Citation Nr: 1801067 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-29 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating for spondylosis of the thoracolumbar spine in excess of 10 percent prior to January 17, 2014 and in excess of 40 percent from January 17, 2014. 2. Entitlement to an initial disability rating in excess of zero percent prior to January 17, 2014 and in excess of 10 percent from January 17, 2014 for the service-connected left lower extremity radiculopathy. 3. Entitlement to an initial disability rating in excess of zero percent prior to January 17, 2014, in excess of 10 percent from January 17, 2014, and in excess of 20 percent from January 19, 2017 for the service-connected right lower extremity radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to June 1990 and from June 2007 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2011, April 2014, and May 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The June 2011 rating decision denied service connection for a neck disability, bilateral hearing loss and post traumatic stress disorder. The Veteran was notified of this decision and he filed a notice of disagreement in July 2011. A statement of the case was issued in August 2013. However, the Veteran did not file a substantive appeal for these issues. Thus, an appeal of these issues have not been perfected. 38 C.F.R. §§ 20.200, 20.201, and 20.202 (2017). During the pendency of the appeal for a higher initial rating for the thoracolumbar spine disability, the April 2014 rating decision awarded 10 percent disability evaluations, effective January 17, 2014, for the right and left lower extremity radiculopathy secondary to the thoracolumbar spine disability. As the service-connected lumbar spine disability is rated pursuant to Diagnostic Code 5242 and the General Rating Formula for Spine Disabilities, consideration of associated neurological manifestations due to the service-connected lumbar spine disability renders the rating assigned in the April 2014 decision part-and-parcel of the increased rating claim on appeal. 38 C.F.R. § 4.71a, Diagnostic Code, Note 1 (2017). Thus, the issue has been included on the title page. In October 2017, the Veteran submitted a waiver of agency of original jurisdiction (AOJ) consideration of new evidence pursuant to 38 C.F.R. § 20.1304 (2017). FINDINGS OF FACT 1. From January 28, 2011 to January 16, 2014, the service-connected spondylosis of the thoracolumbar spine was manifested by pain, painful motion, and forward flexion to greater than 60 degrees; muscle spasm, guarding, and localized tenderness not resulting in abnormal gait or abnormal spinal contour; without findings of forward flexion of the thoracolumbar spine to not greater than 60 degrees; combined range of motion to not greater than 120 degrees; favorable or unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes due to the disc disease lasting a duration of at least 2 weeks during any 12 month period. 2. From January 17, 2014, the service-connected spondylosis of the thoracolumbar spine was manifested by pain, forward flexion functionally limited to 30 degrees, and incapacitating episodes due to the disc disease lasting a duration of at least 6 weeks during any 12 month period; without findings of favorable or unfavorable ankylosis of the entire thoracolumbar spine. 3. From January 20, 2011 to July 14, 2013, the service-connected spondylosis of the thoracolumbar was not manifested by objective nerve involvement or neurological manifestations or abnormalities to include radiculopathy of the lower extremities. 4. From July 15, 2013, the service-connected left lower extremity radiculopathy is productive of moderate incomplete paralysis or impairment, not moderately-severe or severe incomplete paralysis or complete paralysis of the sciatic nerve. 5. From July 15, 2013 to January 16, 2014, the service-connected right lower extremity radiculopathy is productive of moderate incomplete paralysis or impairment, not moderately-severe or severe incomplete paralysis or complete paralysis of the sciatic nerve. 6. From January 17, 2014, the service-connected right lower extremity radiculopathy is productive of moderately-severe incomplete paralysis or impairment, not severe incomplete paralysis or complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent prior to January 17, 2014 and in excess of 40 percent from January 17, 2014 for the service-connected spondylosis of the thoracolumbar spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5242 (2017). 2. From January 20, 2011 to July 14, 2013, separate compensable ratings for neurological manifestations of the left and right lower extremities due to spondylosis of the thoracolumbar spine are not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 8520 (2017). 3. From July 15, 2013, the criteria for a 20 percent disability evaluation for the service-connected left lower extremity radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 4. From July 15, 2013 to January 16, 2014, the criteria for a 20 percent disability evaluation for the service-connected right lower extremity radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 5. From January 17, 2014, the criteria for a 40 percent disability evaluation for the service-connected right lower extremity radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2011. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. 2. Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that, in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). 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. Id. In Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, 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). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 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 affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the 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 nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). 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 evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 40 percent rating will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): 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 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. Id. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Under Diagnostic Code 5243, a 20 percent rating is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term "incomplete paralysis," with respect to peripheral nerve injuries, 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. 3. Analysis: Higher Disability Rating for the Thoracolumbar Spine Disability under the General Rating Formula for Diseases and Injuries of the Spine The Veteran asserts that a higher disability rating is warranted for the service-connected thoracolumbar spine disability. By way of history, the June 2011 rating decision granted service connection for spondylosis of the thoracolumbar spine and assigned a 10 percent rating under Diagnostic Code 5242 effective from January 20, 2011. An April 2014 rating decision assigned a 40 percent rating to the thoracolumbar spine disability effective from January 17, 2014. The April 2014 rating decision granted service connection for right and left lower extremity radiculopathy and assigned separate 10 percent rating to each extremity from January 17, 2014 under Diagnostic Code 8720. A May 2017 rating decision rated the service-connected left and right lower extremity radiculopathy under Diagnostic Code 8520 and assigned a 20 percent rating to the service-connected right lower extremity radiculopathy from January 19, 2017. A higher disability rating in excess of 10 percent for the left lower extremity radiculopathy was denied. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected spondylosis of the thoracolumbar spine from January 28, 2011 to January 16, 2014. The weight of the competent and credible evidence establishes that for the time period in question, the service-connected thoracolumbar spine disability is manifested by pain, painful motion, and forward flexion to greater than 60 degrees; and muscle spasm, guarding, and localized tenderness not resulting in abnormal gait or abnormal spinal contour; without findings of forward flexion of the thoracolumbar spine to not greater than 60 degrees; combined range of motion to not greater than 120 degrees; favorable or unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes due to the disc disease lasting a duration of at least 2 weeks during any 12 month period. The March 2011 VA examination report indicates that the Veteran reported that in 1988, he was performing physical therapy in service and he heard a pop in his back and suffered pain and stiffness. He was seen in sick bay and was treated with medication and bedrest, and the condition resolved. The Veteran stated that in 2008, he twisted his back while lifting heavy equipment on active duty. He experienced pain and stiffness. He stated that since then, he has had daily low back pain that is grade 5/10 in severity. He stated that the pain does not radiate and it is both sharp and dull. He reported having flare-ups of thoraolumbar spine pain every 2 to 3 weeks and the flare-ups were moderate and lasted 1 to 2 days and were precipitated by lifting, twisting, rest, medication, and heat. The extent of the additional limitation of motion or other functional impairment during flare-ups was moderate. He reported having symptoms of fatigue, decreased motion, stiffness, spasm, and spine pain. The thoracolumbar spine pain was moderate, it was daily and the duration of the pain was hours. Physical examination of the spine revealed normal posture and gait. There was no gibbus, kyphosis, lumbar lordosis, reverse lordosis, or list. There was lumbar flattening and scoliosis. There were objective findings of guarding in the thoracolumbar sacrospinalis but no objective findings of spasm, atrophy, pain with motion, tenderness, or weakness. There were no findings of muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Thoracolumbar spine range of motion was forward flexion from zero to 80 degrees; extension was zero to 25 degrees; left lateral flexion was zero to 25 degrees, left lateral rotation was zero to 20 degrees; right lateral flexion was zero to 24 degrees; and right lateral rotation was zero to 25 degrees. There was objective evidence of pain following repetitive motion and additional limitation of motion. Range of motion of the thoracolumbar spine after repetitive motion was forward flexion from zero to 75 degrees; extension was zero to 21 degrees; left lateral flexion was zero to 20 degrees, left lateral rotation was zero to 17 degrees; right lateral flexion was zero to 20 degrees; and right lateral rotation was zero to 22 degrees. The VA examiner stated that the Veteran lost less than 1 week of work due to the thoracolumbar spine disability in the past 12 month period. VA treatment records dated from July 2008 to February 2011 show findings of tenderness at the para lumbosacral areas more on the right in March 2009 and May 2009. The May 2009 VA treatment record indicates that there was discomfort with full range of motion. A May 2010 VA treatment record indicates that there was some loss of flexion and extension in the lumbar spine, gait was slow, and posture was slightly forward. A February 2011 VA treatment record indicates that the Veteran had complaints of low back pain. He was restarted on Flexeril and was placed on a 3 month profile for running and sit-ups. Examination revealed pain at about 90 degrees. Gait was slightly stiff. VA treatment records dated in 2012 show that in August 2012, the Veteran sought treatment for the lumbar spine disability. Physical examination revealed some flexion to 90 degrees and good extension. There was normal gait. There was tenderness sin the iliosacral area. A December 2012 VA chiropractic note indicates that the Veteran complained of chronic low back pain. Physical examination revealed good conditioning., erect posture, and steady gait. Active range of motion of the lumbar spine was flexion to 104 degrees, extension to 21 degrees, right lateral bending to 11 degrees, and left lateral bending to 15 degrees. Physical therapy treatment records dated in 2013 show that the Veteran sought treatment for lumbago. Records dated in July and September 2013 show that the veteran reported having severe pain in the range of a 6 to 9 out of 10. For active range of motion, there was moderate impairment on lumbar extension with pain during the mid ranges in July 2013 and mild impairment of lumbar extension with pain only at the ends of active extension in September 21013. For active lumbar flexion, in July 2013, there was mild impairment with pain only at the ends of range of motion and in September 2013, there was moderate impairment of active lumbar flexion with pain during the mid ranges of active flexion. The weight of the competent and credible evidence shows that for the period of January 28, 2011 to January 16, 2014, the Veteran had forward flexion of the thoracolumbar spine beyond 60 degrees and the combined range of motion of the thoracolumbar spine was more than 120 degrees. There is objective evidence of localized tenderness and pain to the thoracolumbar spine on palpation but the weight of the competent and credible evidence shows no abnormal gait. Gait on exam in February 2011 was described as slightly stiff. However, gait was described as normal upon VA examination in March 2011 and was described as normal and steady in 2012. There is no objective evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour. The back symptoms were not severe enough to result in abnormal gait or abnormal spinal contour. There was a finding of scoliosis but the March 2011 VA examiner specifically stated that muscle spasm, localized tenderness, or guarding was not severe enough to be responsible for abnormal spinal contour. There is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine. The rating criteria take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation. 68 Fed. Reg. 51454-5 (Aug. 27, 2003). In any event, as discussed below, additional functional limitation warranting a higher rating has not been shown. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). The March 2011 VA examination report shows that the range of motion of the thoracolumbar spine was additionally limited after repetitive motion. However, the additional limited motion does not meet the requirements for a 20 percent rating; the Veteran was able to forward flex his thoracolumbar spine beyond 60 degrees. There were no findings of weakness. Muscle strength was normal and there was no atrophy. VA treatment records and physical therapy records do not document flexion of the lumbar spine limited to 60 degrees or less. The Board finds the functional loss manifested by pain on movement and additional limited motion after repetitive testing is contemplated in the 10 percent rating. Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. The Board finds that the service-connected thoracolumbar spine disability picture more nearly approximates the criteria for a 10 percent rating, and has not, for the time period of January 20, 2011 to January 16, 2014, more nearly approximated the criteria for a higher disability rating of 20 percent. Thus, the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected thoracolumbar spine disability under the rating criteria for spine disabilities from January 20, 2011 to January 16, 2014. In summary, on this record, the assignment of a disability rating in excess of 10 percent for the service-connected thoracolumbar spine disability is not warranted under Diagnostic Codes 5235 to 5242 from January 20, 2011 to January 16, 2014. The claim for a higher initial rating for this time period is denied. As noted the RO assigned a 40 percent rating to the spondylosis of the thoracolumbar spine under Diagnostic Code 5242 effective from January 17, 2014, the date of the VA examination. The weight of the competent and credible evidence shows that from January 17, 2014, the service-connected spondylosis of the thoracolumbar spine was manifested by pain and forward flexion functionally limited to 30 degrees and incapacitating episodes due to the disc disease lasting a duration of at least 6 weeks during a 12 month period without findings of favorable or unfavorable ankylosis of the entire thoracolumbar spine. See the January 2014 VA examination report. After a careful review of the record, the Board finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the service-connected thoracolumbar spine disability from January 17, 2014. Under Diagnostic Codes 5235 to 5242, in order for a 50 percent rating to be assigned, the evidence must establish unfavorable ankylosis of the entire thoracolumbar spine. In order for a 100 percent rating to be assigned, the evidence must establish unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. The medical evidence of record does not document unfavorable ankylosis of the spine. See the January 2014 and May 2017 VA examination reports and the VA treatment records. Thus, on this basis, a higher rating is not warranted under Diagnostic Codes 5235 to 5242. The rating criteria are intended to take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation. In any event, additional functional limitation warranting a higher evaluation is not been shown. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca; supra. The May 2017 VA examination report shows that forward flexion was to 50 degrees with pain. Pain was noted on exam. There was no additional limited motion after repetitions. There were no findings of ankylosis. The January 17, 2014 VA examination report shows that forward flexion was to 30 degrees with pain. Pain was noted on exam. There was no additional limited motion after repetitions. There was functional loss manifested by less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement., swelling, instability of station, disturbance of locomotion, lack of endurance, and interference with sitting, standing, and/or weightbearing. The VA examiner estimated that the additional functional limitations during a flare-up was a decrease in motion by 30 percent. There were no findings of ankylosis. The May 2017 VA examiner stated that there was evidence of lumbar pain with passive range of motion movements and pain related to non-weight bearing conditions in accordance with the current "Correia" requirements, and there were no changes with passive range of motion measurements The 40 percent rating assigned from January 17, 2014 contemplates the functional loss due to pain and other symptoms caused by the lumbar spine disability. The weight of the evidence does not show additional functional loss or impairment that approximates ankylosis of the thoracolumbar spine. There is no basis for the assignment of additional disability due to pain and other symptoms. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca; supra. The evidence preponderates against the claim for a disability evaluation in excess of 40 percent for the service-connected thoracolumbar spine disability from January 17, 2014 under the General Rating Formula for Disease and Injuries of the Spine, and the appeal is denied. 4. Analysis: Higher Disability Rating for the Thoracolumbar Spine Disability under Diagnostic Code 5243, Intervertebral Disc Syndrome The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected spondylosis of the thoracolumbar spine from January 28, 2011 to January 16, 2014 under Diagnostic Code 5243. The evidence does not establish that the service-connected thoracolumbar spine disability was manifested by incapacitating episodes having a total duration of at least two weeks or more during the past 12 months from January 28, 2011 to January 16, 2014. There is no evidence of physician prescribed bed rest or incapacitation for this time period. Thus, the Board finds that a disability evaluation in excess of 10 percent for the thoracolumbar spine disability is not warranted under Diagnostic Code 5243 from January 20, 2011 to January 16, 2014. 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, a higher 60 percent rating is warranted under Diagnostic Code 5243, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for the time period of from January 17, 2014. The January 17, 2014 VA examination report indicates that the Veteran had incapacitation due to the thoracolumbar spine disability and the service-connected thoracolumbar spine disability caused incapacitating episodes having a total duration of at least six weeks during the past 12 month period. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Thus, the Board finds that a 60 percent disability evaluation for the thoracolumbar spine disability is warranted under Diagnostic Code 5243 from January 17, 2014. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Intervertebral disc syndrome, Diagnostic Code 5243, will be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. If the intervertebral disc syndrome is rated under the General Rating Formula for Spine Injuries and Diseases, any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, will be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. In the present case, in light of the higher disability ratings assigned to the right lower extremity radiculopathy and the left lower extremity radiculopathy, which is discussed in detail below, for the period from January 17, 2014, rating the service-connected thoracolumbar spine disability under Diagnostic Code 5242 with separate ratings for radiculopathy of each lower extremity is more advantageous to the Veteran. From January 17, 2014, under the general rating formula for spine disabilities, a 40 percent rating is warranted under Diagnostic Code 5242, a separate 40 percent rating is warranted for radiculopathy of the right lower extremity under Diagnostic Code 8520, and a separate 20 percent rating is warranted for radiculopathy of the left lower extremity under Diagnostic Code 8520. When combined under 38 C.F.R. § 4.25 and 38 C.F.R. § 4.26, this results in a 80 percent combined rating. Considering the bilateral factor, the 40 percent and the 20 percent ratings for each lower extremity are combined to 60. 10 percent of this value is added (60 + 6 = 66). Pursuant to 38 C.F.R. § 4.25, 66 combined with 40 results in 80 percent combined rating. See 38 C.F.R. §§ 4.25, 4.26. Thus, a 60 percent rating under Diagnostic Code 5243 is not more advantageous for the Veteran for the time period from January 17, 2014. 5. Analysis: Higher Disability Rating for Radiculopathy of the Left and Right Lower Extremities The Board has also considered whether higher ratings are warranted for the service-connected radiculopathy of the right and left lower extremities under Diagnostic Code 8520 when rated separately. As noted, the April 2014 rating decision granted service connection for right and left lower extremity radiculopathy and assigned separate 10 percent rating to each extremity from January 17, 2014 under Diagnostic Code 8720. A May 2017 rating decision rated the service-connected left and right lower extremity radiculopathy under Diagnostic Code 8520 and assigned a 20 percent rating to the service-connected right lower extremity radiculopathy from January 19, 2017. A higher disability rating in excess of 10 percent for the left lower extremity radiculopathy was denied. The Veteran argues that higher ratings are warranted for the radiculopathy of the lower extremities and compensable ratings should be assigned prior to January 17, 2014. The April 2014 rating decision granted service connection for right and left lower extremity radiculopathy and assigned separate 10 percent rating to each extremity from January 17, 2014 under Diagnostic Code 8720. This grant was based upon the findings of the January 17, 2014 VA examination. The January 17, 2014 VA examination report establishes a diagnosis of radiculopathy of the left and right lower extremities. The 10 percent ratings were assigned under Diagnostic Code 8520 for mild incomplete paralysis of the sciatic nerves of the left and right lower extremities. The Veteran argues that compensable ratings should be assisted to the right and left lower extremity radiculopathy from at least July 2013 based upon the findings of the July 15, 2013 physical therapy records. See the June 2014 VA Form 646. After a review of the evidence, the Board finds that the disability picture due to the right and left lower extremity radiculopathy more nearly approximates moderate incomplete paralysis of the sciatic nerve and a 20 percent rating is warranted for each lower extremity under Diagnostic Code 8520 from July 15, 2013. The July 15, 32013 physical therapy records document moderate impairment of the sciatic nerve of each extremity from July 15, 2013. The record indicates that there was moderate sciatic nerve mobility deficits on July 15, 2013 and September 4, 2014. The Board finds that the criteria for moderately-severe or severe incomplete paralysis has not been met under Diagnostic Code 8520 from July 15, 2013 to January 16, 2014. The medical evidence shows findings of moderate symptoms and deficits, not moderately-severe or severe impairment. There are no findings of moderately-severe or severe symptoms or impairment. There are no findings of marked muscular atrophy. There are no findings of complete paralysis of the sciatic nerve with foot drop, a loss of active movement of muscles below the knee, or flexion of the knee weakened or lost for the time period in question. For these reasons, the Board concludes that the disability picture more nearly approximates moderate incomplete paralysis of the sciatic nerve of the right and left lower extremities and a 20 percent rating under Diagnostic Code 8520 is warranted for each lower extremity from July 15, 2013 to January 16, 2014. The weight of the evidence does not establish a separate neurological disability of the left or right lower extremity prior to July 15, 2013. The weight of the competent and credible evidence shows that prior to July 15, 2013, a separate neurologic manifestation in the left and right lower extremities was not detected. The March 2011 VA examination report indicates that the Veteran denied having radiating back pain or neurologic deficits. Neurologic physical examination of the lower extremities was normal. The record does not set forth any objective findings of neuropathy or other neurologic manifestations in the left or right lower extremities prior to July 15, 2013. As such, the Board concludes that the preponderance of the evidence is against the assignment of a separate rating for neurologic manifestations of the left or right lower extremity due to the thoracolumbar spine disability prior to July 15, 2013. After a review of the evidence, the Board finds that the disability picture due to the right lower extremity radiculopathy more nearly approximates moderate-severe incomplete paralysis of the sciatic nerve and a 40 percent rating is warranted under Diagnostic Code 8520 from January 17, 2014. The January 17, 2014 VA examination report indicates that the symptoms of the radiculopathy of the right lower extremity were severe constant pain, moderate intermittent pain, severe paresthesias or dysesthesias, and mild numbness. The nerve involved was the sciatic nerve. Sensory examination of the right lower extremity in the thigh, knee, lower leg, ankle and foot was normal. Deep tendon reflexes of the right lower extremity were 1+ in the knee and ankle which is hypoactive. Muscle strength was 5/5 (normal strength) in the knee, ankle and great toe and was 4/5 in hip flexion. The VA examiner opined that the radiculopathy of the right lower extremity was severe. The April 17, 2017 VA examination report indicates that the Veteran reported having pain with numbness and tingling in the extremities that began in 2009-2010 and has progressively worsened. He took Neurontin 400 milligrams three times daily. The VA examination report noted that the Veteran had moderate intermittent pain, severe paresthesias and dysesthesias, and severe numbness in the right lower extremity. Muscle strength in all muscle groups in the right lower extremity was 5/5. There was no muscle atrophy. Deep tendon reflexes were 2+ which is normal. Sensory exam was normal. The VA examiner stated that the Veteran's gait was antalgic and the Veteran attempted to avoid putting weight on right leg due to pain. He tried to minimize the amount of weight placed on the right painful leg while walking therefore altering his gait. The stride was shortened on the right side, affecting the posture. The abnormal gait was due to the radiculopathy. The VA examiner opined that the severity of the right lower extremity radiculopathy was moderate incomplete paralysis. The May 2017 VA spine examination report indicates that the Veteran had moderate intermittent pain, moderate paresthesias and dysesthesias, and moderate numbness in the right lower extremity due to the radiculopathy. Muscle strength in all muscle groups in the right lower extremity was 5/5. There was no muscle atrophy. Deep tendon reflexes were 1+ (2+ is normal). Sensory exam was normal in the right lower extremity except for decreased sensation in the foot and toes (L5). A May 2015 VA treatment record indicates that the Veteran had pain that radiated to the buttocks. He did not have foot drop. An October 2016 VA treatment record notes that on exam, there was some radiation to the calf on the right with straight leg raise and the gait slightly favored the right leg. In a February 2017 statement, the Veteran stated that the service-connected lumbar spine disability and radiculopathy caused constant pain and he was no longer able to do yard work, engage in outdoor activities with his family, or even do menial work such as washing dishes if he had to stand longer than 5 minutes. The Board finds that the disability picture due to the right lower extremity radiculopathy more nearly approximates moderately-severe incomplete paralysis of the sciatic nerve under Diagnostic Code 8520, and the weight of the evidence does not establish severe incomplete paralysis or complete paralysis of the sciatic nerve of the right lower extremity. The Board finds that the criteria for severe incomplete paralysis has not been met under Diagnostic Code 8520. The medical evidence shows findings of some severe symptoms and in January 2014, the VA examiner found the right lower extremity radiculopathy to be severe. However, there are no findings of marked muscular atrophy. The VA examination findings show that muscle strength testing was normal except for the hip extensors which were 4/5 (with 5/5 normal) on exam in January 2014. The VA examination findings, discussed in detail above, also show moderate symptoms of right lower extremity radiculopathy. There are no findings of complete paralysis of the sciatic nerve with foot drop, a loss of active movement of muscles below the knee, or flexion of the knee weakened or lost. Thus, the Board concludes that the disability picture more nearly approximates moderately-severe incomplete paralysis of the sciatic