Citation Nr: 1753501 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-06 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine. 3. Entitlement to a compensable rating prior to July 16, 2012, and a rating in excess of 10 percent from July 16, 2012, for radiculopathy of the right lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1997 to February 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The White River Junction, Vermont RO subsequently acquired jurisdiction. A rating decision of February 2014 granted service connection for radiculopathy of the left lower extremity (sciatic nerve), with an evaluation of 10 percent and an effective date of July 16, 2012. The decision also increased to 10 percent (from zero percent) the evaluation of radiculopathy of the right lower extremity (sciatic nerve), effective July 16, 2012. Where a rating decision awards a higher, but less-than-maximum rating after the claimant has perfected an appeal as to the rating, the pending appeal is not abrogated. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, entitlement to higher ratings for radiculopathy of the left and right lower extremities associated with the Veteran's low back disability remain issues on appeal. By a filing of July 2016, the Veteran withdrew his request for a Board hearing. The Board remanded this matter in September 2016. The paperless record of Legacy Content Manager Documents (formerly Virtual VA) and the Veterans Benefits Management System (VBMS) has been reviewed. FINDINGS OF FACT 1. Prior to May 10, 2013, the Veteran's degenerative disc disease of the lumbar spine was manifested by forward flexion greater than 60 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees, pain, limitation of motion, stiffness, weakness, fatigue, difficulty bending and lifting, limitations in walking more than one hour continually, interference with sitting, standing, and/or weight-bearing, and flare-ups causing limitation of functional ability; neither favorable nor unfavorable ankylosis of the thoracolumbar spine was shown; incapacitating episodes (defined by doctor-prescribed bed rest) associated with intervertebral disc disease of the lumbar spine were not shown. 2. As of May 10, 2013, the Veteran's degenerative disc disease of the lumbar spine was manifested by forward flexion greater than 30 degrees by not greater than 60 degrees; neither favorable nor unfavorable ankylosis of the thoracolumbar spine was shown; incapacitating episodes (defined by doctor-prescribed bed rest) associated with intervertebral disc disease of the lumbar spine were not shown. 3. The Veteran's radiculopathy of the left lower extremity was manifested no more than mild incomplete paralysis, prior to March 13, 2017, and no more than moderate incomplete paralysis, as of March 13, 2017. 4. The Veteran's radiculopathy of the right lower extremity was manifested by no more than mild incomplete paralysis prior to, and from, July 16, 2012. CONCLUSIONS OF LAW 1. Prior to May 10, 2013, the criteria for a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine are not met or approximated. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 2. From May 10, 2013, the criteria for a 20 percent disability rating, and no higher, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 3. Prior to March 13, 2017, the criteria for an evaluation in excess of 10 percent for radiculopathy of the left lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). 4. From March 13, 2017, the criteria for an evaluation of 20 percent, and no higher, for radiculopathy of the left lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). 5. Prior to July 16, 2012, the criteria for an evaluation of 10 percent, and no higher, for radiculopathy of the right lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). 6. From July 16, 2012, the criteria for an evaluation in excess of 10 percent for radiculopathy of the right lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim, and VA has satisfied the notification and duty-to-assist provisions of the VCAA. VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter sent to the Veteran in February 2010. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c), (d) (2017). The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record includes the Veteran's service treatment records, service personnel records, VA treatment records, transcript of an April 2012 RO hearing, and statements of the Veteran. The Veteran underwent VA medical examinations in February 2010, July 2012, and March 2017. The March 2017 examination report provides sufficient information to rate the disability under the rating criteria and is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The RO substantially complied with the Board's remand instructions of September 2016. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Lumbar Spine Disability, including Associated Radiculopathy of Bilateral Lower Extremities Disability evaluations are based on the average impairment of earning capacity as determined by a schedule for rating disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate rating codes identify the various disabilities. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See 38 C.F.R. § 4.7 (2017). Staged ratings are appropriate if the factual findings show distinct time periods in which the service-connected disability exhibited symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2017). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2017). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. See 38 C.F.R. § 4.45 (2017). When assigning a disability rating, it is necessary to consider functional loss due to flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The prohibition against "pyramiding" as stated in 38 C.F.R. § 4.14 does not preclude consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability. The facial expression, wincing, etc., on pressure or manipulation should be carefully noted and definitely related to the affected joints. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, and a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology, is possible. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures, should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Pain must affect some aspect of the normal working movements of the body in order to constitute functional loss. Although pain may cause functional loss, pain itself does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 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. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The General Rating Formula for diseases and injuries of the spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent 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 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). The formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for 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. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243 (2017). For the purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1) (2017). Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120 (2017). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. See 38 C.F.R. § 4.123 (2017). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. See 38 C.F.R. § 4.124a, DC 8520 (2017). The Board does not apply a mechanical formula with respect to the words mild, moderate, moderately severe, and severe, which are not defined in the VA rating schedule. The use of such terms by VA examiners and others, while relevant, is not dispositive. While obligated to evaluate all the assembled evidence and to explain the reasons for rejecting evidence favorable to a claimant, the Board need not discuss all the evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). Analysis As explained below, the Board finds that a rating of 10 percent is warranted for the period prior to May 10, 2013, and a rating of 20 percent is warranted after May 10, 2013, with respect to the Veteran's degenerative disc disease of the lumbar spine. As for the radiculopathy of the left lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine, a 10 percent rating is warranted prior to March 13, 2017, and a 20 percent rating is warranted from March 13, 2017. Finally, concerning radiculopathy of the right lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine, a 10 percent rating is warranted at all times for the period under review. The Veteran underwent a VA general medical examination in February 2010. The Veteran reported "on and off" low back pain since service, with pain occasionally radiating into the legs. The episodes of back pain were said to come on suddenly and last for up to two weeks. The most recent episode occurred approximately one year prior to the examination. During the episodes of back pain, the Veteran stayed in bed for the first two days and then got up and moved slowly for up to two weeks. He reported stiffness, fatigue, spasms, weakness, and decreased motion in his back. Occasional sensations of numbness and paresthesias in his low back lasted from three seconds to five minutes and were outside of the incapacitating episodes. The Veteran denied leg or foot weakness or bowel/bladder complaints. During flare-ups of his back, he was limited to walking no more than one hour continually but otherwise could stand and walk without limitation, he stated. The Veteran was not unsteady on his feet and had no history of falls. He walked unaided and did not wear a brace. He had had no hospitalization or surgery for his back. The Veteran was independent in his activities of daily living. The Veteran reported having occasional difficulty with bending and lifting in his job as a heavy equipment operator doing construction. He did not report difficulty with driving. The range of motion of the lumbar spine was forward flexion to 90 degrees, extension to 40 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left rotation to 30 degrees, and right rotation to 30 degrees. The Veteran reported pain with extension of his thoracolumbar spine. There was no spasm or weakness. It was noted that, on the day of the examination, the Veteran did not experience pain with extension of the thoracolumbar spine. The examiner estimated that the Veteran would lose an additional 10 to 20 degrees of extension with repetitive use or flare ups. There was no evidence of weakness, instability, incoordination, or fatigability of the spine. No estimate was made as the effect of flare-ups on ROM for forward flexion, and the examiner did not test ROM following repetitive motion. The VA examiner's musculoskeletal inspection of the Veteran's spine revealed no deformity. There was no kyphosis, lordosis, or scoliosis. Palpation revealed some tenderness on the right paraspinal muscles at the L3 to L5 region. There was no tenderness on direct palpation of the spine or the left paraspinal muscles. The diagnosis was degenerative disc disease of the lumbar spine with mild right nerve root impingement at S1 with minimal effect on occupation and daily activities. See VA examination report of February 2010. When testifying at an RO hearing in April 2012, the Veteran stated that all his back symptoms were slowly becoming worse since his last examination. He reported that the side-to-side range of motion of his back was normally "okay" but that he experienced limitation daily when on the job when leaning forward. He also stated that his pain had caused him to be bedridden for several days, but there was no doctor-prescribed bed rest. When his back went out at work, he could not work and relaxed on the couch or bed for a week or two. In regard to the right lower extremity, he reported occasional "pins and needles" that make the leg weak. See transcript of RO hearing of April 2012. The Veteran underwent a VA examination for the thoracolumbar spine and peripheral nerves in July 2012. The examiner noted the Veteran's medical history of chronic low back pain since 1998. The Veteran reported experiencing daily low back pain associated with stiffness, weakness, and fatigue in his work as a heavy equipment operator. The Veteran stated that small movements, such as brushing teeth or bending over, could worsen his symptoms. He reported flare-ups for which the impact was noted to be "repetitive bending and lifting, prolonged driving." Range of motion testing reflected forward flexion to 80 degrees, extension to 25 degrees, left lateral flexion to 30 degrees or greater, right lateral flexion to 30 degrees or greater, left rotation to 30 degrees or greater, and right rotation to 25 degrees. Following three repetitions, forward flexion was to 80 degrees, extension to 25 degrees, left lateral flexion to 30 degrees or greater, right lateral flexion to 30 degrees or greater, left rotation to 25 degrees, and right rotation to 25 degrees. Objective evidence of painful motion was noted at 80 degrees for forward flexion and at 25 degrees for extension. There was no objective evidence of painful motion for right lateral flexion, left lateral flexion, right rotation, or left rotation. There was an additional limitation of 5 degrees for left lateral rotation following repetitive testing. The examiner did not estimate the degree of limitation of motion during a flare-up. The Veteran was found to have functional loss and/or functional impairment of the thoracolumbar spine. The contributing factors of the additional limitation of ROM after repetitive use were noted to be less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. The functional impact of the Veteran's back condition on his ability to work was characterized by the VA examiner as "low back pain with repetitive bending and lifting, daily stiffness." The Veteran reported two weeks of work lost in March due to a low-back pain flare-up. He explained that he had not been evaluated by a physician at that time because there were no nearby medical clinics. The July 2012 VA examination showed the Veteran to have bilateral paraspinal tenderness of the lumbar area. He did not have guarding or muscle spasm of the back. Deep tendon reflexes were rated as normal. Sensation to light touch (dermatome) testing was normal. Straight leg raising tests were negative, and it was noted that a positive test suggests radiculopathy, often due to disc herniation. The Veteran was found to have radicular pain or other signs or symptoms due to radiculopathy. The findings were mild paresthesias and/or dysesthesias of the right and left lower extremities, and mild numbness of the right and left lower extremities. There were no other signs or symptoms of radiculopathy. The L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of both right and left were involved. The severity of the radiculopathy was characterized as "mild" for both the right and left sides. The Veteran's peripheral nerve condition and/or peripheral neuropathy were found to not impact his ability to work. Muscle strength testing was normal (5/5). The Veteran did not have muscle atrophy. The Veteran did not use an assistive device as a normal mode of locomotion, and he had no scars associated with the back disability. Arthritis was documented by imaging studies of April 2011. There was mild, decreased intervertebral disc signal and height loss consistent with degenerative disc disease at the L3-L4 and L5-S1 levels. No radial tear was seen. The L5-S1 level revealed a moderate sized focal right central to a paracentral disc bulge causing moderate right paracentral impingement upon the right descending nerve root at that level without spinal stenosis or neural foraminal nerve root impingement. The impression was disc-based impingement changes at the L5-S1 level. The Veteran was found not to have IVDS of the thoracolumbar spine. See VA examination report of July 2012. A VA treatment record of May 2013 notes the Veteran's primary complaint of intermittent axial and radicular lumbar pain. The ROM testing showed forward flexion to 45 degrees, extension was noted as being "mild pain" with no degrees provided, left lateral flexion to 45 degrees, right lateral flexion to 45 degrees, left rotation to 45 degrees, and right rotation to 45 degrees. The radicular component of his pain was noted to be along the L4 and L5 dermatomes of the right lower extremity generally terminating at the knee level. The Veteran said that his pain worsens with bending, twisting, and lifting. The examiner noted taut bands to the sternum lumbar musculature indicating ongoing muscle spasms. There was also point tenderness over the L4 and L5 vertebrae in the adjacent facet regions to the right including the posterior sacral notch with light palpation on physical examination. The Veteran reported no bowel and/or bladder symptoms. Tenderness was present at the L4 and L5 vertebrae. The straight leg test supine right was positive at 30 degrees. The straight leg test supine left was negative at 30 degrees. Motor strength testing was 4/5. The clinician's diagnoses were lumbago, chronic low back pain, lumbar radicular pain, myofascial pain, and sacroiliac joint dysfunction. The clinician's impressions were as stated as: ongoing axial lumbar and radicular pattern of pain as a result of a bulging disc at the L5-S1 level with resultant nerve root impingement on the right exiting spinal nerve root at this level; ongoing lumbar myofascial pain as a result of muscle spasms to this region; and a degree of pain emanating from the Veteran's right sacroiliac joint that may be compensatory mechanism in response to the lumbar pathology. See VA treatment record of May 2013. The Veteran underwent a VA examination in March 2017. The Veteran reported that his back pain had slowly become worse. He believed that his back was stiffer and that he felt more pain from activities such as bending forward. Back pain felt every day could be aggravated with forward bending and sometimes with lying flat on the ground while working. Sometimes he felt shooting pain, mostly into the left leg and sometimes also into the right leg. He used a back brace for support when lifting. The pain could be aggravated by the simplest movements. Flare-ups of his back pain and shooting leg pains, he said, interfered with his job as an engineer/construction worker for approximately one week once every two months. During those flare-ups, he rested his back for a week or more. Range of motion testing showed forward flexion to 85 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 18 degrees, left rotation to 30 degrees and right rotation to 30 degrees. Following three repetitions, range of motion testing reflected forward flexion to 80 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 18 degrees, left rotation to 30 degrees, and right rotation to 30 degrees. Pain during forward flexion was noted upon examination but did not result in or cause functional loss. There was no evidence of pain with weight-bearing, with passive ROM, or with nonweight-bearing (at rest). The Veteran was not examined immediately after repetitive use over time or during a flare-up because the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. The Veteran reported that, as compared to the 2012 examination, his back felt stiffer with repetitive work and was more reproducibly aggravated due to pain with work activities. He also stated that his flare-ups occurred as radiation of pain down the left leg more than his right leg. These were noted to be the sciatica flare-ups that occur when the Veteran's back becomes "more intolerable" and which would require the Veteran to pursue light activities and rest, if possible, from his occupation as an engineer/construction worker. The right side of the spine along the paraspinal muscles was mildly tender to palpation and somewhat tenser as compared to the left side. Muscle spasm did not cause an abnormal gait or abnormal spine contour. There was no guarding. Muscle-strength testing was normal (5/5), and there was no muscle atrophy. Deep tendon reflexes for the knees and ankles were normal. Sensation to light touch (dermatome) testing showed a "decreased" result for the feet/toes bilaterally. Straight-leg raising testing was normal. There was no ankylosis of the spine. The Veteran occasionally used a brace as any assistive device as a normal mode of locomotion. The radiculopathy findings were as follows: mild intermittent pain of the right and left lower extremities; mild paresthesias and/or dysesthesias of the right lower extremity, moderate paresthesias and/or dysesthesias of the left lower extremity; and mild numbness of the left lower extremity. The severity of the radiculopathy of the left and right sides was characterized as mild. It was noted that the Veteran had had no acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. In sum, the examination of May 2013 showed forward flexion limited to 45 degrees, which is consistent with a rating of 20 percent under the General Rating Formula. Entitlement to a higher rating of 40 percent is not warranted, because forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, has not been shown or approximated. Examination of March 2017 showed moderate paresthesias and/or dysesthesias of the left lower extremity and radiating pain that was worse on the left than the right, which corresponds to a 20 percent rating for "moderate" severity under DC 8520. Prior to March 2017, no more than mild symptoms are indicated. Entitlement to a higher rating of 40 percent is not warranted for radiculopathy of the lower left extremity, as moderately severe symptoms have not been shown or approximated. Finally, at all times relevant to this appeal, mild symptoms of right lower extremity radiculopathy have been shown. The February 2010 VA examiner found tenderness upon palpation on the right paraspinal muscles at the L3 to L5 region and diagnosed mild right nerve root impingement at S1. There were also findings of mild right lower extremity radiculopathy in July 2012 and March 2017. Entitlement to a higher rating of 20 percent is not warranted for radiculopathy of the right lower extremity, as moderate symptoms have not been shown or approximated. The Board has considered whether other rating codes could apply to the Veteran's disability and finds that none would result in entitlement to a higher disability rating. A claim for a total rating based on unemployability due to service-connected disabilities (TDIU), when either expressly raised by a veteran or reasonably raised by the record, is considered part of a claim for rating increase. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A VA treatment record of May 2013 notes that the Veteran works full-time as a technical engineer. According to a VA treatment record of April 2014, the Veteran is very active and works in construction. The VA examination report of March 2017 noted that the Veteran was employed. The Veteran has testified as to how his back disability limits his job performance. Taking into account those limitations, the evidence of record does not show, and the Veteran has not asserted, that his back disability and associated radiculopathy renders him unable to obtain or maintain a substantially gainful occupation. See 38 C.F.R. § 4.16(a) (2017). Accordingly the Board concludes that the issue of TDIU has not been raised in this case. ORDER Prior to May 10, 2013, entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. As of May 10, 2013, entitlement to a 20 percent disability rating for degenerative disc disease of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary VA benefits. Prior to March 13, 2017, entitlement to an evaluation in excess of 10 percent for radiculopathy of the left lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine is denied. As of March 13, 2017, entitlement to an evaluation of 20 percent for radiculopathy of the left lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary VA benefits. Prior to July 16, 2012, entitlement to an evaluation of 10 percent for radiculopathy of the right lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary VA benefits. As of July 16, 2012, entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity (sciatic nerve) associated with degenerative disc disease of the lumbar spine is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs