Citation Nr: 20007696 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 09-27 267 DATE: January 30, 2020 ORDER From February 13, 2008 to August 4, 2009, entitlement to an initial disability rating to 20 percent for lumbosacral strain with degenerative disc disease is granted. From February 13, 2008 to November 28, 2017, entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative disc disease is denied. Effective November 29, 2017, entitlement to a disability rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease is denied. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity prior to November 29, 2017 is denied. Effective November 29, 2017, entitlement to a disability rating to 20 percent, but no higher, for radiculopathy of the right lower extremity is granted. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity prior to March 14, 2019 is denied. Effective March 14, 2019, entitlement to a disability rating to 20 percent, but no higher, for radiculopathy of the left lower extremity is granted. REMANDED Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From February 13, 2008 to November 28, 2017, the Veteran’s lumbar spine disability has been manifested by no more than mild spasms and tenderness resulting in an abnormal gait and pain on forward flexion of the thoracolumbar spine greater than 30 degrees. 2. Effective November 29, 2017, the evidence shows forward flexion of the thoracolumbar spine 30 degrees or less, but not unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 3. Prior to November 29, 2017, the Veteran’s radiculopathy in the right lower extremity was productive of no more than mild impairment. 4. Effective November 29, 2017, the Veteran experienced moderate symptoms of radiculopathy in the right lower extremity. 5. Prior to March 14, 2019, the Veteran’s radiculopathy in the left lower extremity was productive of no more than mild impairment. 6. Effective March 14, 2019, the Veteran experienced moderate symptoms of radiculopathy in the left lower extremity. CONCLUSIONS OF LAW 1. From February 13, 2008 to August 4, 2009, the criteria for an initial rating of 20 percent, but no higher, for lumbosacral strain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5237. 2. From February 13, 2008 to November 28, 2017, the criteria for a rating in excess of 20 percent for lumbosacral strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5237. 3. Effective November 29, 2017, the criteria for a rating in excess of 40 percent for lumbosacral strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5237. 4. Prior to November 29, 2017, the criteria for a rating in excess of 10 percent for radiculopathy in the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8520. 5. Effective November 29, 2017, the criteria for a rating to 20 percent, but no higher, for radiculopathy in the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8520. 6. Prior to March 14, 2019, the criteria for a rating in excess of 10 percent for radiculopathy in the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8520. 7. Effective March 14, 2019, the criteria for a rating to 20 percent, but no higher, for radiculopathy in the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1977 to June 1980. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing has been associated with the claims file. In June 2013, July 2017, and June 2018, the Board remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. Most recently, in June 2018, the Board remanded the issues for an additional VA examination compliant with the holdings in Correia and Sharp. Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board finds the remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased rating for a lumbosacral strain with degenerative disc disease. On appeal, the Veteran contends that he is entitled to a higher rating to fully compensate him for his lumbosacral strain with degenerative disc disease. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. DCs 5235 through 5243 pertain to various diseases and injuries of the spine. Under the General Rating Formula, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 30 percent disability rating contemplates limitations and conditions of only the cervical spine and is not applicable in this case. A 20 percent rating is warranted for limitation of 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. A 10 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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. Invertebral disc syndrome (IVDS) (DC 5243) is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). Furthermore, under the General Rating Formula for the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate DC. Id. at Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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). In an April 2008 rating decision, the Veteran was service-connected for his lumbar spine disability with a 10 percent disability rating beginning February 13, 2008, when he filed his claim. In a February 2012 rating decision, the Veteran was granted a 20 percent rating for his lumbar spine disability beginning on August 5, 2009. Finally, in a March 2018 rating decision, the Veteran’s lumbar spine disability was increased to 40 percent disabling effective November 29, 2017. Additionally, the Veteran is in receipt of a 10 percent rating for bilateral lower extremity radiculopathy associated with his lumbosacral strain with degenerative disc disease, which is addressed separately below. From February 13, 2008 to November 28, 2017 The Veteran was afforded a VA examination in April 2008. The Veteran described experiencing pain in the lumbar region with no radiating type pain in the lower extremities. He also reported increased pain after prolonged sitting, standing or walking and difficulty lifting anything over 15 pounds. The VA examiner diagnosed the Veteran with a lumbar strain and noted mild spasms and tenderness. The Veteran also presented with a mild antalgic gait. Range of motion measurements were as follows: forward flexion to 90 degrees, with pain at 80 degrees, extension to 30 degrees, with pain at 20 degrees; right and left lateral flexion to 30 degrees, with pain at 20 degrees; and right and left rotation to 30 degrees, with pain at 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. The examiner also noted no weakness and the neurological examination was normal. Finally, the Veteran denied any flare-ups or incapacitating episodes during the last 12 months. The Veteran was examined again in August 2009. The Veteran reported pain in the lumbar region at rest, but denied any weakness, stiffness, or fatigability. The Veteran reported using a back brace to help his lumbar spine disability and uses a cane during flare-ups. He also reported taking extra-strength Tylenol to help his lumbar spine disability, which has helped “to some degree.” The Veteran reported that he is unable to perform his usual occupation in management as sitting for more than 3 to 4 hours results in a flare-up of his lumbar spine disability, but his activities of daily living are not affected by it. The Veteran reported experiencing flare-ups with change in temperature, sitting for more than 3 to 4 hours, climbing more than one flight of stairs, lifting objects in excess of 5 to 6 pounds, walking for more than a block, and standing for more than 3 to 5 minutes. He stated that he cannot run without a flare-up of his lumbar spine disability and that frequent bending also results in a flare-up. Further, the Veteran reported that during flare-ups, the pain is a 10 on a 0 to 10 scale. Alleviating factors are resting, lying down for 30 minutes to an hour, applying ice for 30 minutes, and taking 2 tablets of extra-strength Tylenol. He stated that he experiences flare-ups almost daily and they usually last over an hour. Upon examination, the Veteran’s lumbar spine range of motion showed forward flexion to 50 degrees with pain, extension to 10 degrees with pain, right and left lateral flexion to 10 degrees with pain, and right and left lateral rotation to 20 degrees with pain. The combined range of motion was 120 degrees. The Veteran was able to perform repetitive motion testing with three repetitions with no additional loss of range of motion and joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner concluded that the Veteran has an additional 10 percent limitation in ability to perform activities of daily living during flare-ups. The examiner noted that the Veteran had an erect posture with a mild antalgic gait. He also noted that the Veteran had no pain or tenderness in the lumbar spine, no muscle atrophy or loss of muscle tone, but moderate loss of lumbar lordosis. There was moderate paravertebral spasm in the lumbar region, but no neurological abnormality. Additionally, while there was mild paresthesia in both lower extremities, there was an absence of weakness. During a January 2012 VA examination, the Veteran reported lower back pain that was moderate in nature and constant. For pain relief, the Veteran reported taking daily medications and using a TENS unit, as well as ultrasound and heat. The Veteran’s gait was noted to be slightly antalgic, however, he did not use a cane, walker or crutch. He stated that he wore a back brace. Additionally, the Veteran reported that his lower back condition of pain impacted his functional ability to walk, as well as stand. He reported that he was only able to walk half of a block or stand for approximately 5 to 10 minutes before needing to change his position or rest. The Veteran also stated that he avoided lifting anything heavier than 5 pounds due to his back pain. However, the examiner noted that the Veteran remained independent in his activities of daily living. Upon examination with active and passive range of motion, the examination report noted forward flexion to 50 degrees with pain, extension to 10 degrees with pain, right and left lateral flexion to 20 degrees with pain, and right and left lateral rotation to 20 degrees with pain. The combined range of motion was 140 degrees. The Veteran was able to perform repetitive motion testing with three repetitions with no additional loss of range of motion due to pain, fatigue, weakness or lack of endurance. The Veteran reported flare-ups of his lower back pain during cold, damp weather. He denied any type of hospitalization or incapacitating episodes in the last year which have left him bedridden. During an April 2016 VA examination, the Veteran reported that he could walk half a block and stand or sit for a few minutes before needing to change positions due to his back condition. He also reported difficulty lifting objects of any poundage. The Veteran reported that he did not have flare-ups of the thoracolumbar spine. Additionally, he noted using a back brace regularly and a cane occasionally for his back and right knee conditions. Upon examination, the Veteran’s lumbar spine range of motion showed forward flexion to 60 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The examiner noted that the Veteran exhibited pain during the range of motion tests. The examiner also determined that the Veteran’s range of motion contributed to a functional loss as it interfered with motions such as bending, twisting, and turning. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was also able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time without pain, weakness, fatigability or incoordination significantly limiting functional ability. The examiner also noted no guarding or muscle spasms. Instability of station and disturbance of locomotion were noted. Muscle strength testing was normal and there was no muscle atrophy. The Veteran’s knees and ankles tested hypoactive upon testing deep tendon reflexes. There was no ankylosis of the spine. While the Board has also considered the lay evidence of record, to include July 2012 testimony at the Board hearing, the Board finds the contemporaneous medical records to be the most probative evidence. The evidence indicates that during the appeal period prior to November 29, 2017, the Veteran’s lumbar spine disability manifested with pain and limitation of motion, however, forward flexion of the thoracolumbar spine was not limited to 30 degrees or less; and favorable or unfavorable ankylosis of the entire thoracolumbar spine has not been shown. Nonetheless, the April 2008 VA examination report indicates that the Veteran’s lumbar spine disability was manifested by mild spasms and tenderness resulting in abnormal gait. At worst, forward flexion of the thoracolumbar spine was 40 degrees with pain, after factoring in the additional limitation caused by flare-ups, during the August 2009 VA examination. The criteria for the assignment of a 20 percent rating have been met. The assignment for a rating in excess of 20 percent have not been met. As noted, the Veteran’s does not have forward flexion of the thoracolumbar spine to 30 degrees or less. Additionally, ankylosis is not present. The April 2016 VA examiner made specific findings that there was no ankylosis of the spine. Given the above findings, a 20 percent rating, but no higher, is warranted for the Veteran’s lumbar spine disability prior November 29, 2017. Effective November 29, 2017 The Veteran was provided another VA examination in November 2017. He reported constant low back pain and that he obtains some temporary relief by taking Tylenol three times per day. The Veteran also reported having epidural injections years ago, but with no long-term benefit. Additionally, he reported experiencing flare-ups of the low back that seemed to occur randomly. The Veteran also stated that he is unable to participate in any sports as a result of his lumbar spine disability. Upon examination after three repetitions, the Veteran’s lumbar spine range of motion showed forward flexion to 20 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. The examiner also noted that the Veteran exhibited pain during the range of motion tests and that his pain causes functional loss. The examiner explained that the Veteran would not be able to pick up a piece of paper from the floor by flexing his lumbar spine or to put on his socks and shoes. Furthermore, the examiner noted evidence of pain with weight bearing and objective evidence of localized tenderness to palpitation over the midline of the lumbar spine, as well as in the para-spinal lumbar muscles. While the Veteran was not examined immediately after repetitive use over time or during a flare-up, the examiner reported that pain and lack of endurance significantly limits the Veteran’s functional ability with repeated use and with flare-ups and noted the Veteran avoids doing activities that occasionally cause flare-ups of his low back pain. The examiner also noted that the Veteran does not have guarding or muscle spasms of the thoracolumbar spine or ankylosis. The Veteran also did not use any assistive devices as a normal mode of locomotion. Finally, in March 2019, the Veteran was provided another VA examination for his lumbar spine disability. He reported feeling as though his back disability had worsened over the last several years. The Veteran did not report flare-ups of his thoracolumbar spine. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). He did report having functional loss or functional impairment, as he had difficulty bending and lifting. The Veteran also used a cane occasionally. Upon examination, the Veteran’s lumbar spine range of motion showed forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees, with pain noted during forward flexion and extension. The Board is aware of the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, there is no opposite joint to the lumbar spine and no weight-bearing associated with the lumbar spine. As such, the holding in Correia does not apply to the circumstances of this case. Further, while the examiner noted evidence of pain on passive range of motion testing, the evidence does not suggest that his back range of motion would be further limited in such capacity. Moreover, as a general matter of course, active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011). Additionally, the Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. While the Veteran was not examined immediately after repetitive use over time, the examiner reported that pain, weakness, fatigability or incoordination do not significantly limit the Veteran’s functional ability with repeated use over a period of time. The examiner also noted no guarding, muscle spasm or ankylosis. The Veteran’s Social Security Administration (SSA) records were also reviewed. While they note a long history of treatment for lower back complaints and injuries, they do not contain findings relevant to a current evaluation or current symptomatology of the Veteran’s lumbar spine disability. Accordingly, since November 29, 2017, the Veteran’s lumbar spine disability manifested with forward flexion of the thoracolumbar spine limited to 30 degrees or less. At worst, forward flexion of the thoracolumbar spine was 20 degrees after three repetitions during the November 2017 VA examination. However, the Veteran has not shown ankylosis during the any of the VA examinations. The November 2017 and March 2019 VA examiners made specific findings that there was no ankylosis of the spine. Accordingly, a disability rating in excess of 40 percent is not warranted. Next, for the entire rating period, the Board concludes that the assignment of a higher rating is not warranted under DC 5243 based on incapacitating episodes. An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. The April 2008 and August 2009 VA examinations note that the Veteran denied any incapacitating episodes within the previous 12 months. The April 2016, November 2017, and March 2019 VA examiners checked the box for IVDS, however indicated there were no incapacitating episodes that required physician-prescribed bed rest over the past 12 months. As the evidence indicates the Veteran did not experience any incapacitating episodes throughout the entire appeal period, a rating under DC 5243 would not result in a higher disability evaluation. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran’s disability picture. The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported functional impairment of limited capacity to bend and lift and limited tolerance for standing, walking and running. However, the April 2008, August 2009, January 2012, April 2016, and March 2019 examination reports indicate that the Veteran was able to perform repetitive motion testing with three repetitions with no additional loss of range of motion even with pain following repetitive motion. Additionally, while the Veteran did have some additional loss of function or range of motion after three repetitions during the November 2017 VA examination, such impairments do not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine, as considered by a 50 percent disability rating. To the extent that the Veteran has asserted that he has limited capacity to bend and lift and limited tolerance for standing and walking because of the pain that he experienced, the Board finds that the VA examiners have fully considered these factors as discussed above, and the respective evaluations contemplate pain and how it affects the Veteran. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After considering the effects of pain and functional loss, forward flexion is not limited to 30 degrees or less and favorable ankylosis of the entire thoracolumbar spine is not shown to warrant an increased 40 percent rating prior to November 29, 2017. Further, favorable ankylosis of the entire thoracolumbar spine was not shown thereafter to warrant an increased 50 percent rating. Thus, a higher rating under 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not warranted for the Veteran’s lumbar spine disability. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). In this case, the applicable diagnostic code for the Veteran’s radiculopathy in the lower extremities is DC 8520 (Sciatic Nerve) and is addressed separately below. Separate ratings for neurological abnormalities, other than radiculopathy, associated with the Veteran’s thoracolumbar spine disability, were also considered but are not warranted as the evidence of record, including all of the VA examination reports, do not indicate that the Veteran experiences any additional neurological abnormalities. Further, the Board has considered the Veteran’s testimony regarding his function limitations. See July 2012 Board hearing transcript. The Veteran testified that he has constant back pain which causes difficulty with daily activities, to include the ability to work or get a good night’s sleep, as well as limiting his ability to walk, run, sit, and bend. The Veteran also reported similar symptoms during the VA examinations provided. The Board finds that the VA examiners have fully addressed these symptoms as reported by the Veteran and the Board has fully considered them in evaluating the Veteran’s disability rating. In sum, the evidence supports a finding that an initial disability rating of 20 percent for a lumbosacral strain with degenerative disc disease is warranted. However, the evidence does not warrant a disability rating in excess of 20 percent for a lumbosacral strain with degenerative disc disease prior to November 29, 2017, or in excess of 40 percent thereafter. 2. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity. In a February 2012 rating decision, the Veteran was awarded a separate 10 percent disability rating for radiculopathy of the right lower extremity associated with his lumbar spine disability, effective August 5, 2009, under 38 C.F.R. § 4.124a, DC 8520. The Board finds that the evidence supports a 20 percent disability rating for moderate radiculopathy symptoms of the right lower extremity beginning November 29, 2017. DC 8520 rates neurologic manifestations of the lower extremities associated with the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. Finally, the maximum 80 percent rating requires evidence of complete paralysis, 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, DC 8520. The term “incomplete paralysis,” with this and other peripheral nerve injuries, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, they should be combined with application of the bilateral factor. See 38 C.F.R. § 4.124a. The words “slight,” “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. From August 5, 2009 to November 28, 2017 A private examination report from March 2008 indicates that the Veteran was seen for complaints of radiating pain into his lower extremities. Physical examination revealed sensation of the lower extremities was grossly intact and that the Veteran had good motor strength. The examiner diagnosed the Veteran with lumbar radiculopathy. In April 2008, the Veteran underwent an electromyography (EMG) and nerve conduction study which confirmed findings of bilateral L5-S1 radiculopathy. During an April 2008 VA examination, the Veteran denied any pain radiation to his lower extremities. Additionally, upon neurological examination, the examiner noted normal sensory and motor function as it relates to the Veteran’s lumbar spine. In an August 2009 VA examination, the Veteran reported low back pain that radiates to both of his legs down to the level of his toes. He denied any weakness in either lower extremity but complained of numbness in both lower extremities in the L4-L5 nerve distribution. The examiner noted no neurological abnormality or weakness in either lower extremity. There was mild paresthesia in both lower extremities in the L4-L5 nerve distribution. The examiner also reported no muscle atrophy, normal muscle tone, and normal motor strength in the bilateral lower extremities. There was slight decreased sensation to light touch and pin prick in both lower extremities. Deep tendon reflexes were 1+ and symmetric in both lower extremities. In addition, the examiner diagnosed the Veteran with mild bilateral lumbar radiculopathy in the L4-L5 nerve root distribution. During a January 2012 VA examination, the Veteran complained of low back pain that radiates down both legs. He reported that the pain is moderate in nature and constant. Neurological sensory testing showed a slight decrease in the Veteran’s sensation of his lower extremities bilaterally. There was no atrophy, and muscle tone was noted to be adequate. The Veteran’s muscle strength was reported to be 5 out of 5 and the straight leg test was negative. The examiner noted mild tenderness to deep palpation of the L4, L5, and S1 areas in the paraspinous muscle. A February 2012 private examination report also reported radiating paresthesia to the bilateral lower extremities, of which the Veteran reported to be worse on the right than the left. Upon physical examination, muscle strength was 4 out of 5 at the right knee extension and toe extension. Sensation was subjectively diminished in the bilateral dorsum of the feed in L5 distribution. The right patellar and medial hamstring responses were noted to be hyporeflexive. Dural tension provocation was negative in the bilateral lower extremities. Additionally, the examiner noted that a January 2012 MRI revealed mild to moderate right neural foraminal stenosis at L4-L5. During an April 2016 VA examination, the examiner noted normal muscle strength and sensation to light touch of the lower extremities and no muscle atrophy. The Veteran’s bilateral knees and ankles had +1, or hypoactive, reflexes and the straight leg raising test was negative. The Veteran reported mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. The examiner indicated that the Veteran’s sciatic nerve was involved, and that the severity of the Veteran’s right lower extremity radiculopathy was mild. In light of the above, prior to November 29, 2017, the Board finds that the evidence of record is against finding that the Veteran experienced more than mild symptoms of radiculopathy in the right lower extremity. Specifically, the Veteran’s pain, paresthesias and/or dysesthesias, numbness, and reflexes indicate mild severity. Additionally, both the August 2009 and April 2016 VA examiners concluded that the Veteran’s radiculopathy of the right lower extremity was mild. Accordingly, prior to November 29, 2017, a disability rating in excess of 10 percent for radiculopathy of the right lower extremity associated with the Veteran’s lumbar spine disability is not warranted. Effective November 29, 2017 During a November 2017 VA examination, the examiner noted normal muscle strength of the lower extremities and no muscle atrophy. The Veteran’s right knee was noted to have +1, or hypoactive, reflexes and his right ankle had 0, or absent, reflexes. The Veteran’s right thigh and knee had normal sensation to light touch, while his right lower leg/ankle and foot/toes had decreased sensation. The straight leg test was negative. The Veteran reported severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness of the right lower extremity. The examiner indicated that the Veteran’s sciatic nerve was involved, and that the severity of the Veteran’s right lower extremity radiculopathy was moderate. Finally, during a March 2019 VA examination, the Veteran’s right knee was noted to have +2, or normal, reflexes and his right ankle had 0, or absent, reflexes. The examiner noted that the results to the sensory examination were normal for the right lower extremity. The straight leg test was positive. The Veteran reported moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity. Additionally, the examiner indicated that the Veteran’s sciatic nerve was involved, and that the severity of the Veteran’s right lower extremity radiculopathy was moderate. The Veteran’s SSA records were also reviewed. While they note a long history of treatment for lower back complaints and injuries, they do not contain findings relevant to a current evaluation or current symptomatology of the Veteran’s right lower extremity radiculopathy. In light of the above, the Board finds that beginning November 29, 2017, the Veteran’s right lower extremity radiculopathy had moderate symptoms. Specifically, the Veteran’s pain, paresthesias and/or dysesthesias, numbness, and absent ankle reflexes indicate moderate severity. While the Veteran did report severe intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity during the November 2017 VA examination, the Veteran had normal muscle strength and no muscle atrophy. Additionally, both the November 2017 and March 2019 VA examiners concluded that the Veteran’s radiculopathy of the right lower extremity was moderate. Accordingly, a 20 percent disability rating for radiculopathy of the right lower extremity associated with the Veteran’s lumbar spine disability from November 29, 2017 is warranted. 3. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity. In a February 2012 rating decision, the Veteran was also awarded a separate 10 percent disability rating for radiculopathy of the left lower extremity under DC 8520. The Board finds that the evidence supports a 20 percent disability rating for moderate radiculopathy symptoms of the left lower extremity beginning March 14, 2019. From August 5, 2009 to March 13, 2019 A private examination report from March 2008 indicates that the Veteran was seen for complaints of radiating pain into his lower extremities. Physical examination revealed sensation of the lower extremities was grossly intact and that the Veteran had good motor strength. The examiner diagnosed the Veteran with lumbar radiculopathy. In April 2008, the Veteran underwent an electromyography (EMG) and nerve conduction study which confirmed findings of bilateral L5-S1 radiculopathy. During an April 2008 VA examination, the Veteran denied any pain radiation to his lower extremities. Additionally, upon neurological examination, the examiner noted normal sensory and motor function as it relates to the Veteran’s lumbar spine. In an August 2009 VA examination, the Veteran reported low back pain that radiates to both of his legs down to the level of his toes. He denied any weakness in either lower extremity but complained of numbness in both lower extremities in the L4-L5 nerve distribution. The examiner noted no neurological abnormality or weakness in either lower extremity. There was mild paresthesia in both lower extremities in the L4-L5 nerve distribution. The examiner also reported no muscle atrophy, normal muscle tone, and normal motor strength in the bilateral lower extremities. There was slight decreased sensation to light touch and pin prick in both lower extremities. Deep tendon reflexes were 1+ and symmetric in both lower extremities. In addition, the examiner diagnosed the Veteran with mild bilateral lumbar radiculopathy in the L4-L5 nerve root distribution. During a January 2012 VA examination, the Veteran complained of low back pain that radiates down both legs. He reported that the pain is moderate in nature and constant. Neurological sensory testing showed a slight decrease in the Veteran’s sensation of his lower extremities bilaterally. There was no atrophy, and muscle tone was adequate. The Veteran’s muscle strength was reported to be 5 out of 5 and the straight leg test was negative. The examiner noted mild tenderness to deep palpation of the L4, L5, and S1 areas in the paraspinous muscle. A February 2012 private examination report also reported radiating paresthesia to the bilateral lower extremities, of which the Veteran reported to be worse on the right than the left. Sensation was subjectively diminished in the bilateral dorsum of the feed in L5 distribution. Dural tension provocation was negative in the bilateral lower extremities. Additionally, the examiner noted that a January 2012 MRI revealed mild left neural foraminal stenosis at L4-L5. During an April 2016 VA examination, the examiner noted normal muscle strength and sensation to light touch of the lower extremities and no muscle atrophy. The Veteran’s bilateral knees and ankles had +1, or hypoactive, reflexes and the straight leg raising test was negative. The Veteran reported mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. The examiner indicated that the Veteran’s sciatic nerve was involved, and that the severity of the Veteran’s left lower extremity radiculopathy was mild. Finally, during a November 2017 VA examination, the examiner noted normal muscle strength of the lower extremities and no muscle atrophy. The Veteran’s left knee was noted to have +1, or hypoactive, reflexes and his left ankle had 0, or absent, reflexes. The Veteran’s left thigh and knee had normal sensation to light touch, while his left lower leg/ankle and foot/toes had decreased sensation. The straight leg test was negative. The Veteran reported mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. The examiner indicated that the Veteran’s sciatic nerve was involved, and that the severity of the Veteran’s left lower extremity radiculopathy was mild. In light of the above, prior to March 14, 2019, the Board finds that the evidence of record is against finding that the Veteran experienced more than mild symptoms of radiculopathy in the left lower extremity. Specifically, the Veteran’s pain, paresthesias and/or dysesthesias, numbness, and reflexes indicate mild severity. Additionally, the August 2009, April 2016, and November 2017 VA examiners concluded that the Veteran’s radiculopathy of the left lower extremity was mild. Accordingly, prior to March 14, 2019, a disability rating in excess of 10 percent for radiculopathy of the left lower extremity associated with the Veteran’s lumbar spine disability is not warranted. Effective March 14, 2019 During a March 2019 VA examination, the Veteran’s left knee was noted to have +2, or normal, reflexes and his left ankle had 0, or absent, reflexes. The examiner noted that the results to the sensory examination were normal for the left lower extremity. The straight leg test was positive. The Veteran reported moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity. Additionally, the examiner indicated that the Veteran’s sciatic nerve was involved, and that the severity of the Veteran’s left lower extremity radiculopathy was moderate. The Veteran’s SSA records were also reviewed and considered. While they note a long history of treatment for lower back complaints and injuries, they do not contain findings relevant to a current evaluation or current symptomatology of the Veteran’s left lower extremity radiculopathy. In light of the above, the Board finds that beginning March 14, 2019, the Veteran’s left lower extremity radiculopathy had moderate symptoms. Specifically, the Veteran’s pain, paresthesias and/or dysesthesias, numbness, and absent ankle reflexes indicate moderate severity. Additionally, the March 2019 VA examiner concluded that the Veteran’s radiculopathy of the left lower extremity was moderate. Accordingly, a 20 percent disability rating for radiculopathy of the left lower extremity associated with the Veteran’s lumbar spine disability from March 14, 2019 is warranted. REASONS FOR REMAND 4. Entitlement to a TDIU. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The law provides that a total disability rating 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. As a result of the increased ratings awarded above, the Veteran meets the percentage threshold criteria for a TDIU, as all three of his service-connected disabilities are related to his lumbar spine disability and related neurological manifestations. Most recently, the Veteran was afforded a VA examination in March 2019. The examiner found that Veteran’s lumbar spine disability impacts his ability to work as he has difficulty standing, walking, and sitting for long periods and is unable to lift. However, there was no further explanation or analysis of this finding to allow the Board to weigh the opinion against other conflicting medical opinions, to include the November 2017 VA examination, in which the examiner concluded that the Veteran would not be able to do a physically demanding job, but would be able to do a sedentary job that allowed him to stand up and stretch as needed. Thus, the claim is remanded in order to obtain an addendum opinion that addresses whether the Veteran’s service-connected disabilities preclude him from securing or following any substantially gainful occupation. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the March 2019 VA examiner, or, if unavailable, from another appropriate examiner, to determine the degree in which the Veteran’s service-connected disabilities impact his ability to work. The entire claims file must be made available to and be reviewed by the examiner. The examiner is requested to comment on the Veteran’s previous work experience and describe any other occupational limitations caused solely by the service-connected disabilities. Explanations for all opinions expressed must be provided. In providing the requested rationale, the examiner is asked to consider the pertinent evidence of record, including clinical records and the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.