Citation Nr: 1807559 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-27 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable disability rating, and a disability rating in excess of 20 percent from September 19, 2016, for lumbar spine fusion L5-S1 status post lumbar surgery (also claimed as T9 desiccation). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1991 to August 1991, and April 1992 until retirement in August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. In a December 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 20 percent disability rating for the Veteran's service-connected lumbar spine fusion L5-S1 status post lumbar surgery (also claimed as T9 desiccation) (hereinafter thoracolumbar spine disability), effective September 19, 2016. As the Veteran has not been granted the maximum benefit allowed for the entire appeal period, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran also perfected appeals as to the issues of entitlement to an increased initial disability rating for hypertension, and entitlement to service connection for a cervical spine disability, rosacea, and carpal tunnel of the left upper extremity. In the June 2013 notice of disagreement, the Veteran stated he was seeking a 10 percent disability rating for hypertension. In the December 2016 rating decision, the AOJ granted a 10 percent disability rating for hypertension throughout the appeal period, and entitlement to service connection for cervical spine degenerative joint disease with spondylosis, rosacea (also claimed as lupus erythematosus), and carpal tunnel of the left upper extremity. As this decision represents full grants of the benefits sought, these issues are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In January 2017, the Veteran submitted a notice of disagreement with the initial disability ratings for rosacea (also claimed as lupus erythematosus) and carpal tunnel of the left upper extremity. See also April 2017 notice of disagreement. The Board's review of the evidentiary record reveals that the AOJ is still taking action on these appellate issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. The issue of entitlement to an increased disability rating for carpal tunnel of the right upper extremity has been raised by the record in the January 2017 notice of disagreement. The issue of entitlement to service connection for a left shoulder disability has been raised by the record in the April 2017 notice of disagreement. The issues of entitlement to service connection for a sleep disability secondary to the service-connected thoracolumbar spine disability, and entitlement to service connection for radiculopathy of the bilateral upper extremities secondary to the service-connected cervical spine disability, have been raised by the record in the April 2017 hearing testimony. These issues have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Prior to September 19, 2016, the Veteran's thoracolumbar spine disability was manifested by arthritis with painful motion, but forward flexion of the thoracolumbar spine limited to 85 degrees, combined range of motion of the thoracolumbar spine limited to 235 degrees, and incapacitating episodes due to intervertebral disc syndrome (IVDS) were not shown. 2. From September 19, 2016, the Veteran's thoracolumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 35 degrees, and ankylosis and incapacitating episodes due to IVDS have not been shown. 3. Throughout the appeal period, there is an approximate balance of positive and negative evidence as to whether the Veteran's radiculopathy of the left lower extremity associated with his thoracolumbar spine disability more nearly approximated moderate incomplete paralysis of the sciatic nerve. 4. Throughout the appeal period, there is an approximate balance of positive and negative evidence as to whether the Veteran's radiculopathy of the right lower extremity associated with his thoracolumbar spine disability more nearly approximated mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent disability rating, but no higher, prior to September 19, 2016 for lumbar spine fusion L5-S1 status post lumbar surgery (also claimed as T9 desiccation) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5241 (2017). 2. The criteria for a disability rating in excess of 20 percent from September 19, 2016 for lumbar spine fusion L5-S1 status post lumbar surgery (also claimed as T9 desiccation) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2017). 3. The criteria for a separate disability rating of 20 percent throughout the appeal period for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for a separate disability rating of 10 percent throughout the appeal period for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans Claims (Court) also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id., quoting 38 C.F.R. § 4.40. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. See 38 C.F.R. § 4.71(a) Diagnostic Code 5243, Note (6). The General Rating Formula (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), in relevant part, is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Unfavorable ankylosis of the entire spine ............................100 percent Unfavorable ankylosis of the entire thoracolumbar spine......50 percent Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.................................................................40 percent Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine......................................30 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.................................................................................20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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..................................................................10 percent 38 C.F.R. § 4.71a, The Spine. Under Note (1), objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Analysis First, the Board finds an initial 10 percent disability rating is warranted for the Veteran's thoracolumbar spine disability prior to September 19, 2016. A March 2011 service treatment record assessed intervertebral disc degeneration and degenerative disc disease of the lumbar spine. A July 2011 MRI report for the thoracic spine indicated disc desiccation with central annual tear at T8-T9, and an October 2016 MRI of the thoracic spine indicated a T8-T9 paracentral disc bulge/osteophyte complex effacing the thecal sac. See October 2016 Ortho TLC treatment note. Disc desiccation is a form of degenerative disc disease, which is a form of arthritis of the spine. See also March 2012 Report of Medical History (arthritis in thoracic and lumbar spine); but see January 2013 VA back examination report (arthritis has not been documented by imaging). Further, the Veteran's service treatment records and treatment records from the Carolinas Center for Advanced Management of Pain (Carolinas Center), as well as the Veteran's competent statements and reports of record, all indicate the Veteran has experienced chronic painful motion of his thoracolumbar spine beginning during, and continuing since, the Veteran's active duty service. Accordingly, the Board resolves any reasonable doubt in favor of the Veteran, and finds an initial 10 percent disability rating prior to September 19, 2016 is warranted for limitation of motion of a major joint due to arthritis under Diagnostic Code 5003. See also 38 C.F.R. §§ 4.45, 4.59. However, the Board finds the preponderance of the competent and credible evidence of record is against finding that the criteria for an initial disability rating in excess of 10 percent for the thoracolumbar spine disability have been met. During the February 2011 initial visit to the Carolinas Center, the physician reported full range of motion of the Veteran's thoracolumbar spine. The January 2013 VA back examination report includes the Veteran's report of limited trunk motion and constant pain. However, upon examination the VA examiner reported full range of motion of the thoracolumbar spine, with no objective evidence of painful motion, to include following repetitive use testing. The Veteran described his flare-ups as difficulty sleeping, wearing certain clothes, and pain, but did not indicate functional impairment due to flare-ups. The Veteran's VA treatment records and private treatment records following his active duty service do not contain objective testing regarding the Veteran's thoracolumbar spine disability, but include the Veteran's continued reports of chronic back pain. The Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. See 38 C.F.R. § 4.45. Here, the Veteran has competently reported constant back pain which is increased by prolonged standing, and the Veteran reported in the July 2014 VA Form 9 that he did report pain in all ranges of motion to the January 2013 VA back examiner. However, even assuming the Veteran's back pain caused additional functional impairment such as limited trunk motion, the Board finds the totality of the evidence of record does not indicate that the Veteran's thoracolumbar spine disability was manifested by functional loss that more nearly approximated forward flexion of the thoracolumbar spine limited to at least 60 degrees, or a combined range of motion not greater than 120 degrees prior to September 19, 2016. Accordingly, the criteria under the General Rating Formula for an initial disability rating in excess of 10 percent have not been met. Next, the Board finds the preponderance of the competent and credible evidence of record is against finding that the criteria for a disability rating in excess of 20 percent from September 19, 2016 for the thoracolumbar spine disability have been met. Again, the Veteran's VA treatment records and private treatment records do not contain objective testing regarding the Veteran's thoracolumbar spine disability, but include the Veteran's continued reports of chronic back pain. Regarding the criteria for orthopedic manifestations under the General Rating Formula, during the September 2016 VA back examination, range of motion testing indicated flexion was at most limited to 45 degrees. No ankylosis of the thoracolumbar spine has been shown by the lay and medical evidence of record. The Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. See 38 C.F.R. § 4.45. Here, the Veteran has competently reported chronic back pain aggravated by prolonged standing, and flare-ups of pain and stiffness that impact heavy lifting. Although the September 2016 VA examination was not conducted during a flare-up, the VA examiner found the examination was medically consistent with the Veteran's statements describing his functional loss during a flare-up. The VA examiner stated pain and lack of endurance cause functional loss during a flare-up, and opined that the functional loss during a flare up in terms of range of motion was a limitation of flexion to 35 degrees. Accordingly, the Board finds the totality of the evidence of record does not indicate that the Veteran's thoracolumbar spine disability is manifested by functional loss that more nearly approximates a limitation of flexion to 30 degrees or less. Accordingly, the criteria under the General Rating Formula for a disability rating in excess of 20 percent have not been met. Further, because the evidence of record does not indicate the Veteran has IVDS, neither an initial disability rating in excess of 10 percent nor a disability rating in excess of 20 percent from September 19, 2016 is warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See September 2016 VA back examination report; January 2013 VA back examination report. However, the Board finds the Veteran has radiculopathy of both lower extremities associated with his service-connected thoracolumbar spine disability. Beginning during active duty service, the Veteran complained of pain radiating from his back into both legs, with pain in the left leg worse than the right. See, e.g., December 2010 neurosurgery service treatment record. During his initial visit to the Carolinas Center in February 2011, the Veteran reported back pain that radiated down the bilateral lower extremities to his big toes. Straight leg testing was negative, and muscle strength, reflex, and sensory testing was normal for the lower extremities. The physician assessed lumbar radiculopathy, and prescribed medications for the radiculopathy pain. EMG testing performed in January 2012 by the Carolinas Center found electrodiagnostic evidence of a left chronic/old L5 and S1 radiculopathy, but no electrodiagnostic evidence of a right lower extremity radiculopathy. The Veteran received epidural steroid injections for his back and lower extremity radiculopathy pain. See, e.g., March 2012 Carolinas Center treatment note. On his March 2012 Report of Medical History, the Veteran reported constant burning and tingling in both legs and feet, and that his legs got weak and he felt shooting pain. During the January 2013 VA back examination, the Veteran reported acute low back pain that radiated down both legs to his toes. However, upon the January 2013 and September 2016 VA back examinations, the Veteran's muscle strength, reflex, and sensory testing was all normal, and straight leg testing was negative. Both VA examiners reported no radicular pain or any other signs or symptoms of radiculopathy. See also September 2016 VA peripheral nerves examination report; January 2013 VA peripheral nerves examination report. During October 2016 and December 2016 visits with Ortho TLC, the Veteran's muscle strength, reflex, and sensory testing in both lower extremities was all normal, and straight leg testing was negative. However, the Veteran's VA treatment records and competent lay statements and testimony have consistently reported throughout the appeal period that he experiences pain radiating from his back into both lower extremities, left worse than right, as well as weakness and numbness in his lower extremities. See, e.g., April 2017 Veteran statement; April 2017 hearing testimony. Further, the evidence of record indicates the Veteran served as a healthcare specialist during active duty, and the Veteran has testified he worked as a physical therapy specialist during active duty and following his retirement from service. See, e.g., DD Form 214; April 2017 hearing testimony. Accordingly, the Board will resolve all reasonable doubt in favor of the Veteran, and finds the Veteran's radiculopathy of the left lower extremity and right lower extremity is associated with his service-connected thoracolumbar spine disability, and warrants separate evaluations. 38 C.F.R. § 4.71a, The Spine, Note (1). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, 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. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at Diseases of the Peripheral Nerves in 38 C.F.R. § 4.124(a). The words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Here, the Board finds the totality of the evidence of record indicates the Veteran's radiculopathy of the left lower extremity more nearly approximates moderate incomplete paralysis of the sciatic nerve, and therefore warrants a 20 percent disability rating throughout the appeal period. The January 2012 EMG testing indicated left chronic/old L5 and S1 radiculopathy, however further objective testing throughout the appeal period as discussed above has not indicated any further objective signs or symptoms of radiculopathy in the left lower extremity. Therefore the Board finds the totality of the evidence of record indicates the Veteran's radiculopathy of the left lower extremity is sensory. However, because the Veteran has consistently indicated that his radiculopathy is chronic and worse in his left lower extremity down to his toes, and the Veteran has a medical background informing his description of his radiculopathy symptoms and their severity, the Board resolves all reasonable doubt in the Veteran's favor, and finds the Veteran's left lower extremity radiculopathy more nearly approximates a moderate incomplete paralysis of the sciatic nerve. Accordingly, the Board finds the criteria for a separate 20 percent disability rating for radiculopathy of the left lower extremity have been met throughout the appeal period. 38 C.F.R. § 4.124(a), Diagnostic Code 8520. The Board further finds the totality of the evidence of record indicates the Veteran's radiculopathy of the right lower extremity more nearly approximates mild incomplete paralysis of the sciatic nerve, and therefore warrants a 10 percent disability rating throughout the appeal period. The January 2012 EMG testing did not indicate a right radiculopathy, and objective testing throughout the appeal period as discussed above has not indicated any further objective signs or symptoms of radiculopathy in the right lower extremity. Therefore the Board finds the totality of the evidence of record indicates the Veteran's radiculopathy of the right lower extremity is wholly sensory. However, because the Veteran has consistently indicated that he experiences pain and radicular symptoms down to his right big toe once his radiculopathy get severe and migrates from his back and left lower extremity, and the Veteran has a medical background informing his description of his radiculopathy symptoms and their severity, the Board resolves all reasonable doubt in the Veteran's favor, and finds the Veteran's right lower extremity radiculopathy most nearly approximates a mild incomplete paralysis of the sciatic nerve. See, e.g., April 2017 hearing testimony. Accordingly, the Board finds the criteria for a separate 10 percent disability rating for radiculopathy of the right lower extremity have been met throughout the appeal period. 38 C.F.R. § 4.124(a), Diagnostic Code 8520. The Board finds the totality of the evidence of record does not indicate, and the Veteran does not contend, that there are any other objective neurological abnormalities associated with his service-connected thoracolumbar spine disability. Accordingly, the Board finds that the preponderance of the evidence is against granting a separate compensable rating for any other objective neurologic abnormalities. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds an initial 10 percent disability rating is warranted prior to September 19, 2016, but finds no provision upon which to assign the Veteran a disability rating in excess of 20 percent from September 19, 2016 for the thoracolumbar spine disability. Further, the Board finds a separate 20 percent disability rating for radiculopathy of the left lower extremity, and a separate 10 percent disability rating for radiculopathy of the right lower extremity, associated with the service-connected thoracolumbar spine disability are warranted throughout the appeal period. Total Disability Based Upon Individual Unemployability Lastly, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for a total disability rating based on individual unemployability (TDIU) where the veteran claims that his service-connected disabilities prevent him from working. Here, the Board finds the evidence of record does not indicate that the Veteran is unable to work due to his thoracolumbar spine disability or his radiculopathy of the bilateral lower extremities. The Veteran testified before the Board that his back and lower extremity pain and symptoms affected his ability to work in the physical therapy field following his retirement from active duty service, but that he is now running an engineering business from his home. Further, neither the Veteran nor his representative has put forth statements indicating that the Veteran's service-connected thoracolumbar spine disability or bilateral lower extremity radiculopathy render him unemployable. Accordingly, as neither the Veteran nor his representative has raised the issue of TDIU as a result of his thoracolumbar spine disability or bilateral lower extremity radiculopathy, and as the objective evidence does not suggest that he cannot work due to these disabilities, the Board concludes that the issue of TDIU has not been raised. ORDER Entitlement to an initial disability rating of 10 percent prior to September 19, 2016 for lumbar spine fusion L5-S1 status post lumbar surgery (also claimed as T9 desiccation) is granted. Entitlement to a disability rating in excess of 20 percent from September 19, 2016 for lumbar spine fusion L5-S1 status post lumbar surgery (also claimed as T9 desiccation) is denied. Entitlement to a separate disability rating of 20 percent for radiculopathy of the left lower extremity is granted. Entitlement to a separate disability rating of 10 percent for radiculopathy of the right lower extremity is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs