Citation Nr: 1803729 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-34 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine from August 13, 2015 to January 17, 2017. 2. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine from January 18, 2017. 3. Entitlement to an initial rating in excess of 10 percent for lumbar radiculopathy, right lower extremity (RLE) from January 18, 2017, and in excess of 40 percent from February 2014 to January 18, 2017. 4. Entitlement to an initial rating in excess of 10 percent for lumbar radiculopathy, left lower extremity (LLE) from January 18, 2017. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from January 18, 2017. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 18, 2017. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. Underwood, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.§ 7107(a)(2) (West 2012). The Veteran served on active duty from March 1954 to February 1957. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of a Department of Veterans' Affairs (VA) Regional Office (RO). A September 2012 rating decision granted service connection for lumbar DDD with kyphosis and assigned an initial 20 percent rating, effective April 2012. A March 2016 rating decision granted service connection for radiculopathy of the RLE and assigned an initial 20 percent rating, effective August 20, 2013. In August 2016, the Veteran appeared at a Board hearing via video teleconference before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file. In a December 2016 decision, the Board remanded the issues of entitlement to initial increased ratings for degenerative disc disease (DDD) of the lumbar spine and right lower extremity radiculopathy from August 13, 2015. In a subsequent September 2017 Board decision, the undersigned Veteran's Law Judge made a date correction to the December 2016 decision. A September 2017 rating decision increased the disability rating for lumbar DDD with kyphosis, effective January 18, 2017 and denied entitlement to individual unemployability. The September 2017 rating decision also increased right-sided lumbar radiculopathy of the RLE from February 5, 2014 to January 17, 2017 to 40 percent; and decreased the rating of his right-sided lumbar radiculopathy of the RLE to 10 percent from January 18, 2017. Finally, the September 2017 decision granted service connection for radiculopathy of the LLE and assigned an initial 10 percent rating. The Veteran's representative provided the Board with an appellate brief in November 2017 regarding the enumerated issues. The issue of entitlement to TDIU prior to January 18, 2017 is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. From August 13, 2015 to January 17, 2017, the Veteran's range of motion measurements do not enable an increased disability rating higher than 20 percent pursuant to DC 5242. 2. From January 18, 2017, the Veteran's thoracolumbar forward flexion measured to 30 degrees after repetition; there is no showing of ankylosis. 3. The evidence is in equipoise as to whether the increased symptomatology associated with the Veteran's lower extremity radiculopathy is attributable to the service-connected low back disability; moderately severe incomplete paralysis of the right lower extremity, and moderate incomplete paralysis of the left lower extremity have been shown. 4. From January 18, 2017 the Veteran's combined disability rating meets the percentage requirements for TDIU. His service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From August 13, 2015 to January 17, 2017, the requirements for an initial evaluation in excess of 20 percent for orthopedic symptoms of lumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the spine (General Formula), Diagnostic Code (DC) 5242 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. From January 18, 2017, the requirements for an initial evaluation greater than 40 percent for orthopedic symptoms of lumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the spine (General Formula), Diagnostic Code (DC) 5242 (2017). 3. From August 20, 2013, the criteria for a rating of 40 percent, but no higher, for right lower extremity radiculopathy, secondary to a low back disability, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, DC 8520 (2017). 4. From January 18, 2017, the criteria for a rating of 20 percent, but no higher, for left lower extremity radiculopathy, secondary to a low back disability, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, DC 8520 (2017). 5. From January 18, 2017, the criteria for a TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties Regarding the Veteran's TDIU claim, this decision grants the benefits sought on appeal; therefore the Veteran could not be prejudiced and discussion of compliance with the duty to notify and assist is moot. Regarding the Veteran's claims for initial increased ratings, VA is required to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). When a claim has been granted and there is disagreement as to "downstream" questions, such as effective dates, the claim has been substantiated and there is no need to provide additional notice and the Court will not presume that a notice error is prejudicial. See Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case as the Veteran has not alleged such prejudice. Next, VA has a duty to assist the appellant in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All identified, available medical records have been obtained and considered. VA provided examinations and/or addendums for the Veteran's disabilities in July 2012, February 2014, August 2015, February 2016, and January 2017. The Board finds that, when viewed in total, the VA examination reports are sufficient to decide this appeal. The examinations document subjective complaints, objective test results, and address the rating criteria and levels of functioning. Pursuant to the December 2016 Board remand instructions, the January 2017 examiner considered active motion, non-weight-bearing motion, and opposite joint range. The Board notes that the examiner determined that he could not safely perform passive range of motion testing and it appears that weight bearing testing was not administered. Nevertheless, the Board finds that the examination was adequate because the examiner provided detailed documentation of subjective and objective observations and addressed the rating criteria and level of impairment. Based on the evidence of record, an additional examination would not assist the Veteran in obtaining a higher rating. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board has carefully reviewed the record and determines there is no additional development needed for the claims. See C&P Exam, 01/23/2017 at 13; see also Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Accordingly, the Board finds that the remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). As VA has satisfied its duties to notify and assist the appellant, no further notice or assistance is required. II. Rating Analysis The Veteran asserts that his back and left and right lower extremity disabilities warrant ratings in excess of those assigned by the RO. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of another. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to provide evidence of symptoms observable by his senses. However, he is not competent to measure range of motion, as this requires specialized testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran credible to report his symptoms, as his statements are detailed and consistent. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Disabilities of the low back are rated under section 4.71a for the musculoskeletal system. The Veteran's back is rated under Diagnostic Code 5242, which applies the General Rating Formula for the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for the Spine, a 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Radiculopathy is rated as paralysis and incomplete paralysis of peripheral nerve pathology. See 38 C.F.R. § 4.124a. Under these criteria, 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. Id., Diseases of the Peripheral Nerves. Under Diagnostic Code 8520, an 80 percent rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." Id. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A 40 percent rating is assigned for moderately severe incomplete paralysis; and, a 20 percent rating is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. III. Factual Background The Veteran's medical records and the examination reports reflect that he injured his back in active service in a motor vehicle accident where a jeep rolled over. A September 2010 MRI examination report noted that the images showed moderate to advanced DDD with straightening of the lumbar lordosis. (See 06/12/2012, Medical Treatment-Non-Government Facility at 11.) Private treatment records dated in November 2011 note the Veteran's complaints of chronic low back pain that radiated primarily to the RLE. (Id. at 5.) Outpatient records note the Veteran's complaints of and treatment for chronic low back pain and bilateral leg pain. A February 2013 MRI examination report noted that there were no herniations, but impingement at the right L5-S1 exit was present. (See 05/29/2013, Medical Treatment-Non-Government Facility at 1-2.) At a July 2013 neurological consult, the Veteran reported that he quit his post-retirement job as a carpet cleaner two years earlier. (See 02/05/2014, VA Examination at 9). Outpatient records dated in October 2013 note the Veteran's physical therapy, home exercise program, and epidural steroid injections for pain relief. (See 02/25/2014, VA Examination.) An October 2013 neurological consult noted an EMG showing right L5-S1 radiculopathy and axonal peripheral neuropathy. (Id. at 6.) A February 2014 examination report (02/05/2014, VA Examination) reflects that the examiner reviewed the claims file and the Veteran's electronic records. The Veteran reported that his back pain had increased significantly over the prior year, and that he had started to use a walker. He reported further that his pain was daily and moderate, but made worse by movement, and that it radiated to his knees. Walking or standing for more than five minutes triggered flare-ups of increased pain. The examiner found that the Veteran had moderate right lower extremity radiculopathy. He found that the right L5-S1 radiculopathy was proximately due to the Veteran's service connected back condition, opining that DDD of the spine commonly progresses to cause impingement of nerve roots. (Id. at 21.) Physical examination revealed no tenderness or pain on palpation, guarding, or muscle spasms. Forward flexion measured to 50 degrees, and backward extension was to 10 degrees, both with pain at the end point. Right lateral flexion measured to 15 degrees, with onset of pain at 10 degrees; left lateral flexion was to 20 degrees with pain at the end; right lateral rotation was to 15 degrees with pain at the end; and, left lateral rotation was to 20 degrees with pain at the end. The measurements did not change when repetitive use testing was administered. The examiner was unable, in the absence of observation, to estimate additional functional limitation during periods of flare-up. The examiner assessed the Veteran's functional loss as less movement than normal, pain on movement, disturbance of locomotion, interference with sitting, standing, and/or weight bearing, and stooped posture. Further, the examiner noted that there was no ankylosis. The Veteran was afforded a VA thoracolumbar spine examination in August 2015. He reported having constant, daily low/mid back and neck pain and alternated using a wheelchair and a walker to alleviate back pain. Range of motion measured to 65 degrees forward flexion with no objective evidence of painful motion (90 degrees or greater after repetition); 25 degrees extension with no objective evidence of painful motion (30 degrees or greater after repetition); 30 degrees or greater for bilateral flexion with painful motion beginning at 15 degrees (right lateral flexion measured to 25 degrees after repetition and left lateral flexion measured to 30 degrees or greater after repetition); 25 degrees for right lateral rotation with no objective evidence of painful motion (measuring to 15 degrees after repetition); and 20 degrees for left lateral rotation with no objective evidence of painful motion (measuring to 25 degrees after repetition). Functional loss and additional range of motion limitation of the back were found to have the following contributing factors: less movement than normal, disturbance of locomotion; and interference with sitting, standing and/or weight-bearing. Functional loss was also found to impact the Veteran's ability to work. During flare ups or during repeated use, functional ability could be significantly limited due to pain and weakness (with an estimated 5-10 degree range of motion loss for right lateral flexion and/or rotation). Additional functional impairments were estimated as being able to occasionally lift 8-10 lbs.; walk 25 feet; and the ability to sit/stand for 15-20 minutes at a time. Muscle strength measured normal and atrophy was not detected. Sensory and straight leg examinations rendered normal results and IVDS was not detected. Scoliosis with curvature toward the right and mild kyphosis were found. Contrary to the October 2013 neurological consult and February 2014 VA examination, this examiner did not find that the Veteran had radiculopathy. In February 2016, a new VA examiner provided an addendum opinion to the February 2014 and August 2015 examinations in order to address whether the Veteran had a diagnosis of right lower extremity radiculopathy and if so, if it was caused by the Veteran's service connected DDD with kyphosis, lumbar spine. The addendum opinion found that the August 2013 EMG pointed to electrodiagnostic evidence of right lower extremity radiculopathy and axonal polyneuropathy of the bilateral lower extremities. The examiner agreed with the February 2014 opinion that the service connected back injury contributed to his right lower extremity radiculopathy. He also reported that a private orthopedic and fracture clinic noted left lower leg pain secondary to lumbar radiculitis and noted bilateral lower leg pain secondary to lumbar spondylosis. He found that that lower extremity axonal polyneuropathy appeared to be a separate issue, caused by non-service connected problem(s). The examiner noted that the August 2015 examiner was only able to review the EMG notes, which he determined may have explained her differing opinion. He also reviewed the Veteran's record and utilized pertinent medical literature. (See 02/12/2016, C&P Exam.) During an August 2016 Board hearing, the Veteran testified that his back condition was worsening and that he had constant, daily pain. He and his wife stated that he could only walk for a few minutes without his walker and that he could no longer garden, vacation, lift containers over 1-1.5 gallons, or perform maintenance on his home's well water system. His wife stated that she was soon going to take over riding lawn mower duties as well. He took daily pain medication and utilized a TENS unit, patches, and a whirlpool. The Veteran also reported that he had episodes of sharp pain "like an electric shock," approximately three times per week. He would also get shooting pains going down his right leg as well as some numbness. He noted that he had not worked for about 10 years. He appeared to indicate that he retired for normal, age-related reasons. However; after returning to part time work as a carpet cleaner, he found that he could not endure working any further, due to pain. He testified that he resigned because it was too painful to do the minimum hours needed, upon his departure. (See 08/23/2016, Hearing Testimony.) The December 2016 Board remand found that the VA examinations lacked joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. It also determined that the 2012 and 2014 examinations were too remote to enable a probative finding regarding the orthopedic claims, but that the August 2015 examination could be useful for retrospective findings. In January 2017, the Veteran was afforded a post-Board remand VA examination. Degenerative arthritis of the spine, spondylolisthesis, bilateral lower extremity lumbar radiculopathy, DDD lumbar with kyphosis, and foramina stenosis were identified. The Veteran reported flare ups, noting stiffness, and the ability to travel out of state on a "good day." Regarding functional loss, he stated that he could not walk for more than 1/8th of a mile, could not sit or stand for long, could not walk without the use of a walker, and could not lift heavy objects. The examiner found that the Veteran's limited range of motion contributed to functional loss, citing the inability to tie his shoes. He found that repetitive use contributed to functional loss, with pain, weakness, fatigue, and lack of endurance as factors that caused the functional loss. He also found that flare ups contributed to functional loss, with pain, fatigue, weakness, lack of endurance, and incoordination as factors that caused the factional loss. Range of motion measured to 45 degrees forward flexion (30 degrees after repetition); 20 degrees extension (10 degrees after repetition); 15 degrees for bilateral flexion, (bilateral flexion measured to 10 degrees after repetition); and 10 degrees for bilateral rotation (measuring to 5 degrees after repetition). The examiner found that he could not safely perform lumbar passive range of motion testing. Non-weight bearing testing did not show evidence of pain. There examination did not show evidence of weight-bearing testing. There was moderate tenderness to the lumbar spine and surrounding musculature. Muscle strength measured at a 4/5, with the exception of left knee extension and ankle plantar extension at a 5/5 (normal) strength. Muscle atrophy was not found and the straight leg test yielded normal results. Mild bilateral radiculopathy was found, with severe pain due to involvement of the L4/L5/S1/S2/S3 nerve roots. The examiner also determined that femoral nerve involvement was not secondary to radiculopathy and that any weakness indicated was due to the Veteran's (non-service connected) bilateral degenerative hip condition. (See 01/23/2017, C&P Exam at 9.) In October 2017, the Veteran's wife submitted a statement noting that the Veteran's back disability has continued to worsen throughout the years. She noted that in their 60-year marriage, her husband could never walk beyond a short distance without stopping or dance for more than one song. She reported that he constantly needed support while walking, even from room to room in their home. He was currently receiving hospice care, as he could no longer get in and out of his bathtub independently (the Board also notes that the Veteran has Stage IV lung cancer, see 08/21/2017, CAPRI at 14) and could not sit for long enough to play cards. She concluded by stating that he husband could not leave their house and was "unable to do barely anything." (See 10/06/2017, Buddy/Lay Statement.) IV. Legal Analysis Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine from August 13, 2015 to January 17, 2017 From August 13, 2015 to January 17, 2017, the Veteran is rated for the lumbar spine at a 20 percent evaluation under Disability Code (DC) 5242. The objective findings on clinical examinations pertinent to this rating period do not equate to a higher disability rating. 38 C.F.R. § 4.71a, General Formula, Disability Code (DC) 5242. The Veteran's range of motion measurements do not render an increased disability rating higher than 20 percent pursuant to DC 5242 during this rating period. As noted, the rating criteria provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. During the August 2015 VA examination, the Veteran's worst forward flexion measurement was to 65 degrees and ankylosis was not found. (See 08/13/2015, C&P Exam at 2, 3.) Thus, the forward flexion measurement during this timeframe falls within the requirement needed for a 20 percent disability rating and the record does not show any evidence of ankylosis. The Veteran reported chronic pain and functional loss, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca and Mitchell. Although the August 2015 VA examiner found evidence of functional loss (Id. at 3); the Board again notes that the Veteran's forward flexion initially measured to 65 degrees and to 90 degrees after repetitive use testing (Id. at 1-3). The Board has considered the Veteran's symptoms of pain, weakness, and additional functional loss, (Id. at 3, 8, 9), but the objective evidence does not show that these symptoms caused any additional functional impairment in the range of motion of the Veteran's back. See DeLuca, 8 Vet. App. at 202. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 32. Thus, the findings reflected in these VA examination reports do not support a rating in excess of the 20 percent already in effect. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for an increased rating. See DeLuca, 8 Vet. App. at 204 -07. In sum, despite the Veteran's limitation of motion and immobility associated with his lumbar spine DDD, his objective symptomatology did not amount to ankylosis required for ratings 40 percent or greater under DC 5242. Nor did his forward flexion measure to 30 degrees or less, which is also contemplated by the 40 percent rating. As noted, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Entitlement to an initial rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine from January 18, 2017 From January 18, 2017, the Veteran is rated for the lumbar spine at a 40 percent evaluation under Disability Code (DC) 5242. The objective findings on clinical examinations pertinent to this rating period do not equate to a higher disability rating. 38 C.F.R. § 4.71a, General Formula, Disability Code (DC) 5242. In the September 2017 rating decision, the Veteran was found to have met the criteria needed for a 40 percent disability rating, pursuant to DC 5242 from January 18, 2017. During the January 2017 VA examination, the Veteran's thoracolumbar forward flexion measured to 30 degrees after repetition. As noted, the next ratings under DC 5254 - 50 and 100 percent - both require ankylosis and there is no evidence of ankylosis in the Veteran's record. The rating period from January 18, 2017 showed evidence reflecting functional impairment, including limited mobility, weakness, fatigue, and lack of endurance. (See e.g., 01/23/2017, C&P Exam at 4-7.) As with the previously discussed rating period, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 32. Moreover, the currently assigned disability rating of 40 percent is the maximum rating for limitation of motion of the spine (absent ankylosis). In this circumstance, DeLuca considerations are inapplicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable). Given the above, the Board finds that the subjective and objective findings together do not support the criteria for a higher disability rating of 50 percent or higher. Lumbar radiculopathy, right and left lower extremities From February 5, 2014 to January 17, 2017, the Veteran was rated for right lower extremity radiculopathy at 40 percent pursuant to Disability Code (DC) 8520. From January 18, 2017, the Veteran is currently rated for right and left lower extremity radiculopathy at a 10 percent evaluation, also pursuant to DC 8520. The prior Board decision in December 2016 remanded the radiculopathy claims for the period from August 13, 2015. The objective findings on clinical examinations pertinent to this rating period equate to a 40 percent rate, representing moderately severe incomplete paralysis, for the entirety of the rating period. 38 C.F.R. § 4.71a, General Formula, Disability Code (DC) 8520. The February 2014 VA examiner found that the Veteran's right L5-S1 radiculopathy was proximately due to the service connected back disability, opining that DDD of the spine commonly progresses to cause impingement of nerve roots. (See 02/05/2014, VA Examination at 21.) The August 2015 examiner did not indicate the presence of radiculopathy in the examination report. (See 08/13/2015, C&P Exam at 3, 4.) A February 2016 addendum found the presence of radiculopathy and determined that it was related to the Veteran's service connected low back problems. (See 02/12/2016, C&P Exam at 1-3.) Thereinafter, as referenced above, the Board granted the Veteran with an initial evaluation not to exceed 40 percent for right lower extremity radiculopathy in its December 2016 decision. Subsequently, the January 2017 VA examiner determined that while the Veteran had bilateral radiculopathy, "[a]ny muscle weakness indicated is due to the Veteran's [non-service connected] bilateral degenerative hip condition." (See 01/23/2017, C&P Exam at 10.) Following this opinion, a September 2017 rating decision found that the Veteran's muscle weakness was, in fact, related to a non-service connected hip disability. Therefore, finding it could no longer rate the RLE radiculopathy based on muscle weakness, the September 2017 rating decision noted that additional objective testing should instead be used to determine the disability rating. Since the objective testing was normal - i.e. there was no decreased sensation on testing and his reflexes were normal, the rater lowered the disability rating to 10 percent, based on the Veteran's subjective complaints of pain, finding mild, incomplete paralysis. Because the January 2017 examiner found bilateral radiculopathy, the September 2017 rating decision also granted service connection for his lower left extremity for 10 percent, based on the same rationale. The Board finds that the evidence is in relative equipoise regarding the etiology of the radiculopathy. The February 2014 VA examiner found that it was at least as likely as not due to or the result of the Veteran's service connected back condition. He found that the radiculopathy represented the natural progression of his back condition, noting that "degenerative disease of the spine such as the Veteran's, commonly progresses to cause impingement of nerve [roots] such [that] occurred with the Veteran's back." (See 02/05/2014, VA Examination at 21.) The February 2016 VA addendum opinion examiner concurred with the February 2014 examiner, noting that the Veteran's low back service connected injury contributed to his RLE radiculopathy, noting that the August 2015 examiner was not able to review the EMG. He also noted that he used medical literature in his findings. (See 02/12/206, C&P Exam.) The January 2017 VA examiner determined that the radiculopathy was connected to the Veteran's non-service connected hip disability. However, he did not include any rationale to support this conclusion. (See 01/23/2017, C&P Exam at 10.) Because there is equipoise regarding the question of the radiculopathy's etiology, the Board resolves doubt in the Veteran's favor and finds that his service-connected low back disability exacerbated his bilateral lower extremity radiculopathy, rather than the non-service connected hip condition. As such, the Veteran's radiculopathy analysis can, in fact, be based on muscle strength and a 40 percent rating can be restored to the Veteran for the entirety of the rating period on appeal pursuant to DC 8520, with respect to both lower extremities. In additional to lessened muscle strength, the 2017 examination showed findings of severe intermittent pain, bilaterally. Moreover, the February 2014 examination revealed right foot drop. Additionally, the record contains numerous lay statements, deemed credible, as to the Veteran's functional loss. Overall, these findings and statements support a 40 percent evaluation as to the right lower extremity. A higher disability rating of 60 percent is not warranted for because there is no evidence of marked muscular atrophy and the highest rating of 80 percent is not warranted because there is no evidence of complete paralysis. 38 C.F.R. § 3.102. Regarding the left leg, the Board finds that the objective results, coupled with the credible lay statements reveals a disability picture of moderate incomplete paralysis, commensurate with a 20 percent evaluation. In sum, the right lower extremity radiculopathy rating should be increased to 40 percent from February 25, 2014 and the left lower extremity radiculopathy rating should be increased to 20 percent from January 18, 2017. TDIU In the December 2016 remand, the Board inferred entitlement to individual employability based on the evidence of record and remanded for development. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2016). Total disability ratings for compensation may be assigned, where the scheduler rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his employment and educational history. 38 C.F.R. §4.16 (b). Pursuant to the disability ratings granted in this decision, the percentage requirements under 38 C.F.R. § 4.16(a) have been met, as of January 2017. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities preclude him from substantial gainful employment. The evidence in favor of the claim includes the competent and credible statements by the Veteran noting that he has not been employed since approximately July 2011 due, in part, to his service-connected disabilities. (See 02/05/2014, VA Examination at 9; see also 12/29/2016, CAPRI at 345, 389-90.) At the August 2016 Board hearing, the Veteran reported that he retired twice. He initially retired at age 65 (he did not indicate that this decision had anything to do with pain/back pain). He subsequently returned to work, cleaning carpets twice a week (first, cleaning for seven hours, followed by five hours and finally stopping completely due to back pain). (See 08/23/2016, Hearing Testimony at 11-12.) Also of record is medical evidence that indicated the Veteran's service-connected disabilities preclude substantially gainful employment. The July 2012 VA examination report has "Yes" checked off in response to the question of whether the Veteran's thoracolumbar spine condition impacted his ability to work. In July 2013, a VA provider noted that the Veteran quit his job as a carpet cleaner two year prior due to back pain. (See 02/05/2014, VA Examination at 9). The February 2014 VA examiner also indicated that the Veteran's spine condition impacted his ability to work. In addition, the February 2014 VA examiner stated that "the Veteran's disabilities above would be consistent with only sedentary work." (Id. at 19, 20.) The Board notes that the Veteran's work as a carpet cleaner was not sedentary. The January 2017 VA examiner also checked off that the Veteran's back condition impacted his ability to work, and further noted that the Veteran was unable to walk more than 1/8th of a block. In consideration of the above evidence, the Board finds that the Veteran is unable to secure gainful employment due to his service-connected back disability and TDIU is warranted effective January 18, 2017. (See 12/29/2016, CAPRI at 345, 389-90; 38 C.F.R. §§ 3.341, 4.16; See Rice v. Shinseki, 22 Vet. App.447.) ORDER Entitlement to an initial rating of 20 percent for degenerative disc disease (DDD) of the lumbar spine from August 13, 2015 to January 18, 2017 is denied. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine from January 18, 2017 is denied. Entitlement to an initial rating of 40 percent for lumbar radiculopathy, right lower extremity (RLE) from January 18, 2017 is granted. Entitlement to an initial rating of 20 percent for lumbar radiculopathy, left lower extremity (LLE) from January 18, 2017 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMAND The instant decision awards TDIU from January 18, 2017. Prior to that date, the Veteran fails to meet the percentage requirements under 38 C.F.R. § 4.16(a). Nevertheless, the evidence tends to indicate that his service-connected disabilities preclude substantially gainful employment. An opinion from the Director, Compensation Services, is required, pursuant to 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Send the file to the Director of Compensation Services. An opinion is sought as to whether it is at least as likely as not that the Veteran's service-connected disabilities, alone or in concert, preclude him from securing and maintaining substantially gainful employment consistent with his occupational and educational background for the period prior to January 18, 2017. 2. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs