Citation Nr: 21001149 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-07 198A DATE: January 7, 2021 ORDER Entitlement to an initial disability rating higher than 20 percent prior to April 19, 2015, and higher than 40 percent from June 1, 2015, for lumbar spine degenerative disc disease, is denied. As of December 9, 2014, it is factually ascertainable that the Veteran had left lower extremity radiculopathy impacting the sciatic nerve caused by his service-connected lumbar spine disability. An earlier effective date of December 9, 2014, for left lower extremity radiculopathy impacting the sciatic nerve is granted. As of February 17, 2015, it is factually ascertainable that the Veteran had right lower extremity radiculopathy impacting the sciatic nerve caused by his service-connected lumbar spine disability. An earlier effective date of February 17, 2015, for right lower extremity radiculopathy impacting the sciatic nerve is granted. Entitlement to a rating higher than 10 percent prior to August 30, 2019, and a rating higher than 20 percent thereafter, for bilateral lower extremity radiculopathy impacting the sciatic nerve, is denied. Entitlement to a rating higher than 30 percent for bilateral lower extremity radiculopathy impacting the femoral nerve, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 28, 2011, is denied. FINDINGS OF FACT 1. Prior to April 19, 2015, the evidence establishes that the Veteran experienced chronic back pain requiring injections. Even when considering flare-ups, the evidence does not show that his forward flexion was limited to 30 degrees or less. Although he reported sometimes not being able to bend over to tie his shoes as a result of back pain, the motion of bending over to tie shoes is approximately 90 degrees. 2. Since June 1, 2015, the evidence shows that the Veteran’s low back disability manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. The evidence does not establish that he experienced any level of ankylosis of the spine and it also does not establish that he was prescribed bedrest by a physician having a total duration of at least 6 weeks during the prior 12 months. 3. A March 2018 VA examination report along with private treatment records dated December 9, 2014, confirms that the Veteran had left lower extremity radiculitis as a result of his service-connected lumbar spine disability. 4. As of February 17, 2015, it is factually ascertainable that the Veteran had right lower extremity radiculopathy caused by his service-connected lumbar spine disability. 5. Prior to August 30, 2019, the evidence does not show that the Veteran’s bilateral lower extremity radiculopathy impacting the sciatic nerve manifested by more than mild sensory symptoms. Since August 30, 2019, the evidence does not show that the Veteran’s bilateral lower extremity radiculopathy impacting the sciatic nerve manifested by more than moderate symptoms. 6. At no point during the appeal period has the Veteran’s bilateral lower extremity radiculopathy impacting the femoral nerve manifested by complete paralysis of the quadriceps extensor muscles. 7. Prior to July 28, 2011, the Veteran was service-connected for his low back disability, rated as 20 percent disabling. He did not have any other service-connected disabilities and his combined rating was 20 percent. He did not meet the schedular criteria for a TDIU and the evidence does not show that his low back disability rendered him unemployable prior to that date such that referral for extraschedular consideration is warranted. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent prior to April 20, 2015, and a rating higher than 40 percent from June 1, 2015, for lumbar degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for an earlier effective date of December 9, 2014, for the grant of a separate rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. 3. The criteria for an earlier effective date of February 17, 2015, for the grant of a separate rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. 4. The criteria for a rating higher than 10 percent prior to August 30, 2019, and a rating higher than 20 percent thereafter, for bilateral lower extremity radiculopathy impacting the sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a; Diagnostic Codes 8520, 8526, 8528, 8529. 5. The criteria for a rating higher than 30 percent for bilateral lower extremity radiculopathy impacting the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a; Diagnostic Codes 8520, 8526, 8528, 8529. 6. The criteria for entitlement to a TDIU prior to July 28, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1976 to July 1981. He requested a videoconference hearing before a Veterans Law Judge on his VA Form 9 dated in March 2014. In March 2017, he withdrew his hearing request. Accordingly, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). The procedural history in this case is somewhat complex and is worth noting. By a March 2013 rating decision, the Veteran was granted service connection for his low back disorder, with an effective date of January 12, 2010. See also March 2010 Rating Decision. The Veteran appealed that decision and contended that a higher rating was warranted. See April 2013 Attorney Statement. In December 2017, the Board incorrectly stated that the issue before the Board was service connection for a low back disability, to include degenerative disc disease. In the remand portion of the decision, however, it was clear that the Board was remanding the Veteran’s claim for an increased rating for the low back. Specifically, the Board noted “the Veteran has reported that his disability is worse than at the time of the October 2012 examination.” Regardless of the verbiage used, the Veteran was afforded an additional VA examination. The RO also addressed the other remanded issues of: entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to cold weather injury; and entitlement to a temporary total disability rating for surgical treatment of chronic low back syndrome requiring convalescence, which was remanded by the Board for issuance of a statement of the case (SOC). In March 2019, the Board stated “a SOC was not provided to the Veteran addressing these issues. However, a May 2018 rating decision granted the Veteran’s claims for service connection for left peripheral neuropathy and right peripheral neuropathy. An August 2018 rating decision granted a temporary total disability rating based on surgical or other treatment necessitating convalescence from April 20, 2015, to May 31, 2015. There remains no issue to appeal concerning the Veteran’s claim for service connection for left peripheral neuropathy and right peripheral neuropathy and entitlement to a temporary total disability rating following a period of convalescence. Thus, there issues are not before the Board at this time.” Throughout the appeal period, the Veteran has been represented by a private attorney. Such was not revoked until January 2019. See January 2019 Revocation Letter. On further review of the record, the Board agrees that the issue of a temporary total rating was resolved, and the Veteran did not appeal that issue. See August 2018 Rating Decision. However, the Board does not agree with the prior findings made by the Board in its March 2019 rating decision. Specifically, it seems the issue of radiculopathy and peripheral neuropathy were conflated. In December 2018, the RO issued a SOC denying “service connection for residuals of cold weather injuries to your bilateral lower extremities.” The Veteran, while still privately represented, did not file a substantive appeal (VA form 9) as to that issue. Therefore, the Board agrees that the issue is not currently before it. Regarding the Veteran’s bilateral lower extremity radiculopathy, the Board notes that the May 2018 rating decision separately granted a 10 percent rating for each extremity, effective April 20, 2015. Admittedly, the RO referred to these impairments as “left and right peripheral neuropathy” however, they further stated “as related to the service-connected disability of lumbar spine.” An April 2020 rating decision then increased the Veteran’s bilateral lower extremity radiculopathy (sciatic nerve) to 20 percent, effective August 30, 2019. By a May 2020 rating decision, the RO granted service connection for bilateral radiculopathy of the lower extremity (femoral nerve) and assigned a 30 percent rating effective August 30, 2019, for each extremity. The record is clear that the Veteran’s bilateral lower extremity radiculopathy impacting his sciatic and femoral nerve are as a result of his service-connected low back disability which has continuously been on appeal since January 12, 2010. Therefore, they are part and parcel of the increased rating claim on appeal. The Board additionally notes that the Veteran is currently in receipt of a 100 percent rating as well as a total disability rating based on individual unemployability (TDIU). He was granted a TDIU from July 28, 2011, by a December 2018 rating decision. A claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22. Vet. App. 447 (2009). In this case, the Veteran’s increased rating claim for his low back dates from January 12, 2010. In Harper v. Wilkie, the Court held that when the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and an NOD does not need to be filed to challenge the effective date assigned for the award of a TDIU. In this case, the issue of TDIU was not raised until May 2018, whereby the Veteran’s attorney contended that “all of the Veteran’s service-connected conditions” impacted his ability to work. The evidence of record does not raise the issue of unemployability in connection with the Veteran’s increased ratings claim for his low back prior to that time. Indeed, on VA examination in October 2012, the examiner opined that the Veteran’s low back disability did not impact his ability to work at all. Similarly, on VA examination in February 2018, although the examiner opined that the Veteran’s low back pain would potentially cause him to lose 0-1 weeks of work in a 12-month period, there was no mention of his low back rendering him unemployable. However, in very liberally construing the findings in Harper, because the Veteran’s attorney contended that “all of the Veteran’s service-connected disabilities,” which would include his low back, caused him to be unemployable, the Board finds that the issue of TDIU was raised during the appeal period as part of the Veteran’s underlying claim for his low back. As such, the Board will address whether a TDIU is warranted prior to July 28, 2011. Entitlement to an initial disability rating higher than 20 percent prior to April 19, 2015, and higher than 40 percent from June 1, 2015, for lumbar spine degenerative disc disease; entitlement to a rating higher than 10 percent prior to August 30, 2019, and a rating higher than 20 percent from August 30, 2019, for bilateral lower extremity radiculopathy impacting the sciatic nerve; and entitlement to a rating higher than 30 percent for bilateral lower extremity radiculopathy impacting the femoral nerve. As noted above, the Veteran has actively appealed the initial rating for his lumbar spine rating since January 12, 2010. His lumbar spine has been rated as 20 percent disabling prior to April 19, 2015, and 40 percent disabling since that time, under Diagnostic Code 5242. This excludes the period from April 20, 2015, to July 1, 2015, where he was in receipt of a temporary total 100 percent rating due to convalescence. The Veteran is also separately service-connected for bilateral lower extremity radiculopathy. Regarding involvement of the sciatic nerve, the Veteran’s bilateral lower extremity radiculopathy has been rated as 10 percent disabling prior to August 30, 2019, and 20 percent thereafter for each extremity. His femoral nerve involvement is rated as 30 percent disabling from August 30, 2019, for each extremity. His sciatic nerve impairment has been rated under Diagnostic Code 8520, and his femoral nerve impairment has been rated under Diagnostic Code 8526. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 rating is warranted for forward flexion of the thoracolumbar spine of 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 is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “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, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71, General Formula, Note 1. At no point during the appeal period has the Veteran demonstrated any bowel or bladder impairment as a result of his low back disability. As noted above, however, he has been separately service-connected for bilateral lower extremity radiculopathy impacting both the sciatic and femoral nerves. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for inquiry of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. Under Diagnostic Codes 8520, for incomplete paralysis, and 8620, for neuritis, a 10 percent disability rating is assigned for mild incomplete paralysis. If the condition is considered “moderate,” a 20 percent disability rating is provided. If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.” 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620. As noted in 38 C.F.R. § 4.124a, the sciatic nerve affects the flexion of the knee, muscles below the knee and the foot, while the femoral nerve affects the quadriceps extensor muscles. See Diagnostic Codes 8520, 8526. After having considered all of the evidence of record, the Board finds that a rating higher than 20 percent is not warranted for the Veteran’s low back disability prior to April 20, 2015; and a rating higher than 40 percent is not warranted from June 1, 2015. However, it is factually ascertainable that an earlier effective date of February 17, 2015, is warranted for the grant of service connection for right lower extremity radiculopathy (sciatic nerve) caused by the Veteran’s service-connected lumbar spine disability. An earlier effective date of December 9, 2014 is also warranted for the grant of service connection for left lower extremity radiculopathy (sciatic nerve). The Board finds that higher ratings are not warranted for the Veteran’s bilateral lower extremity radiculopathy impacting either the femoral or sciatic nerve at any point during the appeal period. That is, a rating higher than 30 percent is not warranted at any time during the appeal period for the femoral nerve involvement. In addition, a rating higher than 10 percent is not warranted prior to August 30, 2019, for the Veteran’s bilateral lower extremity radiculopathy impacting the sciatic nerve; nor is a rating higher than 20 percent warranted thereafter. The evidence of record includes a voluminous amount of VA treatment records, private treatment records, and VA examination reports. Private treatment records from December 2010 note a history of low back pain. An MRI showed “the vertebral body alignment is anatomical. The intervertebral disk heights are well maintained. There are no fractures demonstrated. The paravertebral soft issue appears normal.” The impression was: “normal study. There are no significant findings demonstrated.” The Veteran was afforded a VA examination for his low back October 2012. At the time, he reported “constantly having pain when doing simple tasks around the house such as washing the dishes, taking out the trash, bring[ing] grocery bags in the house and doing laundry. The weather changes cause the low back to become stiff.” He endorsed flare-ups in the form of severe low back pain. On range of motion testing, he had flexion to 60 degrees with objective evidence of painful motion beginning at 60 degrees; extension to 30 degrees with objective evidence of painful motion beginning at 30 degrees; and bilateral flexion and rotation to 30 degrees with objective evidence of painful motion beginning at 30 degrees. He performed repetitive use testing with no additional loss of motion. The examiner noted “claimant has localized tenderness or pain to palpation of joints and/or soft tissue of the thoracolumbar spine (back) which is further described as having a lumbar spasm.” The spasms were not severe enough to result in abnormal gait or spinal contour and there was no guarding. Muscle strength testing was all normal and there was no indication of muscle atrophy. Reflex and sensory examination were also normal. Straight leg raising tests were negative and the Veteran did not have any radicular pain or any other sign or symptoms due to radiculopathy. He also did not have intervertebral disc syndrome (IVDS) of the spine or any incapacitating episodes requiring physician-prescribed bedrest. VA treatment records from May 2013 document that the Veteran presented to the urgent care clinic for back pain. He reported pain being worse with bending and movement involving the back. Pain was better with sitting and at bedtime. He denied any associated symptoms, including weight loss, fever, or chills. He also denied any neurological symptoms including urinary or fecal incontinence. His back was nontender to palpation. He had normal range of motion. VA treatment records from July 2013 document that the Veteran had low back pain was that managed with over-the-counter medications. May 2014 VA treatment records document that the Veteran presented for low back pain for a few days. He was ambulatory on arrival. VA treatment records from June 2014 document the Veteran had “ongoing stiffness to back.” VA treatment records from December 2014 note that the Veteran saw orthopedics because of his back pain and was scheduled for an epidural shot. On his March 2014 VA form 9, the Veteran indicated that he wished to appeal his lumbar spine rating but did not describe his symptoms. Instead, in December 2014, he submitted private treatment records indicating that he received an injection. At that time, an MRI was also ordered. Private treatment records dated in February 17, 2015 state “flexion and extension of the lumbar spine does elicit pain at the lumbar spine, at times inconsistently reproduces radicular symptoms, right greater than left.” They also state “on physical examination he continues to have positive straight leg raise, right greater than left.” Private treatment records dated in March 2015 note “left and right leg radiculitis.” These records also noted back pain but did not contain any range of motion measurements. Private treatment records from March 2015 note that the Veteran had radiating pain into both legs, left greater than right. He had standing and walking intolerance. His gait was nonantalgic. Private treatment records from April 20, 2015, the date the Veteran underwent surgery for his low back, note “pain pattern was consistent with radiculitis. Advanced imaging confirmed the above-mentioned findings.” In an April 2017 statement, the Veteran’s previous attorney stated that his low back disability had worsened and requested a contemporaneous VA examination to determine the severity of the Veteran’s low back disability. As a result, the Board remanded the Veteran’s claim in December 2017. He was afforded a new VA examination in February 2018. A radiology interpretation noted “posterior internal fixation L4-L5 with rods and screws and intervening disc spacer. No hardware complication seen. Osteophytes L3-L5. Narrowing L3-L4 and L4-L5 disc spaces.” The Veteran reported surgery on April 20, 2015, which he reported helped some of his pain, but he still had residual pain. He reported numbness in hands and legs and uncontrollable twitching in both lower extremities, mostly at night. He denied experiencing any flare-ups. On range of motion testing, he had flexion to 25 degrees; extension to 5 degrees; bilateral lateral rotation to 5 degrees; and no bilateral lateral rotation as the Veteran refused to perform such movement. He reported that the examination was causing pain and refused repetitive use testing. No muscle spasms were noted during examination, but the Veteran endorsed experiencing spasms. The examiner stated that this resulted in abnormal gait or abnormal spine contour. Muscle strength testing was 3/5 for bilateral hip flexion and knee extension and 5/5 for ankle plantar flexion, ankle dorsiflexion, and great toe extension. No muscle atrophy was found. IVDS was noted but the Veteran did not have any episodes of bedrest in the 12 months prior. The examiner noted that the Veteran had bilateral lower extremity radiculopathy involving the sciatic nerve with mild constant pain, mild intermittent pain, and mild paresthesias with no numbness. The examiner opined that the Veteran’s radiculopathy was mild and wholly sensory. Regarding the functional impact of the Veteran’s low back, the examiner stated, “Veteran is more apprehensive of pain than of actual functional disability.” The examiner was not able to perform passive range of motion testing, non-weight bearing, and opposing joint testing. The examiner noted that the Veteran had a diagnosis of left lower extremity radiculitis as of December 9, 2014. As noted above, a May 2018 rating decision granted service connection for bilateral lower extremity radiculopathy involving the sciatic nerve (originally referring to it as “peripheral neuropathy), and assigned a 10 percent rating effective April 20, 2015, for each extremity. The rating decision also increased the Veteran’s lumbar spine rating from 20 percent to 40 percent, effective April 20, 2015, the date of the Veteran’s lumbar spine surgery. The Veteran was afforded another VA examination for his low back in September 2018. He endorsed flare-ups in the form of pain, stiffness, and limitation of use. He reported his low back impacted his ability to stand for long periods of time, walk, bend down, and lift anything heavy. On range of motion testing, he had flexion to 35 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 25 degrees; and bilateral lateral rotation to 10 degrees. Pain was noted in all range of motions. The Veteran performed repetitive use without any additional loss of motion. Muscle spasms of the back resulting in abnormal gait or abnormal spine contour were noted. There was no muscle atrophy found on examination. The examiner opined that the Veteran had mild bilateral lower extremity radiculopathy impacting the sciatic nerve. His symptoms included mild intermittent pain, mild paresthesias, and mild numbness with no constant pain. No ankylosis of the spine was found and the Veteran did not have any other neurologic abnormalities related to the lumbar spine. IVDS was noted with no episodes of bedrest in the prior 12 months. The examiner noted, “the back-passive range of motion testing was not performed as it was not medically appropriate because passive movement can cause additional back problems. There is no evidence of pain on non-weight bearing testing of the back.” Social Security Records were obtained in connection with the Veteran’s appeal. These records document that the Veteran was granted Social Security benefits for various disabilities, including his low back. At his hearing, he testified that he had difficulty bending and stooping and on his worst days he could not even bend to tie his shoes. He reported back pain as 6/10 in severity. He also reported that if he lifted anything heavy, he would get low back pain for several weeks. A medical report noted decreased range of motion of the back but did not provide specific range of motion measurements. In March 2019, the Board again remanded the Veteran’s appeal to obtain a new VA examination and retroactive opinion to attempt to determine the severity of the Veteran’s lumbar spine disability from January 12, 2010 to April 19, 2015. In connection with his claim, the Veteran submitted a peripheral nerve examination filled out by his private physician in October 2019. The examiner opined that the Veteran had moderately severe incomplete paralysis of the sciatic nerve; moderate incomplete paralysis of the external popliteal nerve; and moderate incomplete paralysis of the femoral nerve. As a result of all of his peripheral nerve conditions, the Veteran experienced severe constant pain, severe numbness, and severe paresthesias with no intermittent pain. Sensation testing showed decreased sensation in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. No muscle atrophy was found. The Veteran was noted to regularly use a brace as a result of his back but did not use a wheelchair, crutches, cane, or walker. The Veteran was afforded another VA examination for his back in October 2019. He reported that since stopping physical therapy years ago, his low back pain has gotten worse, but since 2018 the pain had increased in intensity radiating into bilateral hips and legs. He endorsed flare-ups and stated he could hold his grandchild while in a sitting position, but his lower back would tend to tense up causing sharp pain to shoot down the hip and into the lower legs. Pain was more intense in the left leg and is aggravated more when walking. The Veteran reported almost falling down a flight of stairs due to his legs giving out. He stated he oftentimes has to roll out of bed due to stiffness. He endorsed approximately 3-4 episodes of flare-ups monthly. Regarding functional loss, he stated “I’m not able to dress myself somedays. My wife has to help me put on my shoes and socks because I’m not able to bend over. I can’t do any activities with my children or grandchildren due to the amount of pain.” On range of motion testing, he had forward flexion to 30 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 25 degrees; and bilateral lateral rotation to 10 degrees. Pain was noted in all ranges of motion. When palpating the Veteran’s back, there was moderate tenderness noted with grimacing and clinching first. The Veteran performed repetitive-use testing with no additional loss of function or motion. Regarding functional loss during flare-ups, the examiner stated she was not able to describe in terms of loss of motion, even when considering the Veteran’s lay statements, because each flare-up had a different level of severity. Muscle spasms and guarding resulting in abnormal gait or abnormal spine contour were noted. The examiner noted bilateral lower extremity impacting the sciatic nerve with symptoms of mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. There was no mention of radiculopathy impacting the femoral nerve. The examiner opined that the Veteran’s right lower extremity radiculopathy was mild in nature and his left was moderate. There was no ankylosis of the spine and the Veteran denied any other neurologic abnormalities. In November 2019, the Veteran submitted a private medical opinion indicating that he had bilateral femoral and sciatica radiculopathy secondary to service-connected lumbar spine degenerative disc disease. The examiner stated: On his history of physical exam in 2018, he was found to have objective findings of mild sciatic nerve radiculopathy. Since that time his radiculopathy has progressed and now includes moderate bilateral femoral involvement. There were objective findings of this condition on the Veteran’s exam on 8/29/19. In addition to the Veteran’s history of severe numbness and tingling down both of his legs, objective findings included: decreased sensation in both thighs as well as both legs and feet; decreased lower extremity reflexes and weakness of the bilateral lower extremities. The femoral nerve is one of the largest nerves in the body. It begins in the pelvis and separates into smaller branches. These nerve branches control the movements of various leg muscles. The femoral nerve itself mainly controls the thigh muscles. It is responsible for hip bending and knee extension. The femoral nerve also received messages from the skin where there is pressure on the thigh or inner calf. Damage to the femoral nerve can cause numbness, weakness, or paralysis of the legs. Because the Veteran reported having a relatively good day with his back on VA examination in October 2019, he was afforded another VA examination for his back in February 2020. He reported symptoms of difficulty standing and walking for long periods of time. He is unable to lift objects nor bend because of the severe pain, fatigue, numbness, and tingling sensations. Regarding flare-ups, the Veteran endorsed sometimes going to bed as a result of the pain. This occurs approximately three times a week and lasts over several hours and often for the whole day. On range of motion testing, he had forward flexion to 20 degrees; extension to 20 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 5 degrees. Pain was noted during all ranges of motion. The Veteran performed repetitive use testing without any additional loss of motion. Regarding additional loss of motion during flare-ups, the examiner opined that the Veteran’s forward flexion to would be limited to 20 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 5 degrees. Essentially, based on the Veteran’s statements, flare-ups impact his ability to extend and decrease that range of motion from 20 degrees to 10 degrees. Muscle spasms and guarding was noted to have resulted in abnormal gait or abnormal spine contour. Muscle strength testing was normal, and no muscle atrophy was found. Reflex examination was also normal. Sensory examination showed decreased sensation in the lower leg/ankle and foot/toes bilaterally. The examiner noted that the Veteran had bilateral lower extremity radiculopathy impacting the sciatic nerve with symptoms of moderate constant pain and moderate numbness. The examiner opined that the Veteran’s bilateral lower extremity was moderate in severity. There was no ankylosis of the spine. The Veteran denied experiencing any other neurological abnormalities. IVDS was noted but the Veteran did not have any physician prescribed episodes of bedrest in the 12 months prior. Constant use of a back brace was noted. Passive range of motion was not performed “as it [was] not feasible to do this in a safe and reasonable manner.” Non-weight bearing assessment was not applicable and there is no opposing joint. Regarding the retrospective opinion requested by the Board for the period from April 20, 2015 to May 31, 2015, the VA examiner opined that based on a review of the record, including the Veteran’s statements during that time frame, the Veteran likely lost an additional 10 degrees of range of motion of the lumbar spine in all directions during a flare-up. An April 2020 rating decision increased the Veteran’s ratings for his bilateral lower extremity radiculopathy impacting the sciatic nerve to 20 percent effective August 30, 2019, the date the RO received the Veteran’s intent to file for an increase. A May 2020 rating decision then granted service connection for bilateral lower extremity radiculopathy impacting the femoral nerve and assigned a 30 percent rating for each extremity effective August 30, 2019. The Board has carefully considered all of the evidence of record. Prior to June 1, 2015, even when considering the retrospective opinion concerning flare-ups, the evidence does not show that the Veteran’s lumbar spine disability manifested by forward flexion of the lumbar spine to 30 degrees or less; nor has any level of ankylosis been shown at any point during the appeal period. In addition, although the Veteran has been noted to have IVDS throughout the appeal period, the evidence does not show that he was prescribed bedrest by a physician for any amount of time at any point during the appeal. Regarding the additional functional loss caused by flare-ups, the Board notes that at worst, for the period from January 12, 2010 to May 31, 2015, on range of motion testing, the Veteran’s flexion was limited to 60 degrees with painful motion beginning at 60 degrees. Even when applying the estimated additional loss of motion during flare-ups, the Veteran’s flexion would be limited to 50 degrees. In order to warrant a higher rating, the evidence must show that the Veteran’s flexion was limited to 30 degrees or less. Similarly, as noted above, since June 1, 2015, the Veteran’s lumbar spine disability has been rated as 40 percent disabling. This means that in order to warrant a higher rating for this period, the evidence would have to show some level of ankylosis, or physician prescribed bedrest having a total duration of 6 weeks during a 12-month period. As much has not been demonstrated at any point during the appeal period. The Board acknowledges that on most recent examination in February 2020, the VA examiner stated that the Veteran goes to bed during flare-ups as a result of his low back pain. However, the rating criteria specifically define “incapacitating episodes” as “a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician.” As much has simply not been demonstrated by the evidence of record. Regarding ankylosis, the Board notes that the Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has repeatedly recognized that, at least for VA compensation purposes, ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure.” See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Put differently, there is no “functional ankylosis.” There is no indication in the claims file that the Veteran’s lumbar spine is fixed in any way and although limited, he has consistently demonstrated range of motion of the lumbar spine. As such, a higher rating on that basis is not warranted. In reaching these conclusions, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). In considering additional limitation of function, the Board acknowledges the Veteran's complaints of pain and stiffness. These complaints are well documented in the Veteran's written statements and treatment records. However, the Board has considered the Veteran's functional limitations based on pain and stiffness and finds that the current rating appropriately compensates him for his symptoms. Moreover, for the period since June 1, 2015, where the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In advancing his appeal, the Veteran has continuously contended that his symptoms are more severe than what is represented by the currently assigned ratings. The Board recognizes that the Veteran is competent state symptoms he experiences. For example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the totality of the evidence indicates the current assigned ratings appropriately compensates his symptoms. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluation assigned and do not more nearly approximate the criteria for a higher evaluation. The rating criteria is based, to the extent possible, on the average impairment in earning capacity. The Board does not dispute that the Veteran experiences severe pain as a result of his lumbar spine. However, the question is to what extent that pain causes functional loss. In the instance, the Veteran has undergone several VA examinations, VA treatment, and has also provided private treatment records in support of his claim. This evidence does not show that the Veteran’s pain was so severe, even when considering flare-ups, to cause his lumbar spine to be limited to 30 degrees prior to June 1, 2015. Similarly, since that time, the evidence simply does not show any ankylosis or physician prescribed bedrest. As much is required for a higher 50 or 60 percent rating. Therefore, the Board finds that the currently assigned ratings are appropriate and higher ratings for the lumbar spine are not warranted at any point during the appeal period. As noted above, the Veteran is also separately rated for his bilateral radiculopathy impacting the sciatic and femoral nerve. His bilateral lower extremity radiculopathy impacting the sciatic nerve has been separately rated as 10 percent disabling from April 20, 2015 to August 29, 2019; and has been rated as 20 percent disabling from August 30, 2019. In addition, his bilateral lower extremity radiculopathy impacting the femoral nerve has been separately rated as 30 percent disabling from August 30, 2019. First, the Board will address the currently assigned effective date for the Veteran’s bilateral lower extremity radiculopathy impacting the sciatic nerve. As noted above, a March 2018 VA examination report confirms that it is factually ascertainable that the Veteran had left lower extremity radiculitis, which is a term used to describe radiculopathy more specifically, as of December 09, 2014. The Veteran’s later private treatment records, including those from before his August 20, 2015 back surgery confirm this. As such, the Board finds that an earlier effective date of December 9, 2014, is warranted for the grant of a separate rating for the Veteran’s left lower extremity radiculopathy. The private treatment records only indicate left lower extremity radiculopathy as of that date. Similarly, records from December 11, 2014, continued to indicate “lower back pain and left lower extremity radiculopathy” only. The first evidence of right lower extremity radiculopathy is found in private treatment records dated February 17, 2015. These records state “flexion and extension of the lumbar spine does elicit pain at the lumbar spine, at time inconsistently reproduces radicular symptoms, right greater than left.” They also state “on physical examination he continues to have positive straight leg raise, right greater than left.” Later private treatment records dated in March 2015 confirm “left and right leg radiculitis.” As such, as of February 17, 2015 it is factually ascertainable that the Veteran had right lower extremity radiculopathy and therefore an earlier effective date of February 17, 2015, is warranted. As to the propriety of the currently assigned ratings, the Board notes that prior to August 30, 2019, the evidence shows that the Veteran’s bilateral lower extremity radiculopathy manifested by lower back pain that radiated into the lower extremities. On VA examination in September 2018, the Veteran denied experiencing constant pain and endorsed mild pain, mild paresthesias, and mild numbness. The examiner opined that the Veteran’s bilateral lower extremity radiculopathy was mild in nature. When considering the other evidence of record, including the private and VA treatment records, the Board finds the VA examiner’s finding highly probative. Prior to August 30, 2019, the Veteran’s bilateral lower extremity radiculopathy was wholly sensory, and his reported symptoms are consistent with the currently assigned 10 percent rating. As such, the Board finds that a rating higher than 10 percent for each extremity for bilateral lower extremity radiculopathy impacting the sciatic nerve prior to August 30, 2019, is not warranted. For the period from August 30, 2019, the Board notes that the Veteran was afforded several VA examinations and also provided a DBQ completed by his private provider. At worst, the Veteran’s bilateral lower extremity radiculopathy was found to be “moderately severe.” See October 2019 Private DBQ. At the time of his October 2019 private examination, the Veteran reported having radiating pain from his back to his bilateral lower extremities causing numbness and tingling. The examiner indicated that he experiences severe constant pain, severe paresthesias, and severe numbness. However, those symptoms were caused by both the sciatic nerve and the femoral nerve. The Board may only consider the symptomatology caused by the sciatic nerve in determining the appropriate rating. On private examination, muscle strength testing was 4/5 on the right for knee extension, 3/5 on the left; and 4/5 bilaterally for ankle planter flexion and ankle dorsiflexion. No muscle atrophy was found. Deep tendon reflexes were hypoactive but not absent. However, on the other VA examinations, including in October 2019 and February 2020, muscle strength testing was normal with no muscle atrophy found. Deep tendon reflexes were also normal in the knee and ankle. The VA examiners opined that the Veteran’s radiculopathy impacting the sciatic nerve was, at worst, moderate. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). In this instance, the Board does not dispute that the Veteran experiences pain and numbness as a result of his radiculopathy. However, regarding his bilateral radiculopathy impacting his sciatic nerve in particular, the Board notes that his symptoms have been wholly sensory. Although the private examiner opined that the Veteran’s bilateral radiculopathy was moderately severe, this seems to take into account the impairment caused by the Veteran’s femoral nerve. Indeed, later VA examination reports from October 2019 and February 2020 indicate at most moderate symptoms as a result of the Veteran’s bilateral lower extremity radiculopathy impacting the sciatic nerve. As such, the Board finds that the currently assigned 20 percent rating most closely approximates the Veteran’s current disability picture. Higher ratings are not warranted. Before addressing the propriety of the Veteran’s ratings for his bilateral lower extremity radiculopathy impacting his femoral nerves, the Board notes that there are five nerve branches in the lower extremities. Each branch has its separate and distinct functions. The sciatic branch includes the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. The femoral branch includes the anterior crural (femoral) and the internal saphenous nerves. The obturator, external cutaneous thigh, and illio-inguinal nerve branches only include one nerve each. Therefore, awarding separate ratings for the sciatic nerve and femoral nerve does not violate the rule against pyramiding as both nerves are distinct and not part of the same branch. 38 C.F.R. § 4.14. Turning to the propriety of the currently assigned ratings for the Veteran’s bilateral lower extremity radiculopathy involving the femoral nerves, the Board notes that the first indication of such involvement was on private examination in October 2019. However, the RO assigned a 30 percent rating for each extremity, effective August 30, 2019, the date of receipt of the Veteran’s intent to file. In order to warrant a higher rating, the evidence must establish that the nerve damage is complete. Complete paralysis of the femoral nerve is manifested by paralysis of quadriceps extensor muscles. Although diminished strength and sensation have been documented, there have been no objective findings of complete paralysis of either femoral nerve to warrant a higher rating. Indeed, it is worth noting that on most recent VA examinations in October 2019 and February 2020, femoral involvement was not found, suggesting the involvement is far less than complete paralysis. As such, the Board finds that the currently assigned 30 percent rating for each lower extremity for bilateral lower extremity radiculopathy involving the femoral nerve are appropriate and higher ratings are not warranted. In sum, the Board finds that a rating higher than 20 percent for the Veteran’s low back disorder prior to April 20, 2015, is not warranted. Since June 1, 2015, a rating higher than 40 percent is not warranted. An earlier effective date of December 9, 2014, is warranted for the grant of a separate rating for the Veteran’s left lower extremity radiculopathy; and an earlier effective date of February 17, 2015, is warranted for the grant of a separate rating for the Veteran’s right lower extremity radiculopathy. The currently assigned ratings for the bilateral lower extremity radiculopathy impacting the sciatic and femoral nerves are appropriate and higher ratings are not warranted at any point during the appeal period. Entitlement to a TDIU prior to January 28, 2011. TDIU is warranted when a veteran’s service-connected disability or disabilities result in impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). As noted above, the Veteran is in receipt of a TDIU from July 28, 2011. Thus, the only issue before the Board is whether a TDIU is warranted prior to date that. Prior to July 28, 2011, the Veteran was service-connected for a low back disability, rated as 20 percent disabling. This was his only service-connected disability. Thus, he does not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU as he does not have a single service-connected disability ratable at 60 percent or more. Therefore, he is not entitled to TDIU, as a matter of law. Although the Veteran does not meet the schedular requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a), it must still be determined whether his service-connected disabilities preclude him from engaging in substantially gainful employment on an extraschedular basis. See 38 C.F.R. § 4.16(b). The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When considering all of the evidence of record, the Board finds that prior to July 28, 2011, the Veteran’s service-connected low back disability did not render him unable to secure and follow substantially gainful employment. Referral for extraschedular consideration is not warranted. On his Application for Increased Compensation Based on Unemployability submitted in June 2018, the Veteran reported last working in September 2009. At that time, he had retired as a Correctional Sergeant from a Miami-Dade County Detention Center. The Veteran indicated that since his last employment in September 2009, he had not attempted to obtain other employment. His application shows that he has a high school diploma. The Board has considered the job duties of a correctional sergeant, which according to the State of Florida, include supervising the staff and activities in a security detention facility; maintaining facility security through regular inspections; maintaining established staffing levels by arranging staff work schedules, shift coverage, and overtime approval; insuring that detention staff are fully trained and that proper conduct, actions and procedures are followed; reviewing written reports prepared by Supervising Detention Officers; evaluating the work performance of detention facility staff; handling a variety of employee problems such as discipline, grievances and time off requests; supervising the screening and classifying of inmates; assisting in the development, implementation and monitoring of programs to modify inmates’ attitudes and behaviors, such as vocational and academic education; acting as a liaison with medical staff for resolving inmate health care concerns; coordinating and acting as a liaison with inmate self-help programs, such as alcohol and drug treatment programs; investigating a variety of inmate involved incidents, violations of policies, irregular or suspicious occurrences, and take or recommend inmate discipline as appropriate; conferring with the Lieutenant on the status of activities in the facility; and assisting in developing, organizing, directing and evaluating the effectiveness of a correctional program. Essentially, this position would require the Veteran to perform mostly sedentary work as well as work that would sometimes require him to be on his feet. Merriam-Webster online dictionary defines “sedentary” as (a) “doing or requiring much sitting” or (b) “not physically active.” https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). As noted above, prior to July 28, 2011, the evidence shows that the Veteran’s low back disability caused him to have pain. On VA examination in October 2012, regarding his functional impairment, the Veteran reported he “is constantly having pain when doing simple tasks around the house such as washing the dishes, taking out the trash, bring[ing] grocery bags in the house and doing laundry.” He reported it being difficult for him to stand in place or walk a great distance without any pain. He did not report any impairment related to sitting. Social Security records include a note from the Veteran’s doctor stating that he first began seeing the Veteran in March 2010. In an April 2013 letter, the Veteran’s doctor stated that his low back issues were debilitating but did not comment on the Veteran’s ability to perform sedentary work. Further, it is unclear, when comparing the October 2012 VA examination, when this pain began to become “debilitating.” Indeed, VA treatment records from May 2013 document that the Veteran presented for back pain, which was worse with bending and movement involving the back, however, the Veteran reported the pain improving with sitting and at bedtime. VA treatment records from July 2013 show that the Veteran’s low back pain was managed with over-the-counter medications by his outside physician. Although the Board acknowledges that the Veteran’s low back pain did cause impairment, the Board finds that the evidence of record does not show that the Veteran would not be able to perform the duties required by a correctional sergeant, which is largely sedentary employment. The evidence of record shows that the Veteran’s low back pain was made better with sitting. No impairment of the Veteran’s ability to remain largely sedentary was found. In addition, although the Veteran would sometimes experience back pain while standing, when considering the Veteran’s work experience, the Board does not find that his low back pain was so impairing such that it would render him unable to follow substantially gainful employment. This is supported by the October 2012 VA examiner’s finding that, at the time, the Veteran’s low back disability did not impact his ability to work. Given the varied duties of a correctional sergeant, it is reasonable to assume that the Veteran would be able to sit and perform other job duties if his back began to hurt as a result of standing. As such, the Board finds that the preponderance of the evidence is against finding that prior to July 28, 2011, the Veteran’s service-connected low back disability precluded him from securing and following substantially gainful employment.   Referral for extraschedular consideration is not warranted and the claim for a TDIU prior to July 28, 2011, must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.