Citation Nr: 1804568 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 15-24 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating for a lumbar spine disability in excess of 20 percent prior to April 29, 2014, a rating in excess of 20 percent from July 1, 2014 to September 8, 2016, and a rating in excess of 40 percent from September 9, 2016. 2. Entitlement to an initial rating for right lower extremity radiculopathy in excess of 10 percent prior to September 9, 2016 and in excess of 40 percent thereafter. 3. Entitlement to an initial rating for left lower extremity radiculopathy in excess of 10 percent prior to September 9, 2016 and in excess of 40 percent thereafter. 4. Entitlement to the award of an effective date prior to June 28, 2006 for the award of service connection for a lumbar spine disability, to include on the basis of clear and unmistakable error (CUE) in April 1969 and January 1984 rating decisions. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to June 1968 and received a Purple Heart, along with other commendations, for his service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the RO in Reno, Nevada which in pertinent part, granted service connection for a lumbar spine disability and declined to reopen a claim for service connection for a left knee disability. The Veteran testified at a hearing before the undersigned in November 2017. A transcript of the hearing has been associated with the claims file. As an initial matter, the Board notes that the Veteran appealed the effective date as well as the assigned evaluation for the lumbar spine disability following the grant of service connection for the same. While on appeal, in an April 2015 rating decision, the AOJ granted an earlier effective date to June 28, 2006 and determined that such was a full grant of the effective date issue on appeal. The Board acknowledges that the Veteran initially requested an effective date for the lumbar spine disability in 2006 (see May 2014 statement). Notwithstanding the Veteran's statement, VA regulations provide that a veteran is entitled to a statement of the case (SOC) following filing of a timely notice of disagreement as occurred here. See 38 C.F.R. §§ 19.26, 19.30. As an SOC has not been issued for the appeal of the assigned effective date, the issue has been added to the title page above for the purpose of remand for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Additionally, the Board has characterized the appeal for an earlier effective date to include as due to CUE in a prior rating decision. In this regard, in October 2017 correspondence, as well as during his hearing before the Board, the Veteran asserted his belief that he is entitled to an effective date in 1969 for service connection of the lumbar spine disability. He asserted that there was CUE in one or both of the prior rating decisions dated in April 1969 and January 1984 that denied the service connection claim for the spine disability. As such, an SOC addressing the Veteran's assertions, to include adjudication of CUE in the prior decisions, should be issued regarding whether the Veteran is entitled to an earlier effective date for service connection of a lumbar spine disability. With respect to the lower extremity claims, the AOJ granted separate 10 percent disability ratings for each lower extremity, effective May 9, 2013 - the date initially assigned as the effective date for service connection of the lumbar spine disability. The Veteran perfected an appeal as to the assigned ratings for the bilateral lower extremity disabilities. See June 2015 Substantive Appeal Form 9. Then in a December 2016 rating decision, the AOJ increased the ratings for each lower extremity from 10 percent to 40 percent, from September 9, 2016, and determined that the increase satisfied the Veteran's appeal. Inasmuch as higher ratings for these disabilities are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran filed a claim for TDIU in June 2014 asserting that he could no longer work due to multiple service-connected disabilities including the lumbar spine disability. The AOJ granted TDIU effective December 30, 2013, the day after the last day that the Veteran worked. TDIU was subsequently discontinued effective September 9, 2016, because the Veteran's combined disability rating reached 100 percent. See December 2016 rating decision. The Veteran has not expressed disagreement with the AOJ's decision. While the Board acknowledges that TDIU may still be granted in situations where one disability alone prevents the veteran from obtaining or maintaining employment, even if he or she has a combined disability rating of 100 percent, the Board finds that the issue is not raised here. There is no lay or medical evidence of record for the period since September 9, 2016 to suggest that the service-connected lumbar spine disability alone renders the Veteran unemployable. Therefore, a claim for TDIU due to the lumbar spine disability alone is not raised and need not be further addressed. The issue of whether there was CUE in a January 1984 rating decision that denied service connection for the left knee was raised by the record in an October 2017 statement as well as in testimony during the Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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) (2012). The issues of entitlement to an earlier effective date for service connection for a lumbar spine disability as well as whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. For the periods from June 28, 2006 to April 29, 2014, and from July 1, 2014 to September 8, 2016, the lumbar spine disability did not result in forward flexion of the lumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes with a duration of at least 4 weeks during a 12 month period. 2. For the period from September 9, 2016, the lumbar spine disability did not result in unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes with a duration of at least 6 weeks during a 12 month period. 3. Resolving doubt in favor of the Veteran, for the period from June 28, 2006 to September 8, 2016, the Veteran's lumbar spine disability was productive moderate left lower extremity radiculopathy. 4. Resolving doubt in favor of the Veteran, for the period from June 28, 2006 to May 8, 2013, the Veteran's lumbar spine disability was productive of mild right lower extremity radiculopathy. 5. For the period from May 9, 2013 to September 8, 2016, the Veteran's lumbar spine disability was productive of no more than mild right lower extremity radiculopathy. 6. For the period from September 9, 2016, the Veteran's lumbar spine disability was productive of severe right and left lower extremity radiculopathy symptoms without evidence of marked atrophy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent from June 28, 2006 to April 29, 2014, a rating in excess of 20 percent from July 1, 2014 to September 8, 2016, and a rating in excess of 40 percent from September 9, 2016, for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5242 (2017). 2. Resolving all doubt in favor of the Veteran, the criteria for a 10 percent disability rating are met for the period from June 28, 2006 to May 8, 2013 for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2017). 3. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy for the period prior to September 9, 2016, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2017). 4. The criteria for a rating in excess of 40 percent for right lower extremity radiculopathy for the period from September 9, 2016, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2017). 5. Resolving all doubt in favor of the Veteran, the criteria for a 20 percent disability rating for left lower extremity radiculopathy for the period from June 28, 2006 to September 8, 2016, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2017). 6. The criteria for a rating in excess of 40 percent for left lower extremity radiculopathy for the period from September 9, 2016, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating 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 Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for degenerative arthritis of the lumbar spine with spondylosis to include intervertebral disc syndrome (IVDS), which is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. The disability is currently assigned staged ratings as follows: 20 percent for the period from June 28, 2006 to April 28, 2014, 100 percent from April 29, 2014 to June 30, 2014, 20 percent from July 1, 2014, and 40 percent from September 9, 2016. The Veteran's spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds, in pertinent part, that for DCs 5235 to 5243, a 20 percent rating is warranted for lumbar spine disabilities if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS 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 when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Upon consideration of the evidence of record and the relevant laws and regulations, the Board finds that higher ratings are not warranted for either of the periods prior to September 9, 2016 as forward flexion has not been shown to be limited to 30 degrees or less and there has been no finding of favorable or unfavorable ankylosis, or prescribed bedrest for the Veteran's IVDS. However, as explained below, the Board finds that the Veteran is entitled to separate ratings for lower extremity radiculopathy associated with the lumbar spine disability from June 28, 2006. The Veteran was afforded a VA examination of the spine in January 2014. At that time, range of motion of motion testing revealed flexion to 60 degrees with objective evidence of painful motion beginning at 50 degrees. After repetitive testing, forward flexion ended at 65 degrees. The examiner noted that the Veteran had additional functional loss demonstrated by pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. Specifically, the examiner noted limitations including limiting lifting or carrying to 20 pounds, prolonged sitting to 30 minutes, prolonged standing to 30-45 minutes, walking on flat land one-quarter to one-half mile and no walking on uneven terrain or steep slopes, no running or jumping, no crawling, and limited stair climbing and ladders. The examiner also noted that the Veteran should avoid repetitive pulling, pushing, sweeping and mopping. The January 2014 VA examiner also noted that the Veteran's lumbar spine condition, with pain, could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiner noted that such limitation due to pain and based on limitations measured during physical examination after repetitive active usage, can cause an additional loss 5-10 degrees flexion and extension beyond the repetitive range of motion measurements. The Veteran underwent surgery for his lumbar spine disability in April 2014, for which he is already in receipt of a temporary total disability rating for the period from April 28, 2014 to June 30, 2014. The Veteran was reexamined in September 2016. At that time, the Veteran reported constant low back pain, stiffness, and radiation of the pain into both lower extremities. The Veteran reported that he experienced flare-ups of the back disability and described them as severe flare-ups on getting out of a chair, walking, exercise, sports, ending, stooping, and sleeping. He also reported that functional loss or impairment was that his spine disability prevented bending and running. Objective findings during September 2016 VA examination included flexion to 30 degrees. The examiner also noted that the Veteran had pain in all ranges of motion tested. The examiner also noted objective evidence of pain over the whole spine that was severe due to failed back syndrome. The Veteran was able to perform repetitive testing. The examiner noted that with repeated use over time, and functional loss caused by pain, fatigue, weakness, lack of endurance, and incoordination, the Veteran had flexion to 30 degrees. The September 2016 VA examiner also noted that the Veteran was examined during a flare-up and that the flare-up also demonstrated functional loss caused by pain, fatigue, weakness, lack of endurance, and incoordination. The examiner noted that the Veteran had 30 degrees of forward flexion when tested during the flare-up. The September 2016 VA examiner noted that the Veteran had muscle spasm, tenderness, and guarding, all resulting in abnormal gait or spinal contour. The examiner noted additional factors contributing to the Veteran's disability included pain. Muscle strength testing was normal in the hips, knees, ankles, and great toes. The examiner noted that the Veteran did not have any muscle atrophy. VA and private treatment records dated since June 28, 2006 are consistent with the findings in the VA examination reports. Based on the foregoing, the Board finds that higher ratings are not warranted at any point pertinent to the appeal. The Board has considered the DeLuca provisions in reaching this conclusion. The Board acknowledges the January 2014 VA examiner's findings that the Veteran has functional limitations affecting the Veteran's ability to lift, walk, sit or stand for prolonged periods. The examiner was able to quantify the additional disability in terms of degrees and noted that the limitation would be equivalent to an additional loss of flexion and extension by 5-10 degrees. Significantly, even considering an additional 10 degree loss of flexion during flare-ups or after repeated use, the Veteran's flexion would not be limited to 30 degrees or less during the periods from June 28, 2006 to April 28, 2014, or from July 1, 2014 to September 8, 2016. See January 2014 VA examination reports. For these reasons, even in contemplation of the Veteran's complaints of pain during range of motion testing and upon repetitive motion testing the Board finds that the Veteran's lumbar spine disability does not warrant higher ratings during these periods. See DeLuca, Mitchell, supra. In this regard, a higher rating is not warranted unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. The Board finds that the additional pain and rest time as well as inability to perform activities during flare-ups is contemplated in the currently assigned 20 percent disability ratings assigned for the periods from June 28, 2006 to April 28, 2014, or from July 1, 2014 to September 8, 2016. Regarding the period from September 9, 2016, the Veteran is already in receipt of the highest rating possible for limitation of motion. As such, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet.App. 202 (1995) is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Further, there is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine as required to support a rating a 50 percent or 100 percent disability rating, at any time. See e.g. September 2016 VA examination report which noted that there was no ankylosis of the spine. In this connection, further range of motion testing would not avail the Veteran. The Board has also considered whether a higher rating is warranted for IVDS but finds that it is not. The Board acknowledges that the September 2016 VA examiner noted that the Veteran had at least six weeks of bed rest during the prior 12 months. However, the examiner also noted that this assessment was based on the Veteran's reported history, without documentation. Significantly, the VA examiner had reviewed the Veteran's electronic claims file which included medical treatment records, when he indicated that there was no documentation supported the finding of the six weeks of bed rest. Review of the VA and private treatment records does not indicate physician prescribed bedrest at any time other than that associated with the Veteran's surgery in April 2014, for which the Veteran is already in receipt of a temporary total rating. Based on the foregoing, the Board finds that higher ratings are not warranted for the lumbar spine disability at any time since June 28, 2006. As to separate ratings for associated neurological impairment, the AOJ granted separate compensable ratings for radiculopathy in the bilateral lower extremities from May 9, 2013. The lower extremity disabilities are currently assigned 10 percent disability ratings from May 9, 2013 to September 8, 2016, and 40 percent disability ratings thereafter. Resolving doubt in favor of the Veteran, the Board finds that separate compensable ratings are warranted for each lower extremity, effective June 28, 2006. Specifically, the Board finds that a separate ratings of 10 percent for mild right lower extremity radiculopathy and 20 percent for moderate, left lower extremity radiculopathy, are warranted from June 28, 2006 to September 8, 2016. However, ratings in excess of 40 percent from September 9, 2016, are not warranted. There is no question that the Veteran has had bilateral, lower extremity radiculopathy linked to the low back disability, for the entire period since June 28, 2006 (the currently-assigned effective date for the lumbar spine disability). In this regard, a February 2004 VA treatment record noted the Veteran's reports of low back pain radiating down both legs. The January 2014 VA examination reported noted a diagnosis of sciatica since May 1964. Service treatment records confirm that the Veteran was diagnosed with sciatica in both feet in May 1964. The January 2014 VA examination report noted that the right lower extremity had moderate intermittent pain as well as mild parasthesias and/or dysesthesias but no numbness or constant pain. The left lower extremity was noted to have moderate constant pain and moderate parasthesias and/or dysesthesias but no numbness. No muscle atrophy was found in either lower extremity. The examiner determined that overall, the Veteran's right lower extremity radiculopathy was mild and the left lower extremity radiculopathy was moderate in severity. An August 2014 private treatment record specifically noted that the Veteran had radiculopathy with motor and sensory dysfunction. A December 2014 VA treatment record noted the Veteran's report that the radiating pain down both legs also had a tingling sensation. A June 2016 VA treatment record noted the Veteran's reports of numbness in both legs and feet but that he had no atrophy in either leg or foot. The Veteran was afforded another VA examination in September 2016. At that time, the examiner noted severe constant pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. The examiner determined that overall, the Veteran's radiculopathy was severe in both lower extremities. However, as discussed above, the September 2016 VA examiner noted that the Veteran did not have any muscle atrophy. VA and private treatment records similarly do not indicate any findings of muscle atrophy. Based on the foregoing, the Board finds that the Veteran is entitled to separate compensable ratings for radiculopathy in both lower extremities for the entire period since June 28, 2006. Specifically, the Board finds that separate ratings of 10 percent for mild right lower extremity radiculopathy and 20 percent for moderate, left lower extremity radiculopathy, are warranted from June 28, 2006 to September 8, 2016. However, ratings in excess of 40 percent from September 9, 2016, are not warranted. The evidence does not suggest, and the Veteran has not reported, any additional neurological complaints associated with the lumbar spine disability. The Board has also considered whether the Veteran is entitled to a separate, compensable rating for a scar associated with the April 2014 surgery. The Board finds that a separate rating is not warranted for a scar as the surgical scar was not painful or unstable, or greater than 39 square centimeters. See September 2016 VA examination report. In reaching these conclusions, the Board has also considered the Veteran's statements that he is entitled to higher ratings for his lumbar spine disability. In this case, the Board finds that the Veteran is competent to report his experiences of pain, numbness, tingling and any limitations that he observed through his senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a)(2). Indeed, the Board considered these statements in its grant of separate, and higher, ratings for radiculopathy associated with the lumbar spine disability. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant higher ratings; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disabilities. In sum, resolving all doubt in favor of the Veteran, the Board finds that a separate 10 percent disability rating is warranted for right lower extremity radiculopathy, from June 28, 2006 to September 8, 2016, and a separate 20 percent disability is warranted for left lower extremity radiculopathy from June 28, 2006 to September 8, 2016. However, ratings in excess of 40 percent for each lower extremity disability from September 9, 2016 are not warranted. Further, the Veteran is not entitled to higher ratings for the lumbar spine disability at any time pertinent to the appeal. See Hart, supra. ORDER The appeal for a rating in excess of 20 percent from June 28, 2006 to April 29, 2014, a rating in excess of 20 percent from July 1, 2014 to September 8, 2016, and a rating in excess of 40 percent from September 9, 2016, is denied. A 10 percent disability rating for right lower extremity radiculopathy is granted from June 28, 2006 to May 8, 2013, subject to the laws and regulations governing payment of monetary benefits. A rating in excess of 10 percent for right lower extremity radiculopathy, prior to September 9, 2016, is denied. A rating in excess of 40 percent for right lower extremity radiculopathy, from September 9, 2016, is denied. A 20 percent disability rating for left lower extremity radiculopathy is granted from June 28, 2006 to September 8, 2016, subject to the laws and regulations governing payment of monetary benefits. A rating in excess of 40 percent from September 9, 2016, for left lower extremity radiculopathy, is denied. REMAND Regarding the claim for an earlier effective date for service connection for the lumbar spine disability, a remand is necessary in order to provide the Veteran with a statement of the case (SOC). In an March 2014 rating decision, the AOJ granted service connection for the lumbar spine disability and assigned an effective date of May 9, 2013. The Veteran filed a timely notice of disagreement. The AOJ readjudicated the issue and granted an earlier effective date to June 28, 2006. Despite the Veteran's timely notice of disagreement, to date, no SOC has been provided with respect to this issue. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to the determination, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is needed. See Manlincon, supra. Additionally, as noted in the Introduction above, the Veteran asserts that he is entitled to an earlier effective date for the lumbar spine disability because there was CUE in the April 1969 and/or January 1984 rating decisions which denied the same. As such, the AOJ must address the Veteran's assertion of CUE in any further adjudication of the appeal regarding the assigned effective date for service connection. The issue of entitlement to an effective date earlier than June 28, 2006 will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Regarding the claim for entitlement to service connection for the left knee disability, the Veteran raised the issue of whether CUE was committed in the January 1984 rating decision. See October 2017 correspondence as well as testimony during the November 2017 Board hearing. During his hearing before the Board, the Veteran maintained his assertion that there was CUE in the prior rating decision and that he was entitled to service connection for the left knee disorder, as of the date of his original claim. He also described perceived inaccuracies in the prior rating decision regarding the left knee claim. This issue is inextricably intertwined with the issue regarding whether new and material evidence has been received to reopen the claim of service connection for the left knee, but cannot be adjudicated by the Board in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 333-4 (2006). If CUE is found in the January 1984 rating decision that denied service connection for the left knee disability, such could moot the appeal to reopen the left knee claim. Thus, these issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). As such, the Board will defer action on the appeal to reopen the left knee claim until the AOJ adjudicates whether there was CUE in the prior decision. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran and his representative with a statement of the case regarding entitlement to an effective date prior to June 28, 2006 for service connection for the lumbar spine disability, to include as on the basis of CUE in a prior rating decision. Inform the Veteran of the requirements for perfecting an appeal with respect to the issue. If the Veteran perfects an appeal with respect to the issue, ensure that all indicated development is completed before the case is returned to the Board. 2. Adjudicate the referred issue of whether CUE exists in a January 1984 rating decision that denied entitlement to service connection for a left knee disability. 3. Following completion of items 1 and 2, readjudicate the Veteran's application to reopen his service-connection claim for a left knee disability in light of the evidence of record to include any decision rendered on the issues addressed in paragraph (2) above. If the benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs