Citation Nr: 1755074 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-44 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder prior to August 12, 2016, and 50 percent thereafter. 2. Entitlement to an initial disability rating in excess of 10 percent for a cervical spine disability. 3. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability. 4. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity. 5. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity. ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from January 2005 to November 2005 and June 2006 to April 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal of a April 2010 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2014, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement for an increased rating for a major depressive disorder has been recharacterized as service connection of an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. Prior to August 12, 2016, the Veteran's acquired psychiatric disorder has not been manifested by occupational and social impairment with reduced reliability and productivity. 2. Since August 12, 2016, the Veteran's acquired psychiatric disorder has not been manifested by occupational and social impairment with deficiencies in most areas. 3. The Veteran's cervical spine disability has not been manifested by forward flexion of the spine greater than 15 degrees, but not greater than 30 degrees, combined range of motion of the spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period. 4. The Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; \muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or doctor-prescribed bedrest. 5. The Veteran's left lower extremity radiculopathy disability has not been manifested by moderate impairment. 6. The Veteran's right lower extremity radiculopathy disability has not been manifested by moderate impairment. CONCLUSIONS OF LAW 1. Prior to August 12, 2016, the criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Since August 12, 2016, the criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a disability rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C.. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5243 (2017). 4. The criteria for a disability rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C.. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5243 (2017). 5. The criteria for a disability rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520 (2017). 6. The criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The Veteran was provided VA medical examinations in September 2009, January 2011 and January 2017. The examinations are sufficient evidence for deciding the claims on appeal. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluations are fully informed ones, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis General Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Posttraumatic Stress Disorder The Veteran's acquired psychiatric disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this Diagnostic Code, a 30 percent evaluation is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is warranted for a total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names or close relatives, own occupation, or own name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Prior to a recent revision, VA adopted and employed the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130 (2017). Though this Manual has since been revised, the VA January 2011 examination noted below was provided while the DSM-IV was still extant. Under that Manual, diagnoses many times will include an Axis V diagnosis, a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Prior to August 12, 2016 Following a review of the evidence of record, with particular attention to the VA examinations from September 2009 and January 2011, the Board concludes that for this period on appeal, the Veteran's acquired psychiatric disorder more nearly approximated the impairment required for a 30 percent rating than that required for a 50 percent rating. The evidence of record shows that the Veteran's acquired psychiatric disorder caused depressed mood, anxiety, panic attacks with varied frequency, chronic sleep impairment and mild memory loss, which are squarely within the criteria for the 30 percent rating. Further, the severity of symptoms, to include a GAF score of 60 provided in 2011 which is indicative of mild to moderate symptoms consistent, was not shown by the other evidence of record to be more than the level of impairment contemplated in the assigned 30 percent rating. The Board notes that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). To this point, the Board does not find that the Veteran's symptoms during this period were generally of similar severity, frequency, and duration as those described in the higher rating criteria for a 50 percent disability rating. Notably, the Veteran did not display a flat affect, unusual speech patterns, impairment of long-term memory, or impaired judgement. Impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships also were not found. Throughout the appeal period, the evidence has shown that the Veteran's speech was coherent, and his judgment was intact. The evidence of record suggests that the Veteran's symptomatology attributable to his acquired psychiatric disorder is moderate. That description aligns most closely with the criteria for a 30 percent disability rating under Diagnostic Code 9411. Since August 12, 2016 Following a review of the evidence of record, with particular attention to the VA examination from January 2017, the Board concludes that for this period on appeal, the Veteran's acquired psychiatric disorder more nearly approximated the impairment required for a 50 percent rating than that required for a 70 percent rating. While the Veteran struggles with irritability and anger, the evidence does not show impaired impulse control resulting in periods of violence sufficient to warrant a 70 percent evaluation. Intermittent suicidal ideations have been reported, but no active intent or plan was noted. Also, the evidence shows that the Veteran has been able to maintain effective relationships, to include with his wife and friends. The January 2017 VA examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. Further, the evidence does not show obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances (including work or a worklike setting). Nor are there any other reported or observed manifestations, not included in the rating schedule, which would indicate a rating in excess of 50 percent is warranted. In sum, the preponderance of the evidence is against the claim for an initial schedular rating in excess of 30 percent prior to August 12, 2016 and in excess of 50 percent, thereafter, for the Veteran's service-connected acquired psychiatric disorder; there is no doubt to be resolved; and an increased rating is not warranted. Spine Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made 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. Under Diagnostic Code 5003, degenerative arthritis, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. However, in this case, the Veteran's limitation of motion for both his cervical and lumbar spine disabilities is compensable. Regarding the Veteran's cervical spine disability, it is evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). The General Rating Formula provides a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees, but not greater than 335 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. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but no greater than 30 degrees; or, a combined range of motion of the cervical spine no greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. Regarding the Veteran's lumbar spine disability, it is evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion 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. A 20 percent disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 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. 38 C.F.R. § 4.71a. "Ankylosis" is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating 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. Note (1) to Diagnostic Code 5243 provides that 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. A. Cervical Spine The Board has reviewed all relevant evidence, with particular attention to the VA examinations from September 2009, January 2011 and January 2017. During the entire pendency of this appeal, the Veteran has not been shown to have any doctor-prescribed bedrest or ankylosis, and those symptoms pose no basis for an increase. As to limitation of motion, the only possible basis for an increase, taking into account DeLuca factors, would be forward flexion greater than 15 degrees but no greater than 30 degrees; or, a combined range of motion of the cervical spine no greater than 170 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. The rating schedule does not allow for a higher evaluation based upon limitation of any other motions. In terms of limitation of flexion, the report from the September 2009 VA examination revealed forward flexion of the cervical spine was to 40 degrees, to include pain. The report from the January 2011 VA examination revealed forward flexion of the cervical spine was to 44 degrees. The report from the January 2017 VA examination revealed forward flexion of the cervical spine was to 45 degrees. The Veteran's combined range of motions reflected in each VA examination reports exceeded 170 degrees. Muscle spasms or guarding were not reported or found during the appeal period. Accordingly, an evaluation in excess of 10 percent is not warranted on the basis of limitation of motion. Finally, separate ratings for radiculopathy or other objective neurological abnormalities are not for application. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1). The VA examination in September 2009 reflects that the Veteran reported no significant radiation. Incapacitation and bladder or bowel control problems were denied. The VA examiner noted no objective findings of radiculopathy. The VA examination from January 2011 shows that no atrophy, spasms or other muscle abnormalities were noted for the upper extremities. The VA examination from January 2017 reflects that no IVDS or neurologic abnormalities were reported. Radiculopathy was not found in his upper extremities. Thus, no associated objective neurological abnormalities have been shown by the evidence such as to warrant a separate rating under Note 1. In summary, there is no basis for a rating in excess of 10 percent for the Veteran's cervical spine disorder, and this claim must be denied. B. Lumbar Spine The Board has reviewed all relevant evidence, with particular attention to the VA examinations from September 2009, January 2011 and January 2017. During the entire pendency of this appeal, the Veteran has not been shown to have any doctor-prescribed bedrest or ankylosis, and those symptoms pose no basis for an increase. As to limitation of motion, the only possible basis for an increase, taking into account DeLuca factors, would be 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. The rating schedule does not allow for a higher evaluation based upon limitation of any other motions. In terms of limitation of flexion, the report from the September 2009 VA examination revealed forward flexion of the lumbar spine was to 70 degrees, to include pain. The report from the January 2011 VA examination revealed forward flexion of the lumbar spine was to 90 degrees. The report from the January 2017 VA examination revealed forward flexion of the lumbar spine was to 80 degrees, with pain. The Veteran's combined range of motions reflected in each VA examination reports exceeded 170 degrees. The measurements were 205 degrees, 240 degrees and 170 degrees, respectively. Muscle spasms or guarding were not reported or found during the appeal period. Accordingly, an evaluation in excess of 10 percent is not warranted on the basis of limitation of motion. Further, the evidence does not reflect that the Veteran suffered from incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The September 2009 VA spine examination report shows that incapacitation and bladder or bowel control problems were denied. (As indicated below, service connection is already in effect for bilateral lower extremity radiculopathy.) The January 2017 reflects that no neurologic abnormalities or IVDS were reported. As such, the evidence of record does not warrant an increased rating under the IVDS Formula. In summary, there is no basis for a rating in excess of 10 percent for the Veteran's lumbar spine disorder, and this claim must be denied. C. Radiculopathy The Veteran is service connected for radiculopathy of the left and right lower extremities. This grant was effectuated, as secondary to the lumbar spine disorder, in a January 2017 rating decision, effective from March 23, 2012, and these matters are on appeal per AB v. Brown, 6 Vet. App. 35, 39 (1993). The service-connected radiculopathy of the left and right lower extremities are each rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. This section assigns ratings based upon complete or incomplete paralysis of the lower extremities. Under Diagnostic Code 8520 when there is incomplete paralysis of the sciatic nerve a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment, a 40 percent rating is assigned for moderately severe impairment, and a 60 percent rating is assigned for severe impairment with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are 'equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Given the evidence, the Board finds the 10 percent ratings currently assigned to be proper. The September 2009 VA examination noted the Veteran's complaint of radiation in his proximal thighs and numbness and tingling to the bottoms or plantar aspect of both feet. Upon examination, the VA examiner noted that the Veteran's sensations were intact, straight leg raises were negative for radicular pain and a diagnosis noting no objective evidence of radiculopathy was provided. The VA examination report in January 2011 reflected no atrophy, spasms or other muscle abnormalities in the Veteran's lower extremities. The VA examination in January 2017 showed that radiculopathy was found in his lower extremities. Constant pain, paresthesias and numbness were noted as mild, bilaterally. Moderate intermittent pain was found, bilaterally. None of the VA examinations showed muscle atrophy in the left or right lower extremity. In the absence of more significant neurologic impairment, and based on the cumulative evidence, the Board finds that his left and right lower extremity disabilities more closely approximates the mild incomplete paralysis described by the 10 percent ratings rather than the moderate paralysis required for a 20 percent rating. Other Considerations In reaching this determination, the Board notes that the United States Court of Appeals for Veterans Claims has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The Veteran is in receipt of TDIU, effective August 12, 2016. As there is no evidence of record suggesting unemployability due to the Veteran's service-connected disabilities prior to August 12, 2016, the question of entitlement to TDIU is not raised prior to that date. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). ORDER Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder prior to August 12, 2016, and 50 percent thereafter, is denied. Entitlement to an initial disability rating in excess of 10 percent for a cervical spine disability is denied. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability is denied. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs