Citation Nr: 21002404 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-38 218 DATE: January 13, 2021 ORDER A rating in excess of 20 percent for the service-connected facet arthropathy and foraminal narrowing of L3-L5 (lumbar spine disability) prior to December 12, 2018 is denied, and a rating in excess of 40 percent thereafter, is denied. A rating in excess of 10 percent for right lower extremity radiculopathy prior to August 19, 2015 is denied; a 20 percent rating is granted effective August 19, 2015; and a rating in excess of 40 percent after December 12, 2018 is denied. An effective date prior to December 12, 2018, for the award of a 20 percent evaluation for left lower extremity radiculopathy is denied. An effective date prior to December 12, 2018 for the award of a 10 percent rating for the lower lumbar scar is denied. REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 12, 2018 is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability was not manifested by forward flexion of 30 degrees or less prior to December 12, 2018; was not manifested by ankylosis at any time; and did not include physician prescribed bed rest at any time. 2. The Veteran’s right lower extremity radiculopathy is shown as mild incomplete paralysis of the sciatic nerve prior to August 19, 2015, but is indicated as moderate on and since August 19, 2015. There is no indication of severe incomplete paralysis of the sciatic nerve or complete paralysis at any time. 3. In July 2017, the Regional Office (RO) issued a decision denying a rating in excess of 10 percent for the Veteran’s service-connected left lower extremity radiculopathy; this decision became final and there were no claims for increase and no factually ascertainable increases in the left lower extremity radiculopathy between July 2017 and December 12, 2018. 4. The Veteran’s lower lumbar scar rating arose from the increased rating claim for the lumbar spine disability; however the scar was not described as painful prior to December 12, 2018. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to December 12, 2018, and in excess of 40 percent thereafter, for the service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy prior to August 19, 2015 are not met; the criteria for a 20 percent rating and no more are met effective August 19, 2015; and the criteria for a rating in excess of 40 percent since December 12, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for an effective date prior to December 12, 2018, for the award of a 20 percent rating for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.124a, Diagnostic Code 8520. 4. The criteria for an effective date prior to December 12, 2018, for the award of a 10 percent rating for the painful scar, lower lumbar area, are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty from September 1986 to August 1987. The matters on appeal come before the Board of Veterans Appeals (Board) from various rating decisions. The Veteran provided testimony on the increased rating claims and TDIU claim before the undersigned Veterans Law Judge in June 2017. A transcript of that hearing is within the claims file. The Veteran later perfected his claims related to his hips, but did not request a hearing with regard to those claims. On the October 2019 VA Form 9 submitted in relation to the earlier effective date claims, the Veteran did request a Board videoconference hearing. That hearing was scheduled for a date in November 2020 and the Veteran was notified in October 2020. The Veteran did not appear. Further, in October 2020, the Veteran’s representative submitted a brief and noted it was a substitute for the scheduled Board hearing. The Veteran’s hearing request, therefore, is deemed withdrawn. As an initial matter, the Board recognizes that the Veteran submitted a February 2019 notice of disagreement (NOD) with a January 2019 rating decision, which, in pertinent part, assigned increased ratings for the lumbar spine and right lower extremity disabilities. Recently, the Veteran’s representative has indicated a belief that the lumbar spine rating should extend back to the date of the Veteran’s claim and the lower extremity radiculopathy rating should extend back to at least August 19, 2015. A review of the record reveals that the Regional Office (RO) treated these as separate appeals and issued a statement of the case (SOC) in September 2019. The Veteran then filed a VA Form 9 in October 2019. However, because the rating for the lumbar spine and right lower extremity are already under appeal, and those ratings will be addressed in this decision dating back to the Veteran’s September 2011 claim, the Board finds that addressing separate earlier effective date appeals for the lumbar spine and right lower extremity ratings would be inappropriate, as the matter is duplicative. Those two effective date claims, therefore, will not be discussed below. The other effective dates challenged in the February 2019 NOD are addressed in this decision. Increased Rating Lumbar Spine The Veteran was awarded service connection for mechanical low back pain by way of an October 1987 rating decision. An initial 10 percent rating was assigned. The rating was later increased to 20 percent, effective April 26, 2010. The rating at that time was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 and was based upon the Veteran’s limited motion. In a statement received on September 29, 2011, the Veteran filed a claim for increase. The Veteran then appealed the December 2012 rating