Citation Nr: 18157878 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-40 832A DATE: December 13, 2018 ORDER Entitlement to an effective date earlier than April 4, 2013 for the grant of service connection for left lower extremity femoral radiculopathy is denied. Entitlement to an effective date earlier than April 4, 2013 for the grant of service connection for right lower extremity femoral radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity femoral radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity femoral radiculopathy is denied. The rating reduction for left lower extremity sciatic radiculopathy, from 20 percent to 10 percent effective December 1, 2017 was not proper; restoration of the 20 percent rating from that date is granted. The rating reduction for right lower extremity sciatic radiculopathy, from 20 percent to 10 percent effective December 1, 2017 was not proper; restoration of the 20 percent rating from that date is granted. Entitlement to an initial rating in excess of 20 percent for left lower extremity sciatic radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity sciatic radiculopathy is denied. Entitlement to an initial 20 percent rating, but no higher, for left ankle strain is granted. Entitlement to a 20 percent rating, but no higher, for right ankle residuals of recurrent inversion injury, for the entire period on appeal, is granted. The rating reduction for painful scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy, from 10 percent to noncompensable, effective December 1, 2017 was not proper; restoration of the 10 percent rating from that date is granted. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU), for the entire period on appeal, is granted. REMANDED Entitlement to an increased rating for status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy, currently evaluated as 20 percent disabling, is remanded. Entitlement to an initial rating in excess of 10 percent for painful scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy is remanded. Entitlement to an initial compensable rating for scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy is remanded. FINDINGS OF FACT 1. There is no document prior to the April 4, 2013 claim for service connection for “leg problems” that may be construed as a formal or informal claim of entitlement to service connection for left or right lower extremity femoral radiculopathy. 2. Left and right lower extremity femoral radiculopathy have been manifested by no more than moderate incomplete paralysis. 3. The October 2014 private examination reports, which formed the basis for the rating reductions for left and right sciatic radiculopathy, were internally inconsistent and therefore not thorough. 4. Left and right lower extremity sciatic radiculopathy have been manifested by no more than moderate incomplete paralysis. 5. Left ankle strain and right ankle residuals of recurrent inversion injury have been manifested by no more than marked limited motion. 6. The October 2014 private examination reports, which formed the basis for the rating reduction for painful scars, were not thorough. 7. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 4, 2013 for the grant of service connection for left lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400 (2017). 2. The criteria for an effective date earlier than April 4, 2013 for the grant of service connection for right lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an initial rating in excess of 20 percent for left lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8526 (2017). 4. The criteria for an initial rating in excess of 20 percent for right lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8526. 5. The criteria for restoration of the 20 percent rating for left sciatic radiculopathy from December 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.3, 4.7, Diagnostic Code 8520 (2017). 6. The criteria for restoration of the 20 percent rating for right sciatic radiculopathy from December 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.3, 4.7, Diagnostic Code 8520. 7. The criteria for an initial rating in excess of 20 percent for left lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 8. The criteria for an initial rating in excess of 20 percent for right lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 9. The criteria for an initial 20 percent rating, but no higher, for left ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 10. The criteria for a 20 percent rating for right ankle residuals of recurrent inversion injury, for the entire period on appeal, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 11. The criteria for restoration of the 10 percent rating for painful scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy from December 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.3, 4.7, Diagnostic Code 7804 (2017). 12. The criteria for a TDIU have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date The Veteran contends that the effective dates for the grants of service connection for left and right lower extremity femoral radiculopathy should be earlier. He offers no specific argument in this regard but rather, in a September 2016 notice of disagreement, indicates that he disagreed with the currently assigned effective dates. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski, 23 Vet. App. at 86-87. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Here, the Veteran submitted a correspondence requesting service connection for “leg problems” which was received by the RO on April 4, 2013. In June 2013, the RO phoned the Veteran to clarify what he meant by leg problems and the Veteran stated that he wanted to file a claim for a bilateral leg condition secondary to his service-connected back disability. In a June 2016 rating decision, the RO granted service connection for left and right lower extremity femoral radiculopathy. The RO assigned effectives dates of April 4, 2013, noting that this was the date that the RO received the claim. Again, the Veteran claims entitlement to earlier effective dates for both awards but has offered no specific arguments in this regard. The record shows, however, that there is no document dated prior to the April 4, 2013 claim for leg problems showing an intent to apply for benefits for lower extremity radiculopathy. Accordingly, there is no basis to award an earlier effective date for the grants of service connection for left and right lower extremity femoral radiculopathy. 38 C.F.R. § 3.400. April 4, 2013 is the date the claims were received, and is the later of the two dates – when entitlement arose and the date of claim – and thus is the proper effective date under the law. 38 C.F.R. § 3.400. The Board additionally notes that although the Veteran claimed entitlement to an increased rating for his low back disorder in August 2006 (stating only, “I would like to re-open my SC comp claim for lower back injury”) and an October 2006 rating decision granted an evaluation of 20 percent, but no higher, the Veteran did not appeal this rating decision, and new and material evidence was not received within one year of notice of the rating decision, and the decision therefore became final. Accordingly, although the Board acknowledges that the General Rating Formula for Diseases and Injuries of the Spine provides that when evaluating the spine, any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code, because the RO adjudicated the August 2006 claim in the October 2006 rating decision which became final, there is no unadjudicated pending claim that could serve as an earlier claim for lower extremity radiculopathy. See 38 C.F.R. § 4.71a, Note (1), General Rating Formula for Diseases and Injuries of the Spine. Accordingly, the preponderance of the evidence is against the claims. The benefit of the doubt doctrine is therefore not for application and the claims must be denied. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Left and Right Ankles Both of the Veteran’s ankle disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, applicable to limited motion of the ankle. Diagnostic Code 5271 provides for a 10 percent rating for moderate ankle limited motion and a maximum schedular rating of 20 percent for marked limitation of motion. 38 C.F.R. § 4.71a. The terms “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just,” and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. Normal ankle dorsiflexion is 0 to 20 degrees and normal ankle plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. A higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. Here, the evidence shows that at a February 2014 VA contract examination, the Veteran reported flare-ups that caused his ankles to roll making him fall. Range of motion testing revealed left ankle plantar flexion to 45 degrees and dorsiflexion to 15 degrees with no objective evidence of painful motion. Right ankle plantar flexion was to 45 degrees and dorsiflexion was to 5 degrees, also with no objective evidence of painful motion. Range of motion was unchanged after three repetitive motions in both ankles. Muscle strength and stability testing was normal, and there was no ankylosis of the ankle, subtalar, or tarsal joint. The examiner remarked that there were contributing factors of pain, weakness, fatiguability, and/or incoordination as well as additional limitation of functional ability of the ankle joint during flare-ups or with repeated use over time but such additional limitation could not be estimated because it could not be tested at the time of the examination. A May 2016 VA treatment record shows that the Veteran was recently seen at the emergency room for a left ankle sprain. The Veteran reported that he has had his ankle “rolls” multiple times since he was in service but that this time the pain was worse than normal. X-rays were negative for fractures. He was currently using a boot and because it was a recurrent problem, the Veteran wanted to see if he could get an ankle brace. Physical examination revealed “good” range of motion in the left ankle, no significant swelling but tenderness with eversion over anterior aspect of the ankle. The assessment was ankle sprain with a history of chronic instability. Based on the above, the Board finds that 20 percent ratings are warranted for both ankles. The evidence shows that the Veteran has credibly reported flare-ups involving his ankles “rolling,” resulting in chronic instability of both ankles causing falls and which has required that the Veteran use a boot or a brace for stabilization. The May 2016 VA treatment record shows that the pain in his left ankle following one of these flares was so severe that he had to go to the emergency room and the February 2014 VA contract examination shows that even when the Veteran is not experiencing a flare-up, he has almost no right ankle dorsiflexion. In sum, although objective range of motion testing did not show very severe limited motion, the Board finds the Veteran’s reports of relatively severe and frequent flare-ups resulting in instability to be credible. Accordingly, the Board finds that while there is some question as to whether the ankles should be considered moderate or marked, the evidence more nearly approximates marked limited motion. 38 C.F.R. § 4.7. At no time during the period on appeal is a rating in excess of 20 percent warranted. There is no indication that the Veteran’s ankles have demonstrated ankylosis, nor has the Veteran so alleged, and the evidence suggests that, in general, his ankle disabilities have not totally prevented him from walking. 38 C.F.R. § 4.71a, Diagnostic Code 5270. There is no evidence of malunion of the os calcis or astragalus, or astragalectomy, nor has the Veteran so alleged. 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274 (2017). Bilateral Lower Extremity Radiculopathy The Veteran also claims entitlement to increased ratings for bilateral sciatic and femoral radiculopathy. These appeals arose from the Veteran’s April 2013 claim for leg problems but in September 2017, the RO reduced the sciatic radiculopathy evaluations. As the evidence pertaining to the appeals for increased ratings for femoral and sciatic radiculopathy and the propriety of the reduction is all related, the Board will discuss the pertinent factual background together. The evidence shows that private treatment records from January 2013 through June 2013 consistently revealed normal (2+) deep tendon reflexes bilaterally throughout, but decreased sensation to the right posterior calf and left thigh and increased sensation to right anterior thigh. At a July 2013 VA examination, the Veteran was diagnosed with, inter alia, intervertebral disc syndrome “with the bilateral sciatic nerves the most likely involved nerves” and bilateral radiculopathy. The Veteran reported that his legs felt numb. Muscle strength testing was normal except for left knee extension, left knee flexion, and left ankle dorsiflexion which were 4/5. Deep tendon reflexes were hypoactive (1+) in both knees and both ankles. Sensory examination was normal in the left lower leg/ankle, left foot/toes; decreased in both upper anterior thighs and both thighs/knees; and absent in the right lower leg/ankle and right foot/toes. The examiner found that there was bilateral radiculopathy which resulted in severe bilateral lower extremity (usually dull) pain, moderate bilateral paresthesias and/or dysesthesias and numbness, but no constant pain. The examiner concluded that the bilateral radiculopathy involved both the femoral and sciatic nerve roots and overall assessed each as moderate. Private treatment records from August 2013 through October 2013 continue to show normal (2+) deep tendon reflexes bilaterally throughout but decreased sensation to the right posterior calf and left thigh and increased sensation to right anterior thigh. In a February 2014 rating decision, service connection for bilateral lower extremity radiculopathy was granted with 20 percent ratings assigned to each extremity under Diagnostic Code 8520, applicable to the sciatic nerve. In a June 2016 rating decision, service connection for bilateral lower extremity radiculopathy of the femoral nerves was granted with 20 percent ratings assigned to each extremity under Diagnostic Code 8526, applicable to the femoral nerve. In August 2016, the Veteran submitted an October 2014 spine disability benefits questionnaire that had been filled out by one of his private physicians. The Veteran was diagnosed with lumbar radiculopathy. Muscle strength testing was normal. Deep tendon reflexes were hypoactive (1+) in both knees and both ankles. Sensory examination was normal. The right lower extremity radiculopathy resulted in severe constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness. The left lower extremity radiculopathy resulted in moderate constant pain, intermittent pain, and paresthesias and/or dysesthesias but severe numbness. The examiner concluded that the bilateral radiculopathy involved only the sciatic nerve roots and assessed the right extremity as severe and the left extremity as moderate. At the same time, the Veteran also submitted an October 2014 peripheral nerves disability benefits questionnaire that had been filled out by the same physician on the same day. The examiner indicated that there was severe constant pain in the left lower extremity but not the right; severe intermittent pain in the left lower extremity but moderate in the right; severe paresthesias and/or dysesthesias in both lower extremities; and severe numbness in both lower extremities. She also noted that there was bilateral hip pain that radiated into both legs. Muscle strength testing was normal except for bilateral ankle plantar flexion which was 4/5. Deep tendon reflexes were hypoactive (1+) in both knees and both ankles. Sensory examination was normal. The examiner found that all lower extremity nerves, including the sciatic and femoral, were normal bilaterally, i.e., that there was no incomplete or complete paralysis. In a June 2017 rating decision, the RO proposed to reduce the evaluation of bilateral lower extremity sciatic radiculopathy. The rating decision proposed to reduce the 20 percent ratings currently assigned for each disability to 10 percent each. The rating decision stated that because the October 2014 disability benefits questionnaires showed subjective symptoms of pain and paresthesias and/or dysesthesias, normal sensory testing, and no atrophy, the radiculopathy more nearly approximated mild incomplete paralysis thus warranting only 10 percent ratings. A June 2017 letter notified the Veteran of the proposal to reduce the evaluations, that he had 60 days to present additional evidence to show that compensation payments should be continued at their present level, and of his right to a predetermination hearing. A September 2017 rating decision implemented the proposed rating decision, noting that the 10 percent evaluations would be effective December 1, 2017. Reduction of Sciatic Radiculopathy 38 C.F.R. § 3.105(e) provides that when reduction of a disability rating will result in reduction of the amount of overall monetary compensation payable, notice and opportunity to submit evidence must be provided and that a reduction will be made only after a passage of 60 days. These safeguards were met in this case. Where VA has reduced a Veteran’s rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Here, the ratings of 20 percent for sciatic radiculopathy had not been in effect for five years or more and, so, the protective provisions of 38 C.F.R. § 3.344, which apply more stringent requirements to a reduction of a disability evaluation, are not applicable. See 38 C.F.R. § 3.344. Nevertheless, VA is required to comply with several more general regulations applicable to all rating reductions regardless of the rating level or the length of time during which the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017). Section 4.1 provides: “It is... essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.” Similarly, 38 C.F.R. § 4.2 provides: “It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” Thus, “[t]hese provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown (Kevin) v. Brown, 5 Vet. App. 413, 420 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, 38 C.F.R. § 4.13 provides: “When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.” Based on the regulations quoted above, VA is required in any rating-reduction case “to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Brown (Kevin), 5 Vet. App. at 421; Schafrath (“[t]hese requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”). In this case, the reduction of the 20 percent ratings for sciatic radiculopathy to 10 percent ratings was based upon the findings of the October 2014 disability benefits questionnaires that had been filled out by the Veteran’s private physician. Notably, although both evaluations apparently were conducted the same day, there are significant discrepancies between the findings relating to the Veteran’s lower extremities. Although the spine evaluation indicated that the bilateral radiculopathy involved only the sciatic nerve roots and assessed the right extremity as severe and the left extremity as moderate, the nerves evaluation indicated that all lower extremity nerves, including the sciatic and femoral, were normal bilaterally. Although the spine evaluation found that bilateral ankle plantar flexion was normal, the nerves evaluation determined that ankle plantar flexion was 4/5 bilaterally. Although the spine evaluation indicated that the right lower extremity radiculopathy resulted in severe constant pain and intermittent pain, the nerves evaluation found that it resulted in no constant pain and moderate intermittent pain. Although the spine evaluation determined that the left lower extremity radiculopathy resulted in moderate constant pain, intermittent pain, and paresthesias and/or dysesthesias, the nerves evaluation found that there was severe constant pain, intermittent pain and paresthesias and/or dysesthesias. In addition, there is no indication that the private physician reviewed the claims file or otherwise attempted to obtain a complete picture of the Veteran’s relevant medical history prior to making her findings. The Board finds that the above inconsistencies raise serious questions as to the thoroughness and the accuracy of the October 2014 evaluations. While it may be the case that the Veteran’s sciatic radiculopathy has indeed improved, given the significant internal inconsistencies appearing in the October 2014 evaluations, such evidence is not an adequate basis upon which to reduce the previously assigned ratings. Accordingly, the Board finds that the reductions were not proper and that restoration of the 20 percent ratings for bilateral sciatic radiculopathy is warranted. See 38 C.F.R. § 3.105(e). Evaluation of Femoral and Sciatic Radiculopathy As noted above, the Veteran is currently in receipt of 20 percent ratings for left and right femoral radiculopathy and, in light of the restoration of previous ratings discussed above, 20 percent ratings for left and right sciatic radiculopathy. He claims entitlement to higher ratings. The Veteran’s femoral radiculopathy is rated under Diagnostic Code 8526, applicable to the anterior crural nerve (femoral). See 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The Veteran’s sciatic radiculopathy is rated under Diagnostic Code 8520, applicable to the sciatic nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, 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, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The rating schedule provides guidance for rating neurologic disabilities. Cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes noted in 38 C.F.R. § 4.123, will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Initially, the Board notes that although the Veteran is in receipt of separate ratings for each lower extremity for each nerve – sciatic and femoral – the evidence does not clearly indicate which symptoms are applicable to each nerve. In this regard, although the July 2013 VA examiner stated that the sciatic nerves were the ones most likely to be related to his radiculopathy, the examiner later indicated that both the femoral and the sciatic nerve roots were involved. As to the left lower extremity, private treatment records from January 2013 to October 2013 show that there was only decreased sensation to the left thigh; deep tendon reflexes were normal. The July 2013 VA examination indicates that there was minor weakness in the knee and ankle of 4/5 but otherwise normal strength. Deep tendon reflexes were hypoactive in the knee and ankle. Although there was decreased sensation in the upper anterior thigh and thigh/knee, it was normal in the left lower leg/ankle and left foot/toes. While there was severe lower extremity (usually dull) pain and moderate paresthesias and/or dysesthesias and numbness, there was no constant pain. The Board finds that these findings reasonably support the examiner’s assessment that overall the severity of the left lower extremity was moderate. The Board finds that the October 2014 spine and peripheral nerve evaluations are entitled to little, if any, probative value. Although these evaluations purportedly took place on the same day by the same examiner, the findings appearing in these evaluations vary significantly as discussed above. Most notably, although the spine evaluation assessed the left sciatic nerve as moderate in severity, the nerve evaluation found that the left sciatic and femoral nerves were normal without incomplete or complete paralysis. Accordingly, the Board finds the July 2013 VA examination to be most probative as to the severity of the left lower extremity nerves. To the extent any findings in the October 2014 evaluations conflict with the July 2013 VA examination, they are outweighed by the latter examination. In sum, therefore, the Board finds that the Veteran’s left lower extremity sciatic and femoral radiculopathy have not been manifested by more than moderate incomplete paralysis. As discussed above, the relevant symptomatology includes tingling, numbness, abnormal sensation, weakness, intermittent pain, hypoactive ankle and knee reflex, and some decreased sensory function; nevertheless, such moderate symptomatology is contemplated in the currently assigned 20 percent disability ratings. Accordingly, there is no basis to assign a rating in excess of 20 percent for either left lower extremity nerve. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8526. As to the right lower extremity, private treatment records from January 2013 to October 2013 show that there was only decreased sensation to the right posterior calf and increased sensation to right anterior thigh; deep tendon reflexes were normal. The July 2013 VA examination indicates that there was normal right lower extremity strength. Deep tendon reflexes were hypoactive in the knee and ankle. Although there was absent sensation in the lower leg/ankle and foot/toes, there was only decreased sensation in the upper anterior thigh and thigh/knee. While there was severe lower extremity (usually dull) pain and moderate paresthesias and/or dysesthesias and numbness, there was no constant pain. The Board finds that these findings reasonably support the examiner’s assessment that overall the severity of the left lower extremity was moderate. As above, the Board finds that the October 2014 spine and peripheral nerve evaluations are entitled to little, if any, probative value. Although these evaluations purportedly took place on the same day by the same examiner, the findings appearing in these evaluations vary significantly as discussed above. Most notably, although the spine evaluation assessed the right sciatic nerve as severe in severity, the nerve evaluation found that the right sciatic and femoral nerves were normal without incomplete or complete paralysis. Accordingly, the Board finds the July 2013 VA examination to be most probative as to the severity of the right lower extremity nerves. To the extent any findings in the October 2014 evaluations conflict with the July 2013 VA examination, they are outweighed by the latter examination. In sum, therefore, the Board finds that the Veteran’s right lower extremity sciatic and femoral radiculopathy have not been manifested by more than moderate incomplete paralysis. The relevant symptomatology includes tingling, numbness, abnormal sensation, intermittent pain, hypoactive ankle and knee reflex, and some absent/decreased/increased sensory function; nevertheless, such moderate symptomatology is contemplated in the currently assigned 20 percent disability ratings. Accordingly, there is no basis to assign a rating in excess of 20 percent for either right lower extremity nerve. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8526. The Board additionally notes that it appears that many of the symptoms contemplated in the ratings assigned to the sciatic nerves overlap with those contemplated in the ratings assigned to the femoral nerves. In general, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2017). Reduction of Painful Scars As to the rating reduction for painful scars, initially, in the February 2014 rating decision, the RO granted service connection for painful scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy, assigning a 10 percent rating. In the June 2017 rating decision, the RO proposed to reduce the evaluation from 10 percent to noncompensable based on the October 2014 spine and nerve evaluations that had been filled out by the Veteran’s private physician. In the September 2017 rating decision, the RO implemented the reduction effective December 1, 2017. In so doing, the RO found that the evidence appearing in the October 2014 evaluations supported the rating reduction because it showed non-painful scars. As above, the Board finds that the October 2014 evaluations, which formed the basis of the rating reduction for the scars, were not thorough. The RO based the reduction on only two boxes that the examiner checked in each evaluation indicating that, yes, the Veteran had “scars related to…conditions listed in the diagnosis section,” and, no, the scars were not painful, unstable, or totalling an area greater than 39 square centimeters. The examiner did not further identify or describe the scar. As above, there is also no indication that the private physician reviewed the claims file or otherwise attempted to obtain a complete picture of the Veteran’s relevant medical history prior to making her findings. The Board finds that the above evidence, consisting merely of two checked boxes, is not sufficiently clear, unambiguous and thorough as to warrant a reduction in the previously assigned rating. While it may be the case that the Veteran’s painful scars improved, the above-cited evidence is not an adequate basis upon which to reduce the previously assigned rating. Accordingly, the Board finds that the rating reduction for painful scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy, from 10 percent to noncompensable, effective December 1, 2017 was not proper and that restoration of the 10 percent rating from that date is warranted. See 38 C.F.R. § 3.105(e). TDIU The Veteran seeks a total disability evaluation based upon his service-connected disabilities. Initially, the Board observes that because the Veteran submitted evidence of unemployability in connection with the above appeals for increased ratings, the issue of entitlement to a TDIU is part and parcel of the issues currently on appeal even though it was not specifically appealed. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will consider whether entitlement to a TDIU has been warranted at any time since April 2013. For the reasons discussed below, the Board finds that it has. All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Total disability will be considered to exist when there is presented any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. The Veteran here is service connected for the low back disability, bilateral sciatic radiculopathy, bilateral femoral radiculopathy, bilateral ankle disabilities, scars, residuals of a right shoulder dislocation and a left wrist ganglion cyst. Where the schedular rating is less than total, a total disability evaluation can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16. In this case, the Veteran’s bilateral lower extremity femoral and sciatic radiculopathy all arise from his low back disability, i.e., they all result from a common etiology. As each of these four separate disabilities has been rated as 20 percent disabling during the period on appeal, they all combine to a rating in excess of 40 percent for the entire period on appeal. Hence, as the combined rating for all of the Veteran’s service-connected disabilities exceeds 70 percent for the entire period on appeal, the Veteran has met the threshold schedular requirements. In a November 2017, application for TDIU, the Veteran asserted that all of his service-connected disabilities prevent him from securing or following substantially gainful employment. He reports that he last worked full time in August 2004 as a plumber and that he became too disabled to work at that time. In March 2007, the Social Security Administration found that the Veteran had been disabled as a result of his back disorder only since July 2004. The July 2013 VA spine examiner stated that the Veteran’s spine disability prevented him from standing or sitting for more than a few minutes, lifting more than five pounds, bending, stooping, or squatting. It also resulted in constant pain, difficulty walking especially on uneven ground, and causes him to trip all the time. In an October 2014 occupational assessment, the Veteran’s private physician found that the Veteran’s back disability, lower extremity disabilities and ankle disabilities resulted in the Veteran being able to stand, walk, and sit for less than two hours and lift and carry less than 10 pounds. The physician indicated that some days the Veteran would need to take one or more extra breaks but some days he would not need any. Although she assessed his concentration as normal, she concluded that overall, his service-connected impairments would prevent him from maintaining substantially gainful employment. In January 2018, the representative submitted a December 2016 evaluation from a private vocational consultant. After reviewing the evidence, the examiner concluded that the Veteran’s major limitation would be doing the physical activity involved in sustaining work which limit the Veteran to less than sedentary work activity. She therefore concluded that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service connected disabilities. Based on the above, the Board finds that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the entire period on appeal. Initially, it is clear that the Veteran’s severe physical disabilities would prevent him from performing any employment that required regular physical activity. He cannot stand or sit for more than a few minutes, he cannot lift or carry much weight, and he has difficulty with bending, stooping, squatting and walking. While the Veteran’s mental faculties do not appear to be impaired, the evidence, including from the July 2013 examination, October 2014 and December 2016 evaluations, indicates that the Veteran’s physical impairments are so severe that they would also substantially interfere with his ability to perform even sedentary employment. That the Social Security Administration found him disabled due to his back disability further supports this conclusion. Accordingly, entitlement to a TDIU is warranted for the entire period on appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND As to the claims for higher initial ratings for scars, these disabilities are rated under Diagnostic Codes 7804 and 7805. See 38 C.F.R. § 4.118. Significantly, regulations pertaining to skin disabilities were recently amended and new criteria for rating skin disabilities became effective on August 13, 2018. Id. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the veteran will apply. To afford the Veteran every benefit under the law, a determination as to which version is more favorable and what disability rating is appropriate should be made by the AOJ in the first instance. As to the claim for an increased rating for status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy, although the most recent VA examination in July 2013 provided range of motion testing, range of motion testing did not identify active and passive motion and in weight-bearing and nonweight-bearing. See 38 C.F.R. § 4.59 (2016); Correia v. McDonald, 28 Vet. App. 158 (2016). As such, another examination is required. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to evaluate the current severity of the lumbar spine disability. The electronic claims folders should be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. The examination should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the spine. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided. (Continued on the next page)   2. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the appellant and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel