Citation Nr: 1800452 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-16 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for herniated lumbar disk prior to September 1, 2011, and in excess of 20 percent since September 1, 2011. 2. Entitlement to an initial disability rating for mild to moderate, left 5th lumbar vertebral radiculopathy, in excess of 20 percent. 3. Entitlement to an additional or higher disability rating for right leg radiculopathy of the sciatica nerve, associated with herniated disk disability in excess of 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to June 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In that decision, the RO granted service connection for herniated lumbar disk and radiculopathy and assigned an initial disability rating of 10 percent, effective January 20, 2009. Thereafter, in a May 2012 rating decision, the RO increased the disability rating from 10 percent disabling to 20 percent disabling and assigned the effective date of September 1, 2011. In a May 2012 rating decision, the RO granted service connection for mild to moderate, left 5th lumbar vertebral radiculopathy and assigned a 20 percent rating, effective February 23, 2011, which was cited as the date of a claim for increased rating. The RO explained that the radiculopathy was due to his service-connected herniated lumbar disk with radiculopathy disability. The Veteran did not file any document with VA expressing disagreement with the May 2012 decision. However, the radiculopathy is a manifestation of the Veteran's service-connected herniated disk; in fact, that disability was initially characterized as "herniated disk and radiculopathy." When the Veteran disagreed with the amount of compensation awarded for the back disability, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to his service-connected back disability. See AB v Brown, 6 Vet App 35 1993. Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 C FR § 4 71a, Note (1) ( 2017). The Board was therefore required to consider whether ratings were warranted for neurologic abnormalities associated with the low back condition. For these reasons, the Board concludes that when the Veteran appealed the initial rating assigned for his mechanical low back strain, his appeal encompassed ratings for all manifestations of the condition. The award of the separate rating for radiculopathy in the May 2012 decision could not limit the Board's jurisdiction to less than it had acquired via the notice of disagreement filed in response to the March 2009 rating decision. Thus, the issues before the Board include the initial rating for radiculopathy, with consideration of the period prior to the February 23, 2011, effective date assigned by the RO. In December 2014, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development to include obtaining another medical opinion. For the reasons discussed below, the Board finds that there has been substantial compliance with the development sought as part of the December 2014 remand. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to September 1, 2011, the Veteran's herniated lumbar disk disability was manifested by a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 205 degrees. 2. From September 1, 2011, flexion of the thoracolumbar spine has resulted in abnormal range of motion, that does not more nearly approximate 30 degrees flexion or less, even considering additional functional loss due to pain and other factors during normal working movements and flare-ups, and there has been no ankylosis of the entire thoracolumbar spine or incapacitating episodes due to IVDS. 3. For the entire rating period, the Veteran's left 5th lumbar vertebral radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. 4. Objective evidence first showed mild right leg radiculopathy of the sciatica nerve from October 1, 2013. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for herniated lumbar disk disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). 2. The criteria for a disability rating in excess of 20 percent for herniated lumbar disk disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). 3. The criteria for an initial rating higher than 20 percent for left 5th lumbar vertebral radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 8520, 8720 (2017). 4. The criteria for a higher rating in excess of 10 percent, or an earlier rating, for right leg radiculopathy of the sciatica nerve, associated with herniated disk disability have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 8520, 8720 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in a letter sent to the Veteran in April 2008 and June 2011. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file. VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of these claims that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Increased Rating Claims In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A. Herniated Disc The Veteran seeks an increased rating for his lumbar spine disability. By way of background, the RO granted service connection for herniated lumbar disk and radiculopathy and assigned an initial disability rating of 10 percent, effective January 20, 2009. Thereafter, a May 2012 rating decision increased the disability rating from 10 percent disabling to 20 percent disabling and assigned the effective date of September 1, 2011. Prior to this time, the Veteran was awarded a 100 percent temporary disability rating from May 18, 2011 to September 1, 2011. The criteria for rating all spine disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. Under this general rating formula, a 10 percent rating is warranted for lumbosacral spine disability manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a 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 rating is warranted for flexion of the thoracolumbar spine between 30 and 60 degrees, or 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. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent rating is contemplated when there is unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (5): 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 Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. In this case, the Veteran has not contended, and the evidence does not show, that the Veteran has residuals of a fracture of the vertebra (DC 5235), sacroiliac injury and weakness (DC 5236), spondylolisthesis or segmental instability (DC 5239), or ankylosing spondylitis (DC 5240), any time during the entire rating period on appeal. As discussed below, the Veteran did have spinal fusion, however, the evidence does not show that an increased rating under DC 5241 is applicable. Accordingly, the diagnostic codes pertaining to those disabilities are not applicable in this case. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242, applicable to degenerative arthritis of the spine. All diseases and injuries of the spine other than Intervertebral Disc Syndrome (IVDS), however, are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides for a ten percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) to the formula for rating intervertebral disc syndrome specifies 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. Diagnostic Code 5003, for degenerative arthritis provides that degenerative arthritis, 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 (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a. January 20, 2009 to September 1, 2011 For the reasons discussed below, prior to September 1, 2011, the Board finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent. The record evidence does not indicate that this disability was manifested by forward flexion between 30 to 60 degrees, or combined range of motion not greater than 120 degrees; or flexion to 30 degrees or less; or favorable or unfavorable ankylosis of the thoracolumbar spine; or the entire spine, as warranted for increased disability rating in excess of 10 percent, under DC 5242. Notably, in May 2011, private treatment records show the Veteran underwent left foraminotomy at L4-L5 and was in receipt of a temporary total evaluation from May 18, 2011 to September 1, 2011. Thus, an increased rating is not considered during this period of the appellate term. Turning to the evidence, during this period, the Veteran was afforded VA examination of the thoracolumbar spine in March 2009 and June 2011. The examination reports indicate that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The March 2009 examination report notes the Veteran reported the onset of back pain in 2008 secondary to knee problems that required four surgeries in the past. However, the June 2011 examination report notes the Veteran reported the onset of back pain in the 1980s with no history of specific injury. He also reported that due to limping, the pain gradually worsened. He reported pain radiating down the left leg and numbness of the lateral aspect of the leg and he is unable to walk more than four to five blocks before he has to stop and rest. Symptoms were treated with medication which provided some relief. On the March 2009 VA examination, the Veteran reported he did not use any assistive device and the examination report does not indicate that he reported having flare-ups. Examination revealed there was flexion to 90 degrees, extension to 5 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 35 degrees bilaterally, with no evidence of pain, and no loss after repetitive motion. Combined range of motion was 205 degrees. The examiner noted that the Veteran has limitation in prolonged standing, running, jogging, and climbing of stairs due to discomfort in his back, and an adverse impact on activities of daily living resulting in difficulty with personal grooming (unrelated to hygiene); however, concluded that there was no evidence of additional limitation due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare-up. The examination report does not indicate ankylosis or flare-ups of the condition. The examiner observed the Veteran to walk with a limp. He reported that he was presently employed with a police department. VA and private treatment records during this period show that the Veteran reported pain in the back treated with physical therapy and pain injections. Examination reports noted pain on flexion and extension but do not show any additional limitations or the inability to complete range of motion testing. The Veteran's gait was also noted as normal. Specifically, a December 2009 VA orthopedic record shows examination revealed there was flexion to 90 degrees, extension to "approximately 20 degrees," and lateral rotation to "approximately 20-30 degrees" bilaterally. A December 2009 MRI identified significant left foraminal involvement at L4-5 and to a lesser degree at L3-4. A VA orthopedic note dated in January 2010 indicates that there was pain on flexion and extension but the Veteran was able to walk on his tiptoes as well as on his heels, and he was also able to stand on one foot without any problems. On the June 30, 2011 VA examination, the Veteran reported no history of flare-ups. In May 2011 he had left foraminotomy at L4-L5 and he had not worked as a police officer since May 2011 due to his back condition. Examination revealed the Veteran walked with a normal gait. There was flexion to 45 degrees, extension to 5 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally, with pain on motion and additional functional loss due to pain, weakness and lack of endurance following repetitive range of motion testing times three. The examination report notes stiffness of the lower back, spasms, and decreased motion. The examiner opined that the primary impact is due to pain. The examiner concluded there was additional functional loss of 5 degrees of all ranges of motion due to pain after repetitive range of motion. Therefore, on repetitive range of motion there was flexion to 40 degrees, extension to 0 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 15 degrees bilaterally. Thus, the combined range of motion is 130 degrees on initial range of motion testing, and 100 degrees following repetitive use testing. There was marked guarding and no ankylosis. The examiner diagnosed lumbar disk disease with spondylosis. Based on the pertinent evidence set forth above, the Board finds that the assigned staged rating of ten percent prior to September 1, 2011, is appropriate and an increased disability rating is not warranted during this period of the appellate term. All range of motion testing performed on examination prior to June 30, 2011 was normal, with forward flexion to 90 degrees, to include noted pain on movement. In addition, the examination reports and treatment records did not describe any additional functional limitation which would indicate the need for increased disability ratings based on 38 C.F.R. §§ 4.40 and 4.45. The Veteran's pain on motion, to include additional functional limitation is sufficiently contemplated in a schedular rating of ten percent for the period prior to September 1, 2011. Although testing during the March 2009 and July 2011 examinations do not appear to have been done in passive motion, and results were not distinguished between weight-bearing and nonweight-bearing, remand for such testing at this point would be futile where the examiner cannot be asked to opine as to the findings of what range of motion testing might have demonstrated more than six years ago during the March 2009 examination, and more than eight years ago during the June 2011 examination. During this period on appeal, the lumbar spine disability did not manifest symptoms or impairment more nearly approximating a disability rating in excess of 10 percent, including 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, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal contour. Additionally, there is no ankylosis of the thoracolumbar spine. Instead, as discussed above, the herniated disk disability was manifested by normal flexion to 90 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, which are the criteria for a 10 percent disability rating. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for herniated lumbar disk prior to September 1, 2011, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). September 1, 2011 to Present Based on the pertinent evidence discussed below, the Board finds that the assigned staged rating of 20 percent from September 1, 2011, is appropriate and an increased disability rating, with the exception of the temporary total evaluation from May 20, 2013 to September 1, 2013, is not warranted at any time during the appellate period. In January 2009, the Veteran filed a claim seeking a higher rating for herniated lumbar disk disability. The pertinent evidence during the period on appeal consists of VA examination reports from September 2014 and February 2017 and private treatment records, which show the Veteran underwent lumbar hemilaminectomy and foraminotomy in May 2011 and May 2013. Private treatment records also show the Veteran received treatment to include medication management and physical therapy. VA treatment records indicate the same. On the September 2014 VA thoracolumbar spine examination, the Veteran described flare-ups as increased pain with lifting and bending. He reported symptoms of back pain, stiffness, and numbness of the left leg, to include a burning sensation in the bilateral legs. Examination revealed there was flexion to 45 degrees, with pain at 35 degrees, extension to 5 degrees, with no objective evidence of pain, lateral flexion to 20 degrees bilaterally, with pain at 15 degrees bilaterally, and lateral rotation to 20 degrees bilaterally, with pain at 15 degrees bilaterally. The combined range of motion was 130 degrees. On repetitive testing, there was flexion to 35 degrees, extension to 0 degrees, left lateral flexion was to 15 degrees, right lateral flexion was to 20 degrees, and lateral rotation was to 20 degrees bilaterally. The combined range of motion was 100 degrees. There was additional limitation in range of motion, functional loss and impairment described as less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. There was localized tenderness, muscle spasms and guarding of the lumbar spine not resulting in abnormal gait or abnormal spinal contour. There was no atrophy or IVDS. The Veteran reported employment as a police officer and also that he was currently on limited duty. The examiner concluded the Veteran's disability impacted his ability to work in that he was unable to lift or bend over or make sudden movements. The examination report also indicates there is a scar measuring 8.0 cm x 0.4 cm on the lumbar midline and was not painful or unstable. Concerning flare-ups the examiner opined there was additional functional loss due to pain, weakness, lack of endurance, fatigability and incoordination after repetitive use and the major impact is due to pain. There was additional functional loss of 10 degrees of forward flexion and 5 degrees for each of the remaining range or motion after repetitive use or during flare ups. The examiner concluded that the pain could significantly limit the functional ability during flare ups or after repeated use over a period of time. Despite these findings, the evidence does not support assignment of a disability rating higher than 20 percent. Even considering the examiner's conclusion concerning flare-ups, and despite the Veteran's denial of flare-ups on examination and pain on range of motion as reported to the VA examiner, there is no evidence that there was forward flexion of the thoracolumbar to 30 degrees or less or unfavorable ankylosis of either the thoracolumbar or entire spine, or any evidence lay or medical that shows the disability more nearly approximates a higher disability rating in excess of 20 percent. On the April 2016 VA examination, the Veteran described flare-ups as burning pain going down the left side and a throbbing pain in the back. He reported functional loss or impairment of the thoracolumbar spine as the inability to do things that he normally had to include cutting the grass. He used assistive devices regularly to include a brace and cane. Flexion was to 40 degrees, extension to 10 degrees, lateral flexion was to 10 degrees bilaterally, and lateral rotation was to 10 degrees bilaterally. The examiner opined range of motion was abnormal and contributed to functional loss related to the ability to pick up items. There was pain during range of motion at forward flexion. There was no additional loss of function or range of motion after repetitive use testing with three repetitions. The examination report indicates exam was conducted during a flare-up and pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. There was muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated with soft tissue of the lumbar spine. There was no muscle atrophy. Diagnoses were IVDS, herniated lumbar disk, and lumbar radiculopathy. The examiner concluded that the Veteran's conditions impact his ability to bend, lift, or carry. It is also noted that the Veteran is employed as a police officer but currently doing administrative work as he is unable to carry heavy equipment. There was also a scar on the lumbar spine measuring 7.5cm x 0.3cm and was not painful or unstable. On the February 2017 VA examination, the Veteran denied flare-ups but described functional loss or impairment as lack of strength, trouble getting up from toilet seat, and difficulty dressing due to his back. Flexion was to 45 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally, with pain on motion and no loss after repetitive motion. Combined range of motion was 145 degrees. The examiner found that pain did not result in or cause functional loss. Range of motion was determined as abnormal but did not contribute to functional loss. The examiner opined that range of motion was outside of normal range but is normal for the Veteran due to suboptimal effort. The examiner concluded that he was unable to provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time to include range of motion findings without mere speculation. He explained that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner also noted that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Additionally, the examination report shows the examiner specifically noted that joint testing was conducted in compliance with addressed Correia v. McDonald, and the examination report indicates there was no pain on weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). There was localized tenderness not resulting in abnormal gait or abnormal spinal contour. There was no muscle atrophy, guarding or muscle spasm. There was a scar on the lumbar spine measuring 7.6 cm x 0.3 cm and was not painful or unstable. The examiner diagnosed herniated disk, multilevel lumbar spine degeneration, and IVDS and determined that these conditions impacted the Veteran's current administrative employment in that he must take frequent breaks to stretch his lower back and legs due to severe pain. Although testing during the April 2016 VA examination does not appear to have been done in passive motion, the examination report indicates there was no pain on weight-bearing. Furthermore, the subsequent February 2017 examination, as discussed above is in compliance with the requirements of Correia, hence a remand for such testing at this point is unnecessary. Based on the pertinent evidence set forth above, the Board finds that the evidence does not support assignment of a disability rating in excess of 20 percent from September 1, 2011. The Veteran demonstrated limitation of motion with forward flexion between 30 and 60 degrees consistent with the 20 percent disability rating assigned. A disability rating higher than 20 percent would require forward flexion of 30 degrees or less or evidence of unfavorable ankylosis of the thoracolumbar or the entire thoracolumbar spine. Even considering the April 2016 and February 2017 VA examination showing range of motion was abnormal, the February 2017 VA examiner opined that range of motion was outside of normal range as a result of suboptimal effort and the abnormal range of motion itself does not contribute to a functional loss. Additionally, also considering the Veteran's flare-ups as noted during the April 2016 VA back examination, which was conducted during a flare-up, the examiner opined range of motion was abnormal, and determined this was contributed to functional loss related to difficulty picking up items. Moreover, there was no additional loss of function or range of motion after repetitive use testing with three repetitions. Here, neither the VA and private treatment records nor the September 2014, April 2016, or February 2017 VA examination reports indicate that there was unfavorable ankylosis of the entire thoracolumbar spine reflective of a higher rating. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The Veteran's lay statements similarly do not indicate that there has been ankylosis. Finally, the April 2016 and February 2017 VA examination reports and treatment records reflect diagnosis of IVDS, however, lack of incapacitating episodes (as defined in Note 1 to the formula for rating IVDS) was noted on the April 2016 and February 2017 VA examination reports and incapacitating episodes were not otherwise noted. Similarly, the Veteran has not reported experiencing incapacitating episodes for which he was prescribed bed rest. Thus a higher schedular rating available under the formula for rating IVDS based on incapacitating episodes is not warranted. Therefore, considering the aforementioned evidence of record, the Board finds that a rating in excess of 20 percent is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for herniated lumbar disk after September 1, 2011, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Left 5th Lumbar Vertebral Radiculopathy The Veteran's left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8720 as neuralgia of the sciatic nerve. Neuralgia under DC 8720 is rated as paralysis of the sciatic nerve under DC 8520. Paralysis of the sciatic nerve is rated as follows: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. The rating schedule provides guidance for rating neurological disabilities. With regard to rating neurological disabilities, cranial or peripheral neuritis, 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. 38 C.F.R. § 4.123. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Entitlement to an initial disability rating for mild to moderate, left 5th lumbar vertebral radiculopathy, prior to February 23, 2011, and in excess of 20 percent is not warranted for the following reasons. Pertinent evidence of records includes VA examinations. On examination of the back in March 2009, the Veteran reported back pain that radiates down his left leg with numbness in the lateral of the aspect of the leg. The resulting examination report indicates motor and sensory reflexes were normal and the straight leg test was positive at 40 degrees bilaterally in the supine position. MRI revealed herniated disks with evidence of radiculopathy. On June 2011 VA neurological disorders examination the Veteran reported a history of intermittent low back pain with frequent diffuse radiation down the left lower extremity associated with numbness and tingling. Examination revealed normal sensory, normal motor, and normal deep tendon reflexes. There was mild to moderate decrease in pin sensation in the left L5 dermatome. Following examination the examiner diagnosed mild to moderate left 5th lumbar vertebral radiculopathy. The examiner noted that the Veteran was able to perform the duties of his job as a police officer. Notably, the claims file was not provided for review. On a subsequent August 2011 neurological disorders examination, the resulting examination report is similar to the June 2011 VA examination report with exception to diagnosis. The Veteran's history of intermittent low back pain with frequent diffuse radiation down the left lower extremity associated with numbness and tingling is noted. Examination revealed sensation was intact to pin touch. Lower extremities motor test was normal. There was no atrophy and deep tendon reflexes were 2 plus. Following examination the examiner opined neurological exam was normal and concluded there is no objective evidence of radiculopathy or neuropathy. There was no muscle atrophy or incomplete paralysis noted. Gait and tandem gait were normal. Notably, the claims file was not provided for review. On the September 2014 VA examination, the Veteran described flare-ups as increased pain with lifting and bending. He reported symptoms of back pain, stiffness, and numbness of the left leg, to include a burning sensation in the bilateral legs. Examination revealed mild radiculopathy (10 percent) of the bilateral legs. The resulting examination report shows a normal sensory and reflex examination for the right and left lower extremity. Straight leg raising test was negative for the bilateral legs. The right lower extremity had no constant or intermittent pain, or numbness. There was mild paresthesias and/or dysesthesias. The left lower extremity was manifested by mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The April 2016 VA back examination report indicates the Veteran reported left sciatica nerve pain radiates down his entire leg and right sciatica nerve pain radiates from left buttock to left anterior thigh. He endorsed symptoms of spasms, shooting pain, and burning sensation. He reported pain was aggravated with standing and walking. Examination revealed decreased sensation in the left lower leg. Straight leg raising test results were negative for the right leg and positive for the left leg. Deep tendon reflexes were normal at 2 plus and muscle strength was also normal. There were symptoms of left leg radiculopathy to include mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness involving the sciatica nerve. There was also decreased sensation during sensory exam of the left lower leg. The left lower extremity radiculopathy was of mild severity. The right lower extremity was normal and not affected. The examiner concluded that the Veteran does not exhibit symptoms of right lower leg radiculopathy on current examination, noting that he is currently service connected for this disability. The April 2016 examination report also indicates that straight leg raising test results was negative for the right leg and positive for the left leg. There were symptoms of left leg radiculopathy to include mild intermittent pain, mild paresthesias and/or dysesthesias, mild numbness involving the sciatica nerve. Left leg radiculopathy was of mild severity. The right leg was normal and not affected. On peripheral neuropathy examination in February 2017, the Veteran reported left sciatica nerve pain radiates down his entire leg and right sciatica nerve pain radiates from the left buttock to the left anterior thigh. He endorsed symptoms of spasms, shooting pain, and burning sensation. It was noted that he used a cane regularly for balance and stability and he had an antalgic gait. Muscle strength was 4/5 for active movement against some resistance and 5/5 for normal strength of hip flexion only. Reflex exam was 2 plus and also normal. There were symptoms of left leg radiculopathy to include decreased sensation, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness involving the sciatica nerve. The left lower extremity radiculopathy was of mild severity. The right lower extremity was normal. Right leg extremity there was no pain, paresthesias and/or dysesthesias, or numbness noticed on examination. Sensory exam and deep tendon reflexes were normal bilaterally. The examiner diagnosed mild to moderate, no atrophy, no paralysis. The Veteran was employed working in an administrative setting. This work was impacted in that he must take frequent breaks and stretch throughout the work day. Private treatment records show the Veteran had lumbar foraminotomy to treat left lower extremity radiculopathy in May 2011. Private treatment records also show the Veteran received treatment to include medication management and physical therapy. VA treatment records indicate the same. During the appellate term, VA treatment records show the Veteran presented with complaints of pain with radiation into the left lower extremity, with positive straight leg test on the left. He was noted to have decreased patella tendon reflexes on the left as compared to the right lower extremity. The examiner noted that lower extremity strength was intact, as well as flexors and extensors of the knee and ankle extensors were all intact. Pain was exacerbated with lifting, bending, and prolonged ambulation. He was observed to walk with a normal gait. During the appellate term, the symptoms of left lower extremity radiculopathy that have been reported by the Veteran include radiating pain, numbness, tingling, muscle spasms, and weakness in the lower extremity. Examinations have revealed muscle strength, sensory testing, and reflexes were all 2 plus or normal, with the exception of muscle strength noted as 4/5 active against some resistance. Notably the June 2011 and August 2011 VA examination reports indicate the Veteran's claims file was not reviewed. Here, the June 2011 and August 2011 VA back examination reports indicate that the examiner did not review the Veteran's claims file. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. Here, the June 2011 and August 2011 VA back examination reports indicate neurologic examination shows normal sensory, normal motor, and normal deep tendon reflexes. There was no muscle atrophy and mild to moderate symptoms related to radiculopathy of the left lower extremity. As discussed above, these examination findings, symptoms, and the severity described are similar to the examination findings as demonstrated on the March 2009 examination and the subsequent September 2014, April 2016, and February 2017 examination findings, which summarized that there was radiculopathy of the left lower leg with minimal functional limitations, and mild to moderate symptoms. Examination reports note the Veteran required assistive devices to include a cane for support, however there is no abnormal gait related to this condition. In sum, the Veteran's left lower extremity symptoms due to service-connected herniated disk disability have been manifested by mild to moderate symptoms, with normal and decreased lower extremity deep tendon but the Veteran's gait has been normal and all other objective lower extremity neurological findings (including muscle strength/tone and sensation) have been normal. The examiners who conducted the VA back and neurological examinations also concluded that there was mild to moderate radiculopathy involving the left lower extremity. In light of these findings, all potentially applicable diagnostic codes have been considered in determine the appropriate ratings for the Veteran's lumbar spine disability and related neurological impairment. Schafrath v. Derwinski, 1 Vet. App. 589, 593(1991). The Board finds that the symptoms of the Veteran's left lower extremity radiculopathy have most closely approximated the criteria for a 20 percent rating under DC 8720 (reflective of moderate incomplete paralysis of the sciatic nerve) during the appeal period and that a higher initial rating is not warranted at any time during the appeal period. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, DC 8720. C. Right Leg Radiculopathy, Sciatica Nerve Finally, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 C FR § 4 71a, Note (1) ( 2017). The Board is therefore required to consider whether ratings were warranted for neurologic abnormalities associated with the low back condition. For these reasons, the Board concludes that when the Veteran appealed the increased rating assigned for his back disability, his appeal encompassed ratings for all manifestations of the condition. Notably, the Veteran is also service-connected for right lower leg radiculopathy. See DC 8520. In a January 2015 rating decision the RO granted service connection and assigned a 10 percent disability rating effective October 1, 2013. Based on the pertinent evidence set forth above, the Veteran's symptomatology remained relatively stable throughout the appeal period, and any increases in severity were not sufficient for a higher rating; therefore, staged ratings are not warranted. Hart v. Mansfield, 21 Vet. App. 505, 509-10(2007). Based on the pertinent evidence set forth above, examination of radiculopathy of the right lower leg is manifested by mild symptoms, and the 10 percent rating assigned is appropriate. The weight of the evidence thus reflects that the Veteran's symptoms more nearly approximate the mild incomplete paralysis required for a 10 percent rating under 38 C.F.R. § 4.124a, DC 8520, applicable to paralysis of the sciatic nerve. In light of the foregoing, the preponderance of the evidence is against entitlement to a higher disability rating at any time during the appellate term. The Board acknowledges that the Veteran has continued to receive medical treatment for his disabilities. However, the preponderance of evidence is against assigning a higher rating for any period on appeal. The Board acknowledges the Veteran's reports during VA examinations and as recorded in the medical evidence as well as supporting statements that his condition has worsened to include functional loss or impairment described as lack of strength, trouble getting up from toilet seat, and difficulty dressing due to his back. Additionally, the Veteran described flare-ups as burning pain going down the left side associated with numbness and tingling, as well as throbbing pain in the back. He also reported functional loss or impairment of the thoracolumbar spine as the inability to do things that he normally had to include cutting the grass. The Veteran is competent to so state, but his opinions must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). With respect to the Veteran's reported history, under certain circumstances, lay statements may be sufficient for disability claims by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to testify to factually observable injuries and treatment, the timing of the observable symptoms of his disabilities, and receipt of medical treatment because these are observable by his own senses and within the realm of knowledge of a lay person. Id. These reports must be considered with the entire record evidence. However, the Board finds the specific, reasoned opinions of the VA examiners, and the objective evidence of the trained medical professionals, who reviewed the Veteran's claims file and examined him, to be of greater probative weight than the more general lay assertions. III. Extraschedular The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of herniated lumbar disk and radiculopathy, are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). By way of back ground, a March 2015 rating decision denied entitlement to a TDIU based on the Veteran's current employment and failure to return VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Thereafter on January 9, 2017, a VA employee placed a telephone call to the Veteran following a request from the Veteran as to the status of his claim. The Veteran stated that he never wanted to file for TDIU and wanted to drop the appeal issue of TDIU as he was actively working. Thereafter, received at the VA Claims Intake Center on January 18, 2017, was a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. This was dated January 18, 2018 by the Veteran. He indicated on the form that he is currently employed. The form indicates the Veteran has worked from August 2009 to present with a police service. He also reported the type of work currently is administrative. He explained that although he continues to work he is unsure of how long he will be working with his current employer because he is no longer able to work as a police officer. The evidence of record also shows that he is currently employed with as a police officer and has remained employed during the appellate term. Specifically, VA examination reports and treatment records document that the Veteran is not working in the capacity of a police officer due to back problems. Instead the Veteran is working in an administrative setting that does not require the physical demands of a police officer, and he is able to complete administrative work with frequent breaks and stretching throughout the work day. In this case, despite the Veteran's reports of unemployability due to service-connected disability, he has remained employed throughout the appellate term, and from his reports, has received accommodations from his current employer in that he is no longer working as a police officer but in an administrative setting where he is not required to complete the physical demands of a police officer. Given the proximity of the telephone conversation and the receipt of the Form 21-8940, and that the Form 21-8940 indicates that the Veteran is employed in a substantially gainful occupation, the Board concludes that no further discussion of TDIU is necessary. If the Veteran does indeed believe he is unemployable he will have the opportunity to pursue a claim of TDIU at his discretion. From these facts, the Board concludes that no further discussion of TDIU is warranted at this time. ORDER Entitlement to an increased rating in excess of 10 percent for herniated disk disability prior to September 1, 2011 is denied. Entitlement to an increased rating in excess of 20 percent for herniated disk disability after September 1, 2011 is denied. Entitlement to an initial disability rating in excess of 20 percent for left 5th lumbar vertebral radiculopathy disability is denied. Entitlement to an additional rating or higher rating for radiculopathy of the right lower extremity sciatic nerve associated with herniated disk disability; currently rated 10 percent disabling since October 1, 2013, is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs