Citation Nr: 18145265 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 11-16 390 DATE: October 26, 2018 ORDER Entitlement to a higher initial rating for left lower extremity radiculopathy, rated noncompensable prior to November 28, 2011 and 10 percent disabling since that date, is denied. Entitlement to a higher initial rating for right lower extremity radiculopathy, rated noncompensable prior to March 15, 2016 and 10 percent disabling since that date, is denied. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran failed to report for a necessary November 2017 examination scheduled by VA in conjunction with his claim for an increased rating for degenerative disc disease of the lumbar spine and the associated issues of entitlement to higher ratings for left and right lower extremity radiculopathy and a TDIU; the Veteran did not show good cause for his failure to report. 2. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine, higher ratings for associated left and right lower extremity radiculopathy, and a TDIU cannot be established without the scheduled reexamination, and the reexamination was scheduled in connection with a claim for increase rather than an original compensation claim. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine cannot be established without a current VA reexamination, and the failure to report, without good cause, for the reexamination scheduled in connection with this claim, which is a claim for increase rather than an original compensation claim, warrants denial of the claim as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. 2. Entitlement to a higher rating for left lower extremity radiculopathy cannot be established without a current VA reexamination, and the failure to report, without good cause, for the reexamination scheduled in connection with this claim, which is part of the claim for an increased rating for the service-connected back disability, rather than an original compensation claim, warrants denial of the claim as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. 3. Entitlement to a higher rating for right lower extremity radiculopathy cannot be established without a current VA reexamination, and the failure to report, without good cause, for the reexamination scheduled in connection with this claim, which is part of the claim for an increased rating for the service-connected back disability, rather than an original compensation claim, warrants denial of the claim as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. 4. Entitlement to a TDIU cannot be established without a current VA reexamination, and the failure to report, without good cause, for the reexamination scheduled in connection with this claim, which is part of the claim for an increased rating for the service-connected back disability, rather than an original compensation claim, warrants denial of the claim as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to November 2003. He also had a period of active duty for training from June to August 2001. His awards include the Combat Infantry Badge. These matters come before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision. Additional relevant evidence was received within a year of this decision and in May 2013 the agency of original jurisdiction (AOJ) continued the denial of the claim for an increased rating for the Veteran’s service-connected back disability and denied entitlement to a TDIU, which was raised as part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2016, the AOJ granted service connection for left and right lower extremity radiculopathy as secondary to service-connected degenerative disc disease of the lumbar spine and assigned initial 10 percent disability ratings, from November 28, 2011 and March 15, 2016, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2017 videoconference hearing and a transcript of the hearing has been associated with his claims file. In October 2017, the Board expanded the appeal to include the issues of entitlement to higher initial ratings for the service-connected left and right lower extremity radiculopathy and entitlement to a TDIU, as part of the claim for an increased rating for the service-connected back disability. See Rice, supra; 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code). The Board remanded all issues on appeal for further development. I. Background The report of a November 2004 VA general medical examination, a November 2008 “Disabled Veterans Application for Vocational Rehabilitation” form (VA Form 28-1900), and the Veteran’s April 2009 increased rating claim (VA Form 21-4138) indicate that he experienced constant back pain on a daily basis which was aggravated by prolonged walking, standing, and lifting, and was treated with medication. He experienced instability with walking (mostly when going up and down stairs) and it sometimes took him 10 minutes to get out of bed due to pain. He had a high school education, had employment experience at foundries and factories, was unemployed, and reported that he was unable to get or hold a satisfactory job due to his back disability and Crohn’s disease. Also, he was only to play sports on a very limited basis due to his back disability. The report of a May 2009 VA back examination indicates that the Veteran experienced lower back pain which was relieved with medications. Flare ups of pain occurred with bending, lifting, and prolonged sitting. He did not experience any bowel or bladder problems associated with his back disability, there was no history of any surgeries or injections in the lumbosacral spine, and he had not experienced any incapacitating episodes or hospital admissions related to his back disability during the previous 12 months. He was laid off from his job at a factory which produced boxes in January 2009 and had been unemployed since that time. Examination revealed that there was pain on palpation at L5-S1. The ranges of motion of the thoracolumbar spine were recorded as being flexion to 75 degrees, extension to 10 degrees, and left and right lateral bending and rotation all to 30 degrees. There was no spasm of the paravertebral muscles. There was increased pain, easy fatigability, lack of endurance, and an additional decrease of flexion and extension by 5 degrees following repetitive motion. Deep tendon reflexes were somewhat diminished (1+) and equal bilaterally, straight leg raise testing was negative from sitting and lying positions, pinprick test revealed normal skin sensitivity, and Babinksi testing was negative bilaterally. The Veteran was able to tiptoe and stand on his heels and his gait was normal without assistive devices. X-rays of the lumbosacral spine revealed mild degenerative disc disease L5-S1, with no fracture or dislocation. The Veteran was diagnosed as having a chronic strain of the lumbosacral spine and degenerative disc disease L5-S1. An April 2010 statement from the Veteran (VA Form 21-4138), an April 2010 “Veteran’s Application for Increased Compensation Based on Unemployability” form (VA Form 21-8940), an October 2010 VA traumatic brain injury examination report, VA treatment records dated from March 2011 to September 2012, statements from the Veteran’s aunt, uncle, and cousin dated in May 2011, and a July 2011 “Request for Employment Information in Connection with Claim for Disability Benefits” form (VA Form 21-4192) reflect that the Veteran experienced constant low back pain which radiated to both legs (left leg worse than right). He also experienced painful spinal motion, occasional lower extremity numbness/tingling bilaterally, impaired memory and concentration, low self-esteem, anxiety, flashbacks, panic attacks, a hyperstartle response, hypervigilance, paranoia, suspiciousness, irritability, anger, suicidal ideation, sadness, frustration, impaired sleep, frequent nightmares, fatigue, frequent crying spells, restlessness, depression, lack of judgment, social isolation, and occasional disorientation. He was unable to perform any heavy lifting, walked slowly and with an abnormal posture (leaning forward), and grimaced when bending over or lifting objects. He had a high school education, was attending school for business management, had employment experience as a factory worker and tree trimmer, was laid off from his full-time job at a box factory in 2009, and was unemployed for a number of years due to his criminal record. He reported that he was unable to secure or follow any substantially gainful occupation due to his back disability and PTSD. Examinations revealed that muscle strength on the left was occasionally somewhat impaired (4+), that lower extremity reflexes were occasionally somewhat diminished (1+) bilaterally, and that straight leg raise testing was occasionally positive bilaterally. Muscle bulk and tone was normal and symmetric bilaterally and there were no tremors or abnormal movements. The Veteran was diagnosed as having, among other things, low back pain, lumbar radiculopathy, left L4/5 foraminal disc protrusion, PTSD, and bipolar disorder. The Veteran reported during an April 2013 VA psychiatric examination that he had been unemployed for 3 years, that he had completed one year of business management education, and that he had stopped his course work due to family/personal issues. He experienced depression, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss, a flattened affect, difficulty in establishing and maintaining effective work and social relationships, a feeling of detachment or estrangement from others, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. The Veteran was diagnosed as having PTSD. The examiner who conducted the April 2013 examination explained that the Veteran’s PTSD symptoms were severe and affected him on a daily basis. His disability limited his ability to be in crowds and public places, panic attacks rendered him unable to maintain focus/attention in the work place, and anxiety prevented him from relating well with others outside of his home. The report of an April 2013 VA back examination reflects that the Veteran experienced daily flare ups of increased back pain and stiffness upon arising and when lifting and bending. These flare ups lasted for 1 to 2 hours at a time, but the Veteran did not report any additional functional limitations during flare ups. The ranges of motion of the thoracolumbar spine were recorded as being flexion to 80 degrees with pain at 75 degrees, extension to 20 degrees with pain at 15 degrees, and right and left lateral flexion and rotation all to 25 degrees with pain at 25 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions and the ranges of spinal motion remained the same following repetitive use, with the exception of flexion which increased to 85 degrees. There was functional loss/functional impairment of the thoracolumbar spine in terms of less movement than normal and pain on movement, but there was no additional limitation in the ranges of motion following repetitive use testing. There was paraspinal tenderness bilaterally at the L3-5 area and guarding and/or muscle spasm was present, but it did not result in an abnormal gait or spinal contour. Moreover, lower extremity muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, deep tendon reflexes were all normal (2+) bilaterally, sensation was intact bilaterally, straight leg raise testing was negative bilaterally, and the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. He did not have any other neurological abnormalities or findings related to the thoracolumbar spine, he did not have intervertebral disc syndrome of the thoracolumbar spine, he did not use any assistive devices, and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There were no scars associated with the Veteran’s back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having degenerative disc disease of the lumbar spine. The physician who conducted the April 2013 examination explained that pain was unlikely to limit the Veteran’s functional ability during flare ups or when the joint was used repeatedly over a period of time. The Veteran had performed labor capacity jobs, among others, and limitation of employment in his case was rarely, if ever, physical. VA treatment records dated from May 2013 to March 2016 indicate that the Veteran experienced low back pain which radiated to the left lower extremity and muscle spasms of the back (especially on the left side). He had obtained employment in various positions, including repairing asphalt and setting up tool shows. He used a back brace while at work to assist with lifting. The Veteran reported during a March 2016 VA back examination that his back disability was “a little worse” since the April 2013 VA examination. He experienced constant back pain which was worse with activity and partially improved with rest. There was also left lower extremity pain and paresthesias. He did not experience any flare ups of back symptoms, but he was unable to perform some work activities (such as seal coating driveways) due to his back disability. Examination revealed that forward flexion of the thoracolumbar spine was to 85 degrees, extension was to 30 degrees, and right and left lateral flexion and rotation were all to 20 degrees. The examiner who conducted the March 2016 examination noted that the Veteran would have difficulty performing activities that required ranges of motion beyond the limitations noted during the examination. There was pain associated with extension and left lateral flexion which caused functional loss, but there was no evidence of pain with weight-bearing. There was localized tenderness or pain on palpation of the lumbar paravertebral/lumbar spinal muscles bilaterally. The Veteran was able to perform repetitive use testing with at least 3 repetitions and he was examined immediately after repetitive use over time. There was no additional loss of function or range of motion after 3 repetitions and functional ability was not significantly limited by pain, weakness, fatigability, or incoordination with repeated use over time. There was no guarding or muscle spasm of the thoracolumbar spine. Additionally, muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, and deep tendon reflexes were normal (2+) bilaterally. Sensation was decreased at the left lower leg/ankle and left foot/toes, but was otherwise normal bilaterally. Straight leg raise testing was negative bilaterally. There was moderate intermittent pain and paresthesias/dysesthesias of the left lower extremity, but no other signs or symptoms of radiculopathy. The examiner noted that there was involvement of the sciatic nerve bilaterally, but that there was only mild left lower extremity radiculopathy. There were no other neurologic abnormalities or findings related to the Veteran’s back disability, there was no spinal ankylosis, and he did not have intervertebral disc syndrome. He occasionally used a walker for ambulation, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran’s back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having degenerative arthritis of the spine, lumbar spondylosis, and lumbo-sacral radiculopathy. This disability impacted his ability to work in that he would have difficulty with work involving a high degree of mobility, physical activity, or repetitively going up and down stairs. A March 2016 addendum to the March 2016 VA examination report indicates that an EMG/NCS study was conducted on March 18, 2016. The report of this study reflects that the Veteran reported a history of chronic (greater than 5 years) progressive low back pain with recurrent frequent paresthesias of both lower extremities (worse on the left side) and concurrent self-perceived weakness, with decreased endurance of the ankles and feet, mild ambulatory difficulty, and occasional falls. Examination revealed a flattened lumbar lordosis, painfully decreased forward flexion and extension of the thoracolumbar spine at 3/4 range of motion, mild to moderate tenderness of the lower lumbar spinous processes with concurrent moderate tenderness on immediate depth palpation of the paralumbars bilaterally (worse on the left side), and mild hyposthesia of the distal lower legs. There was no pain on palpation of the lower extremities, deep tendon reflexes and pulses were normal, there was no muscle atrophy, there were no tremors, and there was no edema. The Veteran was diagnosed as having moderate bilateral L5 radiculopathy (worse on the left) and moderate bilateral S1 radiculopathy (worse on the left side). VA treatment records dated from April 2016 to June 2017 indicate that the Veteran experienced back pain, anxiety, nightmares, intrusive thoughts, hypervigilance, and a hyperstartle response. He had difficulty walking upstairs due to back and leg pain. He was employed on a seasonal basis doing sealant work on pavement (during which he worked 10 to 12 hours per day) and attended school on a full-time basis for Human Services. The Veteran reported during the June 2017 hearing that he had a high school education and that following service he worked at a job placement company and a factory producing mobile home trailer axles. He was subsequently incarcerated from approximately 2007 to 2009. After he was released from incarceration, he worked for approximately 4 months at a box factory, but he lost his job due to his “background at the time,” it was difficult to find employment due to a recession, and he sought treatment for psychiatric and substance abuse problems with VA. In 2014, the Veteran began working as a road show manager for a traveling tool show. He worked at this job for approximately 8 months until 2014, at which time the job ended. He had been working various “odd jobs” in the years since 2014. Moreover, he reported that he was limited in his ability to perform physical employment due to the symptoms associated with his back disability. For instance, he experienced back pain which radiated to his legs and flare ups of back/sciatica symptoms approximately once every four months. The flare ups lasted approximately 45 minutes to an hour at a time and he was significantly limited in his ability to move during the flare ups. The Veteran’s caregiver reported during the hearing that she had witnessed the Veteran while he experienced flare ups and that she helped him off the floor and into bed. VA treatment records dated from July to September 2017 reflect that the Veteran continued to experience some stress, irritability, anxiety, sleep problems, hypervigilance, and a hyperstartle response, but that his symptoms had improved with treatment, that his mood was stable, and that he had not experienced any recent nightmares, panic attacks, flashbacks, distressing thoughts, or suicidal ideation. He was employed as a steelworker apprentice and was medically cleared to work without restrictions (see a September 2017 VA occupational medicine note). He worked “long days” and the strenuous work affected his back injury and caused pain. II. Analysis Entitlement to higher ratings for left lower extremity radiculopathy, right lower extremity radiculopathy, and degenerative disc disease of the lumbar spine, and entitlement to a TDIU The Veteran claims that his currently assigned ratings for left lower extremity radiculopathy, right lower extremity radiculopathy, and degenerative disc disease of the lumbar spine should be higher throughout the claim period and that he is entitled to a TDIU. Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. 38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied without review of the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. Under 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with, among other things, a claim for increase, “the claim shall be denied.” A claim for a higher initial rating is an “original compensation claim” and not a “claim for increase” for purposes of 38 C.F.R. § 3.655 (b). Turk v. Peake, 21 Vet. App. 565, 570 (2008). Here, the Veteran was granted service connection for his back disability in April 2004. In April 2009, he filed a claim for an increased rating for his service-connected back disability. As noted above, the May 2009 and May 2013 rating decisions on appeal continued the previously assigned 10 percent rating for the service-connected back disability. The AOJ also denied entitlement to a TDIU in the May 2013 rating decision, as this issue was raised as part and parcel of the claim for an increased rating for the service-connected back disability. See Rice, 22 Vet. App. at 447. Moreover, the Board expanded the Veteran’s appeal to include the issues of entitlement to higher ratings for the service-connected left and right lower extremity radiculopathy, following the AOJ’s award of service connection for these disabilities in the November 2016 rating decision. These issues were included as part of the claim for an increased rating for the service-connected back disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code). Hence, the back, radiculopathy, and TDIU issues on appeal are all considered part of the Veteran’s April 2009 claim for increase, for purposes of applying the provisions of 38 C.F.R. § 3.655 (b). In the October 2017 remand, the Board instructed the AOJ to ask the Veteran to report his employment history and earnings during the period since April 2008 (to include the starting and ending dates of any employment during that period). The AOJ was also instructed to schedule the Veteran for a new VA examination to assess the severity of his service-connected back disability and associated bilateral lower extremity radiculopathy, to include the functional impairments caused by these disabilities. A new examination was necessary because the report of the most recent examination conducted in March 2016 did not specify the points at which pain began during the ranges of spinal motion or the extent to which the Veteran experienced additional functional loss of the thoracolumbar spine (in degrees of motion) due to pain. Also, the March 2016 examination was not in compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the Veteran’s thoracolumbar spine was not tested for pain on passive motion or in non weight-bearing. Moreover, there was evidence of potential worsening of his back disability since the March 2016 examination in that he did not report any flare ups of back symptoms during that examination, whereas he did report occasional flare ups during the June 2017 hearing. In a November 2017 letter, the Veteran was asked to report his employment history and earnings during the period since April 2008, to include the starting and ending dates of any employment during that period. He was also informed that an examination was going to be scheduled in connection with his claim and that he would be notified of the date, time, and place of the examination. Also, the November 2017 letter notified the Veteran that when a claimant fails to report for an examination or reexamination without good cause, the claim shall be rated based on the evidence of record or denied. The letter specified that examples of good cause include, but are not limited to, illness or hospitalization or death of a family member. The Veteran has not responded to the November 2017 letter or otherwise provided any further information regarding his employment and earnings history. Moreover, the AOJ scheduled the Veteran for a VA back examination in November 2017, but he failed to report for the scheduled examination. He has not provided any reason for his failure to report to the scheduled back examination and he has made no attempt to contact VA to request that the examination be rescheduled. While there are no letters notifying the Veteran of the examination associated with his claims file, the United States Court of Appeals for Veterans Claims (Court) has held that the presumption of regularity applies to notice of VA examinations. See Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011). That decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). There has been no subsequent precedential opinion on this question. However, the Court has held that the absence of copies of letters notifying a veteran of VA examinations in the claims file does not preclude application of the presumption that the veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In this case, even if there were an allegation of non-receipt, such allegation alone does not constitute clear evidence to rebut the presumption of regularity. Id. Given the absence of any specific contentions in this regard, the Board finds that the presumption of regularity has not been rebutted and notice of the November 2017 VA back examination is presumed to have been received by the Veteran. Thus, the Veteran failed to report for a necessary VA reexamination without good cause. See 38 C.F.R. § 3.655. The next question to be addressed under 38 C.F.R. § 3.655 (a) is whether entitlement to the benefits sought can be established without the scheduled reexamination. The Board finds that it cannot. Therefore, the claims for higher ratings for left and right lower extremity radiculopathy and degenerative disc disease of the lumbar spine, and the claim for a TDIU, must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With regard to the Veteran’s back disability, the disability is rated under 38 C.F.R. § 4.71a, DC 5242 as degenerative arthritis of the spine. Degenerative arthritis of the spine is rated under the same diagnostic criteria as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5242. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 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 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion of the thoracolumbar spine is rated under the general formula for rating diseases and injuries of the spine (General Rating Formula). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or if there is 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Also, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran’s left and right lower extremity radiculopathy are rated as paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, the following ratings apply: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. Moreover, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The above evidence reflects that the Veteran’s degenerative disc disease of the lumbar spine is manifested by pain, tenderness, stiffness, and limitation of motion of the thoracolumbar spine. The May 2009, April 2013, and March 2016 examination reports reveal that forward flexion of the thoracolumbar spine was limited to at most 70 degrees (following repetitive use testing during the May 2009 examination), extension was limited to at most 5 degrees (following repetitive use testing during the May 2009 examination), and right and left lateral flexion and rotation were all limited to at most 20 degrees. Although there was occasional guarding and/or muscle spasms, these symptoms did not cause an abnormal gait or an abnormal spinal contour. These findings, by themselves and without consideration of any additional functional impairment, warrant no more than a 10 percent rating under the General Rating Formula. As for functional impairment, the May 2009 examination report reflects that there was increased pain, easy fatigability, and lack of endurance following repetitive use. These impairments, however, only resulted in a 5-degree loss of spinal flexion and extension following repetitive use (to 70 degrees and 5 degrees, respectively). There was no reduction in spinal motion following repetitive use testing during the April 2013 and March 2016 examinations, and flexion actually increased from 80 degrees to 85 degrees following repetitive use during the April 2013 examination. Also, the examiner who conducted the March 2016 examination concluded that functional ability was not significantly limited by pain, weakness, fatigability, or incoordination with repetitive use. The Veteran reported during the May 2009 and April 2013 examinations that flare ups of back symptoms (including increased pain and stiffness) occurred upon arising and with lifting, bending, and prolonged sitting. Regardless, he did not report any additional functional limitations during flare ups at the time of the April 2013 examination, and the examiner who conducted that examination explained that pain was unlikely to limit functional ability during flare ups or after repetitive use. He did not report any flare ups during the March 2016 examination. The Board acknowledges that the Veteran reported during the June 2017 hearing that flare ups of back-related symptoms occurred approximately once every 4 months, lasted for approximately 45 minutes to an hour at a time, and significantly limited his ability to move. He is competent to report the symptoms associated with his service-connected back disability and the extent of his impairment during flare ups of symptoms and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups and despite the fact that painful motion has been documented, the flare-ups have not been so severe, frequent and/or prolonged to warrant a higher rating. As explained above, a reexamination was necessary to obtain an adequate medical opinion as to the extent of any additional functional impairment caused by the Veteran’s back disability (to include during flare ups), but he failed to report for the scheduled examination without good cause. Overall, even considering pain, flare ups, and other functional factors, the available evidence does not show that the Veteran’s back symptoms are so disabling to actually or effectively result in symptoms more nearly approximating limitation of flexion to 60 degrees or less or limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less-the range of motion requirements for the next higher percent rating greater than 10 percent (i.e., 20 percent) for limitation of motion of the thoracolumbar spine under the General Rating Formula. This evidence outweighs any reports of temporary flare ups. Moreover, there is no evidence of any abnormal gait or spinal contour caused by muscle spasms or guarding, and there is no evidence of any spinal ankylosis. Also, there is no evidence of any incapacitating episodes of intervertebral disc syndrome so as to warrant a higher rating under 38 C.F.R. § 4.71a, DC 5243. With respect to left and right lower extremity radiculopathy, the above evidence reflects that the Veteran has reported radiating back pain to the lower extremities and occasional lower extremity numbness and tingling. Lower extremity reflexes have occasionally been somewhat diminished (1+), some lower extremity muscle strength has been occasionally somewhat impaired (4/5), and there are occasional findings of decreased sensation in the lower extremities. In light of the Veteran’s reports of lower extremity pain and numbness and the occasional findings of somewhat diminished reflexes, muscle strength, and sensation, and the otherwise normal findings documented during the claim period, the available evidence reflects at most mild neurological disability involving the sciatic nerves of the lower extremities. This impairment is contemplated by a 10 percent rating under DC 8520. Again, the Board points out that a reexamination was necessary to obtain more contemporaneous information as to the severity of the Veteran’s service-connected back disability, to include any associated lower extremity neurological disability. Lastly, with respect to the Veteran’s claim for a TDIU, he is competent to state that his service-connected disabilities preclude him from working, as the question of whether a veteran could perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Nevertheless, the available evidence does not support a finding that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment. The Board acknowledges that his service-connected disabilities (particularly his psychiatric disability, back disability, and lower extremity neurological disability) have caused some functional impairments. Regardless, he was unable to work for a number of years due to incarceration, was subsequently laid off from a job due to his background and experienced difficulty finding work due to his criminal history and an economic recession, and stopped working with a traveling tool show because the show ended. He has performed other various jobs in the years since that employment ended, including repairing asphalt for 10 to 12 hours per day. The most recent evidence of record (i.e., the VA treatment records dated from July to September 2017) indicates that he has been employed as a steelworker apprentice and was medically cleared to work without restrictions. Hence, despite the occupational limitations and impairments caused by the Veteran’s service-connected disabilities, the available evidence shows that he has maintained the ability to perform substantially gainful employment and is apparently still gainfully employed. As explained above, the AOJ sent a letter to the Veteran in November 2017 and asked him to report his occupational history and earnings during the entire claim period. The Veteran failed to respond to the letter and has not otherwise provided the information requested in the letter. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). A reexamination was necessary to obtain more contemporaneous information as to the severity of the Veteran’s service-connected back disability and its associated impairments, to include the extent to which these disabilities have caused functional impairments. In sum, as entitlement to higher ratings for degenerative disc disease of the lumbar spine and left and right lower extremity radiculopathy and entitlement to a TDIU cannot be established without a current reexamination, and the Veteran failed to appear for the scheduled reexamination without good cause in connection with his claim for increase, the issues on appeal must be denied as a matter of law pursuant to 38 C.F.R. § 3.655 (b). Lastly, in conjunction with the matters decided herein, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel