Citation Nr: 20008017 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-36 948 DATE: January 30, 2020 ORDER The reduction in disability rating for the service-connected lumbar spine disability was not proper; restoration of the 20 percent disability rating, effective May 1, 2014, is granted. For the rating period prior to November 28, 2018 a rating higher than 20 percent for a lumbar spine disability is denied. Beginning November 28, 2018, forward, a 40 percent rating, but no higher, for a lumbar spine disability, is granted. Beginning May 30, 2013, a separate 10 percent rating, but not higher, for right lumbar radiculopathy is granted. From May 30, 2013, through November 27, 2018, a separate 10 percent rating, but not higher, for left lumbar radiculopathy, is granted. Beginning November 28, 2018, a separate 20 percent rating, but no higher, for left lumbar radiculopathy, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. By a February 2014 rating decision, the RO reduced the assigned disability rating for the Veteran’s service-connected lumbar spine disability from 20 percent to 10 percent, effective May 1, 2014. 2. Reduction of the rating for a lumbar spine disability status post spinal surgeries from 20 percent to 10 percent resulted in a reduction of the Veteran’s combined disability compensation benefits and compensation payments. 3. By issuing a rating decision that does not set forth all material facts and reasons for the reduction, VA failed to provide the Veteran sufficient notice of the reduction. 4. From May 30, 2013, to April 28, 2015, the Veteran’s lumbar spine disability manifested by painful limitation of motion with forward flexion to 70 degrees, at worst. 5. From April 29, 2015, to June 30, 2015 the Veteran was in receipt of a temporary total (100 percent rating) for lumbar spine surgery requiring a period of convalescence. 6. For the rating period on appeal from July 1, 2015, to August 13, 2018 the Veteran’s lumbar spine disability manifested by painful limitation of motion with forward flexion to 70 degrees, at worst. 7. For the rating period on appeal from August 14, 2018, to November 30, 2018, the Veteran was in receipt of a temporary total (100 percent rating) for lumbar spine surgery requiring a period of convalescence. 8. Beginning November 28, 2018, forward, the Veteran’s lumbar spine disability manifested by painful limitation of motion with forward flexion to 15 degrees, at worst, but with no evidence of ankylosis. 9. From May 30, 2013, forward, the Veteran’s lumbar spine disability resulted in right lumbar radiculopathy analogous to mild incomplete paralysis of the sciatic nerve. 10. From May 30, 2013 through November 27, 2018, the Veteran’s lumbar spine disability resulted in left lumbar radiculopathy analogous to mild incomplete paralysis of the sciatic nerve. 11. From November 28, 2018, forward, the left lumbar radiculopathy was analogous to moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The February 2014 rating decision, which reduced the Veteran’s rating for his service-connected lumbar spine disability from 20 percent to 10 percent is void ab initio; the criteria for restoration of the 20 percent rating for a lumbar spine disability effective May 1, 2014 are met. The criteria for restoration of the 20 percent rating for a lumbar spine disability, effective May 1, 2014, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5242-5243 (2018). 2. For the rating period prior to November 27, 2018, the criteria for a rating in excess of 20 percent for the Veteran’s lumbar spine disability were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5242-5243 (2018). 3. Beginning November 28, 2018, the criteria for a 40 percent rating, but no higher, for the Veteran’s lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5242-5243 (2018). 4. Beginning May 30, 2013, the criteria for a separate rating of 10 percent, but no higher, for right lumbar radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.124, 4.124a, Diagnostic Code 8520 (2018). 5. From May 30, 2013, through November 27, 2018, the criteria for a separate rating of 10 percent, but no higher, for left lumbar radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.124, 4.124a, Diagnostic Code 8520 (2018). 6. Beginning November 28, 2018, the criteria for a separate rating of 20 percent, but no higher, for left lumbar radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.124, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to August 1974. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and February 2014 rating decisions. In April 2019, the Veteran testified during a travel Board hearing at the RO before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Although the RO identifies only one issue on appeal, i.e., entitlement to an increased rating for the Veteran’s service-connected lumbar spine disability, the issue of the reduction of the Veteran’s rating is a separate, though closely related legal issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Accordingly, the Board has identified two issues for adjudication, the propriety of the rating reduction and the merits of the Veteran’s request for an increased rating for his lumbar spine disability. A third issue, entitlement to a TDIU, has been raised by the record and is remanded as discussed below. Preliminary Matters Following certification of this case to the Board in August 2016, the RO scheduled the Veteran for VA spine examination in November 2018 and associated the examination report with the claims file. As initial RO review of this evidence has been waived on the record, the Board may proceed with adjudication of the Veteran’s appeal. 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Rating Reduction Applicable Laws and Regulations The Veteran asserts that the rating reduction from 20 percent to 10 percent for his lumbar spine disability, effective May 1, 2014, was not proper. In a rating reduction, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e) (2018). The provisions of 38 C.F.R. § 3.105(e) allow for a rating reduction when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and 30 days to request a predetermination hearing. Then, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i) (2018). Notice is warranted only where there is a reduction in compensation payments currently being made. Tatum v. Shinseki, 24 Vet. App. 139 (2010). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344(b). 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 record reflects that the Veteran’s 20 percent rating for his lumbar spine disability was granted in 1996, and was, therefore, in effect for more than five years prior to the notice of proposed reduction to 10 percent in 2013. Moreover, the RO’s reduction of the Veteran’s rating from 20 percent to 10 percent effective May 1, 2014 reduced his combined rating from 20 percent to 10 percent, and his monthly VA benefit payment was reduced by $126. Therefore, the RO was required to provide the Veteran with proper notice of the reduction pursuant to 38 C.F.R. § 3.105(e). While the record reflects that a letter to the Veteran dated November 25, 2013 included the requisite notice regarding the 60-day time period in which to submit additional evidence and that the Veteran had 30 days to request a hearing, the associated reduction proposal dated November 19, 2013 does not set forth all material facts and reasons for the reduction. Indeed, the rating action merely states that the 20 percent rating “is not based on evaluation criteria in the rating schedule” followed by two paragraphs specifying the rating criteria for spine disabilities under 38 C.F.R. § 4.71a, with no further explanation. The November 25, 2013 notice letter states “We have reviewed medical records concerning your service-connected conditions and noted some improvement in your intervertebral disc syndrome,” again without any explanation. While the February 2014 rating decision indicates that the reason for the reduction is that the Veteran’s lumbar spine condition has improved, incomplete sentences as well as numerous grammatical and punctuation errors leave the decision open to interpretation. Therefore, the Board finds that neither the November 2013 rating action, the November 2013 notice letter, nor the February 2014 rating decision satisfies the notice standards set forth under 38 C.F.R. § 3.105(e). The Veteran asserts in his February 2014 Notice of Disagreement that the August 2013 VA examination that preceded the reduction was inadequate. However, as the RO’s failure to explain the reduction rendered the notice thereof legally insufficient, the Board need not reach the merits of the examination in this context. As the reduction was made without observance of the law, it is therefore void ab initio, and the Veteran is entitled to restoration of the 20 percent rating for the service-connected lumbar spine disability, effective May 1, 2014. Increased Rating for a Lumbar Spine Disability Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes (DC or DCs), is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The assignment of a particular DC is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 38 C.F.R. § 4.71a. The General Rating Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. Id. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion (ROM) 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 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. 8 C.F.R. § 4.71a, General Rating Formula. Alternatively, under the IVDS Formula, incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. For incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243 (2017). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). Each ROM measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (4). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran asserts that from May 1, 2014, to April 29, 2015, the rating for his back should have remained at least at 20 percent, and an even higher rating is warranted thereafter. See Board hearing transcript dated April 2, 2019 (“Hearing Transcript”) at pg. 3. As discussed, the Veteran’s 20 percent rating from May 1, 2014 has been restored. Turning to the evidence, April 2013 VA treatment records reflect that the Veteran complained of continuous back pain, pain in his legs, and difficulty sleeping because of pain in his back and buttocks. He denied bowel and bladder incontinence, numbness, and tingling in his legs. ROM was noted simply as “limited flexion.” The Veteran reported that Tramadol was working for pain but that after three hours it would wear off and he was still experiencing low back pain that would radiate at times to his lower extremities, bilaterally. The Veteran requested stronger pain medication. MRI imaging of the Veteran’s lumbar spine was obtained in late April 2013, showing postsurgical changes at the L4-L5 and L5-S1 vertebrae where bilateral laminectomies had been performed remained unchanged from prior imagery, but moderate multifactorial spinal stenosis was indicated at the L3-L4 vertebrae, which was characterized as slightly worse than on the previous examination. A left lateral disc herniation was noted. In August 2013, the Veteran was provided a VA spine examination. The diagnosis was degenerative disc disease of the lumbar spine status post laminectomies. On examination, ROM testing of the lumbar spine revealed flexion to 70 degrees; extension to 20 degrees; lateral flexion to 25 degrees, bilaterally; and lateral rotation to 30 degrees, bilaterally. The combined ROM was 200 degrees. Pain was indicated during extension, but the examiner noted that pain did not result in functional loss. The Veteran was able to perform repetitive-use testing with three repetitions, with no loss of ROM after three repetitions. The examiner noted that following repetitive-use testing the Veteran had less movement than normal and pain on movement. He also noted that, as the Veteran did not experience a flare-up during the examination, it would be speculative to estimate additional ROM loss and whether pain, weakness, fatigability, or incoordination could significantly limit functionality during flare-us or when the joint is used repeatedly over a period of time. The examiner noted that the Veteran was positive for IVDS, but the Veteran denied incapacitating episodes over the prior twelve months. There was no guarding or spasm indicated. There was no muscle atrophy. Muscle strength was normal. Reflex and sensory testing were normal. Straight-leg tests were normal, bilaterally. The examiner identified a surgical scar but noted that the scar was not painful or unstable and did not cover an area greater than 39 square cm (6 square inches). The examiner noted that x-ray studies of the Veteran’s thoracic and lumbar spines revealed arthritis, but he was negative for thoracic vertebral fracture. The Veteran denied bowel or bladder problems. There was objective evidence of localized tenderness on palpation of the joints or associated soft tissue of the right lower paraspinal muscles. The examiner concluded that the Veteran’s lumbar spine disability impacted his ability to work in that strenuous physical employment would be limited due to the Veteran’s service-connected spine disability, but that his disability should not preclude light duty employment. The Veteran endorsed the regular use of a cane to assist with balance. VA treatment notes dated September 2013 reflect that the Veteran complained of increasing low back pain after increased work-loads during physical therapy sessions. November 2013 VA treatment notes show that the Veteran reported a return of his low back symptoms after the 2010 laminectomy, describing the level of pain as a nine on a scale of ten, which he said became worse by doing anything continuously. He described low back pain radiating down his right leg to his knee. He said he used a cart at the grocery store for support but had to stop and rest after about 30 minutes on his feet. He continued to do home exercises every other day following the end of physical therapy treatments. During a VA outpatient treatment visits in March 2014, the Veteran was walking with a cane. He said he was unable to work but would like to do so, and he was unsure how his physical limitations would be viewed by prospective employers. In June 2014, the Veteran reported severe, constant pain he said started about three weeks earlier in his coccyx that increased when he sat down or performed certain movements such as standing up. He denied a recent injury. July 2014 VA treatment notes show that the Veteran’s gait was abnormal, and he walked with a cane. He reported chronic pain in his low back and coccyx as well as severe leg pain, which he said was aggravated by sitting and bending. He denied bowel or bladder problems. His ROM was noted only as “Limited flexion.” Reflex testing was noted as all “4/4” and motor testing was “5/5.” It was noted that the Veteran was taking pain medication at the maximum prescribed dose. A December 2014 VA MRI indicated increasing posterior disc herniation at the L3-L4 vertebrae extending into the bilateral neural foramen, which was characterized as a progression from prior MRI studies, and was thought to be exerting pressure on the exiting nerve roots. There was significant bilateral facet arthropathy with resultant neural foraminal and spinal canal narrowing. In late December 2014, the Veteran reported having a lot of pain and cramping in his legs and difficulty walking at times. He denied bowel or bladder incontinence. In February 2015, the Veteran reported radiating pain in his right and left hamstrings, with more pain in the right. He said the pain was exacerbated by lumbar extension and relieved by leaning forward while standing. He reported less bothersome right anterior thigh burning/radiating pain. He denied bladder or bowel symptoms. The Veteran noted that prior similar symptoms were resolved after his last surgery. VA outpatient treatment notes dated April 2015 reflect that the Veteran complained of chronic low back pain and leg pain he said had worsened over the prior year. The diagnosis was lumbar stenosis. The Veteran described worsening right leg pain and sensations of pins and needles shooting into his legs down to the medial aspect of his feet, which were intermittently numb. He endorsed diffuse weakness, reduced stamina, and decreased quality of life because of the pain. He denied bowel and bladder incontinence, but said he noticed leakage of a small volume of urine over past six to eight months. In April 2015, the Veteran underwent laminectomy surgery. In May 2015, during a two-week post-surgery follow-up examination, the Veteran reported less right leg pain but said he still had left leg pain which radiated to just above the left knee. It was noted that his surgical incision was well healed. During a June 2015 VA outpatient visit, the Veteran said he was feeling “much better” than at his 2-week follow up. He said he was pleased that he was able to walk down the aisle at his daughter’s wedding a few weeks ago. He was still experiencing persistent low back pain radiating down his posterior right thigh to behind his knee cap. In July 2015, new pain and stiffness had developed in the Veteran’s low back, which he described as a sharp pain radiating into his right thigh above the knee. He said the pain would be “intense” for up to three minutes. He denied new numbness or weakness, or bowel or bladder changes. It was noted that the Veteran may have developed a muscle spasm. Two weeks later, the Veteran reported that he was again “hit” by severe pain as he was getting out of bed, and that the pain was so bad it made his “feet curl” and he was unable to walk most of the day. He denied new numbness or weakness or vesicorectal dysfunction. In December 2015, x-rays of the Veteran’s lumbar spine were obtained. VA treatment notes reflect that the x-rays revealed stable mild dextroscoliosis post laminectomy at the L-3 and L-4 level. There was stable moderate narrowing of the L4-L5 and L5-S1 disc spaces with facet arthropathy. In March 2016, the Veteran reported constant increased left posterior back and thigh pain, left leg weakness, paresthesias in the left leg, and an increased number of falls. He described increased pain in his bilateral poster thighs, with pain in the left thigh greater than in the right, numbness in his left distal leg, and numbness in his left great toe and heel. The Veteran said he did well after his April 2015 surgery, but by late July and early August 2015, he began to have intense leg cramps in his right lower extremity. It was noted that over the prior several months, the Veteran’s left leg began to feel weak and he experienced an increase in pain in the posterior thigh, ranging from four to six on a scale of ten, exacerbated by movement. MRI imaging was obtained in June 2016. The impression was postsurgical changes from prior laminectomies at L3-L4, L4-L5, and L5-S1; moderate to severe multifactorial spinal stenosis at L4-L5 and to a lesser extent at L3-L4; and multilevel moderate to severe neural foraminal stenosis. Thickening of nerve roots was noted in the area of surgeries from approximately L3 through the top of L5, which would raise the possibility of arachnoiditis. During an August 2016 VA outpatient visit, the Veteran reported worsening chronic low back pain and spasm with increased radiating discomfort, more on the left than the right. He described the pain as sharp, shooting, stabbing, aching soreness that was an eight on a scale of ten, as well as pain and a numbing sensation radiating into his left leg and foot. He denied changes in bowel and bladder functions. The Veteran said stooping, lifting and/or carrying objects of any weight, heavy housework, and walking made the pain worse. The Veteran’s ROM was noted to be “limited flexion, extension” with no indication of movement in degrees. Near the end of August, the Veteran reported that his left thigh and leg pain and numbness were less intense. In September 2016, the Veteran described being stuck in traffic for 90 minutes and that sitting that long in his vehicle exacerbated his left lower extremity tingling, numbness, and pain symptoms. He noted that using a recumbent bicycle seemed to reduce his leg symptoms, and that positional distraction was helping, including at night and he was able to get more rest. He was icing his back throughout the day to reduce soreness and pain. In mid-September, the Veteran reported back pain radiating into his left lower extremity, which he described as daily, sharp, shooting pain, aggravated by walking, standing, and sitting for long periods of time. The pain was decreased by rest and counter-balancing. The Veteran described tingling and numbness in the feet and toes, bilaterally, and weakness of the left lower extremity. He denied bowel and bladder symptoms. The Veteran received a neuraxial epidural injection of pain blocking medication at the caudal level. December 2016 VA outpatient notes reflect that the Veteran reported constant, sharp, achy bilateral lumbar pain and pain in the coccygeal region, which he said was aggravated by sitting, lumbar flexion, and was decreased by rest. He was also experiencing a tingling numbness sensation in his left foot. The Veteran denied weakness, bowel, and bladder symptoms. His lumbar spine ROM was noted only as “limited lumbar extension.” VA treatment notes dated February 2017 reflect that the Veteran denied tingling and numbness, weakness, and bowel/bladder symptoms. His lumbar spine ROM was noted as “limited lumbar extension,” but the ROM was not indicated in degrees of movement. In March 2017, the Veteran received a neuraxial epidural injection of pain blocking medication at the caudal level. In May 2017, the Veteran denied tingling and numbness, weakness, and bowel and bladder symptoms. His lumbar spine ROM was recorded as “limited lumbar extension.” In late May, the Veteran reported worsening low back pain radiating into his right and left posterior thighs, with pain on the right greater than the left, and pain radiating into his right groin. He described the pain as a sharp, shooting, constant pain aggravated by bending forward, and prolonged sitting. He said pain medications provided no relief, although application of Lidocaine cream provided some relief. The Veteran denied tingling and numbness, weakness, and bowel/bladder symptoms. It was noted that the Veteran has “full” ROM. In August 2017, the Veteran reported worsening low back pain he described as “dull pain occurring daily.” He rated the pain as an eight on a scale of ten, and said the pain was aggravated by movement. He also described tingling, numbness, and weakness. He denied bowel and bladder symptoms. ROM was noted merely as “Range of motion decreased.” The Veteran received injection of pain blocking medication at the thoracic, lumbar, and caudal levels. During a September 2017 VA outpatient visit, it was noted that the Veteran “has pain with forward flexion.” ROM in degrees was not noted. VA treatment notes dated November 2017 reflect that the Veteran reported low back pain radiating down the anterior right thigh, with most of the pain in his low back region. The Veteran said that pain was impacting sleep. The Veteran said that over the prior three months, his pain had been in the range of two to three on a scale of ten, but over the weekend he had helped his brother lift things, aggravating his back with a resulting increase in low back pain, left foot and intermittent left leg numbness, and tingling in his right foot. He also described weakness in his left leg. The Veteran denied bowel or bladder symptoms. On examination, the Veteran’s ROM was described as full ROM. November 2017 VA outpatient treatment records include neurosurgeon consultation notes. The surgeon reviewed a new MRI, noting that it indicated stable mild dextroscoliosis post L3 and L4 laminectomy, and stable moderate narrowing of the L4-L5 and L5-S1 disc spaces with facet arthropathy. X-rays showed a grade-one spondylolisthesis at the L3-L4 vertebrae. The Veteran did not have severe mechanical back pain and reported good relief from the last surgery. The Veteran reported stable left leg numbness starting in his buttocks and radiating into his left leg and developing intermittent paresthesias in right leg. He was experiencing instability in the legs, more so on the left. He denied bowel or bladder incontinence, difficulty with gait, or impairment of fine motor tasks. On examination, the Veteran had some numbness in the left leg using fine touch and pinprick testing, with the worst numbness in the lateral portion of the left leg. The surgeon recommended a round of therapy through the VA pain clinic and advised the Veteran that his next treatment option, if it became necessary, was surgery, specifically, an L3-5 “redo laminectomy and instrumented fusion.” In June 2018, the Veteran abruptly stopped taking the Tramadol the previous week due to misunderstanding a plan to taper off taking the medication. The Veteran reported chronic back pain and nerve pain in both legs he described as stabbing, shooting pain, which was severe at times. He also reported groin pain and pain in his right foot he described as “pins and needles,” a feeling he said he has had for years. The Veteran said pain awakened him during the night and he was getting only three to five hours of sleep. The physician recommended additional physical therapy and non-opiod pain medication. In July 2018, the Veteran reported stabbing pain in his low back, with numbness radiating into both legs and toes. The Veteran underwent spine surgery in August 2018, specifically L3-5 posterior decompression and instrumented fusion with L3-L4 transforaminal lumbar interbody fusion. In September 2018, the Veteran reported low back, peri-incisional pain. He was advised to take Tramadol and apply heat and ice to his low back for pain relief. It was noted that the Veteran’s pain had improved. There were residual claudication symptoms of his left lower extremity, but overall his condition was said to have improved compared to prior to the August 2018 surgery. The surgical incision was healing with no complications. In October, it was noted that he had a well-healed surgical scar. November 2018 VA treatment notes reflect that the Veteran had improved compared to his pre-surgery functional status. No ROM was noted. He had pain in his low back and proximal left leg, but the Veteran reported that the pain was getting better. His incision was healed. The Veteran had completed physical therapy, and it was noted that he was ambulating better, using a cane. It was noted that there were no issues with the surgical incision. The Veteran said he was pleased overall with the results of the August 2018 surgery. In December 2018, the Veteran reported back pain, with some pain in his left leg, and he was walking with a cane. The Veteran was again provided a VA spine examination in November 2018. On examination, ROM testing of the lumbar spine revealed flexion to 15 degrees; extension to 0 degrees; lateral flexion to 10 degrees, bilaterally; right lateral rotation to 5 degrees; and left lateral rotation to 10 degrees. The combined ROM was 80 degrees. Pain was indicated in all planes during ROM exercises, but the examiner noted that pain did not result in functional loss. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with three repetitions, with no loss of ROM after three repetitions. The examiner noted that he was unable to determine whether the Veteran was additionally limited by pain, weakness, fatigability, lack of endurance or incoordination after repetitive use testing without mere speculation. The Veteran was negative for ankylosis and IVDS of the thoracolumbar spine. There was no guarding or spasm indicated. There was no muscle atrophy. Muscle strength was normal (5/5) on the right while knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension on the left revealed active movement against some resistance (4/5). Sensory testing was normal bilaterally, except for the Veteran’s feet and toes, bilaterally, which indicated decreased sensation to light touch. Straight-leg tests were normal, bilaterally. The examiner identified a 16 cm x 1 cm scar over the Veteran’s lumbar spine, noting that there was no objective evidence that it was painful, unstable, or covered an area greater than 39 square cm (6 square inches). The examiner noted that x-ray studies of the Veteran’s thoracic and lumbar spines revealed arthritis, specifically degenerative disc disease. The Veteran was negative for thoracic vertebral fracture. The Veteran denied bowel or bladder problems. There was objective evidence of localized tenderness on palpation of the joints or associated soft tissue of the upper and lower lumbar spine. The examiner concluded that the Veteran’s lumbar spine disability impacted his ability to work in that it limits most, if not all, attempts to work because of limited ROM of his spine. The Veteran endorsed the use of assistive devices, specifically constant use of a cane and occasional use of a walker. See VA thoracolumbar spine examination report dated November 28, 2018. During the April 2019 Board hearing, the Veteran said he continued to experience low back pain, limited motion, and numbness and tingling in his legs. See Hearing Transcript pgs. 4, 8, 12, 16, 18. The Veteran stated that he was unable to bend down to put his socks on, and that he must use a device to pull his socks over his feet. Id. at pg. 8. On review of the evidence of record, both lay and medical, the Board finds that a rating in excess of 20 percent is not warranted prior to the November 28, 2018 VA examination when the Veteran’s thoracolumbar flexion was shown to be 15 degrees. At no time prior to the November 2018 examination was the Veteran’s lumbar spine disability shown to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine during that period. At worst, thoracolumbar flexion during the period prior to November 28, 2018 was determined to be 70 degrees, as indicated during the August 2013 examination and he was found to be negative for ankylosis, which approximates the criteria for a 10 percent rating. The rating criteria are intended to take into account functional limitations due to painful motion which is already contemplated by the currently assigned disability ratings. Therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, do not provide a basis for higher evaluations. See also DeLuca, supra. However, as the Veteran’s 20 percent rating has been restored herein, and giving the Veteran the benefit of the doubt, the assigned 20 percent rating for this period will not be disturbed in the instant adjudication. The findings of the November 28, 2018 VA examiner, particularly the Veteran’s thoracolumbar flexion to 15 degrees, warrants a 40 percent rating from that date forward. The Board acknowledges that the November 2018 VA examiner noted that he was unable to determine whether the Veteran was additionally limited by pain, weakness, fatigability, lack of endurance or incoordination after repetitive use testing and flare-ups without mere speculation. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, there was no reduction in ROM when the Veteran performed repetitive-use testing with three repetitions at the examination, and there was no evidence of a reduction of muscle strength or evidence of muscle atrophy. Therefore, the above-mentioned functional limitations are contemplated by the currently assigned 40 percent rating, and the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher rating. See Mitchell, supra. At any rate, an even higher rating based on limitation of motion of the thoracolumbar spine is not available absent evidence of ankylosis, which is not demonstrated here. A higher rating is not warranted under the IVDS Formula. While there is evidence of disc disease, and the August 2013 VA examiner noted a diagnosis of IVDS, the Veteran’s treatment records for the entire period on appeal do not reflect a diagnosis of IVDS. Notably, the Veteran was specifically found not to have IVDS in the November 2018 VA examination. See VA Examination Report dated November 28, 2018 (Section 11) at pg. 7. Regardless, even if the Board accepted the 2013 diagnosis of IVDS, there is no evidence of incapacitating episodes requiring prescribed bed rest by a physician, which is required by the rating criteria. 38 C.F.R. § 4.71a, IVDS Formula, Note 1. Therefore, a higher rating based on the IVDS Formula is not warranted. Neurologic Abnormalities In addition to consideration of the orthopedic manifestations of the low back disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate DC. DC 8520 provides ratings for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Sellers v. Wilkie, No. 16-2993 (Vet. App. Aug. 23, 2018) (“DC 8520 does not define ‘mild,’ ‘moderate,’ ‘moderately severe,’ or ‘severe,’ or generally associate those terms with specific symptoms”). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Right Lumbar Radiculopathy For the reasons expressed below, the Board finds that for the entire period on appeal from May 30, 2013, a separate 10 percent rating for right lumbar radiculopathy is warranted. While the August 2013 VA examiner noted that the Veteran was negative for radiculopathy or other neurologic abnormalities, this is inconsistent with the Veteran’s treatment records dated prior to the examination. Indeed, the treatment records throughout the period on appeal reflect complaints of pain radiating from his low back into his lower extremities, bilaterally, as well as numbness, burning, and tingling in his legs, feet, and toe. The Veteran is competent to report radicular pain and tingling as those symptoms are observable first-hand. See Layno, supra. Notably, the November 2018 VA examiner found that the Veteran is positive for radiculopathy of the sciatic nerves, bilaterally, noting that the radiculopathy was “mild” in the right lower extremity. See VA Back (Thoracolumbar Spine) Conditions examination report dated November 28, 2018 at pg. 6. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that the evidence supports the Veteran’s entitlement to a separate 10 percent rating under DC 8520 for right lumbar radiculopathy for the entire period on appeal, from May 30, 2013. However, an even higher rating of 20 percent for right lumbar radiculopathy is not warranted as the Veteran’s right lower extremity neurologic symptoms appear to be wholly sensory and there is clearly no evidence of radiculopathy to a moderate degree. See 38 C.F.R. § 4.124a. Left Lumbar Radiculopathy For the reasons expressed below, the Board finds that from May 30, 2013 to November 28, 2018, a separate 10 percent rating is warranted for left lumbar radiculopathy, and a 20 percent rating, thereafter. I. Prior to November 28, 2018 As noted above, the August 2013 VA examiner’s conclusion that the Veteran was negative for radiculopathy or other neurologic abnormalities, was inconsistent with the Veteran’s treatment records dated prior to the examination. The Veteran’s treatment records throughout the period on appeal abound with complaints of pain radiating from his low back into his lower extremities, bilaterally, as well as numbness, burning, and tingling in his legs, feet, and toe. The Veteran is competent to report radicular pain and tingling as those symptoms are observable first-hand. See Layno, supra. As such, the Board concludes that the evidence supports the Veteran’s entitlement to a separate 10 percent rating under DC 8520 for left lumbar radiculopathy from May 30, 2013. However, an even higher rating of 20 percent for left lumbar radiculopathy is not warranted for the period prior to November 28, 2018 as the Veteran’s left lower extremity neurologic symptoms during this period appear to be wholly sensory and there is clearly no evidence of radiculopathy to a moderate degree. See 38 C.F.R. § 4.124a. II. Beginning November 28, 2018 The November 2018 VA examiner found that the Veteran is positive for radiculopathy of the sciatic nerves, bilaterally, noting that the radiculopathy was “moderate” in the left lower extremity. See VA Back (Thoracolumbar Spine) Conditions examination report dated November 28, 2018 at pg. 6. As such, the Board concludes that the evidence supports his entitlement to a separate 20 percent rating under DC 8520 for left lumbar radiculopathy from November 28, 2018. However, an even higher rating for left lumbar radiculopathy is not warranted as the Veteran’s left lower extremity neurologic symptoms appear to be wholly sensory and there is clearly no evidence of radiculopathy to a moderately severe degree. See 38 C.F.R. § 4.124a. The competent evidence does not reflect any other objective neurologic abnormalities associated with the low back disability, such as any in the left low extremity, bladder, or bowel, so as to warrant any additional separate ratings. Lastly, the RO has awarded a noncompensable rating under DC 7805 for a low back surgical scar. To date, there is no indication that the Veteran has disagreed with the rating assigned. Moreover, there is no evidence to award a compensable rating as the linear scar is shown to be non-painful and stable. REASONS FOR REMAND Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Here, the record shows that the Veteran sought entitlement to a TDIU in May 2013, which was denied by the RO in a February 2014 rating decision because the Veteran’s ratings do not meet the schedular criteria for a TDIU and do not warrant referral to the Director of the Compensation and Pension Service for extraschedular consideration. While the Veteran does not meet the schedular threshold for a TDIU under 38 C.F.R. § 4.16(a), i.e., one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent, the issue of entitlement to a TDIU has again been raised by the record during the pendency of the Veteran’s claim for an increased rating for his service-connected lumbar spine disability, particularly the November 2018 VA spine examination report, which reflects the examiner’s conclusion that the Veteran’s spine disability “limits most, if any, attempt at work” due to the limitation of motion of his back. See VA Back (Thoracolumbar Spine) Conditions examination report dated November 28, 2018 at pg. 8. Thus, as reflected on the title page of this decision, the derivative issue of TDIU has been added to the instant appeal. Accordingly, the issue of entitlement to a TDIU on an extraschedular basis, for accrued benefits purposes, is remanded for referral to the Director of VA’s Compensation and Pension Service. The matters are REMANDED for the following action: 1. Implement the Board’s decision herein that: (1) voids the February 5, 2014 rating action reducing the disability rating for the Veteran’s service-connected lumbar spine disability to 10 percent and RESTORES the 20 percent rating from May 1, 2014; (2) grants an increased rating of 40 percent for the Veteran’s lumbar spine disability, effective November 28, 2018; (3) grants a separate rating for right lumbar radiculopathy of 10 percent, but no higher, for the entire period on appeal; and (4) grants a separate rating for left lumbar radiculopathy of 10 percent, but no higher, from the beginning of the appeal period, and of 20 percent, but no higher, beginning November 28, 2018. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Refer the issue of entitlement to a TDIU to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU. (Continued on the next page)   4. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brad Farrell, 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.