decision, which continued the 20 percent rating assigned. The appeal has been pending since that time. In January 2014, the Regional Office (RO) issued a rating decision awarding a temporary 100 percent evaluation based upon treatment requiring convalescence. This 100 percent rating was effective September 9, 2013 until November 30, 2013, and the 20 percent rating was again effective December 1, 2013. More recently, in January 2019, the RO issued a rating decision increasing the Veteran’s lumbar spine rating to 40 percent, effective December 12, 2018. This rating was assigned under DC 5243 using the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The Veteran has not since indicated satisfaction with this appeal and the rating assigned does not represent the maximum rating available under either DC 5237 or DC 5243. The issue, therefore, remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The question before the Board is whether a schedular rating in excess of 20 percent is warranted prior to December 12, 2018, and whether a rating in excess of 40 percent is warranted thereafter. The period for which the Veteran is receiving a 100 percent rating will not be discussed in this analysis, since that is the maximum rating allowable for that time period. Diagnostic Code 5243 for IVDS provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Criteria) or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Id. at Note 1. Under the General Rating Criteria, the currently assigned 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. In this case, the Veteran is already service connected and receiving separate compensable ratings for his right and left lower extremity radiculopathy associated with his lumbar spine disability. The right lower extremity rating is discussed below. The left lower extremity rating is not on appeal other than the effective date assigned for the rating increase, which is discussed below. As is also noted below, the medical evidence does not show the presence of any other neurological abnormalities associated with the lumbar spine disability. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. Moving to the facts of this case, a July 2012 private physical report following a period of hospitalization shows the Veteran reporting progressively worse back pain with frequent falls. The Veteran denied any bowel or bladder incontinence associated with the back disability. The physician noted tenderness to palpation, but also noted that range of motion could not be tested due to pain. In a statement received the same month, the Veteran again reported a severe level of pain and falling frequently. The Veteran was then afforded a VA examination in October 2012. This examiner recognized the Veteran’s report that he experiences flare-ups of back pain, although what the Veteran described was the condition being “chronically flared up every day.” He reported wearing a TENS unit as necessary and taking pain medication daily. Physical examination at that time revealed forward flexion limited to 40 degrees. Extension was limited to 20 degrees. Right lateral flexion was to 20 degrees, and left lateral flexion to 30 degrees or greater. Right and left lateral rotation were noted to be limited to 20 degrees. The examiner noted pain beginning at 5 degrees with all directions of movement. The ranges of motion were the same after repetitive testing. The examiner described the Veteran’s functional loss as less movement than normal, painful movement, and interference with sitting, standing and/or weight-bearing. Localized tenderness was noted. Guarding and/or muscle spasm was present, but it was not so severe that it resulted in abnormal gait or spinal contour. Muscle strength, sensory and reflex testing were normal and there was no muscle atrophy. This examiner noted that the Veteran did not have IVDS. The examiner did recognize, through the Veteran’s report, that the severity of the Veteran’s lumbar spine disability led to no prolonged sitting or standing and the need for frequent position changes. He reported using all his sick leave at work due to the inability to sit for a long time answering phones at the call center. The examiner found the Veteran’s condition would not preclude light duty or sedentary employment. The Veteran was again examined in November 2012. At this time, the Veteran again reported persistent, ongoing pain. This examiner noted that there were no flare-ups. Forward flexion, extension and right lateral flexion were all to 15 degrees. Left lateral flexion was to 30 or more degrees. Right lateral rotation was to 20 degrees and left lateral rotation to 30 or more degrees. Pain began at the point motion was limited with each. Following repetitive testing, there was no additional loss of motion. The examiner did suggest that the Veteran displayed poor effort with unreliable, inconsistent results. The examiner observed that the Veteran was able to put his socks back on with smooth movement and there was no objective evidence of pain while he was sitting on the examination table. The examiner recognized the presence of tenderness at L2-L4, but no guarding or muscle spasm. Strength testing was normal and there was no muscle atrophy. Reflex examination showed hypoactive deep tendon reflexes on the right and left knee and ankle. Sensory examination was decreased in the right lower extremity thigh, lower leg/ankle and foot areas, but normal on the left. The examiner characterized the Veteran as having mild radiculopathy in both lower extremities. The radiculopathy was manifested by constant pain and paresthesias and/or dysesthesias, but not numbness. The examiner confirmed there were no other neurologic abnormalities present and no IVDS. The Veteran was noted to be using a cane constantly for gait stability and to decrease weight bearing. This was the last examination prior to the Veteran’s surgery and period of convalescence. Again, a total rating is assigned between September 9, 2013 and November 30, 2013. The Veteran was next examined in August 2015. The Veteran continued to report constant back pain, which he characterized as a 9 on a scale of 1 to 10. The pain was reported as radiating down both lower extremities with numbness, tingling and a burning sensation in the right lower extremity. The Veteran also reported having buckling of the right lower extremity. The examiner recognized the Veteran as having undergone a right L4-L5 decompression in 2013 and also noted that a 2014 MRI showed mild foraminal narrowing. The Veteran reported no flare-ups. The Veteran did report having to hold on to things, difficulty getting in and out of a vehicle and issues with toileting. The examiner indicated that range of motion testing could not be done due to the Veteran’s report of pain. The examiner was able to confirm that the spine was not ankylosed. The examiner recognized the Veteran is guarded and complains of pain, but that there was no evidence of pain with weight-bearing. Functional loss included instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The examiner indicated there was no muscle atrophy; however, there was impairment of muscle strength with 3/5 active movement against gravity in the right lower extremity. The muscle strength in the left lower extremity was normal. Reflex examination was normal in both lower extremities. Sensory examination showed decreased sensation in the right lower extremity and normal sensation in the left lower extremity. The examiner noted constant moderate radicular pain, moderate paresthesias and/or dysesthesias, and numbness in both lower extremities. The examiner characterized this as moderate radiculopathy involving the sciatic nerve for both the right and left lower extremities. At this examination, IVDS was recognized; however, there was no required bed rest within the prior year. May 2016 private treatment notes do not include any diagnostic testing or range of motion testing, but the Veteran was noted as having continuing low back pain. He had a normal gait and normal muscle strength in all muscle groups, as well as normal muscle tone. Chronic right S1 radiculopathy was also indicated. December 2016 private records show an abnormal gait and abnormal muscle strength with radiating pain in his legs. At the time of the June 2017 Board hearing, the Veteran described his 2013 surgery as having failed, as his symptoms have continued and worsened since. He reported needing to use a walker to ambulate and experiencing many more falls after surgery than before. The Veteran reported difficulty and needing help with toileting, dressing himself, and getting in and out of the tub. The Board then remanded the matter for updated examination. The Veteran was again afforded a VA examination in July 2018. This examiner also noted the Veteran reporting no flare-ups. Forward flexion was to 80 degrees; and extension, right and left lateral flexion and right and left lateral rotation were all to 30 degrees. There was no ankylosis of the spine. Repetitive testing was completed and there was no additional loss of function or range of motion after testing. The examiner also indicated that there was no additional loss of range of motion due to pain, weakness, fatigability, or incoordination. No pain was reported with motion and there was no evidence of pain with weight bearing. The examiner explained that there was no objective evidence of pain on passive motion and no change between passive and active range of motion testing, with no evidence of pain with weight bearing. This examiner noted that the Veteran’s subjective complaints during the examination appeared out of proportion with the objective exam findings. The Veteran was described as displaying poor effort during the examination. The example given by the examiner was the Veteran’s report of being a fall risk, requiring a motorized scooter, but the examiner observed him getting on and off the examination table with ease. Muscle strength testing was normal and there was no muscle atrophy. Hypoactive reflexes were present in the right lower extremity and normal reflexes were present on the left. Sensory examination was normal and straight leg raising test was normal. This examiner suggested there were no signs of radicular pain. There were also no other neurological abnormalities. There was no IVDS indicated, but the results of a November 2017 MRI were noted, which reveal degenerative disc disease and facet findings. The examiner suggested that the back disability alone should not preclude light duty or sedentary employment, but the spine would limit the Veteran’s ability to do any strenuous physical type of employment. Because the findings in this report were inconsistent with other VA examinations and clinical records, the Board again remanded this matter in November 2018 for a new examination. The Veteran was then afforded a VA examination in December 2018. The Veteran continued to report a pain level of 9 on a scale of 1 to 10, with pain radiating down his legs to his toes. He also reported numbness and tingling in the legs with burning and an electricity sensation. The pain he experiences is noted as aggravated with standing, walking, turning or lifting items. The examiner also noted the Veteran generally has difficulty moving due to the pain in his lower back, which requires work at a slow pace with frequent breaks. The Veteran again reported these as constant symptoms with no flare-ups. Forward flexion was to 20 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 20 degrees. The examiner confirmed there was no ankylosis of the spine. The Veteran did not complete repetitive testing at this time due to his pain. The examiner also noted that passive range of motion testing was not performed as it is not feasible to do in a safe and reasonable manner. The pain and limited motion were noted to limit the Veteran’s walking, sitting, standing and turning. This examiner recognized the pain as present with weight-bearing. As for non-weight bearing, the examiner noted there is no objective evidence of pain when the spine is in a non-weight being position at rest. Guarding or muscle spasm was observed, but it was noted to not result in abnormal gait or abnormal contour. Muscle strength testing was diminished (3/5) with active movement against gravity. There was no muscle atrophy observed. Deep tendon reflexes were absent in the right knee and ankle, but normal on the left. Sensory function was decreased in both lower extremities. Straight leg raising test was positive for both lower extremities. Radiculopathy was recognized as manifested by mild constant pain and moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness in both lower extremities. The examiner characterized this as moderate radiculopathy in both lower extremities. This examiner confirmed the presence of IVDS, but noted there were no episodes of signs and symptoms requiring bed rest at any time in the prior year. Based upon the forgoing, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the lumbar spine disability prior to December 12, 2018, and also against a rating in excess of 40 percent since that date, based on incapacitating episodes. While the Veteran is noted at times as having IVDS, there is no indication that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. In fact, there is no indication that the Veteran was ever prescribed bed rest by a physician due to his symptoms. Further, the preponderance of the evidence is against a rating in excess of 20 percent for the lumbar spine disability prior to the convalescent rating, which began September 9, 2013, under the General Rating Criteria. Prior to that date, the Veteran was certainly experiencing pain and limited motion; however, the credible evidence does not establish that his forward flexion was limited to 30 degrees or less or that the functional limitations more closely approximate forward flexion limited to 30 degrees or less. The October 2012 examination shows forward flexion limited to 40 degrees. An examination the next month suggested a limitation to 15 degrees; however, the examiner called into question the effort of the Veteran. As the records just one month prior and at all times after do not show this level of limitation to forward flexion, the Board finds the November 2012 range of motion findings lack probative value. A rating in excess of 20 percent under the General Rating Criteria is denied prior to September 9, 2013. As to the period of time since the convalescent rating, which began December 1, 2013, the record first shows forward flexion limited to 30 degrees or less at the time of the December 2018 examination. At no time prior to that did the back disability reach that level of severity as shown in the evidence of record. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and limitations in his movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by those symptoms would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine prior to December 12, 2018. Further, the evidence does not show the severity of the disability more nearly approximates the unfavorable ankylosis required for a rating in excess of 40 percent since December 12, 2018. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent prior to December 12, 2018, and in excess of 40 percent thereafter, for the service-connected lumbar spine disability under the General Rating Criteria. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Right Lower Extremity Radiculopathy The Veteran was recognized as having radiculopathy associated with his lumbar spine disability by way of an August 2010 rating decision. A separate compensable evaluation was not assigned at that time. As discussed above, the Veteran filed a claim for increase in September 2011. The December 2012 rating decision on appeal was then issued and a separate 10 percent evaluation was awarded effective September 29, 2011 for the right lower extremity radiculopathy. The Veteran appealed the rating assigned. More recently, in January 2019, the RO issued a rating decision increasing the Veteran’s right lower extremity radiculopathy rating to 40 percent, effective December 12, 2018. The Veteran has not since indicated satisfaction with this appeal and the rating assigned does not represent the maximum rating available for the disability. The issue, therefore, remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The question before the Board is whether a rating in excess of 10 percent is warranted prior to December 12, 2018, and whether a rating in excess of 40 percent is warranted thereafter. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R § 4.123. Moving to the facts of this case, a July 2012 private physical report following a period of hospitalization shows the Veteran describing radiating pain from his back into his lower extremities with numbness and weakness. Physical examination revealed sensation to be intact, but the physician did note that the right lower extremity could not be moved due to pain. Strength was noted as 2/5 in the right lower extremity. The Veteran was then afforded a VA examination in October 2012. This examiner noted that there was no radicular pain or other signs or symptoms due to radiculopathy in either lower extremity and no other neurologic abnormalities. The Veteran was again examined in November 2012. Reflex examination showed hypoactive deep tendon reflexes on the right knee and ankle. Sensory examination was decreased in the right lower extremity thigh, lower leg/ankle and foot areas, but normal on the left. The examiner characterized the Veteran as having mild radiculopathy in both lower extremities. The radiculopathy was manifested by constant pain and paresthesias and/or dysesthesias, but not numbness. The Veteran was next examined for his back in August 2015. This examiner recognized the Veteran’s radiculopathy and noted moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner characterized this as moderate radiculopathy of the sciatic nerve. The Veteran was also afforded a separate examination for his radiculopathy in August 2015. The findings were the same, with the additional notation that the Veteran’s gait was abnormal requiring a cane for stabilization. Also, the Veteran was noted as reporting his right leg buckling at times. December 2016 private records show the Veteran reporting radiating pain, greater on the right than the left, with numbness to the entire leg, which was noted to lead to increased falls and balance problems. At the time of the June 2017 Board hearing, the Veteran described a constant burning feeling with an electric, sharp, numbness in his lower extremities. He reported that even when falling, he may not realize he has scraped his knee due to the numbness. He also reported trying different medication to stop muscle spasms, but they do not work. The Veteran was then afforded a VA peripheral nerves examination in July 2017; however the examination was limited to the left lower extremity. The Veteran was again afforded a VA examination in July 2018. This examiner suggested there was no radicular pain present. Because the findings in this report were inconsistent with other VA examinations and clinical records, the Board again remanded this matter in November 2018 for a new examination. The Veteran most recently underwent examination in December 2018. The Veteran again described weakness in his legs with numbness and tingling. The examiner noted mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. Muscle strength testing was diminished with active movement against gravity. There was no muscle atrophy. The reflex examination revealed deep tendon reflexes to be absent in the right knee and ankle. Sensation was also decreased. The examiner also noted trophic changes of loss of hair on his legs. The Veteran’s gait was described as unsteady and he walks with a limp. This examiner also characterized the Veteran as having moderate incomplete paralysis of the right sciatic nerve. The examiner also noted moderate incomplete paralysis of the right interior popliteal (tibial) nerve. This examiner noted that the Veteran’s use of a walker and brace were related to his osteoarthritis of the lumbar spine and the osteoarthritis of the left knee, respectively. The examiner noted the weakness in the Veteran’s legs affects his mobility and walking and cause him to be a high risk for falls. The RO characterized these findings as most closely approximating moderately severe radiculopathy and assigned a 40 percent rating as of the date of the December 2018 examination, which was the most recent examination. The clinical records throughout the claims file and the Veteran’s statements are consistent with the reports in the VA examinations. Based upon the foregoing, the Board finds that the Veteran’s right lower extremity radiculopathy is shown to be mild prior to the August 2015 VA examination. Pain, numbness and weakness were described. Strength was also diminished. The most probative evidence of record prior to August 2015 is against a finding that the disability is manifest by impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, muscle atrophy, or complete paralysis. The Board finds that the level of impairment is most analogous to mild incomplete paralysis prior to August 2015. However, at the time of the August 19, 2015 VA examination, the examiner described the symptoms as moderate, noted decreased sensory findings and absent deep tendon reflexes and characterized the impairment as moderate incomplete paralysis of the sciatic nerve. Under DC 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent evaluation. Thus, the Board finds a 20 percent evaluation is warranted effective August 19, 2015. The Veteran does not include a description of more severe symptoms that could be characterized as moderately severe prior to December 2018, and at no time is severe incomplete paralysis with marked muscular atrophy, or complete paralysis, shown. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. The Board recognizes the moderate incomplete paralysis of the tibial nerve shown in the most recent examination report. Given the RO’s finding of a moderately severe level of disability, the Board presumes the RO has considered the moderate incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the tibial nerve to reach the conclusion that as of the day of the December 2018 examination, the Veteran’s disability can be characterized as moderately severe. Therefore, the Board finds that a separate or higher rating under a different Diagnostic Code is not warranted. Finally, the Board acknowledges that the Veteran uses an assistive device to stabilize him and frequent falls have been attributed to the right lower extremity disability at issue. However, 38 C.F.R. § 4.120 “contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). Thus, this does not create a basis for a higher rating at any time. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to August 19, 2015. A 20 percent evaluation, and no more, is warranted effective August 19, 2015. And the preponderance of the evidence is against the claim for a rating in excess of 40 percent since December 12, 2018. In denying ratings in excess of those assigned, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The general rule with respect to the effective date of an award of increased compensation is that the effective date of award, “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC12-98 (1998). Left Lower Extremity Radiculopathy In this case, the Veteran was recognized as having lower extremity radiculopathy associated with his service-connected lumbar spine disability at the time of an August 2010 rating decision. The Veteran did not appeal that decision. In December 2012, a rating decision assigned a separate 10 percent evaluation for the left lower extremity radiculopathy effective November 23, 2012. The Veteran also did not appeal that decision. The Veteran then filed a claim for increase in May 2017, after which a July 2017 decision was issued confirming and continuing the 10 percent rating assigned for the left lower extremity. The Veteran filed a notice of disagreement, but did not perfect the appeal as to the left lower extremity. The January 2018 VA Form 9 was limited to the listed issues, which did not include the left lower extremity. The July 2017 decision, therefore, became final with regard to the left lower extremity radiculopathy. Following a December 2018 VA examination, the RO issued a rating decision in January 2019 and awarded a 20 percent evaluation for the left lower extremity radiculopathy effective December 12, 2018, the date of the VA examination. The Veteran appealed the effective date assigned. The rating in this case was not in response to an increased rating claim made by the Veteran. Rather, the right lower extremity radiculopathy claim was remanded by the Board for examination and the December 2018 VA examination followed. Because this examination showed that a higher rating was warranted for the left lower extremity radiculopathy, the RO issued a rating decision with this favorable finding. There is no basis for awarding an earlier effective date, as there was no claim pending prior to the December 2018 VA examination. Further there is no evidence showing a factually ascertainable increase following the July 2017 rating decision and before the December 2018 examination. Therefore, as the rating on appeal was assigned as of the date of the examination, this was deemed the date of the claim. There is no basis for finding an earlier effective date is warranted. The Veteran’s appeal must be denied. In reaching this decision the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable. Scar, Lower Lumbar Area The Veteran has appealed the January 2019 rating decision, which assigned a 10 percent rating for the painful scar to the lower lumbar area associated with the service-connected lumbar spine disability. The Veteran’s February 2019 notice of disagreement shows this appeal is limited to the effective date assigned for the compensable rating. The Board recognizes that this decision was a part of the adjudication of the Veteran’s September 2011 claim for increase for the lumbar spine disability. The Veteran was recognized as having a scar associated with this disability, but it was not compensable, as it was not symptomatic. The August 2015 VA examiner indeed noted the scar, but specifically noted that it was not painful or unstable, or with a total area of 39 square centimeters or more, or located on the head face or neck. Thus, the scar was not compensable under 38 C.F.R. § 4.118. It was not until the December 12, 2018 VA examination that the scar was noted to be painful. Therefore, there is no basis for finding an earlier effective date is warranted. The scar at issue was not shown as symptomatic at any time prior to December 12, 2018. The Veteran’s appeal must be denied. In reaching this decision the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable. REASONS FOR REMAND Service Connection – Right and Left Hips The Veteran contends service connection is warranted for disabilities of the right and left hips. The claims file shows the Veteran’s original claim for service connection for hip disabilities was denied in November 2012 on the basis that the Veteran had not been clinically diagnosed with a hip disability and that the pain he experienced was associated with his lower extremity radiculopathy. As was noted in the Board’s November 2018 decision and remand, the Veteran was treated in October 2016 following a fall and a suggestion was noted in the treatment records that the tendency to fall was related to the service-connected back disability. The Veteran was treated for pain in his hips at that time. Thus, the Board remanded the matter for an examination and opinion as to whether there was any hip disability separate from the already service-connected lower extremity radiculopathy. The examiner was directed to discuss whether the Veteran’s falls and altered gait associated with the lumbar spine disability had led to or aggravated a right or left hip disability. The opinions obtained after the remand did not address these questions. In December 2018, the Veteran was afforded a physical examination. The symptoms and functional loss associated with the pain in the hips was described in the examination report. Two opinions were issued at the time, one addressing direct service connection for the right hip and the other addressing the left hip. In August 2019, opinions were obtained on the secondary element for both hips. These opinions, however, are inadequate. The examiner opined that the hip condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The explanation was as follows: The two conditions are not medically related. The claimed disorder is a separate entity from the service connected condition and unrelated to it. The medical literature does not support a medical relationship. A nexus has not been established. There is no clear evidence from review of orthopedic literature (Wheeless’ textbook of orthopedics 11/03/2015) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. Or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. It is not unusual for two joints to share properties in the same person, but one joint’s disease does not “spread” to another or cause damage to it. The condition of the hips is due to something intrinsic to the hips and not the lumbar spine (Oxford’s Textbook on Orthopedics and Trauma). Initially, the Board observes that this opinion suggests a hip disorder can be caused by partial or complete paralysis related to nerve damage. The Veteran in this case is service connected for right and left lower extremity radiculopathy with the ratings assigned based upon evidence showing moderately incomplete paralysis in the lower extremities. The examiner made no mention of this in the opinion, despite recognizing a hip disorder could result from partial paralysis related to nerve damage. Further, the examiner recognized an altered gait pattern could lead to hip problems. The examiner was asked by way of the Board’s prior remand to address the altered gait associated with the service-connected lumbar spine disability, but did not do so despite recognizing, generally, that an altered gait can lead to a hip disorder. Further, the examiner’s opinion is based upon a finding that an underlying back disability cannot physiologically cause an associated hip disability. There was no discussion of whether the falls associated with the service-connected lumbar spine could have caused the hip disorder, to include a lack of any discussion of the October 2016 treatment records noted in the Board’s prior remand. Finally, the examiner provided no opinion related to aggravation. The only explanation given related to whether the back disability could have caused the hip disorder. Thus, another remand of these claims is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); also see Stegall v. West, 11 Vet. App. 268 (1998). TDIU Prior to December 12, 2018 The Veteran’s right and left hip claims have been pending since May 2017. Thus, there is a potential for additional disability to be service-connected prior to the December 12, 2018 effective date for TDIU, the Board finds a decision on the right and left hip issues could significantly impact a decision on the issue of whether a TDIU is warranted prior to December 12, 2018. Thus, these issues are inextricably intertwined. A remand of the TDIU claim is, therefore, also required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left and/or right hip disorder is a separate disability from his already service connected left and right lower extremity radiculopathy. If so, the clinician should opine as to whether either hip disorder is at least as likely as not related to his service-connected lumbar spine disability, to include either proximately due to the lumbar spine disability, or aggravated beyond its natural progression by the lumbar spine disability. The clinician must discuss the October 2016 treatment note showing treatment for the hips following a fall suggested as due to the lumbar spine disability. The clinician should also discuss the findings in the August 2019 opinion, which suggested a potential correlation between the hip disorders and an altered gait and/or nerve damage causing partial or complete paralysis. Again, the lumbar spine condition may produce an altered gait, and the Veteran is service connected and recognized as having incomplete paralysis of the sciatic nerve. The clinician should also address whether falls associated with the lumbar spine disability caused or aggravated any right or left hip disorder present. A rationale should be provided for each opinion expressed. The Board leaves it to the clinician providing the opinion to determine whether additional examination of the Veteran is necessary. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims, to include whether a TDIU is warranted prior to October 12, 2018, should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.