Citation Nr: 18151242 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 11-32 865 DATE: November 19, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for lumbosacral spine osteoarthritis with degenerative disc disease (DDD) (hereinafter, back condition) prior to August 12, 2016 is denied. Entitlement to a rating of 20 percent and no more, for a back condition, from August 12, 2016 to October 27, 2016 is granted. Entitlement to a rating in excess of 20 percent for a back condition from October 27, 2016 is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy, left lower extremity prior to October 27, 2016, and in excess 20 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to August 12, 2016, the Veterans back condition was manifested by, at worst, flexion to 70 degrees; intervertebral disc syndrome (IVDS) without incapacitating episodes; and no back spasms or guarding. 2. From April 12, 2016 to October 27, 2016, the Veteran’s back condition was manifested by muscle spasms that resulted in abnormal gait and spinal contour. 3. From October 27, 2016, the Veteran’s back condition has not been manifested by forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes lasting a total duration of at least four weeks but less than six weeks during the last 12 months. 4. Prior to October 27, 2016, the Veteran’s radiculopathy, left lower extremity manifests, at worst, with mild, incomplete paralysis of the left sciatic nerve. 5. From October 27, 2016, the Veteran’s radiculopathy, left lower extremity manifests, at worst, with moderate, incomplete paralysis of the left sciatic nerve. 6. The Veteran is not precluded from securing or following all forms of substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to August 12, 2016, the criteria for an initial rating in excess of 10 percent for back condition have not been met. 38 U.S.C. §1155; 38 C.F.R. § 4.71a, DC 5237-5243. 2. Resolving all reasonable doubt in favor of the Veteran, from August 12, 2016 to October 27, 2016, the criteria for a 20 percent rating, and no more, for a back condition have been met. 38 U.S.C. §1155; 38 C.F.R. § 4.71a, DC 5237-5243. 3. From October 27, 2016, the criteria for a rating in excess of 20 percent for a back condition have not been met. 38 U.S.C. §1155; 38 C.F.R. § 4.71a, DC 5237-5243. 4. Prior to October 27, 2016, the criteria for an initial rating in excess of 10 percent for radiculopathy, left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. 5. From October 27, 2016, the criteria for an initial rating in excess of 20 percent for radiculopathy, left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. 6. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to April 2010. In August 2014, the Board remanded the claims for further development. In September 2015, the agency of original jurisdiction (AOJ) provided the Veteran with the appropriate TDIU notice along with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Unfortunately, the Veteran did not return the completed Form 21-8940 to support his claim. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to properly address a claim for TDIU. The Board notes that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran’s condition. 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 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent for lumbosacral strain prior to August 12, 2016 and in excess of 20 percent therefrom. The Veteran’s back disability is rated under DC 5242 for degenerative arthritis of the spine. Diagnostic Code 5242 refers to code 5003 for degenerative arthritis. Under 5003, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Limitation of motion of the spine is rated 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Schedular disability ratings are assigned for the spine from 100 percent to 10 percent according to the formulas as follows: Under the General Formula, a 10 percent rating contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the 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; or, vertebral body fracture with loss of 50 percent or more of the height. Under the General Formula, a 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Under the General Formula, a 40 percent rating contemplates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. 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). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Analysis The Veteran contends that his back condition is more severe than the rating depicts. In January 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his back condition. The Veteran stated that his symptoms began while on active duty. At times, the pain was sharp but often dull and nagging. He had daily symptoms, and the symptoms were constant in nature. The examiner diagnosed the Veteran with lower back strain. The Veteran’s range of motion (ROM) was normal, i.e., forward flexion was from zero to 90 degrees and extension, left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation were all from zero to 30 degrees. There was no pain on motion; however, the Veteran experienced tenderness on motion. He had normal contour, musculature and strength, and posture and gait. There were no deformities, spasms, or guarding. After repetitive testing, there was no change in forward flexion or function. The Veteran had not experienced incapacitating episodes of back pain in the past 12 months. He had not been hospitalized or had any surgeries related to his back condition. The Veteran experienced flare-ups. The precipitating factors included physical activity and inclement weather. Alleviating factors included rest and medication. There was associated spinal history of fatigue, spasms, weakness, and decreased motion. He did not experience numbness, paresthesias, or leg or foot weakness. Additionally, he did not have bladder complaints, associated urgency, retention, frequency, bowel complaints, or associated erectile dysfunction (ED). The Veteran did not have a history of neoplasms. He did not use an assistive device as a normal means of locomotion. He was able to walk two miles. He was not unsteady and did not have a history of falls. The Veteran had additional lumbar spine limitations to include an inability to remain seated for extended lengths of time. If spasms were present, ambulation could sometimes be difficult and caused a list. Simple tasks such as donning socks or tying shoes were sometimes difficult. The examiner stated that the Veteran’s conditions interfered with the Veteran’s ability to fully enjoy recreational activities and may potentially interfere with forms of occupation requiring vigorous physical activity. However, activities of daily living to include bathing, toileting, and eating remain intact. In August 2012, the Veteran was afforded a VA examination to determine the severity of his back condition. The Veteran stated that the next morning after moving items, he woke up with back pain and pain shooting down his legs. He was treated with Motrin. At the time of the exam, the Veteran was on Celebrex, muscle relaxers, physical therapy, and was scheduled to see a pain doctor about shots in his spine. He reported constant pain of variable intensities shooting to his left buttocks and leg, intermittently (about every three months, lasting one to two months). The examiner diagnosed the Veteran with degenerative disc disease (DDD) and degenerative joint disease (DJD), lumbar spine. The Veteran did not report flare-ups. His forward flexion was to 70 degrees with no objective evidence of painful motion. The Veteran stated that his back pain started at about 70 degrees so he would not flex forward any further than 70 degrees; therefore, the examiner was unsure of the Veteran’s actual ROM. Extension was to 15 degrees with no objective evidence of painful motion. The Veteran would not extend past 30 degrees; therefore, the examiner was unsure of the Veteran’s actual ROM. Left and right lateral flexion and left and right lateral rotation were from zero to 30 degrees with no objective evidence of painful motion. He did not have additional limitation in ROM following repetitive-use testing. However, he experienced functional loss and/or functional impairment, to include less movement than normal and pain on movement. He did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. Additionally, he did not experience guarding or muscle spasm. He had normal muscle strength with no muscle atrophy. Reflex and sensory exams were normal. Straight leg testing was negative. The Veteran experienced radicular pain or other signs or symptoms due to radiculopathy, to include left lower extremity intermittent pain. There were no other neurologic abnormalities or findings related to his back condition (such as bowel or bladder problems/pathologic reflexes). The Veteran had IVDS of the thoracolumbar spine; however, he did not experience any incapacitating episodes over the past 12 months due to IVDS. The Veteran occasionally used a back brace as a normal mode of locomotion. However, this occurred if he was engaged in strenuous activities. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. He did not have any scars (surgical or otherwise) related to his back condition. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms. Imaging revealed DDD and facet osteoarthritis at L5-S1. At this level, there was a central to left paracentral mild disk protrusion with focal annular tear but without central canal stenosis. There was no vertebral fracture. In December 2014, the Veteran was seen for a follow up examination at a rehabilitation center. The examiner diagnosed the Veteran with chronic low back pain syndrome which was multifactorial in nature and involved degenerative lumbar disc disease, degenerative lumbar facet disease as well as generalized spondylosis. The Veteran denied bowel/bladder dysfunction. The Veteran’s back was symmetric without evidence of excessive kyphosis. There appeared to be mild straightening of the normal lordotic curvature secondary to paraspinal muscular spasms. The ROM was moderately reduced for flexion, extension, side bending, and rotation. These maneuvers were performed in a very cautious and deliberate manner to indicate the Veteran was hindered by some level of pain. There was mild to moderate palpatory tenderness along the lower lumbar segments particularly L3-4, L4-L5, L5, and S1 generally along the area above the posterior elements. There was tenderness to palpation to over the posterior superior Iliac spines. There were many trigger points located throughout the lumbar region. There was exquisite left sciatic notch tenderness. Straight leg raise was positive on the left by 35-40 degrees. The Waddell signs were absent. The examiner stated that despite reporting pain, the Veteran appeared to be independent in all activities of daily living (ADLs) and seemed to be interacting in a fairly normal social level. In May 2016, the Veteran was afforded a VA examination to determine the severity of his back disability. The Veteran received epidural injections and physical therapy for his low back condition. Th examiner confirmed the Veteran’s DDD osteoarthritis lumbosacral spine and lumbar strain diagnoses. The Veteran reported flare-ups. He stated that he was pretty much bedridden. He reported functional loss or functional impairment, to include difficulty bending, turning (left to right movement), prolonged sitting, and movement in general. Forward flexion was from zero to 80 degrees; extension and right and left lateral rotation was from zero to 30 degrees; and right and left lateral flexion was from zero to 25 and 20 degrees, respectively. The Veteran’s ROM was outside of normal range due to low back condition. Pain on ROM itself contributed to functional loss. Pain was noted on forward flexion, extension, and right and lateral flexion. The pain caused functional loss. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. He had mild tenderness on palpation of his mid-lumbar spine and left paravertebral spine due to low back condition. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare-up; therefore, the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. Pain, fatigue, weakness, and lack of endurance significantly limit functional the Veteran’s ability with repeated use over a period of time and during flare-ups. He did not have guarding or muscle spasms of the thoracolumbar spine. He had normal muscle strength with no muscle atrophy. Reflex and sensory exams were normal and straight leg testing was negative. The Veteran did not experience radicular pain or any other signs or symptoms due to radiculopathy. He reported a history of pain/tingling and numbness which radiated from low back down to his left leg. However, since his epidural injection, the pain resolved. The Veteran reported subjective tingling/numbness specifically and only the sole of his left foot when sleeping at night. The examiner stated that this was not consistent with sciatica. The neurological exam was within normal limits, and the examiner further stated that radiculopathy was not found on the exam. The Veteran did not have ankylosis. There were no other neurologic abnormalities or findings related to a back condition (such as bowel or bladder problems/pathologic reflexes). The Veteran did not have IVDS of the thoracolumbar spine. The Veteran occasionally used a back brace and a cane as a normal mode of locomotion; however, this occurred during flare-ups and with increased activities. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. He did not have any scars related to his condition. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms. Imaging revealed arthritis. There was severe narrowing and moderate anterior osteophytes at L5-S1. The other intervertebral disc spaces in the lumbar spine were preserved without narrowing or spondylolisthesis or spurring. There were no other significant diagnostic test findings and/or results. In August 2016, the Veteran submitted a private back examination report. The examiner noted that during the normal course of military employment, the Veteran sustained multiple spinal and musculo-skeletal injuries during convoys and daily training exercises. The examiner confirmed the Veteran’s DDD, spondylolysis, and radiculopathy diagnoses. He also stated that the Veteran had chronic pain syndrome. The Veteran reported flare-ups. The Veteran stated that when his back locks, he was unable to move at all. He had trouble walking, running, bending, stooping, climbing stairs, cleaning his home and performing any other physical activity when he was on his feet. The Veteran experienced function loss or impairment to include episodes of back “locking up with severe, burning pain going into the legs.” He further stated that when his symptoms flared-up, he was bedridden for several days. The Veteran’s Rom was normal, i.e., forward flexion was to 90 and extension, right and left lateral rotation, and right and left lateral flexion were all to 30 degrees. The Veteran was able to perform repetitive-use testing. He did not have any change in ROM after repetitive testing. The examiner stated that the post-test contributed to functional loss. The Veteran’s ROM movements were painful on active, passive, and/or repetitive use testing. The Veteran experienced pain in weight-bearing or non-weight-bearing, and the pain contributed to functional loss or additional limitation of ROM. He also had localized tenderness of pain to palpation of joints or soft tissue. The Veteran had muscle spasms that resulted in abnormal gait and spinal contour. The Veteran’s functional loss and limitation of ROM caused less movement than normal, weakened movement, excess fatigability, pain on movement, deformity, disturbance of locomotion, interference with sitting, and interference with standing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. Additionally, there was no functional loss during flare-ups or when the joint was used repeatedly over a period of time. The Veteran’s muscle strength was normal with no muscle atrophy or reduction in muscle strength. He did not have ankylosis. His reflex and sensory exams were normal. He did not have any other objective neurological abnormalities or findings associated with his back condition. The examiner noted IVDS of the Veteran’s thoracolumbar spine requiring periods of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms. He did not have scars related to his back condition. The Veteran used a brace on a regular basis as a normal means of locomotion. He used a lumbar lso with rigid lumbar and lateral supports to reduce his mechanical back pain and increase his walking and standing tolerance. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Imaging revealed arthritis. An October 2014 MRI revealed L4-5 facet hypertrophy and neural foraminal stenosis; L5-S1 extrusion with contact with S1 nerve root and neural foraminal stenosis. In October 2016, the Veteran was afforded another VA examination to determine the severity of his back condition. The Veteran stated that while in service, he was living and one day later, he developed sudden pain in his low back radiating to his gluteal area and then down to his thigh and leg, laterally. The pain never went away. He took tablet tramadol for pain and Flexeril for back spasms. From 2014, he started taking injections to the back. Generally, the pain was 6/10. However, at worse, the pain was 10/10, and he usually needed to rest at home. The Veteran stated that after walking a block, he needed to rest before proceeding any further. The examiner confirmed the Veteran’s degenerative arthritis of the spine diagnosis. The Veteran report flare-ups of the thoracolumbar spine, to include low back pain. He stated that too much physical activity aggravated the pain. He reported functional loss or functional impairment. He stated that he was unable to run. Additionally, he could not lift anything 20 pounds or more as the pain would worsen. Additionally, he could drive for long periods of time. The Veteran’s forward flexion was from zero to 50 degrees; extension, right lateral flexion, and right and left lateral rotation were all from zero to 25 degrees. Left lateral flexion was from zero to 20 degrees. The Veteran’s ROM itself contributed to functional loss. The Veteran stated that any function involving movement of his low back was impaired. Pain was noted on forward flexion, extension, right and left lateral flexion and right and left lateral rotation, and the pain caused functional loss. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare-up; therefore, the examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The Veteran experienced guarding or muscle spasms of the thoracolumbar spine; however, neither resulted in abnormal gait or spinal contour. There were additional contributing factors of the disability, to include disturbance of locomotion and interference with sitting and standing. He had normal muscle strength except for left great toe extension which was 4/5. There was no muscle atrophy. Reflex exam was normal except reflex was absent in his left ankle. His sensory exam was normal. Left straight leg testing was positive. He did not have ankylosis or scars related to his condition. There were no other neurologic abnormalities or findings related to a back condition. The Veteran had IVDS of the thoracolumbar spine requiring periods of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. In the last 12 months, the Veteran had low back pain radiating to his left lower extremity that required about eight days of bed rest. He used a brace on a regular basis and occasionally used a cane. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms. Imaging revealed arthritis. The examiner was also asked to comment on the conflicting medical evidence regarding the two different ROM findings. The examiner stated that the October 2016 exam revealed decreased ROM in flexion, extension, both lateral flexion and both rotation. Physical findings also pointed to involvement of left S1 nerve root impingement as evidenced by absent left ankle reflex and weakness in the left great toe movement. This was confirmed by an October 2016 EMG which reported as positive for chronic left L5 and S1 radiculopathy. In February 2017, the Veteran was seen for a routine scheduled primary care appointment. The Veteran complained of intermittent back pain which he rated as five. Rest and repositioning himself relieved the pain. Prolonged sitting made the pain worst. The Veteran’s back and ROM of his back were grossly within normal limits. His gait appeared even spaced. The Board finds the August 2016 private opinion and the VA examiners’ opinions to be adequate and reliable and affords them great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The opinions were based on a review of the record and contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the Veteran’s relevant medical history and contentions when formulating the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Additionally, the opinions are consistent with the other evidence of record. Based on the evidence of record, the Board finds that prior to August 12, 2016, a rating in excess of 10 percent for the Veteran’s back condition is not warranted. Given the medical evidence of record, the Board finds that the Veteran’s low back pain has not been more nearly manifested by forward flexion greater than 30 degrees but not greater than 60 degrees. At worse, the Veteran’s forward flexion was to 70 degrees. Regarding IVDS, the 2012 examiner noted IVDS of the thoracolumbar spine; however, the Veteran did not experience any incapacitating episodes over the past 12 months due to IVDS. The Board has also considered the effect of pain, weakness, fatigability, or incoordination in evaluating the Veteran’s disability. DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran had some functional loss/impairment which included less movement than normal, pain on movement, difficulty bending and turning (left to right movement), prolonged sitting not more than 15 minutes, and movement in general. Although the Veteran experienced additional functional limitation, the loss in ROM is not commensurate with that for the next higher rating. Additionally, such functional impairment has been considered in arriving at the current rating for limitation of motion of the lumbar spine based on ROM measurements, to include as due to objective evidence of pain and subjective complaints of painful motion resulting in the functional impairment described above. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 206-07 (1995). The Board has considered whether separate ratings are warranted for other neurologic abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, the evidence does not show any objective neurologic abnormalities associated with the Veteran’s back disability. The Veteran has been granted service connection for radiculopathy, left lower extremity, and this will be discussed below. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 10 percent. The Board finds that from August 12, 2016 to October 27, 2016, a 20 percent rating and no more is warranted for the Veteran’s back condition. During his August 2016 private examination, the Veteran’s back condition was manifested by muscle spasms that resulted in abnormal gait and spinal contour. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board concludes that a 20 percent rating is warranted for the Veteran’s back condition from August 12, 2016 to October 27, 2016. However, from October 27, 2016, a rating in excess of 20 percent is not warranted. The Veteran’s back condition has not been more nearly manifested by forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine. Additionally, the Veteran did not experience incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Board notes that the August 2016 private and October 2016 VA examiners noted IVDS; however, the Veteran’s periods of bed rest had a total duration of at least one week but less than two weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5235-5243. Given the foregoing, the criteria for a disability rating in excess of 20 percent have not been met. The Board has also considered the effect of pain and weakness in evaluating the Veteran’s disability. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 202 (1995). The Board notes that the Veteran had pain that resulted in functional loss/impairment to include less movement than normal, weakened movement, excess fatigability, pain on movement, deformity, disturbance of locomotion, interference with sitting, and interference with standing. The August 2016 private examiner noted pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. There was no functional loss during flare-ups or when the joint was used repeatedly over a period of time. Therefore, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his back disability. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran has a current diagnosis of lumbar spine DDD, as confirmed by X-ray imaging. However, the Veteran’s lumbar spine disability is already rated at 20 percent disabling. Therefore, no additional higher or alternative ratings under DC 5003 can be applied. The Board has considered whether separate ratings are warranted for other neurologic abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, the evidence does not show any objective neurologic abnormalities associated with the Veteran’s back disability. Throughout the periods on appeal, the Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s back disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the examiners’ opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the examiners’ findings and other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Therefore, the Board finds that from August 12, 2016 to October 27, 2016, a rating of 20 percent and no more is warranted for the Veteran’s back condition; however, from October 27, 2016, the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 20 percent. In his November 2012 Statement of Accredited Representative, the Veteran, through his representative, stated that extraschedular rating consideration is a component of a claim for an increased rating. Therefore, the Board has also considered whether the case should be referred to the Director of the VA Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant’s disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Throughout the periods on appeal, the record reflects that the manifestations of the lumbar spine disorder are specifically contemplated by the schedular criteria set out in the General Rating Formula for Disease and Injuries of the Spine along with the Formula for Rating Intervertebral Disc Syndrome. The schedular criteria for the spine considers limitation of motion and pain resulting in functional loss through application of 38 C.F.R. §§ 4.40 and 4.45. It further permits for separate evaluation of neurological disabilities under that applicable criterion. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 2. Entitlement to a rating in excess of 10 percent for left lower extremity prior to October 27, 2016 and in excess 20 percent thereafter The Veteran’s radiculopathy of the left lower extremity is rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, evaluations of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. Id. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Analysis The Veteran contends that his radiculopathy, left lower extremity is more severe than the rating depicts. In August 2012, the Veteran was afforded a VA examination to determine the severity of his back condition. During the exam, the Veteran stated that he experienced radicular pain. He had intermittent mild pain (usually dull) in his left lower extremity. The pain was located at the left L4/L5/S1/S2/S3 nerve roots, i.e., sciatic nerve. The radiculopathy was mild in severity and affected the left lower extremity. The Veteran exhibited normal muscle strength in his bilateral upper and lower extremities. His reflexes were normal, and there was no muscle atrophy. He did not have any other signs or symptoms of radiculopathy. In December 2014, the Veteran was seen for a follow up examination at a rehabilitation center. The examiner diagnosed the Veteran with sciatica affecting the left lower extremity. The Veteran extremities demonstrated a full active ROM without clubbing, cyanosis, or edema. There was no evidence of effusions, crepitations, malalignment, instability, or subluxations. Manual motor testing was 5/5 in all extremities. Sensory exam was normal to light touch in all extremities. Deep tendon reflexes were general 2+/4 in all extremities. His toes were down going, bilaterally. Muscle bulk and tone were completely normal. His gait and station were mildly antalgic on the left. In May 2016, the Veteran was afforded a VA examination to determine the severity of his back condition. The Veteran reported a history of pain/tingling and numbness which radiated from his low back down to his left leg. However, since his epidural injection, the pain had resolved. The Veteran reported subjective tingling/numbness specifically and only the sole of his left foot when sleeping at night. The examiner stated that this was inconsistent with sciatica. The examiner further stated that radiculopathy was not found on the exam. The neurological exam was within normal limits. In August 2016, the Veteran’s private physician performed an examination to determine the severity of the Veteran’s back condition. The examiner confirmed the Veteran’s radiculopathy diagnosis. The Veteran had right lower extremity mild constant pain and left lower extremity moderate constant pain. He also had right moderate intermittent pain and left severe intermittent pain. He experienced moderate right and severe left paresthesias and/or dysesthesias. He had right mild and moderate left numbness. Due to his radiculopathy, the Veteran had an intolerance for sitting and standing. The examiner stated that the Veteran had bilateral radiculopathy that was moderate in severity. In October 2016, the Veteran was afforded a VA examination to determine the severity of his back condition. The Veteran had radicular pain or other signs or symptoms due to radiculopathy. The examiner noted moderate constant pain in his left lower extremity. The Veteran also had intermittent pain in his left lower extremity. His reflex exam was normal except his left ankle reflex was absent. He had normal muscle strength except his left great toe extension and flexion were weaker indicating S1 root involvement. The Veteran’s disability was of moderate severity. His right side was not affected. There was no muscle atrophy, and his sensory exam was normal. Left straight leg testing was positive. On October 24, 2016, the Veteran was seen at the Teague Vet Center: PMRS NCV/EMG Consult Results. The examiner noted chronic left L5-S1 nerve root lesion as was typically seen in left lumbosacral radiculopathy affecting the sciatic nerve. Left peripheral neuropathy was not found in the lower limb. The right lower limb study was not completed. The examiner stated that the Veteran denied any current or past symptoms in that body region and physical exam was completely normal for the right lower extremity. The Board finds the VA examiners’ opinions to be adequate and reliable and affords them great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The VA examiners’ opinions were based on a thorough review of the record and contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the Veteran’s relevant medical history and contentions when formulating the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board affords the private opinion less probative weight. The private examiner stated that the Veteran had right lower extremity mild constant pain and left lower extremity moderate constant pain. The examiner further stated that the Veteran experienced moderate right and severe left paresthesias and/or dysesthesias. He had right mild and moderate left numbness. However, the VA examiners and the Veteran’s treatment records, to include EMG testing, revealed numbness and pain in the left lower extremity. Additionally, during his October 2016 PMRS NCV/EMG consult result, the Veteran stated that his right side was not affected. Therefore, the Board finds the private opinion inadequate to adjudicate the claim Based on the evidence of record, the Board finds that prior to October 27, 2016, the Veteran’s radiculopathy, left lower extremity is most accurately represented by the criteria for a 10 percent disability evaluation. During the April 2012 examination, the examiner noted pain that was mild in severity. The pain affected his left lower extremity. A disability evaluation in excess of 20 percent is not warranted because the probative evidence of record does not show moderate incomplete paralysis of the sciatic nerve. Id. As the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent prior to October 27, 2016 for the Veteran’s radiculopathy, left lower extremity, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). From October the Board finds the Veteran’s radiculopathy, left lower extremity was most accurately represented by the criteria for a 20 percent disability evaluation. During the October 2016 examination, straight leg raising test for the left lower extremity indicated positive results of pain. The examiner noted moderate constant pain in the left lower extremity. A disability evaluation in excess of 20 percent is not warranted because the probative evidence of record does not establish moderately severe, incomplete paralysis of the left sciatic nerve. Id. Throughout the periods on appeal, the Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s radiculopathy, left lower extremity. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners’ findings and other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent from October 27, 2016 for the Veteran’s radiculopathy, left lower extremity, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. In his November 2011 Substantive Appeal (Form 9), the Veteran stated that due to his back condition, he was unable to work in his profession. Therefore, the Board finds that the claim for TDIU is part and parcel of the Veteran’s claim for a higher rating for his back condition. From November 2011, the Veteran was service connected for chronic sinusitis rated at 30 percent effective August 30, 2016; obstructive sleep apnea rated at 50 percent effective May 1, 2010; degenerative arthritis of the spine rated at 10 percent effective May 1, 2010 and 20 percent effective October 27, 2016; left sciatica rated at 10 percent effective May 1, 2010 and 20 percent effective October 27, 2016; right lateral epicondylitis, dry eye syndrome, and erectile dysfunction all with noncompensable ratings effective May 1, 2010. From November 2011, the Veteran’s overall rating was 60 percent. The Veteran met the threshold requirement for TDIU. 38 C.F.R. § 4.16(a). In April 2012, the Veteran was afforded a VA examination to determine the severity of his back condition. The examiner stated that the Veteran’s condition did not have an impact on the Veteran’s ability work. In December 2014, the Veteran was seen for a follow up examination at a rehabilitation center. The examiner noted that when he was laying down, sitting, or at rest, the Veteran did well with reduced left lower extremity sciatica and decreased lower back pain (LBP). However, when ambulating, the Veteran had severe pain in his left buttock and posterior thigh. The examiner stated that despite reporting pain, the Veteran appeared to be independent in all ADLs and seemed to be interacting in a fairly normal social level. The Veteran had just graduated with a Bachelors in Human Resources and was actively looking for work. In May 2016, the Veteran was afforded a VA examination to determine the severity of his back disability. The examiner stated that the Veteran’s back condition had an impact on the Veteran’s ability to work. The Veteran reported the need to take rests after walking a block. The examiner noted that the Veteran had difficulty with prolonged sitting. He was unable to sit for more than one hour. The Veteran also reported a need to take breaks every one hour to move around. He also reported taking sick leave once every two months. The pain was 6/10 when it was low and 10/10 at its worse. The Veteran usually needed to rest at home. In August 2016, the Veteran submitted a private examination reports. The examiner stated that the Veteran’s back condition had an impact on his ability to work. The Veteran had diffused lumbar spondylosis with concordant lumbar radicular and mechanical pain. Further, the Veteran chronic bilateral hip and back arthritic, radicular pain caused limitation in sitting, walking, bending, stooping, and climbing stairs. Due to his chronic fatigue syndrome, the Veteran had poor sleep quality and quantity related to post-deployment sleep disturbances (nightmares, insomnia). Additionally, the examiner noted that the Veteran’s service-connected sinusitis and non-service connected rhinitis caused episodes of sinusitis, headaches, pain and tenderness of affected sinus, and chronic non-productive cough. The examiner stated that the sinusitis flares episodically. The Veteran took over the counter medication which caused sedation. Sedation interfered with the Veteran’s concentration, reaction time, and coordination. In October 2016, the Veteran was afforded a VA examination to determine the severity of his back disability. The Veteran’s back condition had an impact on his ability to work. The Veteran worked a sitting human resource job with the Army. The examiner stated that the Veteran cannot perform any job involving more intense physical activity. In November 2017, the Veteran was seen at Olin E. Teague Vet Center: MHBM Psychiatry Note. The examiner noted that the Veteran was gainfully employed. In June 2018, the Veteran was afforded a VA examination to determine the severity of his dry eye condition. The examiner stated that the Veteran had 1 mm nasal pterygium OD and Pinguecula OS. The Veteran’s eye conditions did not have an impact on his ability to work. Based on the evidence of records, the Board finds that the Veteran’s disabilities did not precluded him from all forms of employment. As the evidence demonstrated that the Veteran maintained employment during the relevant appeal period, the Board finds no basis upon which to find that a TDIU is warranted. The Board concludes that the Veteran’s overall employment history constitutes substantially gainful employment, and thus does not warrant consideration of a TDIU on an extraschedular basis. The Board acknowledges that the Veteran experiences limitations as a result of his service-connected disabilities; however, the Board finds the totality of the evidence weighs against the claim. Specifically, the evidentiary record, which includes medical evidence, opinion evidence, and the Veteran’s lay assertions, demonstrates the Veteran is not precluded from working due to his service-connected disabilities. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel