Citation Nr: 21001743 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-33 403 DATE: January 11, 2021 ORDER A compensable rating prior to December 2, 2019, and a disability rating higher than 10 percent thereafter, for right hip limitation of extension is denied. A compensable disability rating for left hip limitation of extension is denied. A disability rating higher than 10 percent prior to September 17, 2019, higher than 20 percent prior to December 2, 2019, for right hip limitation of flexion, and a compensable rating thereafter is denied. A disability rating of 10 percent, as of September 17, 2019, for left hip limitation of flexion is granted; however, a disability rating in excess of 10 percent is not warranted at any time during the appeal period. A compensable disability rating prior to September 17, 2019, for right hip impairment of thigh, is denied; as of September 17, 2019, a 10 percent rating, but no higher, is granted. A compensable disability rating prior to September 17, 2019, and a disability rating higher than 10 percent thereafter for left hip impairment of thigh, is denied. A disability rating higher than 20 percent for degenerative joint disease of lumbosacral spine (“low back disability”) is denied. REMANDED Entitlement to a compensable rating prior to September 17, 2019 and a rating higher than 10 percent thereafter for radiculopathy of the right lower extremity sciatic nerve is remanded. Entitlement to a compensable rating prior to September 17, 2019 and a rating higher than 10 percent thereafter for radiculopathy of the left lower extremity sciatic nerve is remanded. Entitlement to a compensable rating prior to September 17, 2019 and a rating higher than 10 percent thereafter for radiculopathy of the left lower extremity femoral nerve is remanded. Entitlement to a compensable rating prior to September 17, 2019 and a rating higher than 10 percent thereafter for radiculopathy of the left lower extremity femoral nerve is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 17, 2019, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. As of December 2, 2019, the Veteran’s right hip limitation of extension most nearly approximates painful motion on extension. 2. At no time during the appeal period did the Veteran’s left hip limitation of extension result in a compensable rating under Diagnostic Code 5251, and painful motion on flexion has been assigned a compensable rating. 3. Between September 17, 2019 and December 1, 2019, the Veteran’s right hip limitation of flexion most nearly approximates flexion limited to 30 degrees; between March 2013 to September 16, 2019, the right hip limitation of flexion most nearly approximates painful motion on flexion; as of December 2, 2019 the right hip limitation of flexion did not result in a compensable rating under Diagnostic Code 5252, and painful motion on extension has been assigned a compensable rating. 4. During the entire appeal period, the Veteran’s left hip limitation of flexion most nearly approximates painful motion on flexion. 5. As of September 17, 2019, the Veteran’s right hip impairment of thigh most nearly approximates limitation of adduction where he is unable to cross his legs. 6. As of September 17, 2019, the Veteran’s left hip impairment of thigh most nearly approximates limitation of adduction, where he is unable to cross his legs. 7. The Veteran’s low back disability was manifested by painful limitation of motion with forward flexion, at worst, to 65 degrees, but without favorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior December 2, 2019, and in excess of 10 percent thereafter, for right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 2. The criteria for a compensable rating for left hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5251. 3. The criteria for a disability rating higher than 10 percent prior to September 17, 2019, higher than 20 percent prior to December 2, 2019, and a compensable rating thereafter for right hip limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5252. 4. As of September 17, 2019, the criteria for a disability rating of 10 percent, but no higher, for left hip limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 5. The criteria for a compensable disability rating prior to September 17, 2019, for right hip impairment of thigh have not been met; however, the criteria for a 10 percent disability rating as of September 17, 2019, but no higher, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5253. 6. The criteria for a compensable disability rating prior to September 17, 2019, and a disability rating higher than 10 percent thereafter for left hip impairment of thigh have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5253. 7. The criteria for a disability rating in excess of 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in a June 2019 Travel Board hearing. The Board remanded the matters in June 2019 for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. As will be explained below, the Board finds that an additional remand is needed for the TDIU claim. After the June 2019 Board remand, the RO issued an August 2020 rating decision wherein it granted service connection for radiculopathy of the bilateral sciatic nerves and femoral nerves, assigning a 10 percent rating for each, with an effective date September 17, 2019. These issues are part and parcel to the increased rating appeal for the Veteran’s low back disability. As such, the Board has also assumed jurisdiction of these issues. These issues are being remanded and will be discussed below. In the December 2017 rating decision, when assessing the increased rating claims for the right hip disability and left hip disability, the RO assigned separate ratings for impairment of the thigh of the right hip and of the left hip. In the August 2020 rating decision, the RO assigned separate ratings for limitation of extension for the right hip and the left hip. As such, as reflected in the title page, the Board will assess all now six separately rated disabilities of the hips to determine if higher ratings are warranted at any time during the appeal period. Increased Rating Appeal period The Veteran filed his claims for increased disability ratings in March 2013. Under the governing law and regulations, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one-year period, an increase in a disability was factually ascertainable. See 38 C.F.R. § 3.400(o). As such, the appeal period commences March 2013. and the Board will discuss any substantive evidence of record dated as of March 2012. General Legal Criteria Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R.§ 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Hips Legal Criteria Disabilities of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a. Normal hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5253, a 10 percent disability evaluation is assigned for limitation of thigh rotation, with an inability to toe-out in excess of 15 degrees or where there is limitation of adduction such that one cannot cross legs. A 20 percent disability evaluation is warranted for limitation of thigh abduction, where motion is lost beyond 10 degrees. Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher evaluation, a 20 percent rating, there must be limitation of flexion to 30 degrees. Limitation of thigh flexion to 20 degrees warrants a 30 percent rating, and limitation of flexion to 10 degrees warrants a 40 percent rating. Under Diagnostic Code 5251, a maximum 10 percent disability evaluation is warranted where there is limitation of extension of the thigh to 5 degrees. Diagnostic Codes 5003 and 5010 pertains to arthritis. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. Under Diagnostic Code 5003, the hip disability may be rated under provisions for evaluating arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In the absence of limitation of motion, rate as 10 percent with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and rate at 20 percent with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. Pyramiding The Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, the assignment of separate ratings based on limitation of extension, limitation of flexion, and abduction, adduction or rotation of the hips would not amount to pyramiding under 38 C.F.R. § 4.14. Separate evaluations are permitted under Diagnostic Codes 5251, 5252, and 5253 and do not constitute pyramiding if they represent distinct disabilities/impairment. Diagnostic Codes 5003 and 5010 provide that where limitation of motion of joint(s) is noncompensable under diagnostic codes specific to the involved joint(s), a compensable evaluation can be assigned for the limitation of motion if objectively confirmed by findings such as satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a. In contrast, 38 C.F.R. § 4.59 provides an alternate basis for assigning a compensable evaluation for disabilities rated under those diagnostic codes on the basis of credible lay evidence of painful motion. The minimum compensable evaluation may be assigned under 38 C.F.R. § 4.59 based on subjective painful motion and does not require objective evidence of painful motion, unlike Diagnostic Codes 5003 and 5010 that require objective evidence of painful motion. Assigning multiple compensable evaluations for pain is pyramiding. Plainly stated, the Veteran’s limitation of motion should not result in a compensable rating under Diagnostic Codes 5251, 5252, or 5253 and simultaneously under 38 C.F.R. § 4.71a or 38 C.F.R. § 4.59. Evidence VA correspondence submitted April 2014 shows that VA examinations were scheduled for March 2014 and that the Veteran did not show. VA treatment records dated between April 2013 and August 2017 show complaints and treatment for his hips. A VA Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ) was performed in August 2017. A 1987 diagnosis of degenerative joint disease of the bilateral hips was indicated. He reported bilateral hip pain. His treatment included injection, tramadol, and methocarbamol. He did not report flare ups. Right hip range of motion testing (ROM) revealed flexion 0 to 120 degrees, extension 0 to 30 degrees, abduction 0 to 45 degrees, adduction 0 to 25 degrees, external rotation 0 to 45 degrees, and internal rotation 0 to 40 degrees. Pain was noted at flexion and external rotation. The pain noted did not result in functional loss. Adduction was not limited such that the Veteran could not cross his legs. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The objective evidence was described as a grimace, with mild severity. There was no evidence of pain with weight bearing or objective evidence of crepitus. Left hip range of motion testing revealed flexion 0 to 120 degrees, extension to 0 to 30 degrees, abduction 0 to 45 degrees, adduction 0 to 25 degrees, external rotation 0 to 55 degrees, and internal rotation 0 to 40 degrees. Adduction was not limited such that the Veteran could not cross his legs. Pain was noted at flexion and external rotation. The pain noted did not result in functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or objective evidence of crepitus. He was able to perform repetitive use with at least three repetitions in both hips, with no additional loss of function or range of motion after three repetitions in either hip. Muscle strength testing was normal, in flexion, extension, and abduction in both hips. There was no evidence of muscle atrophy or ankylosis in either hip. The examiner concluded that the Veteran did not have malunion, or nonunion of the femur, flail hip joint, or leg length discrepancy in either hip. The Veteran did not use any assistive devices. There was no objective evidence of pain on passive range of motion testing, or of pain when the joint is used in non-weight bearing in either hip. In September 2019, the Veteran underwent a VA Hip and Thigh Conditions DBQ examination. The examiner diagnosed degenerative arthritis and degenerative joint disease of both hips with impairment of the thigh. The diagnosis date for both disabilities was listed as September 2019, the date of the VA examination. The Veteran reported constant, sharp bilateral hip pain. His treatment included 500 mg of Tylenol, taken three times a day. He reported not being able to stand or walk for more than a block without having to stop for a rest. He reported flare ups. He described the flare-ups as “I cannot do anything because of the bad pain.” Functional loss or functional impairment was described as “cannot walk nor stand due to bilateral hip pain.” Right hip range of motion testing revealed flexion 0 to 30 degrees, extension 0 to 10 degrees, abduction 0 to 30 degrees, adduction 0 to 10 degrees, external rotation 0 to 30 degrees, and internal rotation 0 to 25 degrees, with pain noted in each range. Adduction was limited such that the Veteran was unable to cross his legs. He had pain noted on examination on rest/non-movement. There was no objective evidence of localized tenderness, pain on palpation, or crepitus. There was evidence of pain with weight bearing. Left hip range of motion testing revealed flexion 0 to 60 degrees, extension 0 to 10 degrees, abduction 0 to 35 degrees, adduction 0 to 10 degrees, external rotation 0 to 30 degrees, and internal rotation 0 to 25 degrees, with pain noted in each range. Adduction was limited such that the Veteran was unable to cross his legs. He had pain noted on examination on rest/non-movement. There was no objective evidence of localized tenderness or pain on palpation, or of crepitus. There was evidence of pain with weight bearing. Following three repetitions there was no additional loss of function or range of motion. Pain, weakness, fatigability, or coordination did not significantly limit functional ability with repeated use over a period of time or with flare ups. Additional factors contributing to disability were noted for both hips. These factors were listed as disturbance of locomotion, interference with sitting, and interference with standing. The disturbance of locomotion was described as the more the Veteran walks, the greater the pain, which requires him to sit down. If he forces himself to walk his thighs will cramp up. The interference with sitting was described as prolonged sitting that causes his hips to hurt, forcing him to get up or reposition himself. The interference with standing was described as prolonged standing that causes pressure on his hips. Muscle strength testing was active movement against gravity (3/5), in flexion, extension, and abduction. There was no evidence of muscle atrophy or ankylosis in either hip. The examiner indicated the Veteran did not have malunion, or nonunion of the femur, flail hip joint, or leg length discrepancy in either hip. He used a cane on a constant basis and a walker on a regular basis. The cane and walker were used to provide balance and stability due to the degenerative arthritis of bilateral hips and back. Imaging studies were performed and showed arthritis of the bilateral hips. The examiner concluded that the Veteran’s bilateral hip disabilities impacted his ability to perform any type of occupational task. He would lose two to four weeks of work time in a 12-month span. He is a retired truck driver. The impact was described as not able to sit or stand for extended periods of time due to his hips and back. There was objective evidence of pain on passive range of motion testing and of pain when the joint is used in non-weight bearing in both hips. A VA Hip and Thigh Conditions DBQ examination was performed in December 2019. A 2017 diagnosis of ostearthritis of the both hips was indicated. Flare-ups were not reported. The Veteran described functional loss or functional impairment as pain in hips with walking. Right hip range of motion testing revealed flexion 0 to 65 degrees, extension 0 to 20 degrees, abduction 0 to 30 degrees, adduction 0 to 5 degrees, external rotation 0 to 40 degrees, and internal rotation 0 to 30 degrees, with pain noted in each range. Adduction was not limited such that the Veteran was unable to cross his legs. He had pain noted on examination that did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation or of crepitus. There was evidence of pain with weight bearing. Left hip range of motion testing revealed flexion 0 to 70 degrees, extension 0 to 15 degrees, abduction 0 to 30 degrees, adduction 0 to 10 degrees, external rotation 0 to 40 degrees, and internal rotation 0 to 30 degrees, with pain noted in each range. Adduction was not limited such that the Veteran was unable to cross his legs. He had pain noted on examination that did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation, or of crepitus. There was evidence of pain with weight bearing. Following three repetitions there was no additional loss of function or range of motion. Pain, weakness, fatigability or incoordination did significantly limit functional ability with repeated use over a period of time. Pain and lack of endurance were the factors that caused this functional loss. The examiner stated that she was able to describe the functional loss in terms of ROM. However, the listed ROM for both the right hip and the left hip are the exact same ROM as the initial ROM listed. Additional factors contributing to disability were noted for both hips. These factors were listed as disturbance of locomotion, interference with sitting, and instability of station. These additional factors were described as pain with sitting and standing. The Veteran walked with a cane and with an antalgic gait. Muscle strength testing was normal in flexion, extension, and abduction. There was no evidence of muscle atrophy or ankylosis in either hip. The examiner indicated the Veteran did not have malunion, or nonunion of the femur, flail hip joint, or leg length discrepancy in either hip. He used a cane on a regular basis. He walked with a cane due to the pain in hips, back, and knees. Imaging studies were not performed, or the results were not available. The Veteran’s bilateral hip disabilities impact his ability to perform any type of occupational task. The impact was described as pain with walking, sitting, and standing. He walked with a cane with an antalgic gait. There was objective evidence of pain on passive range of motion testing and of pain when the joint is used in non-weight bearing in both hips. The examiner confirmed the diagnosis of degenerative joint disease of the bilateral hips. The examiner provided opinions responsive to the June 2019 remand directives. The examiner stated that the Veteran’s has decreased ROM in his back and both hips. He walked with a cane and with an antalgic gait. He also had pain with sitting as well. He would have difficulty holding a job due to the antalgic gait. He also could not sit for any period due to hip pain. He should be able to care for himself on a day-to-day basis. However, he most likely would need a little help with keeping his house clean. Analysis -Right hip limitation of extension; Left hip limitation of extension The Veteran’s right hip limitation of extension is rated as noncompensable as of September 17, 2019 and 10 percent as of December 2, 2019. The Veteran’s left hip limitation of extension is rated as noncompensable as of September 17, 2019. The Veteran’s bilateral hip limitation of extension is rated under Diagnostic Codes 5003-5251. During an August 2020 rating decision, the RO granted service connection for the bilateral hips, limitation of extension, assigning the effective date of September 17, 2019, stating that this is date the record first showed definite impairment. The RO found that a noncompensable ratings were appropriate as extension was not limited to 5 degrees in either hip. The RO assigned a 10 percent rating for the right hip, as of December 2, 2019, stating that severe impairment was shown and pain on movement indicated. Upon review of the evidence, the Board finds that the currently assigned ratings of 10 percent for the right hip limitation of extension as of December 2, 2019 and a noncompensable rating for the left hip limitation of extension as of September 17, 2019 is warranted. The RO assigned a 10 percent rating for the right hip limitation of extension, as of December 2, 2019, stating that severe impairment was shown and pain on movement indicated. The Board agrees that pain on movement was indicated in the right hip. The RO assigned a 10 percent rating, as it is the minimal rating under Diagnostic Code 5251 and extension to 5 degrees was not shown, but painful motion under 38 C.F.R. § 4.59 was indicated. The RO felt it appropriate to assign a compensable rating under Diagnostic Code 5251 for the right hip. As such, the Board will not disturb this rating. As extension was normal in the right hip prior to September 2019, the Board finds that September 17, 2019 is the earliest date a compensable rating could have been assigned. Additionally, the Board finds that despite there being a limitation of extension in the right hip, a 10 percent rating is not permitted under Diagnostic Code 5251 as of September 17, 2019. As extension was not limited to 5 degrees at any point the in the appeal period of the right hip, the only avenue in assigning a compensable rating for limitation of extension would be to consider pain on movement. As will be explained in the section below regarding flexion, the Veteran’s limitation of flexion was rated as 10 percent disabling from March 2013 to September 2019, based on painful motion. Given that the Veteran was in receipt of a compensable rating based on painful motion prior to December 2019, the Board is prohibited in assigning a compensable rating for painful motion on extension. As such, the Board finds that the currently assigned rating of 10 percent, but no higher, as of December 2, 2019 is warranted for the right hip based on painful motion at extension. A higher rating is not warranted, as a 10 percent rating is the maximum evaluation for limitation of extension of the hip under Diagnostic Code 5251. Consequently, an evaluation in excess of 10 percent cannot be granted under this Diagnostic Code. Additionally, as limitation of extension is not to 5 degrees, the 10 percent assigned is the rating permitted when based on painful motion. With respect to the left hip, the Board finds that a compensable rating is not warranted at any time during the appeal period as extension was not limited to 5 degrees and granting a rating based on painful motion would equate to pyramiding. Pain on movement due to limitation of extension is shown in the left hip, as early as September 2019. Comparing the August 2017 VA examination to the September 2019 VA examination, decreased extension is reflected in the left hip as extension was limited to 10 degrees. Pain was noted at extension. The Veteran reported flare-ups and sharp pain bilaterally. Of note, limitation of extension appears less severe when reviewing the most recent VA examination report, dated December 2019. The ROM for the left hip was 0 to 15 degrees. Pain was noted on examination, in extension, in both hips. However, the Veteran denied flare-ups. All this said, the Board finds that extension was normal in the left hip prior to September 2019. Additionally, the Board finds that although pain was noted on extension, a compensable degree is not warranted as extension was not limited to 5 degrees. As described above when analyzing the right hip, the Board finds that assigning a compensable rating for extension based on painful motion prior to December 2, 2019, would constitute pyramiding given that the Veteran was in receipt of 10 percent rating based on painful motion for flexion. The Board acknowledges that the ratings for flexion of both hips were decreased to 0 percent. However, as will be discussed below, these ratings are not considered reductions under 38 C.F.R. § 3.105(e) and the Board is assigning a 10 percent rating for the left hip, flexion as of September 17, 2019. The preponderance of the evidence is against the Veteran’s claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 Separate ratings under other applicable diagnostic codes are assigned for the hips and will be discussed below. Analysis -Right hip limitation of flexion; Left hip limitation of flexion The Veteran’s right hip limitation of flexion is rated at 10 percent prior to September 17, 2019, at 20 percent prior to December 2, 2019, and as noncompensable thereafter. The Veteran’s left hip limitation of flexion is rated at 10 percent prior to September 17, 2019 and as noncompensable thereafter. The Veteran’s bilateral hip limitation of flexion is rated under Diagnostic Codes 5003-5252. During the course of the appeal for increased ratings for the bilateral hips, the Agency of Original Jurisdiction (AOJ) reduced Veteran’s ratings for the disabilities relating to limitation of flexion. In the August 2020 rating decision, the RO increased the disability rating for the right hip from 10 to 20 percent, assigning the effective date of September 17, 2019. The RO assigned that effective date, stating that this is the date of the VA examination that showed additional decrease in flexion, and stated it was warranted for arthritis of the hip, the maximum allowed. The RO then decreased it to zero percent, assigning an effective date December 2, 2019, stating there was improvement of flexion. The RO decreased the disability rating for the left hip from 10 percent to zero percent, assigning the effective date of September 17, 2019, stating that this is date of the VA examination that showed improvement of flexion. Despite the RO technically decreasing the disability ratings for flexion, the Board finds that these do not equate to reductions as contemplated by 38 C.F.R. § 3.105(e). The decreased ratings for flexion were simultaneously ordered along with an increased rating for the right hip for extension and done in an effort to apply the correct diagnostic code while preventing the issuance of ratings that would amount to pyramiding. As described above, the RO decreased flexion of the right hip to zero percent effective December 2, 2019. However, in addition, the RO also assigned a compensable rating of 10 percent for the extension of the right hip, with an effective date of December 2, 2019. The RO’s selection of assigning a compensable rating under Diagnostic Code 5251 in place of Diagnostic Code 5252 is not contrary to any regulatory prohibitions against changes in protected ratings or other reductions in ratings. The 10 percent rating was in effect from June 18, 2003 to September 12, 2019, fewer than 20 years, and therefore was not protected under 38 C.F.R. § 3.951(b). See Murray v. Shinseki, 24 Vet. App. 420 (2011). The selection of a particular diagnostic code “is a determination that is completely dependent upon the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). It is within the RO’s discretion to provide a compensable rating for the Veteran’s right hip under Diagnostic Code 5251 in place of Diagnostic Code 5252 as of December 2, 2019, as the selection of a specific diagnostic code is wholly based on the facts of a particular case. The Board notes that as of December 2, 2019 the neither the Veteran’s limitation of flexion, nor his limitation of extension of the right hip, warrants compensable ratings under Diagnostic Codes 5251 or 5252. As stated above, the RO assigned a 10 percent rating for the right hip, as of December 2, 2019, based on severe impairment and pain on movement. This in essence is granting the minimum (and in this case the maximum) compensable rating of 10 percent under Diagnostic Code 5251 and 38 C.F.R. § 4.59 for painful motion on extension. As there is a compensable rating in place for the right hip based on painful motion, the Board is prohibited from assigning a compensable rating for flexion as it would constitute pyramiding. For the left hip, as stated above, the RO decreased the disability rating from 10 percent to zero percent, assigning the effective date of September 17, 2019, stating that this is date of the VA examination that showed improvement of flexion. Unlike the right hip, the RO did not also assign a compensable rating for extension. However, the same analysis is applicable with respect to the RO’s discretion to assign a noncompensable rating. The 10 percent rating was in effect from June 18, 2003 to September 12, 2019, fewer than 20 years, and therefore was not protected under 38 C.F.R. § 3.951(b). See Murray, supra. As of September 17, 2019, neither the Veteran’s limitation of flexion, nor his limitation of extension of the left hip, warrant compensable ratings under Diagnostic Codes 5251 or 5252. The RO assigned an initial disability rating of 10 percent rating for the left hip, under Diagnostic Codes 5299 to 5255, stating there was no diagnostic code specific to this disability, so the RO applied codes as analogous to the left hip disability. The RO continued the 10 percent rating in the April 2014 rating decision, stating that 10 percent was warranted based on Diagnostic Codes 5252-5010, finding that the evidence showed arthritis. As Diagnostic Code 5010 requires objective evidence of painful motion, this is in essence what the RO found when keeping the 10 percent rating. In the most recent rating decision dated August 2020, the RO decreased the 10 percent 0 percent, citing an improvement in extension. Having concluded that the RO had the discretion to assign noncompensable rates for the right hip flexion as of December 2, 2019 and for the left hip flexion as of September 17, 2019, the Board now shifts to whether compensable ratings are warranted as of December 2, 2019 and as of September 17, 2019, respectively and whether ratings in excess of 10 percent would be appropriate for the right hip any time during the appeal period (to exclude the time from March 2013 to September 16, 2019, as he is rated at 20 percent) and at any time during the appeal period for the left hip. The evidence does not indicate that a compensable rating is warranted for either the right hip or left hip limitation of flexion prior to September 17, 2019. Specifically, the August 2017 VA examination (and the VA treatment records) do not show flexion limited to 45 degrees. Also, of note, there is no indication of a diagnosis of arthritis prior to September 17, 2019. As such a compensable rating for either hip is not warranted under Diagnostic Codes 5003 or 5010. The Board also notes that the Veteran did not report flare-ups during the August 2017 VA examination and there was no functional loss indicated after performing three repetitions. From September 17, 2019 to December 1, 2019, the Veteran has been in receipt of a 20 percent rating for the right hip as the RO assigned the maximum allowed under Diagnostic Code 5003. The RO assigned a 20 percent rating for the right hip as of September 17, 2019 stating that there was evidence indicating x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The Board is unclear as to what evidence specifically illustrates involvement of two joints or of incapacitating exacerbations, but will not disturb the rating. As the Veteran has been receipt of the maximum rating of 20 percent for his right hip between September 17, 2019 and December 1, 2019, the Board will not disturb this rating and will not provide a lengthy analysis as to why a rating in excess of 20 percent is not warranted. The Board recognizes that the maximum allowed under Diagnostic Code 5252 exceeds 20 percent. However, the VA examination of record and the VA treatment records do not show flexion limited 20 degrees, or flexion limited to 10 degrees. As such, a higher rating is not warranted for the right hip under Diagnostic Code 5252. As the Veteran is in receipt of the maximum rating under Diagnostic Code 5003, a higher rating is not permitted between September 17, 2019 and December 1, 2019. Prior to September 17, 2019, the Board finds that a rating higher than 10 percent is not warranted for the right hip or for the left hip. The RO assigned 10 percent ratings, under Diagnostic Code 5010, basing it on previously noted symptoms of x-ray evidence of traumatic arthritis along with any limitation of motion of the joint. 10 percent is the maximum allowed under this Diagnostic Code. There is no evidence prior to warrant higher ratings under Diagnostic Codes 5003 or 5252. Specifically, the record does not show x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations or flexion limited to 30 degrees. As there is painful motion indicated for the right hip and the left hip, a minimum rating of 10 percent is warranted. However, as stated above the Veteran has been assigned a 10 percent rating for the right hip for painful motion at extension, as of December 2, 2019. As he is in receipt of this rating the Board will not assign an additional rating for flexion as it would be pyramiding. For the left hip the Board will grant a 10 percent rating for painful motion at flexion as there is no compensable rating in place as of September 17, 2019. The right hip will remain at the noncompensable rating as of December 2, 2019 and the left hip is granted a 10 percent rating as September 17, 2019. As detailed above, the Board finds that ratings in excess of 10 percent is not warranted for either the right hip anytime during the appeal period, not to include the period of time where the Veteran’s right hip flexion was rated at 20 percent. Analysis -Right hip impairment of thigh; Left hip impairment of thigh The Veteran’s right hip thigh impairment disability is rated as noncompensable prior to September 17, 2019, at 10 percent prior to December 2, 2019, and noncompensable thereafter. The Veteran’s left hip thigh impairment disability is rated as noncompensable prior to September 17, 2019 and 10 percent thereafter. The Veteran’s bilateral hip thigh impairment disability is rated under Diagnostic Codes 5003-5253. In the December 2017 rating decision, the RO granted service connection for bilateral hip disability, impairment of thigh, and assigned an effective date of August 29, 2017 with the noncompensable ratings. August 2017 is the date of the VA examination that showed separate noncompensable evaluations are warranted. In the August 2020 rating decision, the RO increased the ratings from zero percent to 10 percent for both hips with an effective date of September 17, 2019, the date of the VA examination that showed an increased limitation of adduction. The RO also assigned a noncompensable rating for the right hip, with an effective date of December 2, 2019, stating that is the date of the VA examination that showed improvement in adduction. The assignment of a noncompensable rating for the right hip is not considered a reduction as contemplated by 38 C.F.R. § 3.344. The rating decision that first assigned the right hip thigh impairment a compensable rating is the same decision that provided the initial staged ratings. As such, the issue of whether reduction was proper is not applicable. According to examination findings in 2017, limitation was not such that abduction was lost beyond 10 degrees and limitation of adduction was not such that the Veteran was unable to cross his legs. The Board recognizes that there was indication of slight limitation of external rotation in both hips. However, this limitation does not result in compensable ratings as rotation was not limited such that the Veteran was unable to toe out more than 15 degrees in either hip. As such, the Board finds that the noncompensable ratings for both hips (impairment of thigh) prior to September 17, 2019 are proper. According to examination findings in September 2019, abduction was to 30 degrees, adduction was to 10 degrees, external rotation was to 30 degrees, and internal rotation was to 25 degrees in the right hip. In the left hip abduction was to 35 degrees, adduction was to 10 degrees, external rotation was to 30 degrees, and internal rotation was to 25 degrees. Adduction was limited such that the Veteran was unable to cross his legs. As such the currently assigned 10 percent ratings for both hips as of September 17, 2019 is proper. The examination report does not illustrate limitation of abduction of motion lost beyond 10 degrees so ratings in excess of 10 percent are not warranted. According to the December 2019 examination findings abduction was to 30 degrees, adduction was to 5 degrees, external rotation was to 40 degrees, and internal rotation was to 30 degrees in the right hip. In the left hip abduction was to 30 degrees, adduction was to 10 degrees, external rotation was to 40 degrees, and internal rotation was to 30 degrees. Adduction was not limited such that the Veteran was unable to cross his legs. For the right hip the RO assigned a noncompensable rating as of December 2, 2019 stating there was improvement. The Board recognizes that in comparing the December 2019 examination report to the September 2019 examination report, external rotation is improved by 10 degrees and adduction was no longer limited such that the Veteran was unable to cross his legs. As such, a review of these symptoms alone could support a noncompensable rating. However, the Board is charged with assessing the level of severity looking at the totality of circumstances. These reports are less than three months apart and although it reflects some improvement in adduction, it also shows increased severity in adduction. Additionally, of note, the RO did not disturb the 10 percent rating assigned to the left hip despite the December 2019 examination report showing improvement in external rotation. Resolving reasonable doubt in favor of the Veteran the Board finds that the symptomology is best represented by a 10 percent disability rating for the right hip thigh impairment. As such the Board finds that a 10 percent rating is warranted as of September 17, 2019 and that a noncompensable rating should not have been assigned as of December 2, 2019. As explained above, 10 percent ratings, but no higher, are warranted for both hips, thigh impairment as of September 17, 2019. Further, although he has reported pain on abduction and adduction, there is no indication that his reported pain and functional limitation caused by his bilateral thigh impairment disability further limits his abduction to a level approximating the 20 percent rating. 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 38. Importantly, separate ratings for painful abduction, adduction, and/or rotation may not be signed, as these are all evaluated under the same diagnostic code, Diagnostic Code 5253, and it is settled law that a single disability is not entitled to more than one disability rating within the same diagnostic code unless the regulation expressly provides otherwise. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Therefore, the Board finds that the Veteran’s bilateral hip disability, thigh impairment, does not warrant compensable evaluations prior to September 17, 2019, or a rating in excess of 10 percent thereafter. The Board highlights that the ratings assigned under Diagnostic Code 5253 do not constitute pyramiding as the symptoms warrant a compensable rating and the symptoms of limitation of adduction are separate and distinct from painful motion under 38 C.F.R. § 4.59. A 10 percent rating for right hip impairment of thigh is granted, as of September 17, 2019 and the 10 percent rating for the left hip impairment of thigh as of September 17, 2019 will remain. Accordingly, the preponderance of the evidence is against a finding of compensable ratings prior to September 17, 2019 and ratings in excess of 10 percent thereafter for impairment of thigh of the bilateral hips. Low back disability Legal Criteria The Veteran’s low back disability is rated as 20 percent disabling. The rating decision code sheet reflects that his low back disability is rated under Diagnostic Codes 5010-5295. Diagnostic Code 5295 was revised and moved to 5235-5243 in September 2003. The Veteran’s low back disability is rated under Diagnostic Codes 5235-5243. Ratings under the General Rating Formula are made 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. Under this formula, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or 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 (zero degrees) always represents favorable ankylosis. Intervertebral Disc Syndrome (IVDS) may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The question before is the Board is whether a rating higher than 20 percent is warranted at any time during the appeal period, to include separate and staged ratings. Evidence VA correspondence submitted April 2014 shows that VA examinations were scheduled for March 2014 and that the Veteran did not show. VA treatment records dated between April 2013 and August 2017 show complaints and treatment for low back pain. During the August 2017 VA Back (Thoracolumbar Spine) Conditions Disability and Benefits Questionnaire (DBQ), the Veteran described the symptom as low back pain without radiation. A 1987 diagnosis of degenerative joint disease was indicated. His treatment was described as having physical therapy in 2006 and taking methocarbamol and tramadol for pain. He did not report flare-ups. Upon physical examination the ROM was as follows: flexion at 0 to 90 degrees with 90 degrees being normal, extension at 0 to 20 degrees with 30 degrees being normal, right lateral flexion at 0 to 30 degrees with 30 degrees being normal, left lateral flexion at 0 to 30 degrees with 30 degrees being normal, right lateral rotation at 0 to 20 degrees with 30 degrees being normal, and left lateral rotation at 0 to 20 degrees with 30 degrees being normal. Pain was noted on exam, at extension, but did not result in functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was evidence of pain with weight bearing. With repeated performance, there was no additional limitation in ROM, and no functional loss/impairment was noted. There were no additional factors contributing to the disability. There was no indication of muscle spasm, guarding of the thoracolumbar spine, or muscle atrophy. Muscle strength testing was normal (5/5 strength throughout his lower extremities). Radicular pain or other signs or symptoms due to radiculopathy of the bilateral lower extremities was not indicated. Ankylosis of the spine was not shown. IVDS was not shown. He regularly used a cane. Imaging studies were not performed. There was no objective evidence of pain on non-weight bearing. The examiner concluded that the Veteran’s low back disability does not impact his ability to work. During the September 2019 VA Back Conditions DBQ, a September 2019 diagnosis of degenerative arthritis of the spine was shown. A September 2019 diagnosis of radiculopathy of the bilateral lower extremities was also shown. The Veteran described the symptoms as a constant sharp to dull low back pain that radiates to his lower thighs. The treatment was 500 mg of Tylenol for pain. No flare-ups were reported. The functional loss was described as unable to walk or stand for long periods of time (more than a block). Upon physical examination the ROM was as follows: flexion at 0 to 65 degrees with 90 degrees being normal, extension at 0 to 15 degrees with 30 degrees being normal, right lateral flexion at 0 to 20 degrees with 30 degrees being normal, left lateral flexion at 0 to 20 degrees with 30 degrees being normal, right lateral rotation at 0 to 15 degrees with 30 degrees being normal, and left lateral rotation at 0 to 15 degrees with 30 degrees being normal. The abnormal ROM itself did not contribute to functional loss. Pain was noted on exam, at each range except right lateral rotation and left lateral rotation extension. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. It was described as heavy pressure, in the lower back, with a severity level of 7 out of 10. There was evidence of pain with weight bearing. With repeated performance there was no additional limitation in ROM, and no functional loss noted. Muscle spasm and guarding of the thoracolumbar spine were indicated, resulting in abnormal gait or abnormal spine contour. The additional factors contributing to the disability were listed as disturbance of locomotion, interference with sitting, and interference with standing. The Veteran described disturbance of locomotion as excessive walking that causes the sensation like something is pulling his back down. Interference with prolonged sitting was described as pain in his lower back which forces him to stand to relieve the pain. Interference with standing was described as not being able to stand for periods of time because the feeling of heavy weight on his back. There was no indication of muscle atrophy. Muscle strength testing was normal in the ankle plantar flexion, ankle dorsiflexion, and great toe extension on both sides (5/5 strength) and 3/5 and 4/5 in the hip flexion and knee extension on both sides. Radiculopathy of the bilateral lower extremities was shown. There was moderate intermittent pain, moderate paresthesias and or/ dysesthesias, and moderate numbness. There was no indication of constant pain. The severity of the radiculopathy of both sides was described as moderate. Both the femoral nerves and sciatic nerves of the bilateral lower extremities were involved. Ankylosis of the spine was not shown. IVDS was not shown. He constantly used a cane and regularly used a walker. Imaging studies were performed, and arthritis was documented. There was no objective evidence of pain when the spine is in a non-weight bearing position at rest. The examiner concluded that the Veteran’s low back disability impacted his ability to work. He would lose two to four weeks of work time in a 12-month span. He is a retired truck driver. The impact was described as unable to sit or stand for extended periods of time due to his hips and back. During the December 2019 VA Back Conditions DBQ the Veteran described the functional loss or functional impairment as pain with walking and standing. He denied flare-ups. Upon physical examination the ROM was as follows: flexion at 0 to 70 degrees with 90 degrees being normal, extension at 0 to 30 degrees with 30 degrees being normal, right lateral flexion at 0 to 30 degrees with 30 degrees being normal, left lateral flexion at 0 to 30 degrees with 30 degrees being normal, right lateral rotation at 0 to 30 degrees with 30 degrees being normal, and left lateral rotation at 0 to 30 degrees with 30 degrees being normal. Pain was noted on exam, at forward flexion, but did not result in functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was evidence of pain with weight bearing. With observed repetitive use there was no additional limitation in ROM. Pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. Pain and lack of endurance were the listed factors that caused functional loss after repeated use over time. The examiner concluded that she would be able to describe it in terms of ROM. However, all the provided ROM were identical to those stated in the initial ROM, showing no additional limitation in ROM. There was no indication of muscle spasm or guarding of the thoracolumbar spine. The were no additional factors contributing to the disability shown. There was no indication of muscle atrophy. Muscle strength testing was normal (5/5 strength). Radiculopathy of the bilateral lower extremities was shown. There was severe intermittent pain and severe paresthesias and/or dysesthesias. There was no indication of constant pain or numbness. The severity of the radiculopathy of both sides was described as moderate. The sciatic nerves of the bilateral lower extremities were involved. Ankylosis of the spine was not shown. IVDS was not shown. He regularly used a cane. Imaging studies were not performed. The examiner indicated that passive ROM testing was not performed as it was not medically appropriate because it is not possible to do passive ROM of the lumbar spine. The back non-weight bearing testing could not be performed because the back is always weight bearing. For the VA established diagnosis of degenerative joint disease of lumbsacral spine the diagnosis is changed, and it is a progression of the previous diagnosis. He had x-rays that showed “DDD, DJD, and scoliosis in 2018.” The examiner concluded that the Veteran’s low back disability impacts his ability to work. The functional impact was described as pain bending over to pick up items from the floor. The examiner provided an opinion responsive to the June 2019 remand directives. The examiner stated that the Veteran’s has decreased ROM in his back and both hips. He walked with a cane and with an antalgic gait. He also had pain with sitting as well. The examiner noted he would have difficulty holding a job due to the antalgic gait. He also could not sit for any period due to hip pain. The examiner concluded that the Veteran should be able to care for himself on a day to day basis; however, he most likely would need a little help with keeping his house clean. Analysis After review of the evidence, the Board finds that the currently assigned rating of 20 percent for the back for the entire period on appeal is appropriate. The Board recognizes that the RO assigned a 20 percent for the low back disability with an effective date of June 22, 2000. When the Veteran filed for an increase in his disability rating in March 2013 the RO did not reduce the rating despite the August 2017 VA examination that showed flexion was normal. The totality of evidence most nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, even when considering the evidence of painful motion and functional loss. The preponderance of the evidence is against a finding supporting a higher rating under applicable diagnostic criteria under the General Rating Formula and Diagnostic Codes 5237 and 5242. There was no additional limitation of the range of motion on repetitive testing. Evidence of muscle spasm or guarding was not shown in the August 2017 or December 2019 examinations. The September 2019 examination report did show muscle spasm and guarding of the thoracolumbar spine, resulting in abnormal gait or abnormal spine contour. However, there was no indication of doctor prescribed bedrest due to IVDS or favorable ankylosis of the entire thoracolumbar spine. Therefore, a 40 percent disability rating could not be assigned. Again, the Veteran is not entitled to a higher disability because he did not have forward flexion of the thoracolumbar spine at 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine. As mentioned above, the range of motion for flexion in the August 2017 is more consistent with a 10 percent rating or noncompensable rating. The September 2019 and December 2019 examination reports appear to be more in line with a 10 percent rating. However, as stated above when looking at the totality of circumstances, the low back symptomatology is best reflected by a 20 percent rating. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran and has considered his reports of pain and the impact his low back disability has on his daily activities. The Board understands his belief that his symptoms warrant a disability rating in excess of 20 percent. However, he is not competent to determine whether his back disability warrants a rating higher than 20 percent. The Veteran denied flare-ups during all three VA examinations of record that fall withing the appeal period. Flexion was normal during the August 2017 VA examination. He was able to forward flex to 65 and to 70 degrees. Pain was noted during the examinations but did not result in functional loss. Disturbance of locomotion, interference with sitting, and interference with standing were described. The functional loss noted was described as pain and lack of endurance. Thus, the 20 percent rating assigned reasonably contemplates any flare-ups as may occur and is consistent with the spirit of Mitchell, supra. In sum, the most probative evidence of record does not support a rating in excess of 20 percent for the Veteran’s low back disability at any time during the appeal period. REASONS FOR REMAND Radiculopathy After reviewing the record, the Board finds that a remand is required in order to clarify when the Veteran was first diagnosed with radiculopathy in each lower extremity. Additionally, more development is needed in order to determine the level of severity throughout the appeal period. In the August 2020 rating decision, the RO granted service connection for radiculopathy of the bilateral lower extremities, assigning an effective date of September 17, 2019. This is the date of the first VA examination that shows a diagnosis of radiculopathy. A review of the record indicates that the Veteran was first diagnosed with radiculopathy during the September 2019 VA examination. However, there is evidence that illustrates possible symptoms consistent with radiculopathy prior to September 2019. There are VA treatment records dated between July 2012 and August 2016 that note the following symptoms: burning, tingling, numbness, and pain that radiates. An August 2020 VA opinion clearly confirms a diagnosis of radiculopathy. This examiner highlights a highly abnormal MRI from 2014 and concludes that one can safely say the Veteran has “bilateral lower extremity lumbar radiculopathy of both femoral and sciatic nerves.” The Board recognizes that August 2017 VA examination report is negative for radicular pain or any signs of radiculopathy. However, given the aforementioned, a remand is necessary to clarify how early the record supports diagnoses of radiculopathy and their level of severity throughout the appeal period. Additionally, the Board finds it curious that the RO has assigned ratings of 10 percent despite the September 2019 and December 2019 VA examination reports that describe symptoms more consistent with 20 percent disability ratings. TDIU The Board recognizes that the Veteran has been granted TDIU, with an effective date of September 17, 2019. This is the date the RO found that the Veteran first met the schedular threshold for the grant of a TDIU. This is not considered a full grant as the appeal period commences March 2013—the date increased rating claims were filed. Also, of note, the Veteran contends that he has been unemployed as early as 2000 or 2004. As such, the issue of whether TDIU is warranted prior to September 17, 2019 remains before the Board. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to September 17, 2019 the Veteran’s service-connected disabilities met a combined rating of 40 percent disabling. Nevertheless, in exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 4.16(b) and may only refer the claim to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Although the Veteran did not meet the schedular requirements for a TDIU prior to September 17, 2019, there is evidence in the record that his disabilities may have impacted his ability to maintain substantially gainful employment, namely VA medical treatment records dated March 2014, July 2017, and August 2018 that describe the impact the Veteran’s service connected disabilities have on his ability to work, to include a notation from a VA examiner that states the Veteran is considered unemployable for VA purposes. As such, this issue is referred to the Director, Compensation Service, for extraschedular consideration of TDIU. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for radiculopathy dated from March 2013 to the present. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and severity of his radiculopathy of the bilateral lower extremities. The Veteran’s electronic claims file should be made available to and reviewed by the examiner. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner should identify the severity of the radicular symptoms for each nerve and extremity. The examiner is advised that current level of severity includes any time as of March 2013 to the present. The examiner is asked to review all of the medical records of evidence and take the history of the Veteran and provide an opinion as to when he first exhibited symptoms consistent with radiculopathy of the right lower extremity and radiculopathy of the left lower extremity; describe the level of severity at the time, and the current level of severity of each disability. The examiner is asked to provide a complete rationale for any opinions expressed. 3. Refer the issue of extraschedular consideration of TDIU prior to September 17, 2019 to the Director, Compensation Service. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.