nerve of the right lower extremity and a 40 percent rating under Diagnostic Code 8520 is warranted for the right lower extremity radiculopathy from January 17, 2014. After a review of the evidence, the Bord finds that the disability picture due to the left lower extremity radiculopathy more nearly approximates moderate incomplete paralysis of the sciatic nerve of the left lower extremity and a 20 percent rating under Diagnostic Code 8520 is warranted from January 17, 2014. The January 17, 2014 VA examination report indicates that the symptoms of the radiculopathy of the left lower extremity were mild constant pain, mild intermittent pain, and mild paresthesias or dysesthesias. The nerve involved was the sciatic nerve. Sensory examination of the left lower extremity in the thigh, knee, lower leg, ankle and foot was normal. Deep tendon reflexes of the left lower extremity were 1+ in the knee and ankle which is hypoactive. Muscle strength was 5/5 (normal strength) in the knee, ankle and great toe and was 4/5 in hip flexion. The VA examiner opined that the radiculopathy of the left lower extremity was moderate. The April 17, 2017 VA examination report indicates that the Veteran reported having pain with numbness and tingling in the extremities that began in 2009-2010 and has progressively worsened. He took Neurontin 400 milligrams three times daily. The VA examination report noted that the Veteran had moderate intermittent pain, mild paresthesias and dysesthesias, and moderate numbness in the left lower extremity. Muscle strength in all muscle groups in the left lower extremity was 5/5. There was no muscle atrophy. Deep tendon reflexes were 2+ which is normal. Sensory exam was normal. The VA examiner opined that the severity of the right lower extremity radiculopathy was mild incomplete paralysis. The May 2017 VA spine examination report indicates that the Veteran had mild intermittent pain, mild paresthesias and dysesthesias, and mild numbness in the right lower extremity due to the radiculopathy. Muscle strength in all muscle groups in the left lower extremity was 5/5. There was no muscle atrophy. Deep tendon reflexes were 2+ which is normal. Sensory exam was normal in the left lower extremity except for decreased sensation in the foot and toes (L5). As noted above, a May 2015 VA treatment record indicates that the Veteran had pain that radiated to the buttocks. He did not have foot drop. In a February 2017 statement, the Veteran stated that the service-connected lumbar spine disability and radiculopathy caused constant pain and he was no longer able to do yard work, engage in outdoor activities with his family, or even do menial work such as washing dishes if he had to stand longer than 5 minutes. The Board finds that the weight of the evidence demonstrates that the radiculopathy of the left lower extremity is manifested by a disability picture that more nearly approximates moderate incomplete paralysis under Diagnostic Code 8520, and the weight of the evidence does not establish moderately-severe or severe incomplete paralysis or complete paralysis of the sciatic nerve of the left lower extremity. The Board finds that the criteria for moderately-severe or severe incomplete paralysis has not been met under Diagnostic Code 8520. The medical evidence shows findings of mild to moderate symptoms and in January 2014, the VA examiner found the left lower extremity radiculopathy to be moderate. There are no findings of moderately-severe or severe symptoms or impairment. There are no findings of marked muscular atrophy. The VA examination findings show that muscle strength testing was normal except for the hip extensors which were 4/5 (with 5/5 normal) on exam in January 2014. There are no findings of complete paralysis of the sciatic nerve with foot drop, a loss of active movement of muscles below the knee, or flexion of the knee weakened or lost. The Board finds that the disability picture due to the left lower extremity radiculopathy more closely approximates moderate incomplete paralysis of the sciatic nerve and a 20 percent rating under Diagnostic Code 8520 is warranted for the left lower extremity radiculopathy from January 17, 2014. The appeal is granted to that extent. ORDER Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected spondylosis of the thoracolumbar spine from January 20, 2011 to January 16, 2014 is denied. Entitlement to an initial disability evaluation in excess of 40 percent for the service-connected spondylosis of the thoracolumbar spine from January 17, 2014 is denied. Entitlement to separate compensable disability evaluation for the service-connected left and right lower extremity radiculopathy prior to July 15, 2013 is denied. Entitlement to 20 percent disability evaluation for the service-connected left lower extremity radiculopathy from July 15, 2013 is granted. Entitlement to 20 percent disability evaluation for the service-connected right lower extremity radiculopathy from July 15, 2013 to January 16, 2014 is granted. Entitlement to 40 percent disability evaluation for the service-connected right lower extremity radiculopathy from January 17, 2014 is granted. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs