another VA examination of his lumbar spine in October 2011, when he was diagnosed with mild degenerative disc disease of the lumbar spine. Then, he described having a flare-up once per week. The pain would lessen with medications, rest, and a heating pad. The flare-ups would require the Veteran to sit down and rest for an hour. The Veteran repeated that the flare-ups were usually relieved with pain medicine and that the flare-ups were manifested by just an increase in the severity of the pain. Range of motion testing of the lumbar spine showed forward flexion up to 60 degrees with pain starting at 50 degrees, extension up to 10 degrees with pain at 5 degrees, right lateral rotation up to 20 degrees with pain at the end, left lateral flexion up to 30 degrees with pain at the end, right lateral rotation up to 20 degrees with pain at the end, and left lateral rotation up to 30 degrees with pain at the end. The Veteran was able to perform repetitive use testing, yielding the same results. That is, there was no additional limitation of motion of the lumbar spine following repetitive-use testing. That being said, the examiner did find that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine due to there being less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. There was localized tenderness or pain to palpation in the right lumbar area just lateral to the spinous process. The Veteran also had guarding or muscle spasm of the lumbar spine, though it did not result in abnormal gait or spinal contour. Aside from right lower extremity radiculopathy, as noted later in this decision, there were no other neurological abnormalities on examination at that time. The examiner denied that the Veteran had any IVDS. Regarding assistive devices, the examiner noted that the Veteran used a wheelchair and a cane. The Veteran would use the cane for ambulation. The wheelchair was used due to the Veteran's respiratory condition. Regarding functional impact, the examiner noted that the Veteran had mild degenerative disc disease of the lumbar spine and radiculopathy of the right lower extremity. These conditions would likely worsen with heavy labor and lifting. However, the examiner did not believe that the Veteran's condition would prohibit him from performing light duty. The examiner further explained that there was pain associated with the examination. He noted that it was conceivable that pain could further limit function as described. However, it was not feasible to attempt to express this in terms of any additional limitation of motion, as such a determination could not be made with any degree of medical certainty. The Veteran presented for another VA examination on September 13, 2014. This examination served as the basis for the increase in his disability rating to 40 percent. Because a rating in excess of 40 percent for the lumbar spine does not involve limitation of motion, the Board will not discuss the portion of this examination report addressing ranges of motion. During the clinical interview, the Veteran discussed having increased back and leg pain with recurrent falls. He was confined to a wheelchair. There was pain with palpation of the lumbar spine. There was guarding of the thoracolumbar spine that resulted in abnormal gait or spinal contour. Aside from radiculopathy, there were no other neurological abnormalities or findings related to the Veteran's lumbar spine disorder. The examiner indicated that the Veteran had IVDS with there being a history of incapacitating episodes having a total duration of at least one week but less than two weeks during the previous 12 months. The examiner noted that the Veteran had balance and excess fatigue issues, leading to falls. He would use the wheelchair for most daily use. There were no findings of ankylosis. Regarding functional impact, the examiner found that the Veteran could not work due to increase fatigue and loss of motion and strength from lumbar back pain. The Veteran presented for another VA examination in September 2015. During the clinical interview, the Veteran discussed having increased back pain. He was unable to lift more than 10 pounds, walk over 20 feet, bend, squat, climb, or crawl. The examination was being conducted during a flare-up, which the examiner noted resulted in pain, fatigue, weakness, lack of endurance, and incoordination. He was confined to a wheelchair on an occasional basis, but would also use a cane constantly. There was guarding of the thoracolumbar spine that resulted in abnormal gait or spinal contour. Aside from radiculopathy, there were no other neurological abnormalities or findings related to the Veteran's lumbar spine disorder. Similarly, there were no findings of ankylosis of the lumbar spine. Regarding functional impact, the examiner found that the Veteran was unable to do most work activities, including lifting more than 10 pounds, walking for any distance, squatting, climbing, or crawling. Analysis The Board has divided its analysis into three sections to reflect the three different ratings assigned for the Veteran's low back disorder throughout the appeal period. First, after a thorough review of the record, the Board finds that the evidence supports an increased rating of 20 percent, but no higher, for the Veteran's low back disorder prior to October 8, 2011. In making this finding, the Board notes that the November 2007 VA examination is inadequate insofar as the examiner did not obtain the Veteran's lay statements regarding the extent of functional loss suffered during flare-ups. The examiner noted that it was conceivable that pain could limit function as described, particularly with repetition, or during a flare-up. However, the examiner explained that he could not provide an estimate of additional functional loss with any degree of medical certainty. The examiner did not elicit lay statements from the Veteran describing his limitations or functional loss after repetitive use or during flare-ups. The only information the Board may rely on is the Veteran's reports that he would suffer from pain two to three times per week in his low back, each episode lasting one day at a time. The ambiguity left by the November 2007 VA examination is further compounded by the December 2007 letter from Dr. A.R., who noted that the Veteran's low back disorder was causing constant pain, and that on some days the Veteran was barely able to walk due to the pain. However, this letter did not provide any specificity as to the functional impairment caused by the Veteran's low back disorder during such flare-ups. That being said, the Board notes that this letter was received in close proximity to the November 2007 VA examination, which showed no pain. The Veteran did report having weekly episodes of pain, treated by over-the-counter medication and rest. These reports are consistent with the December 2007 opinion. The subsequently received buddy statements only support the December 2007 letter, the statements present a disability picture that is more severe than the one described in the November 2007 VA examination. Thus, with resolution of doubt in the Veteran's favor, the Board finds that the Veteran's low back disorder more closely approximates a 20 percent disability rating for the appeal period prior to October 8, 2011. The Veteran showed forward flexion to 80 degrees with no pain or functional loss due to pain in November 2007. However, the examiner's failure to properly describe the Veteran's low back disorder and its functional limitations after repetitive motion and during flare-ups, in conjunction with subsequently received correspondences from Dr. A.R. and various acquaintances, leads the Board to find that the Veteran's low back disorder more closely approximated limitation of motion in the lumbar spine where forward flexion was greater than 30 degrees but not greater than 60 degrees. Next, the Board finds that a disability rating in excess of 20 percent prior to September 13, 2014, is not warranted. This analysis encapsulates the appeal period for which a 20 percent rating was just granted and the period from October 8, 2011 to September 12, 2014. Taking into consideration pain on motion and any description of flare-ups and their functional impairment, the Veteran's spine disability did not result in limitation such that there was 30 degrees or less of forward flexion. Although the October 2011 examiner stated that there was pain during forward motion, the pain was noted to begin at 50 degrees. Repetitive motion did not further limit the Veteran's motion. Further, the examiner elicited adequate information from the Veteran regarding his level of disability during weekly flare-ups. Specifically, the Veteran described having to sit down and rest for an hour, with the pain lessening after medications, rest, and the use of a heating pad. Though the examiner did not describe the additional functional limitation during flare-ups in terms of additional limitation of motion, the Veteran reported that flare-ups were manifested by an increase in the severity of the pain, not in additional functional loss. Even assuming that there was additional functional loss during a flare-up, the flare-ups described did not approximate a severity that would be considered 40 percent disabling. The Veteran showed forward flexion ending at 60 degrees with pain at 50 degrees on examination in October 2011. This is not close to 30 degrees or less of forward flexion, the criteria for the next higher rating. The Board has reviewed private treatment records and VA treatment records during this portion of the appeal. They are significant for annotations of low back pain. However, they do not otherwise provide insight into the severity of the Veteran's low back disorder. During his December 2010 hearing, the Veteran described that his low back disorder had more limited motion than that identified in the November 2007 examination. The Board has acknowledged as much by granting a 20 percent rating for that portion of the appeal. However, nothing that the Veteran has reported or that the objective evidence has shown demonstrates a level of disability approximating a 40 percent rating for the low back disorder. Last, the evidence does not suggest the Veteran had incapacitating episodes having a total duration of least four weeks but less than six weeks during any 12 month period from October 2007 to September 2014. The October 2011 examiner noted that the Veteran did not have IVDS. The November 2007 examiner found that there were no episodes of physician ordered bedrest or exacerbations in the past 12 month for the Veteran's low back disorder. Accordingly, any higher rating based on DC 5243 is not warranted prior to September 13, 2014. Last, the Board finds that a disability rating in excess of 40 percent beginning September 13, 2014, is not warranted. The Board notes that the Veteran does not meet the criteria for a disability rating in excess of 40 percent for a low back disability under the General Rating Formula for Diseases and Injuries of the Spine, which was used to assign this evaluation. The General Rating Formula applies with or without symptoms such as pain. DeLuca and associated regulations do not apply because a 40 percent evaluation is the maximum allowable disability rating for limitation of motion of the thoracolumbar spine. See Johnston v. Brown, 10 Vet. App. 80 (1997). A higher rating under the General Rating Formula is not warranted unless there is unfavorable ankylosis present. In the September 2014 and September 2015 examinations, ankylosis was specifically denied by the examiners. Moreover, there is no indication in the evidence of record that the Veteran's lumbar spine has been ankylosed. Thus, the Board finds that a higher rating based on ankylosis is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, DCs 5235-5243. The Board also finds that the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes does not provide for a higher disability rating. 38 C.F.R. § 4.71a , DC 5243 (2015). In September 2014 VA examination, while the Veteran was noted to have IVDS, the examiner found that the Veteran had not suffered from any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the previous 12 months. As such, there is no finding that the Veteran had incapacitating episodes over the previous year. Nothing in the medical records indicates that flare-ups resulted in physician prescribed bed rest for duration of 6 weeks or more during the previous year, warranting a higher disability rating. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 40 percent for the Veteran's low back disability from September 13, 2014. Prior to October 8, 2011, a disability rating of 20 percent is granted. A disability rating in excess of 40 percent prior to September 13, 2014, is not warranted. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Radiculopathy of the right lower extremity The 20 rating for the Veteran's right lower extremity sciatica has been assigned pursuant to Diagnostic Code 8520. Under that code, complete paralysis of the sciatic nerve, where the foot dangles or drops, there is no active movement possible of muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent. Severe paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent. Moderately severe, moderate, and mild incomplete paralysis of the sciatic nerve are rated as 40, 20, and 10 percent, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). Factual History and Analysis In a November 2007 VA examination for the lumbar spine, the Veteran reported having bilateral foot numbness. However, the examiner suggested this was due to the Veteran being diabetic. On examination in October 2011, the Veteran described having occasional pain that would radiate down his right leg about one to two times per month. The examiner indicated that the Veteran had radicular symptoms of the right lower extremity. Specifically, there was mild intermittent pain. The root involved in the radiculopathy was the sciatic nerve. The examiner summarized the radiculopathy of the right lower extremity as mild. On VA examination in September 2014 for the low back, the Veteran showed hypoactive deep tendon reflexes in the right lower extremity. A sensory examination showed decreased sensation to light touch in the right leg/ankle and foot/toes. The examiner diagnosed right lower extremity radiculopathy, noting that it caused mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The overall severity of the radiculopathy, which involved the sciatic nerve, was described as moderate. The Veteran underwent a VA examination for peripheral nerves condition in September 2014. Then, he was diagnosed with paralysis of the sciatic nerve. At that time, his right lower extremity radiculopathy was manifested by mild paresthesias and/or dysesthesias and mild numbness. There was reduced strength in the right lower extremity, but the Veteran was still able to perform active movement against some resistance. Deep tendon reflexes were normal. Aside from decreased sensation in the right foot and toes, sensation testing for light touch was normal in the right lower extremity. The examiner noted that there were vascular changes on the legs and arms noted with hair loss and shiny skin. The Veteran's gait was wide, which the examiner attributed to spinal stenosis. The examiner noted that the Veteran's peripheral nerve condition did not impact his ability to work. VA treatment records and private treatment records do not provide any more insight into the Veteran's sciatica than that already discussed above. After a thorough review of the record, the Board finds that a higher rating is not warranted. Throughout the appeal period, the right lower extremity radiculopathy has resulted in symptoms such as numbness, pain, paresthesias and/or dysesthesias, and hypoactive reflexes. There is no evidence that the right lower extremity radiculopathy has resulted in disability more severe than already contemplated by the assigned rating. After a thorough review of the record, the Board is unable to find that right lower extremity sciatica resulted in moderately severe incomplete paralysis of the sciatic nerve. Thus, an initial rating in excess of 20 percent is not warranted for this condition. There is no reasonable doubt to be resolved in this matter. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in this case the Board finds that the record does not show that the Veteran's low back disorder and right lower extremity radiculopathy are so exceptional or unusual as to warrant the assignment of higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The evidence in this case does not show such an exceptional disability picture that the assigned schedular evaluations for the service-connected disabilities are inadequate. For the Veteran's low back disorder symptoms of pain and limited motion, these symptoms are considered part of the rating criteria through 38 C.F.R. §§ 4.40 and 4.45, which require consideration of functional loss due to orthopedic disorders that are rated based on limitation of motion. That functional loss specifically includes factors such as pain, which in the Board's opinion encompasses the Veteran's symptoms of pain and instability. The Veteran's low back disorder also requires use of a brace. The Board notes that the use of an assistive device is contemplated by the factor of functional impairment. It is also conceivably contemplated by the previously discussed factor of pain. For those symptoms, then, which represent the majority of the complaints, the Board finds that the rating schedule contemplates their inclusion when assigning a rating. Next, DC 8520 contemplates neurological symptoms of varying degrees of severity, directly addressing the level of paralysis of the affected nerves. Here, the Veteran's right lower extremity sciatica symptoms fall within the criteria of the relevant diagnostic codes. Further, the symptoms have remained at mild to moderate levels throughout the appeal period. Additional disability is contemplated in DC 8520. As such, the Board concludes that referral for extraschedular consideration is not warranted here for any of the increased ratings claims decided herein. In addition, a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In this case, however, neither the Veteran nor the record has raised this contention. Yancy v. McDonald, No. 14-3390 (Ct. Vet. App. Jan. 12, 2016). III. TDIU The Board is remanding the claim of entitlement to a TDIU prior to September 13, 2014. Discussion will not be provided regarding that time period in the instant decision. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. 38 C.F.R. § 4.16 provides that "Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities" 38 CFR 3.340 (a)(1) provides that a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to individual unemployability includes consideration of all service-connected disabilities. Here, the Veteran meets the schedular criteria for a TDIU, effective September 13, 2014. Since that date, he has been service-connected with the following conditions: a low back disorder, rated as 40 percent disabling; radiculopathy of the right lower extremity, rated as 20 percent disabling; radiculopathy of the left lower extremity, rated as 10 percent disabling; and residuals of a fracture in the right distal metaphysic of the fifth metacarpal with slight medial and dorsal angulation, rated as noncompensable. His combined disability rating has been 60 percent, which, with consideration of 38 C.F.R. § 4.16 (a)(2), which permits disabilities resulting from common etiology or single accident, satisfies the criteria for a single disability for a TDIU. Thus, the Veteran meets the schedular criteria for a TDIU. The only remaining question is whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment from September 13, 2014. Two opinions have been provided. At the September 13, 2014, VA examination for the lumbar spine and right lower extremity, the examiner found that the Veteran could not work due to increase fatigue and loss of motion and strength from lumbar back pain. In the September 2015 VA examination for the lumbar spine, the examiner found that the Veteran was unable to do most work activities, including lifting more than 10 pounds, walking for any distance, squatting, climbing, or crawling. The Board notes that the Veteran has multiple serious service-connected disorders that likely impact his ability to work. That being said, it is clear, and the VA examiners in 2014 and 2015 unambiguously state, that the Veteran's ability to work is severely limited by his low back disorder. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that a TDIU is warranted from September 13, 2014. (The Order follows on the next page.) ORDER A 20 percent disability rating, but no higher, is granted for the Veteran's low back disorder prior to October 8, 2011, subject to the regulations governing monetary benefits. Prior to September 13, 2014, a disability rating in excess of 20 percent for the Veteran's low back disorder is denied. From September 13, 2014, a disability rating in excess of 40 percent for the Veteran's low back disorder is denied. A disability rating in excess of 20 percent for the Veteran's right lower extremity radiculopathy is denied. A TDIU from September 13, 2014, is granted. REMAND Prior to September 13, 2014, the Veteran is only eligible for an extraschedular TDIU. See 38 C.F.R. § 4.16 (b). Thus, for this time period alone, the Board finds that referral to VA's Director of Compensation Service is appropriate because the Veteran's treating physicians have indicated that the Veteran is unemployable. The Board is unable to make such a determination in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (providing that the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted). The claim must therefore be remanded for such a referral. Accordingly, the case is REMANDED for the following action: 1. Refer the claim of entitlement to TDIU to the Director of Compensation Service for consideration of whether the Veteran is entitled to TDIU prior to September 13, 2014. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs