Citation Nr: 1805023 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-10 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for osteoarthritis of the spine with scoliosis and L4-L5 spondylolisthesis, currently evaluated as 20 percent disabling prior to October 25, 2011, and 40 percent disabling thereafter. 2. Entitlement to an initial compensable rating for lumbar radiculopathy of the right lower extremity with sciatic nerve impairment prior to October 25, 2011, and in excess of 20 percent thereafter. 3. Entitlement to a separate compensable rating for impairment of the external popliteal (common peroneal) nerve of the right thigh. 4. Entitlement to a separate compensable rating for the impairment of the external cutaneous nerve of the right thigh. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1955. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that rating decision, the RO denied the Veteran's claim for an increased rating for his low back disability and continued the assigned 20 percent evaluation. In a March 2011 rating decision, the RO granted service connection for lumbar radiculopathy of the right lower extremity and assigned a noncompensable evaluation, effective from May 14, 2009. In a June 2012 rating decision, the RO increased the evaluation for the Veteran's service-connected low back disability to 40 percent, effective from October 25, 2011. The RO also increased the evaluation for the service-connected lumbar radiculopathy of the right lower extremity to 20 percent, effective from October 25, 2011. Because the assigned disability ratings are not the maximum rating available, the issues remain on appeal and were returned to the Board for further appellate review. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2011, October 2012, August 2016, and November 2016, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. 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). FINDINGS OF FACT 1. Prior to October 25, 2011, the Veteran did not have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. He also did not have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Since October 25, 2011, the Veteran has not had unfavorable ankylosis of the entire thoracolumbar spine. He also did not have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. Prior to October 25, 2011, the Veteran had subjective complaints of radiculopathy symptoms associated with his service-connected lumbar spine disability. 4. Since October 25, 2011, the Veteran has had no more than moderate incomplete paralysis of the sciatic nerve associated with his service-connected lumbar spine disability. 5. The Veteran does not have impairment of the external popliteal (common peroneal) nerve of the right thigh. 6. The Veteran does not have impairment of the external cutaneous nerve of the right thigh. 7. The Veteran does not meet the schedular criteria for TDIU. 8. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to October 25, 2011, the criteria for an evaluation in excess of 20 percent for osteoarthritis of the spine with scoliosis and L4-L5 spondylolisthesis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5010-5242 (2017). 2. Since October 25, 2011, the criteria for an evaluation in excess of 40 percent for osteoarthritis of the spine with scoliosis and L4-L5 spondylolisthesis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5010-5242 (2017). 3. Prior to October 25, 2011, the criteria for an initial compensable evaluation for lumbar radiculopathy of the right lower extremity with sciatic nerve impairment have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). 4. Since October 25, 2011, the criteria for an evaluation in excess of 20 percent for lumbar radiculopathy of the right lower extremity with sciatic nerve impairment have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for a separate compensable rating for impairment of the external popliteal (common peroneal) nerve of the right thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8521 (2017). 6. The criteria for a separate compensable rating for the impairment of the external cutaneous nerve of the right thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8529 (2017). 7. The criteria for TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159. 3.340. 3.341. 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 2017 statement, the Veteran's representative contended that the February 2017 VA spine examination was inadequate because the examiner was not shown to have any particular expertise, experience, training, or competence commenting on orthopedic and/or neurologic disorders. The representative asserted that the examiner's assessment was "no more probative than the appellant's lay assertions" because the examiner's specialty was noted as a primary care physician. The examiner referenced Guerrieri v. Brown, 4 Vet. App. 467 (1993), stating that the probative value of a medical opinion is generally based on the scope of the examination or review, as well as the merits of the expert's qualifications and analytical findings, and Sklar v. Brown, 5 Vet. App. 140 (1993), stating that a medical opinion's weight may be less if ambivalent as to exact diagnosis, or if the examiner is not a specialist, fails to explain the basis for an opinion, or treated the claimant only briefly or for unrelated conditions. The representative's reliance on Guerrieri and Sklar is misplaced. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. Guerrieri states that the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri, 4 Vet. App. at 470-71. Sklar stands for the proposition that a specialist's opinion is of less probative value on an issue outside of his or her specialty, such as a rheumatologist's opinion regarding a psychiatric issue. Sklar, 5 Vet. App. at 146. The February 2017 VA examiner, according to the representative's contention, is not a specialist. However, the Board is entitled to presume the competence of a VA examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The Court has specifically upheld the adequacy of VA examinations completed by nurse practitioners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). If a nurse practitioner is competent to render a medical opinion, a generalist physician must logically also be competent. In addition, in the August 2017 statement, the Veteran's representative asserted that the February 2017 VA spine examination was inadequate because the examiner provided no indication that she utilized a goniometer to perform range of motion testing. The Board finds that this argument is not supported by objective evidence, including the February 2017 VA examination report itself, which documents range of motion testing results. Furthermore, there is no objective evidence of record that contradicts, or even calls into question, the accuracy of the range of motion findings in the February 2017 VA examination. In his August 2017 statement, the Veteran's representative also asserted that the February 2017 VA peripheral nerve conditions examination was inadequate because it failed to comply with the Board's November 2016 remand directives. Specifically, the representative reported that the examiner failed to conduct EMG testing to determine which nerves, including the sciatic, the external popliteal (common peroneal), and cutaneous nerve of the right thigh group, are involved with and impaired by the Veteran's service-connected lumbar spine disability. The record shows that the February 2017 VA examiner did order an EMG of the Veteran's right lower extremity and that the Veteran was scheduled for VA EMG testing in March 2017. However, the Veteran refused to report for the VA EMG testing due to travel distance. He indicated that he would have his private physician complete EMG testing of the right lower extremity. The record includes a private EMG testing report dated in May 2017. Where entitlement to a VA benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655(a). When a claimant fails to participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Here, the Veteran has not provided good cause to miss the scheduled EMG testing. The Veteran and his representative have not challenged the fact that he failed to report, requested that the examination be rescheduled, or provided good cause. Under these circumstances, the Board finds that the Veteran's refusal to appear was without good cause, and the applicable regulation now requires that the claim be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655(b); Turk, 21 Vet. App. 565 (2008). The "duty to assist is not always a one-way street," and the appellant has an obligation to actively participate in the retrieving of any information pertinent to his claim, to include attending scheduled VA examinations and identifying relevant records. He is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so subjects him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). In the August 2017 statement, the Veteran's representative further contended that the February 2017 VA peripheral nerve conditions examiner provided no response to the Board's request for a medical opinion concerning the involvement of other nerves. However, a review of the opinion shows that the VA examiner did provide the requested opinions. In fact, the examiner provided his examination findings, which showed no focal neurological deficit in the right thigh group, and he addressed the findings of the October 2011 and October 2016 VA examinations. He opined that the October 2011 VA examination findings involving the Veteran's right external popliteal and external cutaneous nerves were acute in nature due to acute worsening of compressive pathology, which were transitory and had resolved. Despite the Veteran's representative's contentions asserting otherwise, the Board finds that the February 2017 VA examinations were adequate, as the examiner performed a physical examination, reviewed the evidence, and offered well-supported opinions. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any other 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 a duty to assist argument). 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. § 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Lumbar spine 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran has contended that he is entitled to an increased evaluation for his service-connected osteoarthritis of the spine with scoliosis and L4-L5 spondylolisthesis. He is currently assigned a 20 percent evaluation prior to October 25, 2011, and 40 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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 evaluation 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 evaluation 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. Diagnostic Code 5242 indicates that degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula). Under the General Rating Formula, 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 is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that increased ratings for the periods prior to October 25, 2011, and thereafter, are not warranted for the Veteran's lumbar spine disability. For the period prior to October 15, 2011, the Board concludes that a rating greater than 20 percent is not warranted. For this period, the Veteran has not been shown to have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In fact, a May 2009 VA examination revealed forward flexion from 0 to 80 degrees; extension from 0 to 15 degrees; left lateral flexion from 0 to 10 degrees; left lateral rotation from 0 to 10 degrees; right lateral flexion from 0 to 10 degrees; and right lateral rotation from 0 to 5 degrees. There was objective evidence of pain on active range of motion testing and limitation of motion after repetitive motion. Following repetitive motion, range of motion testing revealed forward flexion from 0 to 50 degrees; extension from 0 to 10 degrees; left lateral flexion from 0 to 5 degrees; left lateral rotation from 0 to 5 degrees; right lateral flexion from 0 to 5 degrees; and right lateral rotation from 0 to 5 degrees. The May 2009 VA examiner specifically noted that there was no thoracolumbar spine ankylosis. For the period beginning October 15, 2011, the Board concludes that a rating greater than 40 percent is not warranted. For this period, the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine. In fact, an October 2011 VA examination revealed forward flexion to 20 degrees with objective evidence of painful motion beginning at 15 degrees; extension to 5 degrees with objective evidence of painful motion beginning at 5 degrees; right lateral flexion to 10 degrees with objective evidence of painful motion beginning at 5 degrees; left lateral flexion to 10 degrees with objective evidence of painful motion beginning at 5 degrees; right lateral rotation to 5 degrees with objective evidence of painful motion beginning at 5 degrees; and left lateral rotation to 10 degrees with objective evidence of painful motion beginning at 5 degrees. Following repetitive motion, range of motion testing revealed forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation to 5 degrees. An October 2015 VA examination also revealed forward flexion from 0 to 68 degrees; extension from 0 to 20 degrees; right lateral flexion from 0 to 25 degrees; left lateral flexion from 0 to 25 degrees; right lateral rotation from 0 to 25 degrees; and left lateral rotation from 0 to 25 degrees. The examiner noted that the Veteran had no functional loss due to range of motion or pain. Following repetitive motion, there was no additional loss of function or range of motion. A February 2017 VA examination further revealed forward flexion from 0 to 65 degrees; extension from 0 to 0 degrees; right lateral flexion from 0 to 15 degrees; left lateral flexion from 0 to 15 degrees; right lateral rotation from 0 to 15 degrees; and left lateral rotation from 0 to 15 degrees. The examiner noted that the Veteran had no functional loss due to range of motion or pain. Following repetitive motion, there was no additional loss of function or range of motion. The February 2017 VA examiner also noted that he observed the Veteran repeatedly bend forward from a seated position to 60 to 70 degrees of lumbar flexion to take his shoes on and off for the examination. Moreover, the October 2011, October 2015, and February 2017 VA examiners specifically noted that there was no ankylosis of the thoracolumbar spine. Moreover, there is no indication that the Veteran has had incapacitating episodes for increased ratings under the IVDS rating criteria noted above. The Board notes that in order to warrant a higher 40 percent rating for the period prior to October 25, 2011, the Veteran must have had incapacitating episodes for at least two weeks but less than four weeks in duration in the past 12 months. In order to warrant a maximum 60 percent rating for the period on or after October 25, 2011, the Veteran must have had incapacitating episodes for a total duration of at least six weeks in the past 12 months. In this regard, the Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for his lumbar spine disability. The May 2009 VA examiner noted that the Veteran had had incapacitating episodes due to IVDS; however, he also indicated that the Veteran had no incapacitating episodes in the previous 12 months. During the October 2011 VA examination, the Veteran reported that, two to three times per month, he had flare-ups of pain that caused him to stay in bed for two to three days. The October 2011 VA examiner noted that the Veteran had incapacitating episodes that lasted at least one week but less than two weeks in the previous year. The October 2015 and February 2017 VA examiners also noted that the Veteran had IVDS of the thoracolumbar spine; however, they further indicated that the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician in the previous year. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, increased evaluations for the Veteran's lumbar spine disability are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 and 40 percent ratings, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned evaluations. The May 2009 VA examiner noted that the Veteran had marked limitation of motion and function during flare-ups of pain and that the Veteran had additional limitation of motion following repetitive motion. However, after three repetitions, he still demonstrated forward flexion to 50 degrees. In addition, the October 2015 and February 2017 VA examiners noted that the Veteran had no functional loss due to range of motion or pain. In addition, during the October 2015 and February 2017 VA examinations, there was no additional loss of function or range of motion following repetitive motion. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Finally, although the examiners noted a scar, the October 2015 VA examiner indicated that it was a well-healed, non-tender surgical scar measuring 12 centimeters by one-tenth of a centimeter and did not interfere with movement of the lumbar spine. The October 2015 and February 2017 VA examiners also stated that the scar was not painful and/or unstable and that the total area was not greater than 39 square centimeters or six square inches. Accordingly, a separate evaluation is not warranted on this basis. See 38 C.F.R. § 4.118. Based on the foregoing, the Board finds that the weight of the evidence is against increased ratings for the lumbar spine disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). Radiculopathy The Veteran's right lower extremity radiculopathy is currently assigned a noncompensable evaluation prior to October 25, 2011, and a 20 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating. Moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warranted for a 40 percent rating. Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to higher initial evaluations for his right lower extremity radiculopathy. The evidence of record does not demonstrate manifestations consistent with mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the sciatic nerve prior to October 25, 2011, or moderately severe or severe incomplete paralysis or complete paralysis of the sciatic nerve on or after October 25, 2011. Rather, the evidence of record documents that there was no atrophy, no abnormal muscle tone or bulk, no complete paralysis, no organic changes, and no foot drop of the right lower extremity. Specifically, prior to October 25, 2011, in the May 2009 VA spine examination report, the examiner noted that a sensory examination was abnormal to pinprick and light touch in the Veteran's right lower extremity. The examiner indicated that the sensory examination was abnormal in the lateral right thigh from the greater traochanter to just above the knee the distribution of the lateral femoral cutaneous nerve. Deep tendon reflexes, muscle strength, and muscle tone were normal and equal in the bilateral lower extremities. The examiner did not provide a diagnosis. In addition, in June 2009 and October 2009 private treatment notes, the Veteran denied having any pain down his legs. Neurologic examinations revealed normal sensory and reflex examinations. The Veteran's reflexes were symmetric, and his toes were downgoing. Straight leg raising was negative bilaterally. No diagnoses were provided. The evidence does not demonstrate mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the sciatic nerve prior to October 25, 2011. For the period since October 25, 2011, the evidence does not demonstrate moderately severe or severe incomplete paralysis or complete paralysis of the sciatic nerve. During an October 2011 VA spine examination, the Veteran demonstrated decreased strength in his right lower extremity. Specifically, he had active movement against some resistance in right hip flexion and right knee extension and active movement against gravity in right ankle plantar flexion, right ankle dorsiflexion, and great toe extension. The examiner noted that the Veteran did not have muscle atrophy. Deep tendon reflexes were hypoactive in the right knee and right ankle. Light touch sensory examination was normal in the right upper anterior thigh and thigh or knee, but decreased in the right lower leg or ankle and foot or toes. The examiner noted that there was also decreased sensation in the posterolateral thigh in the sciatic nerve distribution. Straight leg raise testing was positive in the right leg. The Veteran reported having moderate constant pain, severe intermittent pain, moderate paresthesias and/or dyesthesias, and moderate numbness in his right lower extremity. In addition, the examiner noted that the Veteran had skin changes and hair loss on his lateral right leg and foot. The examiner noted that there was involvement of the L4/L5/S1/S2/S3 nerve roots, or the sciatic nerve of the right side. He opined that the Veteran's right lower extremity radiculopathy was moderate in severity. The Veteran had no other neurologic abnormalities or findings related to a thoracolumbar spine condition. During an October 2011 VA peripheral nerves examination, the examiner diagnosed the Veteran with lumbar radiculopathy and sciatic neuropathy. The examiner noted that the Veteran had moderate incomplete paralysis of the right sciatic nerve and that he had incomplete paralysis of the external cutaneous nerve of the thigh. His external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, and ilio-inguinal nerves were normal on the right. The examiner did indicate that the Veteran's right external popliteal (common peroneal) nerve had moderate incomplete paralysis, despite marking that the nerve was normal without incomplete paralysis. The examiner noted that a 2008 MRI confirmed nerve root impingement consistent with the Veteran's sciatic nerve distribution. He opined that the Veteran had moderate, constant sciatic nerve root pain with intermittent severe exacerbations. During an October 2015 VA peripheral nerves examination, the examiner diagnosed the Veteran with lumbar radiculopathy of the right lower extremity with sciatic nerve impairment. He noted that there was no objective evidence of a right external popliteal (common peroneal) nerve or external cutaneous nerve of the right thigh conditions. The Veteran denied having constant pain or numbness in the right lower extremity. He reported experiencing moderate intermittent pain and paresthesias and/or dyesthesias of the right lower extremity. Muscle strength was normal, and there was no muscle atrophy. A reflex examination was also normal. A sensory examination revealed decreased sensation to light touch in the right thigh or knee. Sensation to light touch was normal in the right upper anterior thigh, lower leg or ankle, and foot or toes. The examiner noted that the Veteran had hair loss in the lateral right leg and foot. The examiner indicated that the Veteran had moderate incomplete paralysis of the right sciatic nerve. He stated that the Veteran's external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, external cutaneous nerve of the thigh, and ilio-inguinal nerves were normal. During an August 2016 VA peripheral nerves examination, the Veteran reported having mild constant pain and numbness in his right lower extremity. He denied having intermittent pain and paresthesias and/or dyesthesias in his right lower extremity. Muscle strength was normal, and there was no muscle atrophy. A reflex examination was also normal. A sensory examination revealed decreased sensation to light touch in the right upper anterior thigh, thigh or knee, lower leg or ankle, and foot or toes. The examiner noted no trophic changes attributable to peripheral neuropathy. He stated that the Veteran's sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, external cutaneous nerve of the thigh, and ilio-inguinal nerves were normal. He noted that the Veteran had subjective decreased sensation in the right leg in every dermatome, but he did not have motor weakness. In an October 2016 VA addendum opinion, a VA examiner opined that no nerve groups in the Veteran's right lower extremity were affected. He stated that the Veteran had subjective symptoms without objective findings for any peripheral neuropathy. In a February 2017 VA peripheral nerves examination report, the Veteran reported mild constant pain in the right lower extremity. He denied intermittent pain, paresthesias and/or dyesthesias, and numbness of the right lower extremity. Muscle strength was normal, and there was no muscle atrophy. A reflex examination was normal. A sensory examination was normal. There were no trophic changes attributable to peripheral neuropathy. The examiner noted that the Veteran had mild incomplete paralysis of the sciatic nerve. He stated that the Veteran's external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, external cutaneous nerve of the thigh, and ilio-inguinal nerves were normal. The examiner indicated that the Veteran's medical records and a clinical examination of the Veteran showed that there was no weakness, atrophy, or sensory loss of the right thigh group. He opined that the October 2011 VA examiner's findings pertaining to the right thigh group were acute in nature and due to an acute exacerbation of a compression in October 2011, which were transitory and resolved. Based on the foregoing, the evidence shows that the Veteran has no more than moderate incomplete paralysis for the period on or after October 25, 2011. Therefore, the Board finds that the preponderance of the evidence is against a finding that a higher initial evaluation is warranted for the right lower extremity for either period prior to October 25, 2011, or thereafter. Further, separate compensable evaluations for impairment of the external popliteal (common peroneal) nerve or the external cutaneous nerve of the right thigh are not warranted in this case. See 38 C.F.R. § 4.124a, Diagnostic Codes 5521 and 8529. Specifically, the October 2015 VA examiner noted that there were no external popliteal (common peroneal) or external cutaneous nerve conditions of the right leg. The examiner related that there was no documentation to support these conditions in the Veteran's medical records and that a clinical examination did not support the conditions. The August 2016 VA examiner also opined that the Veteran did not have right external popliteal nerve impairment or external cutaneous nerve impairment. He noted that the Veteran had subjective decreased sensation in the right leg in every dermatome, but he did not have motor weakness. In an October 2016 VA addendum opinion, a VA examiner opined that no nerve groups in the Veteran's right lower extremity were affected. He stated that the Veteran had subjective symptoms without objective findings for any peripheral neuropathy. The February 2017 VA examiner found that the Veteran's right external popliteal (common peroneal) nerve and external cutaneous nerve of the thigh were normal. The examiner indicated that the Veteran's medical records and a clinical examination showed that there was no weakness, atrophy, or sensory loss of the right thigh group. He opined that the October 2011 VA examiner's findings pertaining to the right thigh group were acute in nature and due to an acute exacerbation of a compression in October 2011, which were transitory and resolved. In addition, the Board notes that the Veteran submitted a copy of a May 2017 private EMG study in support of his claim. However, the EMG report showed findings of chronic denervation in a predominantly right L-5 myotome and right S-1 myotome, or the sciatic nerve. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran is service-connected for osteoarthritis of the lumbar spine with scoliosis and L4-L5 spondylolithesis (40 percent disabling), a duodenal ulcer (20 percent disabling), and lumbar radiculopathy of the right lower extremity with sciatic nerve impairment (20 percent disabling). The combined evaluation is 60 percent. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). It is recognized that the Board is precluded from assigning an extraschedular rating in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. During the May 2009 VA spine examination, the Veteran indicated that he had retired in 1988 due to his age or duration of work at the Department of Corrections in New York City. In the October 2011 VA spine and peripheral nerves examination reports, the examiner opined that the Veteran's lumbar spine disability and sciatic nerve impairment impacted his ability to work because the Veteran was unable to lift or carry objects over five pounds and his narcotic pain medications made him drowsy. In the October 2015 VA spine examination report, the examiner opined that the Veteran's lumbar spine disability impacted his ability to work because he had difficulty with heavy lifting. He also indicated that the Veteran was a police officer with the New York Police Department for 27 years before he retired and moved to Florida. In the October 2015 VA peripheral nerves examination report, the examiner opined that the Veteran's sciatic nerve disability impacted his ability to work. He noted that the Veteran's right lumbar radiculopathy caused pain and sensory loss in the right leg. However, he also noted that there was no weakness or atrophy of the right lower extremity and that he had no foot drop. He indicated that the Veteran was able to ambulate, perform his activities of daily living, and drive. The August 2016 VA examiner opined that the Veteran's lumbar spine and radiculopathy disabilities did not impact his ability to work. The February 2017 VA examiner opined that the Veteran's lumbar spine disability impacted his ability to work because he had difficulty with prolonged standing and lifting heavy objects. He also opined that the Veteran's right lumbar radiculopathy disability did not cause functional impairment that would impact physical or sedentary employment. He noted that the Veteran had no weakness, wasting, or atrophy of the right lower extremity. Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). Although the Veteran may have some occupational impairment, the evidence shows that he is not prevented from performing all types of work, such as sedentary employment. The Board notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. On review of the record, the Board finds that the disability evaluations assigned to the Veteran's service-connected lumbar spine, duodenal ulcer, and lumbar spine radiculopathy under the VA Schedule for Rating Disabilities accurately reflect the Veteran's overall impairment to his earning capacity due to his service-connected disabilities. Therefore, the Board finds that the requirements for an extraschedular TDIU evaluation have not been met. Thus, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER An increased rating in excess of 10 percent for osteoarthritis of the spine with scoliosis and L4-L5 spondylolisthesis prior to October 25, 2011, is denied. An increased rating in excess of 40 percent for osteoarthritis of the spine with scoliosis and L4-L5 spondylolisthesis on or after October 25, 2011, is denied. An initial compensable rating for lumbar radiculopathy of the right lower extremity with sciatic nerve impairment prior to October 25, 2011, is denied. An initial evaluation in excess of 20 percent for lumbar radiculopathy of the right lower extremity with sciatic nerve impairment on or after October 25, 2011, is denied. Entitlement to a separate compensable rating for impairment of the external popliteal (common peroneal) nerve of the right thigh is denied. Entitlement to a separate compensable rating for the impairment of the external cutaneous nerve of the right thigh is denied. Entitlement to TDIU is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs