Citation Nr: 21004992
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 09-04 223
DATE: January 28, 2021

ORDER

From December 1, 2006 to February 14, 2011, a higher initial 20 percent rating, but no greater, for sciatic radiculopathy of the LEFT lower extremity is GRANTED.  (***However, the AOJ is advised that the Veteran cannot be assigned compensation for the LEFT lower extremity radiculopathy during this particular time period because he is already receiving a 60 percent rating for IVDS of the lumbar spine based on incapacitating episodes, as explained below***).

From December 1, 2006 to February 14, 2011, a higher initial 20 percent rating, but no greater, for sciatic radiculopathy of the RIGHT lower extremity is GRANTED. (***However, the AOJ is advised that the Veteran cannot be assigned compensation for his RIGHT lower extremity radiculopathy during this particular time period because he is already receiving a 60 percent rating for IVDS of the lumbar spine based on incapacitating episodes, as explained below ***).

On and after February 14, 2011, a higher initial 40 percent rating, but no greater, for sciatic radiculopathy of the LEFT lower extremity is GRANTED.

On and after February 14, 2011, an initial rating greater than 40 percent for sciatic radiculopathy of the RIGHT lower extremity is DENIED.

On and after April 9, 2019, a separate initial rating greater than 30 percent for radiculopathy of the RIGHT lower extremity (of the femoral nerve) is DENIED. 

From December 1, 2006 to February 14, 2011, a higher initial 60 percent rating, but no greater, for intervertebral disc syndrome (IVDS) of the lumbar spine based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is GRANTED.  

From February 14, 2011 to April 9, 2019, an initial rating greater than 40 percent for IVDS of the lumbar spine based on its orthopedic manifestations under the General Rating Formula for Diseases and Injuries of the Spine is DENIED.

On and after April 9, 2019, an initial rating greater than 50 percent for IVDS of the lumbar spine based on its orthopedic manifestations under the General Rating Formula for Diseases and Injuries of the Spine is DENIED.

From December 1, 2006 to the present, a higher initial 20 percent rating, but no greater, for multiple painful scars (Diagnostic Code 7804) associated with lumbar spine surgeries and right knee surgeries, is GRANTED.

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is GRANTED, effective January 1, 2012.

FINDINGS OF FACT

1. From December 1, 2006 to February 14, 2011, the Veteran has at most “moderate” sciatic radiculopathy in the LEFT lower extremity, associated with his service-connected lumbar spine IVDS disability.

2. From December 1, 2006 to February 14, 2011, the Veteran has at most “moderate” sciatic radiculopathy in the RIGHT lower extremity, associated with his service-connected lumbar spine IVDS disability.

3. On and after February 14, 2011, the Veteran has at most “moderately severe” sciatic radiculopathy in the LEFT lower extremity, associated with his service-connected lumbar spine IVDS disability.

4. On and after February 14, 2011, the Veteran has at most “moderately severe” sciatic radiculopathy in the RIGHT lower extremity, associated with his service-connected lumbar spine IVDS disability.

5. On and after April 9, 2019, the Veteran has a separate rating for at most “severe” femoral radiculopathy in the RIGHT lower extremity, associated with his service-connected lumbar spine IVDS disability.

6. From December 1, 2006 to February 14, 2011, the Veteran’s IVDS of the lumbar spine is productive of incapacitating episodes having a total duration of at least 6 weeks during any 12-month period.  This supports a 60 percent rating, the maximum schedular rating available for incapacitating episodes.  

7. From December 1, 2006 to February 14, 2011, the 60 percent rating the Board is assigning in the present decision for lumbar spine IVDS based on the Veteran’s incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, is greater than the combined 50 percent rating for the Veteran’s orthopedic and neurologic manifestations of IVDS under the General Rating Formula for Diseases and Injuries of the Spine.  

8. From February 14, 2011 to April 9, 2019, the Veteran’s IVDS of the lumbar spine limits forward flexion to 30 degrees or less due to pain, fatigue, and other factors of functional loss during flare-ups or after repetitive motion.  However, his IVDS of the lumbar spine is not productive of unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, or favorable ankylosis of the entire thoracolumbar spine during this time period.

9. From February 14, 2011 to April 9, 2019, the combined 80 percent rating for the Veteran’s orthopedic and neurologic manifestations of IVDS (40, 40, and 40) under the General Rating Formula for Diseases and Injuries of the Spine is greater than the 60 percent rating for IVDS based on the Veteran’s incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

10. On and after April 9, 2019, the Veteran’s IVDS of the lumbar spine is productive of “unfavorable ankylosis of the entire thoracolumbar spine.”  However, his IVDS of the lumbar spine is not productive of “unfavorable ankylosis of the entire spine.”  That is, there is no diagnosis in the record of cervical spine ankylosis.  Moreover, his cervical spine is not service-connected – only his lumbar spine is. 

11. On and after April 9, 2019, the combined 90 percent rating for the Veteran’s orthopedic and neurologic manifestations of IVDS (50, 40, 40, and 30) under the General Rating Formula for Diseases and Injuries of the Spine is greater than the 60 percent rating for IVDS based on the Veteran’s incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

12. The Veteran has four service-connected painful scars, including two posterior trunk scars of the lumbar spine, one anterior trunk scar of the lumbar spine, and one right knee scar.  At times the three lumbar scars are described as associated with underlying soft tissue damage.  However, the total area of all lumbar-related scars was not greater than 39 square cm (6 square inches).  Moreover, none of these scars are unstable with frequent loss of covering.  Although there is evidence these painful lumbar scars may cause limitation of motion, this is already compensated within the orthopedic ratings assigned for limitation of motion of the lumbar spine.  

13. Based on the Board’s increased rating awards in the present decision, as of December 1, 2006, the schedular percentage criteria for TDIU have been met, under the combined ratings table and with consideration of the bilateral factor.  In this regard, beginning on December 1, 2006, the Veteran is service-connected for the following disabilities: lumbar spine IVDS, sciatic radiculopathy of the lower extremities, a right knee instability and right knee medical meniscectomy, multiple surgical scars, PTSD with major depression, tinnitus with Meniere’s disease, left ear hearing loss, migraine headaches, and hypertension.  However, despite the existence of these service-connected disabilities, the evidence of record also demonstrates the Veteran was able to work full-time, thereby engaging in substantially gainful employment, until approximately January 1, 2012.  

14. Effective January 1, 2012, the Veteran’s service-connected low back IVDS disability, OR in the alternative his service-connected PTSD with major depression, each standing alone, would have prevented him from securing or following a substantially gainful occupation, consistent with his vocational and educational background.  

CONCLUSIONS OF LAW

1. From December 1, 2006 to February 14, 2011, the criteria have been met for a higher initial rating of 20 percent, but no greater, for sciatic radiculopathy of the LEFT lower extremity.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520.  

2. From December 1, 2006 to February 14, 2011, the criteria have been met for a higher initial rating of 20 percent, but no greater, for sciatic radiculopathy of the RIGHT lower extremity.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520.  

3. On and after February 14, 2011, the criteria have been met for a higher initial rating of 40 percent, but no greater, for sciatic radiculopathy of the LEFT lower extremity.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520.  

4. On and after February 14, 2011, the criteria have not been met for an initial rating greater than 40 percent for sciatic radiculopathy of the RIGHT lower extremity.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520.  

5. On and after April 9, 2019, the criteria have not been met for a separate initial rating greater than 30 percent for femoral radiculopathy of the RIGHT lower extremity.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8526.  

6. From December 1, 2006 to February 14, 2011, the criteria have been met for a higher initial disability rating of 60 percent, but no greater, for IVDS of the lumbar spine based on incapacitating episodes.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.25, 4.26, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

7. From February 14, 2011 to April 9, 2019, the criteria have not been met for an initial rating greater than 40 percent for IVDS of the lumbar spine based on its orthopedic manifestations.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.25, 4.26, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

8. On and after April 9, 2019, the criteria have not been met for an initial rating greater than 50 percent for IVDS of the lumbar spine based on its orthopedic manifestations.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.25, 4.26, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

9. From December 1, 2006 to the present, the criteria have been met for a higher initial rating of 20 percent, but no greater, for multiple painful scars (four in total) associated with lumbar spine surgeries and right knee surgeries.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.31, 4.118, Diagnostic Codes 7802, 7804, 7805 (under the pre-October 2008 skin criteria, the amended October 2008 skin criteria, and the amended August 2018 skin criteria).  

10. Effective January 1, 2012, the criteria have been met for entitlement to a TDIU.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from January 1986 to November 2006 in the U.S. Air Force. 

The increased rating issues on appeal come to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions dated in January 2008, June 2008, February 2012, and May 2020, issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

With regard to the TDIU issue on appeal, during the course of the increased rating appeal, the Veteran has submitted evidence of unemployability due to his service-connected disabilities, such that a request for TDIU was reasonably raised by the record.  See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial rating or increased rating for a disability).  In fact, the Board already added the TDIU issue to the appeal in its earlier August 2017 Board remand.  And the AOJ subsequently adjudicated the TDIU issue during the course of the appeal (see e.g., May 2020 SSOC).  Therefore, the issue of entitlement to a TDIU has been added to the present appeal. 

In October 2010, the Veteran and his spouse presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the claims file. 

In March 2011, March 2015, and August 2017, the Board remanded the appeal for further development.  This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).   

Finally, in the present Board decision, the Board has recharacterized / reframed several of the increased rating issues on appeal from their previous descriptions in the earlier Board remands.  That is, the Board is restaging certain ratings for time periods that differ from what the AOJ has previously established.  Stated another way, the Board has modified certain time periods on appeal for each of the increased rating issues.  The reason being - the Board has determined that staged ratings are appropriate for different time periods during the pendency of the appeal.  See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (“staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings” under the applicable diagnostic codes); Fenderson v. West, 12 Vet. App. 119 (1999) (when an initial rating is on appeal, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings.).  The potential for staged ratings “accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.”  Hart, 21 Vet. App. at 510 (internal quotation omitted).  Therefore, in the present Board decision, the adjudication of the increased rating claims for the lumbar spine, lower extremity radiculopathy, and associated surgical scars will encompass all effective date concerns for the time periods and disability ratings assigned.  This will provide clarity to an otherwise complex appeal.  

I.  VA’s Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019).  As to the duty to notify, the Veteran was provided adequate notice for his increased rating and TDIU claims on appeal in notice letters from the AOJ dated in June 2007, May 2008, July 2008, March 2012, and April 2018.  

In any event, in the decision below, the Board has granted the Veteran’s claim for a TDIU.  Therefore, the benefits sought on appeal have been granted in full for the TDIU issue.  Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the TDIU issue, no harm or prejudice to the Veteran has resulted.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

With regard to each of the increased rating issues on appeal, subsequent to the most recent ameliorative August 2017 Board remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to “search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Moreover, the Board in the present decision has granted favorable increased ratings for many issues on appeal, wherever possible based on a careful consideration of the clinical and lay evidence of record.  

II.  Increased Rating (IR)

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  

Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The relevant time period for consideration in a claim for an initial disability rating is the period beginning on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  That is to say, the Board must consider whether there have been times since the effective date of his award when his lumbar spine, lower extremity radiculopathy, and associated surgical scars have been more severe than at others for the time period from December 1, 2006 (the day following his separation from active service) to the present.  Id.  

However, the Board is cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  In Schafrath v. Derwinski, the CAVC explained, “These requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition.” 1 Vet. App. 589, 594 (1991).  Therefore, the Board has also considered and reviewed the Veteran’s entire history for his lumbar spine, lower extremity radiculopathy, and associated surgical scars when assigning separate disability evaluations in the present case.  38 C.F.R. § 4.1.  

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.  

A.  Radiculopathy of the RIGHT and LEFT Lower Extremities 			     Prior to February 14, 2011 at 10 Percent

The Veteran’s sciatic radiculopathy of the right and left lower extremities is rated under Diagnostic Code 8520 (paralysis or incomplete paralysis of the sciatic nerve).  38 C.F.R. § 4.124a (2019).  

His radiculopathy ratings for both lower extremities have been staged by the AOJ for separate periods of time.  

From December 1, 2006 to February 14, 2011, the Veteran’s RIGHT and LEFT lower extremity radiculopathy of the sciatic nerve are each rated as 10 percent disabling under Diagnostic Code 8520.

From February 14, 2011 to the present, the Veteran’s LEFT lower extremity radiculopathy of the sciatic nerve is rated as 20 percent disabling under Diagnostic Code 8520.

From February 14, 2011 to the present, the Veteran’s RIGHT lower extremity radiculopathy of the sciatic nerve is rated as 40 percent disabling under Diagnostic Code 8520.

From April 9, 2019 to the present, the Veteran’s RIGHT lower extremity radiculopathy of the femoral nerve is also separately rated as 30 percent disabling under Diagnostic Code 8526 (incomplete paralysis of the anterior crural / femoral nerve).  (The femoral nerve issue will be addressed in a separate analysis in the present Board decision). 

From December 1, 2006 to February 14, 2011, in denying initial ratings above 10 percent for radiculopathy, the AOJ found that the Veteran’s radiculopathy in each lower extremity, associated with his service-connected low back IVDS, exhibited “mild” incomplete paralysis in the sciatic nerve.  A higher evaluation of 20 percent was denied because the incomplete paralysis of the sciatic nerve was not shown cause to cause “moderate” nerve damage in the lower extremities during that timeframe.   

The Veteran filed his initial rating claim for his radiculopathy in the lower extremities on July 27, 2006, a few months prior to separation from active duty in the Air Force.  The Veteran believes that his radiculopathy in the lower extremities is much worse than rated both prior to and after February 14, 2011.  The Veteran asserts he experiences “constant” sciatica and numbness in both lower extremities every day, with the symptoms varying in intensity.  His lower extremities show symptomatic swelling, burning, stabbing, and tingling, with his feet “falling asleep.”  The Veteran contends that he should be assigned a higher rating above 10 percent for at least “moderate” neurological impairment in the both lower extremities throughout the entire appeal period.  The Veteran testified he has “loss of use” of both lower extremities.  See August 2010 Travel Board hearing at page 31. 

Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull.  38 C.F.R. § 4.120.   

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.  But under VA caselaw, 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.  Miller v. Shulkin, 28 Vet. App. 376, 380 (2017).  In other words, there is flexibility in rating the non-sensory manifestations of a neurological condition.  Id. 

In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123.  

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis.  38 C.F.R. § 4.124.   

The words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.  As discussed in detail above, VA 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.

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 Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating.  Moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warranted for a 40 percent rating.  Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating.  With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

Upon review of the evidence, for the time period from December 1, 2006 to February 14, 2011, separate initial 20 percent ratings each, but no higher, are granted for RIGHT and LEFT lower extremity radiculopathy of the sciatic nerve.  38 C.F.R. § 4.7.  In making this determination, the Board has considered the competent and credible medical and lay evidence of record.  In other words, under Diagnostic Code 8520, prior to February 14, 2011, the medical and lay evidence of record establishes neurological manifestations consistent with “moderate” incomplete paralysis of the RIGHT and LEFT lower extremity sciatic nerve.  See 38 C.F.R. § 4.124a.  That is, the Veteran’s lay statements and the medical evidence of record dated from December 1, 2006 to February 14, 2011 document constant and continuous sensory impairment in both lower extremities by way of pain, numbness, tingling, and muscle spasms, with a few instances of decreased strength and diminished reflexes.  This is consistent with a “moderate” level of neuropathy in the lower extremities, indicative of separate 20 percent ratings for each lower extremity.    

Specifically, 2006 through 2010 Premier Pain Management records document persistent low back pain that radiates into both the thighs and feet of the Veteran.  In these records, the Veteran reported “sharp” or “burning” and “stabbing” dysesthesias (distortion of sense) and paresthesias (burning) and muscle spasms into both legs and feet and toes.  He experiences numbness.  His sensory manifestations were “persistent.”  There were “intermittent” physical symptoms of leg weakness too.  There were times when his reflexes in the lower extremities were normal.  Spinal cord stimulators and physical therapy and steroid injections and other modalities did not always help with his neurological symptoms.  His sensory symptoms were always present but would fluctuate in intensity.  His gait was generally observed to be normal or steady.  But he was noted to be limited in his ability to maintain prolonged sitting, standing, walking, or other physical exertion.  This caused impairment in various aspects of vocational and recreational activities as well as activities of daily living.  A December 2007 VA spine examination revealed numbness and dull increasing pain in both legs.  There was tingling in the thighs, calves, toes, feet, and buttocks.  There was cramping in both feet.  The Veteran takes Lyrica daily – with a good response to nerve pain.  On sensation testing, the Veteran reported both decreased sensation and no sensation in various areas of both lower extremities.  A February 2008 VA physician H&P note also discussed the Veteran’s lumbar radiculopathy.  He reported he cannot sit or stand for long periods because of the neurological pain.  The pain is “constant” and is accompanied by numbness in both legs.  Upon examination, he was normal except for deep tendon reflexes absent on the right and reduced on the left.   

Specifically, with regard to lay evidence, at the August 2010 Travel Board hearing, the Veteran competently and credibly testified he experiences “constant” sciatica and numbness in both lower extremities every day, with the symptoms varying in intensity.  His lower extremities show symptomatic swelling, burning, stabbing, and tingling, with his feet “falling asleep.”  The Veteran maintained that he should be assigned a higher rating above 10 percent for at least “moderate” neurological impairment in both lower extremities.  See hearing testimony at page 31.  This hearing testimony provides strong evidence in support of a higher 20 percent rating for his sciatic radiculopathy in each lower extremity for the time period from December 1, 2006 to February 14, 2011.  

However, for the time period from December 1, 2006 to February 14, 2011, the evidence of record does not warrant ratings in excess of 20 percent each for the Veteran’s RIGHT and LEFT lower extremity radiculopathy of the sciatic nerve.  38 C.F.R. § 4.7.  In other words, under Diagnostic Code 8520, prior to February 14, 2011, the medical and lay evidence of record does not establish neurological manifestations consistent with “moderately severe” or “severe” incomplete paralysis or “complete” paralysis of the lower extremities.  38 C.F.R. § 4.124a.  Rather, the Veteran’s lay statements and the medical evidence of record dated from December 1, 2006 to February 14, 2011 document that there was no muscle atrophy, no abnormal muscle tone or bulk, no complete paralysis, no organic changes, no bowel or bladder problems (as the result of his radiculopathy), no loss of use, no foot drop of either the right or left lower extremity, and no instances of an absence of movement below the knees.   

Specifically, from December 1, 2006 to February 14, 2011, there were only several instances of intermittent diminished reflexes and diminished strength in the lower extremities.  The December 2007 VA spine examiner observed no muscle atrophy in the right or left lower extremities.  There was normal tone and no weakness.  His muscle strength testing was 5/5 for the ankles, great toes, knees, and hips.  His reflexes were 2+ knee and ankle jerks and normal Babinski signs.  A December 2007 VA general medical examiner noted no bowel or bladder impairment with a normal examination of the lower extremities.  A February 2008 VA physician H&P note performed a specific neurological examination.  The Veteran’s pulses were “strong” in both feet.  There was no edema.  Power was “full and equal” in the feet and legs.  Deep tendon reflexes were +2 and equal at both knees but absent at the right heel and reduced at the left heel.  There was some clonus at the right ankle.  His straight leg raise test was negative, however.  An October 2009 Premier Pain Management record indicated that the Veteran had a “steady” gait with no gross lower extremity motor deficits.  A November 2010 Premier Pain Management treatment record noted that a spinal stimulator has improved the Veteran’s right leg pain. 

All of the above evidence weighs heavily against ratings higher than 20 percent for radiculopathy of the lower extremities for the time period from December 1, 2006 to February 14, 2011.

With regard to lay evidence, although the Veteran is competent and credible to describe his bilateral lower extremity radiculopathy symptomatology (see Barr v. Nicholson, 21 Vet. App. 303, 310 (2007)), the August 2010 lay hearing testimony of the Veteran and his spouse generally did not provide a description of neurological symptoms that would support ratings above the 20 percent being granted here for sciatic radiculopathy in each lower extremity.  And his allegation of “loss of use” of both lower extremities is unsupported by the clinical evidence of record during this time period.  

The Board acknowledges that an October 2009 Premier Pain Management report stated that the Veteran had atrophy of the left calf relative to the right calf.  However, this piece of evidence appears to be an outlier, unsupported by the other clinical findings of record.  In fact, it does not accurately depict the severity of the Veteran’s left leg radiculopathy throughout the entire appeal from December 1, 2006 to the present time.  All other VA and private and Social Security Administration (SSA) clinicians in the record either did not document any lower extremity atrophy or specifically found upon examination there was no lower extremity atrophy.  Their findings overwhelmingly outweigh this one particular favorable finding.  It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

In conclusion, from December 1, 2006 to February 14, 2011, separate 20 percent ratings under Diagnostic Code 8520, but no greater, are granted for “moderate” radiculopathy of the RIGHT and LEFT lower extremities.  38 C.F.R. § 4.3.  

For this lower extremity radiculopathy issue prior to February 14, 2011, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

B.  Radiculopathy of the LEFT Lower Extremity                                     After February 14, 2011 at 20 Percent

From February 14, 2011 to the present, the Veteran’s LEFT lower extremity radiculopathy of the sciatic nerve is rated as 20 percent disabling under Diagnostic Code 8520 (paralysis or incomplete paralysis of the sciatic nerve).  38 C.F.R. § 4.124a (2019).  

The Veteran believes that his sciatic radiculopathy in the LEFT lower extremity is much worse than the 20 percent rating assigned by the AOJ after February 14, 2011.  At the August 2010 hearing, he testified he has “loss of use” of both lower extremities. 

Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating.  Moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warranted for a 40 percent rating.  Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating.  With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

Upon review of the evidence, on and after February 14, 2011, an initial 40 percent rating, but no higher, is granted for LEFT lower extremity radiculopathy of the sciatic nerve.  38 C.F.R. § 4.7.  In making this determination, the Board has considered the competent and credible medical and lay evidence of record.  In other words, under Diagnostic Code 8520, on and after February 14, 2011, the medical and lay evidence of record establishes neurological manifestations consistent with “moderately severe” incomplete paralysis of the LEFT lower extremity sciatic nerve.  See 38 C.F.R. § 4.124a.  That is, the Veteran’s lay statements and the medical evidence of record dated from February 14, 2011 to the present continue to document progressively worsening constant and continuous sensory impairment in the LEFT lower extremity by way of pain, numbness, tingling, and muscle spasms.  In addition, a higher and more consistent level of muscle and reflex impairment has developed.  This is consistent with a “moderately severe” level of sciatic neuropathy in the LEFT lower extremity, indicative of a 40 percent rating on and after February 14, 2011.   

Specifically, VA, private, and SSA treatment records and VA examinations dated after February 14, 2011 to the present document progressively worsening constant and continuous sensory impairment in the LEFT lower extremity by way of pain, numbness, tingling, and muscle spasms.   A February 14, 2011 private pain management nurse practitioner report found that motor strength was diminished in the left lower extremity – 4/5.  Comprehensive Pain Specialist treatment records dated from 2011 to 2016 noted the Veteran’s reports of weakness in the left lower extremity.  In 2015 to 2016 medical reports from same recorded that decreased strength and diminished reflexes of the left lower extremity were repeatedly confirmed upon neurological examination.  The Veteran also exhibited swelling in the left lower extremity.  A June 2012 VA primary care note and September 2012 VA orthopedic surgery attending note found that the Veteran displayed muscle strength of 4/5 in the left lower extremity.  

Also, a December 2014 SSA disability examination indicated that deep tendon reflexes were difficult to elicit in the left lower extremity.  A March 2016 private laminectomy surgery report for the low back assessed progressive difficulty with ambulation due to bilateral lower extremity radiculopathy.  A January 20, 2012 VA thoracolumbar spine examination observed +1 diminished reflexes in the left knee.  A September 26, 2012 VA thoracolumbar spine examination found that the Veteran’s gait was abnormal.  A May 1, 2015 VA thoracolumbar spine examination found 4/5 muscle strength in movement testing in the left lower extremity (hip, knee, ankle, and great toe).  A May 1, 2015 VA peripheral nerves examination made the same assessment, but also found that deep tendon reflexes were 0 or absent in the left knee and left ankle.  The Veteran’s gait was slow and imbalanced.  He now used a cane to ambulate on a “regular” basis.  Finally, an April 9, 2019 VA thoracolumbar spine examination observed that the Veteran’s gait was altered.  His motor strength was recorded as 3/5 and 4/5 in the lower extremity hips, knees, ankles, and great toes.  He exhibited no deep tendon reflexes in both knees and ankles at the April 2019 VA examination.  All of the above evidence establishes a higher 40 percent rating in the left lower extremity on and after February 14, 2011.  

However, for the time period on and after February 14, 2011, the evidence of record does not warrant an initial rating in excess of 40 percent for the Veteran’s LEFT lower extremity radiculopathy of the sciatic nerve.  38 C.F.R. § 4.7.  In other words, under Diagnostic Code 8520, on and after February 14, 2011, the medical and lay evidence of record does not establish neurological manifestations consistent with “severe” incomplete paralysis of the sciatic nerve with marked muscular atrophy or “complete” paralysis of the LEFT lower extremity.  38 C.F.R. § 4.124a.  Rather, the Veteran’s lay statements and the medical evidence of record on and after February 14, 2011 document that there was no muscle atrophy, no abnormal muscle tone or bulk, no complete paralysis, no organic changes, no bowel or bladder problems (as the result of his radiculopathy), no loss of use, no foot drop of either the right or left lower extremity, and no instances of an absence of movement below the knees.   

Specifically, on and after February 14, 2011, a February 18, 2011 VA primary care visit note indicated there was no muscle atrophy in both lower extremities.  A March 2011 private neurosurgeon letter ascertained there was normal muscle bulk and tone in the lower extremities.  A January 20, 2012 VA thoracolumbar spine examination revealed no muscle atrophy in both lower extremities.  His radiculopathy in the lower extremities was described as “moderate” overall.  There was no bowel or bladder impairment.  A September 26, 2012 VA thoracolumbar spine examination and September 26, 2012 VA peripheral nerves examination revealed no muscle atrophy in both lower extremities.  His radiculopathy in the lower extremities was described as “moderate” overall at that time.  There was no bowel or bladder impairment.  There was no complete paralysis with foot drop on either the right or left side.  There was active movement of muscles below both knees.  This VA examiner found that the Veteran did not have severe radiculopathy with marked muscular atrophy for the sciatic nerve in either lower extremity.  Comprehensive Pain Specialist treatment records dated from 2011 to 2016 determined on neurological examinations that there was no muscle atrophy in both lower extremities.  There was no bowel or bladder dysfunction.  

Also, a May 1, 2015 VA thoracolumbar spine examination and VA peripheral nerves examination determined that overall, the Veteran’s radiculopathy in the LEFT lower extremity was at a “moderate” level.  These VA examinations revealed no muscle atrophy in both lower extremities.  There were also “no trophic changes” in either lower extremity.  There was no finding of complete paralysis in either lower extremity.  There was also no finding overall of severe incomplete paralysis with marked muscular atrophy for the sciatic nerve of both lower extremities.  SSA disability records dated in 2016 also did not record any specific symptomatology indicative of a rating higher than “moderately severe” in the left lower extremity.  Finally, an April 9, 2019 VA thoracolumbar spine examination indicated there were no bowel or bladder problems and no muscle atrophy in the lower extremities.  This VA examiner also found that the Veteran’s radiculopathy in the LEFT lower extremity was at a “moderate” level.  

All of the above evidence weighs heavily against a rating higher than 40 percent for sciatic radiculopathy of the LEFT lower extremity for the time period on and after February 14, 2011.

With regard to lay evidence, although the Veteran is competent and credible to describe his LEFT lower extremity radiculopathy symptomatology (see Barr v. Nicholson, 21 Vet. App. 303, 310 (2007)), on and after February 14, 2011, neither he nor his representative provided a description of neurological symptoms that would support a rating above the 40 percent being granted here for “moderately severe” sciatic radiculopathy in the LEFT lower extremity.  And his allegation of “loss of use” of the LEFT lower extremity is unsupported by the clinical evidence of record.  

The Board acknowledges that on and after February 14, 2011, in one instance in a 2016 Comprehensive Pain Specialist treatment report, the Veteran reported bladder incontinence/ retention x 1 year.  The Veteran reported that a urologist prescribed medication for urinary retention and a doctor told him this was secondary to his service-connected IVDS of the lumbar spine.  The Veteran is competent to report what a doctor told him.  However, this piece of evidence appears to be an outlier, unsupported by the other clinical findings of record.  In fact, a subsequent April 9, 2019 VA thoracolumbar spine examination indicated there were no bladder problems associated with his lumbar spine IVDS.  All other VA and private and SSA clinicians in the record either did not document any bladder impairment or specifically found there was no bladder impairment associated with his service-connected lumbar spine IVDS.  Their findings overwhelmingly outweigh this one particular favorable finding.  In this regard, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  

The Board also acknowledges that on and after February 14, 2011, there were several instances that private and VA and SSA clinicians described the Veteran’s radiculopathy in the LEFT lower extremity as “severe” due to his constant pain and numbness.  In any event, on this issue, an examiner’s clinical assessment of the extent of incomplete paralysis may be inconsistent or contradict other objective findings in the record.  The AOJ or the Board (the rating activity), not the examining medical professional, interprets the medical reports in order to match the rating with the disability.  Moore v. Nicholson, 21 Vet. App. 211, 218 (2007).  Moreover, each VA examiner of record in January 2012, September 2012, May 2015, and April 2019 assessed the Veteran’s overall radiculopathy in the LEFT lower extremity was only “moderate” in severity. (Resolving doubt in the Veteran’s favor the Board has awarded a “moderately severe” rating in the present case for this time period).    

In conclusion, on and after February 14, 2011, an initial 40 percent rating under Diagnostic Code 8520, but no greater, is granted for “moderately severe” sciatic radiculopathy of the LEFT lower extremity.  38 C.F.R. § 4.3.  

For this LEFT lower extremity radiculopathy issue on and after February 14, 2011, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

C.  Radiculopathy of the RIGHT Lower Extremity After           February 14, 2011 at 40 Percent

From February 14, 2011 to the present, the Veteran’s RIGHT lower extremity radiculopathy of the sciatic nerve is rated as 40 percent disabling under Diagnostic Code 8520 (paralysis or incomplete paralysis of the sciatic nerve).  38 C.F.R. § 4.124a (2019).  

The Veteran believes that his sciatic radiculopathy in the RIGHT lower extremity is much worse than the 40 percent rating assigned by the AOJ after February 14, 2011.  At the August 2010 hearing, he testified he has “loss of use” of both lower extremities.

Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating.  Moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warranted for a 40 percent rating.  Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating.  With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

Upon review of the evidence, on and after February 14, 2011, the claim for an initial rating in excess of 40 percent for the Veteran’s RIGHT lower extremity radiculopathy of the sciatic nerve is denied.  38 C.F.R. § 4.7.  In other words, under Diagnostic Code 8520, on and after February 14, 2011, the medical and lay evidence of record for the RIGHT lower extremity does not establish neurological manifestations consistent with “severe” incomplete paralysis of the sciatic nerve with marked muscular atrophy or “complete” paralysis of the sciatic nerve.  38 C.F.R. § 4.124a.  Rather, for the RIGHT lower extremity, the Veteran’s lay statements and the medical evidence of record dated on and after February 14, 2011 document that there was no muscle atrophy, no abnormal muscle tone or bulk, no complete paralysis, no organic changes, no bowel or bladder problems (as the result of his radiculopathy), no loss of use, no foot drop, and no instances of no movement below the knees.   

The analysis for why the Veteran is not entitled to an initial rating in excess of 40 percent for his RIGHT lower extremity radiculopathy of the sciatic nerve mirrors the analysis above denying the same rating in excess of 40 percent for the LEFT lower extremity.  That prior analysis is incorporated into the present analysis.  Listing and repeating the same evidence again would be unnecessary and redundant.  

Moreover, beginning on April 9, 2019, the Veteran has been separately compensated for RIGHT lower extremity radiculopathy of the FEMORAL nerve.  That is, effective April 9, 2019, the Veteran was assigned a separate, additional 30 percent rating for “severe” femoral radiculopathy of the RIGHT lower extremity under Diagnostic Code 8526 (incomplete paralysis of the anterior crural / femoral nerve).  38 C.F.R. § 4.124a.  This 30 percent rating is in addition to his already service-connected 40 percent rating for RIGHT lower extremity sciatic radiculopathy under Diagnostic Code 8520 (incomplete paralysis of the sciatic nerve).  Id.  (The issue of an initial rating greater than 30 percent for femoral radiculopathy of the RIGHT lower extremity is being separately addressed below in the present Board decision).  

In conclusion, on and after February 14, 2011, an initial rating greater than 40 percent for sciatic radiculopathy of the RIGHT lower extremity under Diagnostic Code 8520 is denied.  38 C.F.R. § 4.3.  

For this RIGHT lower extremity radiculopathy issue on and after February 14, 2011, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

D.  Radiculopathy of the Femoral Nerve of the RIGHT Lower   Extremity at 30 Percent After April 9, 2019 

From April 9, 2019 to the present, the Veteran’s RIGHT lower extremity radiculopathy of the femoral nerve is separately rated as 30 percent disabling under Diagnostic Code 8526 (paralysis or incomplete paralysis of the anterior crural / femoral nerve).  38 C.F.R. § 4.124a (2019).  

The Veteran has not yet asserted that his femoral radiculopathy in the RIGHT lower extremity is worse than the 30 percent rating assigned by the AOJ after April 9, 2019.  To this point, this 30 percent rating for the femoral nerve was only awarded by the AOJ in a recent May 2020 rating decision.  Regardless, when filing any claim, a claimant is presumed to be seeking the maximum benefit allowed by law.  See Stowers v. Shinseki, 26 Vet. App. 550, 555 (2014); AB v. Brown, 6 Vet. App. 35, 38 (1993).  In fact, it is well established that a claimant who disagrees with an initial evaluation or files a claim for an increased evaluation is presumed to be seeking the highest evaluation available, unless he expressly indicates otherwise.  See Breniser v. Shinseki, 25 Vet. App. 64, 79 (2011).  Therefore, the Board will consider whether a higher initial rating is warranted above the 30 percent rating assigned for the right lower extremity femoral nerve.

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526.  (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626 and 8726.).  

Under Diagnostic Code 8526, mild incomplete paralysis of the femoral nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating.  Moderate incomplete paralysis is assigned a 20 percent rating, and severe incomplete paralysis is warranted for a 30 percent rating.  With complete paralysis of the femoral nerve, which warrants a 40 percent rating, there is paralysis of the quadriceps extensor muscles.  38 C.F.R. § 4.124a.

Therefore, to warrant a higher 40 percent rating the evidence must reflect complete paralysis in the femoral nerve, which is established by paralysis of the quadriceps extensor muscles (DC 8526).   

Upon review, on and after April 9, 2019, the evidence of record does not warrant an initial rating in excess of 30 percent for neurological impairment to the femoral nerve of the RIGHT lower extremity. 38 C.F.R. § 4.7.  This claim is denied.  In other words, the medical and lay evidence of record does not establish neurological manifestations consistent with complete paralysis of the right femoral nerve of the RIGHT lower extremity by way of paralysis of the quadriceps extensor muscles under Diagnostic Code 8526.  Rather, the Veteran’s lay statements and the medical evidence of record document that there was no complete paralysis of the RIGHT lower extremity.  He does not have loss of use of the RIGHT lower extremity.  There was also no paralysis of the quadriceps extensor muscles seen for the RIGHT lower extremity.  See 38 C.F.R. § 4.124a, Diagnostic Code 8526.

Specifically, at the April 2019 VA thoracolumbar spine examination, it was noted that the Veteran’s gait was altered with weakness in the right leg and very limited mobility.  He is in pain with his movements.  He reported numbness in the right leg and muscle spasms and guarding with all movements.  He indicated the right leg was worse than the left leg.  There was no muscle atrophy seen.  His motor strength was recorded as 3/5 and 4/5 in the right lower extremity hips, knees, ankles, and great toes.  He exhibited no deep tendon reflexes in both knees and ankles at the April 2019 VA examination.  The assessment was “severe” radiculopathy in the RIGHT lower extremity femoral nerve (which he is currently rated for).  Additionally, at a May 2019 VA PTSD examination, the Veteran ambulated without a major problem, but never appeared to be very comfortable while in a seated position due to low back issues.  Moreover, he was able to stand up periodically due to the lower back pain – this is unsupportive of loss of use. 

All of the neurological symptomatology seen above after April 9, 2019 is already encompassed within the 40 percent rating assigned for the right sciatic nerve under DC 8520 and within the separate 30 percent rating assigned for the right femoral nerve under DC 8526.  See again 38 C.F.R. § 4.124a.  

The Board has considered all other potentially applicable Diagnostic Codes for lower extremity neuropathy, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.  

In conclusion, on and after April 9, 2019, a separate, additional rating greater than 30 percent for femoral radiculopathy of the RIGHT lower extremity under Diagnostic Code 8526 is denied.  38 C.F.R. § 4.3.  

For this RIGHT lower extremity radiculopathy of the femoral nerve on and after April 9, 2019, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  The Board acknowledges that the Veteran uses assistive devices to ambulate due to his lower extremity radiculopathy.  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).  Moreover, the Court has pointed out that given the broad nature of § 4.120, finding symptoms not contemplated by ‘impairment of motor, sensory or mental function’ language presents quite a challenge.”  Id. 

E.  IVDS of the Lumbar Spine at 10 Percent                                                                          from December 1, 2006 to February 14, 2011

The Veteran’s degenerative disc disease (DDD) with failed back syndrome of the lumbar spine, status post multiple surgeries, is rated under Diagnostic Code 5242 (degenerative arthritis of the spine).  38 C.F.R. § 4.71a (2019).  

However, during the course of the appeal, his lumbar spine DDD has also been referred to as IVDS of the lumbar spine (with incapacitating episodes).  See e.g., December 2007 VA spine examination.  Therefore, the Board will evaluate the Veteran’s lumbar spine disability under Diagnostic Code 5243 for IVDS, as it provides the potential for the most favorable rating under the current rating criteria.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  

His IVDS of the lumbar spine has received staged ratings by the AOJ for separate periods of time.  

From December 1, 2006 to January 20, 2012, the Veteran’s IVDS of the lumbar spine is rated as 10 percent disabling. 

From January 20, 2012 to April 9, 2019, the Veteran’s IVDS of the lumbar spine is rated as 40 percent disabling.

From April 9, 2019 to the present, the Veteran’s IVDS of the lumbar spine is rated as 50 percent disabling.

The Board finds that the Veteran’s IVDS of the lumbar spine disability should be increased for a separate period based on the facts found during the appeal period.  Fenderson, 12 Vet. App at 126.  Once again, a staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s).  Hart, 21 Vet. App. at 509.  The potential for staged ratings “accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.”  Id. (internal quotation omitted).  In essence, in the present Board decision, the Board is restaging the above ratings for his IVDS of the lumbar spine based on the medical and lay evidence of record.  This has the effect of increasing the ratings and modifying the time periods of said ratings to correlate with the time periods for his associated lower extremity radiculopathy.  That is, the Board is restaging certain ratings for time periods that differ from what the AOJ has previously established.  For example, the previous January 20, 2012 effective date for IVDS of the lumbar spine is being changed to February 14, 2011, to correspond with the same effective date for his lower extremity radiculopathy.    

The Veteran filed an initial rating claim (a pre-discharge claim) for his service-connected lumbar spine IVDS in June 2006.  The Veteran believes that his lumbar spine is worse than his currently assigned 10, 40, and 50 percent ratings throughout the entire appeal period from December 1, 2006 to the present.  The Veteran testified at his August 2010 Travel Board hearing that his lumbar spine pain is “constant” and 10/10.  He experiences daily muscle spasms, pain, and weakness in the low back.  He wakes up at night in pain.  He has no endurance.  He walks with a limp.  As a result of his lumbar spine IVDS, he is restricted with sitting, standing, ambulating, and with activities of daily living (ADLs).  He has undergone multiple lumbar spine fusion surgeries.  He has been treated with a variety of modalities, which have not solved his lumbar spine pain.  At times, he reports incapacitating episodes, during which he has to lie in bed and is unable to work.  For example, in 2010, he says he experienced approximately 12 weeks of incapacitating episodes.  See August 2010 Travel Board hearing.  

The criteria for spine disorders were amended in September 2002 and again in September 2003.  See 67 Fed. Reg. 54,345 54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003).  In this case, the Veteran’s increased rating claim for the thoracolumbar spine was received by the AOJ in June 2006, which was subsequent to the final amendments.  Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application.  38 U.S.C. § 5110(g); VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  

The September 2003 amendments indicate that IVDS, (preoperatively or postoperatively) can be evaluated under either (1) the General Rating Formula for Diseases and Injuries of the Spine, or (2) the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows:

A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months.  

A 20 percent rating requires evidence of 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 requires evidence of 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 requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note 1:  For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 

Note 2:  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 

38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003).

Upon review, from December 1, 2006 to February 14, 2011, a higher initial 60 percent rating, but no greater, for the Veteran’s lumbar spine IVDS is granted.  38 C.F.R. § 4.7.  This 60 percent rating is effective under Diagnostic Code 5243 due to probative medical and lay evidence of record of incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  In fact, throughout the entire appeal period of the present appeal from December 1, 2006 to the present, the Veteran has experienced on average incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  This is the maximum rating available for incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

The following evidence is either directly or circumstantially supportive of a higher 60 percent rating for low back IVDS with radiculopathy, based on the frequency of incapacitating episodes: 

Since the year 2000, the Veteran has undergone at least 13 surgical procedures for his lumbar spine IVDS.  Many of these lumbar spine surgeries have been unsuccessful, as his disability has become “progressively” worse according to the clinical evidence of record.  Moreover, in the weeks after these lumbar spine surgical procedures, he has been incapacitated for weeks on end.  

At the December 2007 VA spine examination, the Veteran reported severe flare-ups for his IVDS of the lumbar spine for one day per week in the last year.  At that time, the Veteran reported 48 to 96 days of total incapacitation in the past 12 months.  At a minimum, the Board finds this would equate to 48 days or 6 weeks per year of incapacitating episodes, or a 60 percent rating under Diagnostic Code 5243.  

In a September 2008 Premier Pain Management physician letter, a treating physician of the Veteran documented “unrelenting” and “intractable” and a “profound degree” of pain and muscle spasms with “incapacitating episodes” of the lumbar spine, which has “progressively intensified.”  The private physician assessed in excess of 6 weeks of “intractable” low back pain each year during which the Veteran cannot work and is “substantially impaired.”  The Board finds this is equivalent to over 6 weeks per year of incapacitating episodes, or a 60 percent rating under Diagnostic Code 5243.  

At the August 2010 Travel Board hearing, the Veteran reported “constant” lumbar spine pain resulting in incapacitating episodes, during which he has to lie in bed and is unable to work.  In 2010, he testified he had approximately 12 weeks of incapacitating episodes.  The Board finds this is equivalent to a 60 percent rating under Diagnostic Code 5243.  The Board finds the Veteran both competent and credible in his description of the frequency and duration of his incapacitating episodes.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007).

A January 20, 2012 VA thoracolumbar spine examination determined the Veteran had a total duration of at least 6 weeks of incapacitating episodes during the past 12 months for the lumbar spine – so in this instance 60 percent disabling under Diagnostic Code 5243.

The May 2015 VA thoracolumbar spine examination documented incapacitating episodes 2-4 times per month during which the Veteran must lie down in bed due to severe low back pain.  He is unable to ambulate or sit during these incapacitating episodes due to “extreme” pain that affects any functioning.  These low back flare-ups occur at least twice a month - this would equate to 6.8 weeks per year of incapacitating episodes, or a 60 percent rating under Diagnostic Code 5243.  

Therefore, the evidence above supports on average incapacitating episodes having a total duration of at least 6 weeks during any 12 month period, supportive of a 60 percent rating for incapacitating episodes under Diagnostic Code 5243 for the entire appeal period.  The Board acknowledges that there is some evidence of record suggesting a lesser frequency (4 weeks per year) of incapacitating episodes.  See e.g., April 2019 VA thoracolumbar spine examination.  However, this negative finding is unsupported by much of the clinical and lay evidence of record discussed above. 

In light of the above, from December 1, 2006 to February 14, 2011, the preponderance of the evidence is in favor of a 60 percent rating for incapacitating episodes due to IVDS of the lumbar spine under Diagnostic Code 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.3.

From December 1, 2006 to February 14, 2011, in assigning the above 60 percent initial rating for incapacitating episodes, the Board is aware that under 38 C.F.R. § 4.71a, Diagnostic Code 5243, the Veteran’s IVDS (preoperatively or postoperatively) is evaluated under either (1) the General Rating Formula for Diseases and Injuries of the Spine, OR (2) the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 

In this regard, the General Rating Formula for Diseases and Injuries of the Spine encompasses both orthopedic and neurological manifestations of a low back disability.  In other words, a veteran can receive separate ratings for both orthopedic and neurological manifestations of a spine disability under this particular rating formula.  That is, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine advises: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Moreover, the Court has held that neurological symptoms of the lumbar spine can warrant separate disability ratings under the diagnostic codes pertinent to rating neurological disorders.  Bierman v. Brown, 6 Vet. App. at 129-132 (1994).    

Historically, the previous September 2002 amendments for IVDS under Diagnostic Code 5293 similarly emphasized that IVDS is evaluated either on the basis of incapacitating episodes or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of the chronic orthopedic and neurologic manifestations of IVDS, along with evaluations for all other disabilities, whichever method results in the higher evaluation.  This interpretation of Diagnostic Code 5243 is important to the determination of the correct rating in the present case, as incapacitating episodes, orthopedic manifestations, and neurologic manifestations are all associated with the Veteran’s service-connected low back IVDS with radiculopathy.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, from December 1, 2006 to February 14, 2011, a 60 percent rating is warranted for the Veteran’s IVDS based on his incapacitating episodes, as already discussed in great detail above.

The Board now turns to consideration of the combination of the Veteran’s orthopedic and neurologic manifestations for his IVDS of the lumbar spine under the General Rating Formula for Diseases and Injuries of the Spine for the time period from December 1, 2006 to February 14, 2011.

The General Rating Formula for Diseases and Injuries of the Spine is as follows:

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, 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 is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 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 cervical spine is 340 degrees and 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 (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.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 

The Court has held that “limitation of motion” and “painful motion” are distinct concepts, although limitation of motion is a factor that may be considered to determine whether painful motion is present.  Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019).  

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).  Further, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016).  In addition, the assignment of a disability rating should take into account limitation of functional ability or additional range of motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at the VA examination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

The Court has held that painful motion may be “objectively confirmed” by a layperson who witnessed a veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain.  Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015).   

From December 1, 2006 to February 14, 2011, under the General Rating Formula for Diseases and Injuries of the Spine, orthopedic manifestations of the Veteran’s IVDS of the lumbar spine are at the most 20 percent disabling due to functional loss causing range of motion (flexion) from 30 to 60 degrees, during flare-ups and during repetitive use in a functional setting.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  (Previously, the AOJ determined the Veteran’s orthopedic manifestations of his IVDS of the lumbar spine only warranted a 10 percent rating).  Specifically, a December 2007 VA spine examination observed flexion limited to 40 degrees when considering the effect of painful motion and repetition x 3.  Moreover, an April 2010 Tallahassee Orthopedic Clinic examination revealed “marked” limitation of thoracolumbar flexibility, without providing specific degrees of motion loss.  A February 14, 2011 private pain management nurse practitioner report mentioned “moderately limited” lumbar spine range of motion, without providing specific degrees of motion loss.  A March 2011 VA pain consult found that range of motion was decreased to the waist at flexion and extension, with pain elicited on motion, but without providing specific degrees of motion loss.  In any event, the above general descriptions of the Veteran’s loss of thoracolumbar spine motion, when considering the impact of the constant pain he experiences and his worsening pain during flare-ups, it is reasonable to assume his flexion would be limited from 30 to 60 degrees.  Sharp, 29 Vet. App. at 33.  This is supportive of a 20 percent rating for his orthopedic manifestations of his IVDS of the lumbar spine from December 1, 2006 to February 14, 2011.  

But from December 1, 2006 to February 14, 2011, with regard to orthopedic manifestations of the lumbar spine with consideration of functional loss (38 C.F.R. §§ 4.40, 4.45, 4.59), the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire thoracolumbar spine warranting a 50 percent evaluation, or even favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less warranting a 40 percent evaluation.  38 C.F.R. § 4.71a.  Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.”  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” citing Stedman’s Medical Dictionary 87 (25th ed. 1990)).  There is no diagnosis of ankylosis in any segment of the spine in the evidence of record during this timeframe and range of motion findings, although limited at times, are not equivalent to favorable or unfavorable ankylosis during this timeframe.  In addition, the Veteran and his representative’s lay statements do not assert a diagnosis of ankylosis or findings more nearly approximating ankylosis during this timeframe.

From December 1, 2006 to February 14, 2011, neurologic manifestations of the Veteran’s IVDS (as already discussed above) are rated as 20 percent for the right lower extremity and 20 percent for the left lower extremity, due to sciatic radiculopathy.  See Diagnostic Code 8520, 38 C.F.R. § 4.124a.  

Therefore, from December 1, 2006 to February 14, 2011, when combining the above orthopedic and neurologic manifestations for IVDS in accordance with 38 C.F.R. §§ 4.25 and 4.26 (the combined rating table and bilateral factor) – 20 percent and 20 percent and 20 percent combine to only a 50 percent rating for IVDS under the General Rating Formula for Diseases and Injuries of the Spine.  

In short, from December 1, 2006 to February 14, 2011, the 60 percent rating for IVDS based on the Veteran’s incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, is greater than the combined 50 percent rating for the Veteran’s orthopedic and neurologic manifestations of IVDS under the General Rating Formula for Diseases and Injuries of the Spine.  The Board cannot assign both ratings during this time period – it is one or the other according to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243.  

In the present case, for the time period from December 1, 2006 to February 14, 2011, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes results in the greater 60 percent evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Accordingly, from December 1, 2006 to February 14, 2011, the evidence supports an initial 60 percent disability rating, but no greater, for the Veteran’s IVDS of the lumbar spine based on incapacitating episodes.  38 C.F.R. § 4.3.  

(When awarding this 60 percent rating for IVDS based on incapacitating episodes for the time period from December 1, 2006 to February 14, 2011, the AOJ is advised that the Veteran cannot simultaneously receive VA compensation for his additional 20 percent ratings granted above for his right and left lower extremity radiculopathy during this time period.  This is because in the Veteran’s particular case from December 1, 2006 to February 14, 2011, when all disabilities are combined under 38 C.F.R. § 4.25, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes results in the greater 60 percent evaluation, whereas the combination of his orthopedic and neurological manifestations of his IVDS only results in a lesser 50 percent evaluation (20 percent and 20 percent and 20 percent).  The Veteran can only receive compensation payments for the greater of the two – in this case the 60 percent evaluation for IVDS based on incapacitating episodes.)  

For this lumbar spine IVDS issue prior to February 14, 2011, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

F.  IVDS of the Lumbar Spine at 40 Percent                                                    from February 14, 2011 to April 9, 2019

From January 20, 2012 to April 9, 2019, the AOJ previously assigned the Veteran’s IVDS of the lumbar spine a 40 percent rating based on its orthopedic manifestations under the General Rating Formula for Diseases and Injuries of the Spine per Diagnostic Code 5243 (IVDS).  (The Board has determined in the present decision that the initial date of this 40 percent staged rating should be earlier in time - February 14, 2011).  Specifically, there is probative medical and lay evidence of record revealing forward flexion of the thoracolumbar spine to 30 degrees or less, when considering the factors of functional loss.  See again 38 C.F.R. § 4.71a, Diagnostic Code 5243.

From February 14, 2011 to April 9, 2019, with regard to neurological manifestations of the IVDS of the lumbar spine, the Veteran in the present Board decision has been assigned separate 40 percent ratings for RIGHT and LEFT lower extremity sciatic radiculopathy under Diagnostic Code 8520 (paralysis or incomplete paralysis of the sciatic nerve).  38 C.F.R. § 4.124a (2019).  This was already discussed in great detail above.  

From February 14, 2011 to April 9, 2019, the Board in the present decision has assigned the Veteran’s IVDS of the lumbar spine a 60 percent rating based on his incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes per Diagnostic Code 5243 (IVDS).    In fact, throughout the entire appeal period of the present appeal from December 1, 2006 to the present, the Veteran has experienced on average incapacitating episodes having a total duration of at least 6 weeks during any 12 month period. This clinical and lay evidence of incapacitating episodes throughout the entire appeal was already discussed in detail above and bears no further repetition.  A 60 percent rating is maximum rating available for incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.   

From February 14, 2011 to April 9, 2019, the Board now turns to consideration of the combination of the Veteran’s orthopedic and neurologic manifestations for his IVDS of the lumbar spine under the General Rating Formula for Diseases and Injuries of the Spine.  For this time period, the Board must determine whether the combined evaluation for orthopedic and neurologic manifestations for his IVDS of the lumbar spine exceeds the 60 percent evaluation now assigned for incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

From February 14, 2011 to April 9, 2019, with regard to orthopedic manifestations of the Veteran’s IVDS of the lumbar spine, the Board finds they are at the most 40 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine.  Specifically, there is probative medical and lay evidence of record revealing forward flexion of the thoracolumbar spine to 30 degrees or less, when considering the factors of functional loss.  See again 38 C.F.R. § 4.71a, Diagnostic Code 5243.  In other words, in awarding a 40 percent rating for orthopedic manifestations of the lumbar spine from February 14, 2011 to April 9, 2019, the AOJ and the Board have considered additional range of thoracolumbar spine motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at a VA examination.  See 38 C.F.R. § 4.40; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206.    

Specifically, a January 20, 2012 VA thoracolumbar spine examination documented that painful flexion begins at 30 degrees with consideration of repetition x 3.  Moreover, other ranges of motion (extension and lateral flexion) were limited to only 5 degrees when considering the impact of painful motion.  Rotation was limited to only 10 degrees on each side.  A September 26, 2012 VA thoracolumbar spine examination indicated that painful flexion begins at 20 degrees with consideration of repetition x 3.  Moreover, all other ranges of motion (extension and lateral flexion and lateral rotation) were limited to only 5 degrees when considering the impact of painful motion.  Relevant factors causing this degree of functional loss were noted to be less movement than normal, weakened movement, pain on movement, tenderness, and interference with sitting, standing, and weight bearing.  Muscle spasms of the thoracolumbar spine were also causing an abnormal gait for the Veteran.  A December 2014 SSA disability examination observed that flexion of the thoracolumbar spine was limited to 30 degrees when considering painful motion.  A May 1, 2015 VA thoracolumbar spine examination again found that muscle spasms of the thoracolumbar spine were causing an abnormal gait for the Veteran.  In addition, at this VA examination, flexion was limited to only 10 degrees when considering the impact of pain and with consideration of repetition x 3.  During flare-ups, the VA examiner suggested that the Veteran’s flexion was limited to only 5 degrees.  The VA examiner determined that pain, weakness, fatigability, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time and during flare-ups.  Finally, an April 2016 SSA decision determined that the Veteran’s lumbar spine disability caused “severe” impairments. 

In light of the above evidence, from February 14, 2011 to April 9, 2019, the AOJ was correct in assigning a 40 percent rating under Diagnostic Code 5243 for orthopedic manifestations of the lumbar spine IVDS disability with consideration of functional loss.  

However, upon review of the evidence, from February 14, 2011 to April 9, 2019, the Board concludes that the Veteran is not entitled to an initial rating in excess of 40 percent for his service-connected IVDS of the lumbar spine based on its orthopedic manifestations.  38 C.F.R. § 4.7.  In making this determination, the Board has considered both the competent and credible medical and lay evidence of record.

From February 14, 2011 to April 9, 2019, with regard to orthopedic manifestations of the Veteran’s thoracolumbar spine disability with consideration of functional loss (38 C.F.R. §§ 4.40, 4.45, 4.59), the most probative evidence of record does not reveal “unfavorable ankylosis of the entire spine” warranting a higher 100 percent evaluation, or “unfavorable ankylosis of the entire thoracolumbar spine” warranting a higher 50 percent evaluation, or even favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  On this issue, ankylosis is defined as the immobility and consolidation of a joint due to disease, injury, or surgical procedure.  See Dorland’s Illustrated Medical Dictionary, 91 (27th Ed. 1988); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  Ankylosis is also defined as the “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.”  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  

Here, range of motion and other clinical findings for the thoracolumbar spine, although limited at times, are not equivalent to favorable or unfavorable ankylosis during this time period, even when considering pain and other factors of functional loss and repetition of range of motion x 3 and flare-ups.  See again 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206.  Moreover, the May 1, 2015 VA thoracolumbar spine examination indicated there was no ankylosis of the spine.  SSA and private medical records did not document ankylosis of the lumbar spine during this time period.  No VA examiner prior to April 9, 2019 determined there was ankylosis of the thoracolumbar spine.  X-ray reports and MRIs of the lumbar and thoracic spine failed to assess ankylosis.  None of the Veteran’s lay statements alleges or describes ankylosis of the thoracolumbar spine or anything more nearly approximating ankylosis prior to April 9, 2019.  In fact, the effect of pain and other functional loss factors for the Veteran’s thoracolumbar spine is already contemplated in the 40 percent rating currently assigned for orthopedic manifestations under Diagnostic Code 5243 during this time period. 

In light of the above evidence, there is no diagnosis of ankylosis of the thoracolumbar spine in the evidence of record prior to April 9, 2019.  In fact, in one instance, a VA examiner specifically determined there was no thoracolumbar spine ankylosis for this Veteran.  Range of motion findings for the thoracolumbar spine, although certainly limited at times, are not equivalent to favorable or unfavorable ankylosis, even with consideration of pain and various other factors of functional loss.  Prior to prior to April 9, 2019, it is apparent from the evidence of record that the Veteran’s thoracolumbar spine is not fixated or immobile with fibrous or bony union.  

As such, from February 14, 2011 to April 9, 2019, with regard to orthopedic manifestations of the thoracolumbar spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire thoracolumbar spine warranting a higher 50 percent evaluation, or even favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  Thus, a rating higher than 40 percent based on orthopedic manifestations of the thoracolumbar spine is not warranted from February 14, 2011 to April 9, 2019.  

Once again, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, the Veteran’s IVDS (preoperatively or postoperatively) is evaluated under either (1) the General Rating Formula for Diseases and Injuries of the Spine, OR (2) the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 

Therefore, from February 14, 2011 to April 9, 2019, the Board will now combine the above orthopedic and neurologic manifestations for IVDS in accordance with 38 C.F.R. §§ 4.25 and 4.26 (the combined rating table and bilateral factor).  In this vein, the orthopedic rating is 40 percent, the RIGHT lower extremity neurological rating is 40 percent, and the LEFT lower extremity neurological rating is 40 percent.  It follows that 40 percent and 40 percent and 40 percent combine to an 80 percent rating for IVDS under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. §§ 4.25 and 4.26.

From February 14, 2011 to April 9, 2019, the combined 80 percent rating for the Veteran’s orthopedic and neurologic manifestations of IVDS under the General Rating Formula for Diseases and Injuries of the Spine is greater than the 60 percent rating for IVDS based on the Veteran’s incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The Board cannot assign both ratings during this time period – it is one or the other according to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243.  

Therefore, for the time period from February 14, 2011 to April 9, 2019, the General Rating Formula for Diseases and Injuries of the Spine results in the greater 80 percent evaluation when all orthopedic and neurological disabilities are combined under 38 C.F.R. § 4.25.  

Accordingly, from February 14, 2011 to April 9, 2019, the evidence continues to support an initial 40 percent rating, but no greater, for the Veteran’s IVDS of the lumbar spine based on its orthopedic manifestations.  38 C.F.R. § 4.3.  

(From February 14, 2011 to April 9, 2019, the AOJ is advised the Veteran will simultaneously receive VA compensation for the following: a 40 percent orthopedic rating for his IVDS of the lumbar spine and separate, additional 40 percent and 40 percent ratings for his right and left lower extremity sciatic radiculopathy). 

For this lumbar spine IVDS issue from February 14, 2011 to April 9, 2019, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

G.  IVDS of the Lumbar Spine at 50 Percent                                      After April 9, 2019

On and after April 9, 2019, the AOJ has assigned the Veteran’s IVDS of the lumbar spine a 50 percent rating based on its orthopedic manifestations under the General Rating Formula for Diseases and Injuries of the Spine per Diagnostic Code 5243 (IVDS).  Specifically, according to an April 9, 2019 VA thoracolumbar examiner, there was probative medical evidence of record revealing “unfavorable ankylosis of the entire thoracolumbar spine” when considering the factors of functional loss.  See again 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

On and after April 9, 2019, with regard to neurological manifestations of the IVDS of the lumbar spine, the Veteran in the present Board decision has been assigned separate 40 percent ratings for RIGHT and LEFT lower extremity sciatic radiculopathy under Diagnostic Code 8520 (paralysis or incomplete paralysis of the sciatic nerve).  38 C.F.R. § 4.124a.  This was already discussed in detail above.  

On and after April 9, 2019, with regard to neurological manifestations of the IVDS of the lumbar spine, the Veteran has also been assigned a separate 30 percent rating for RIGHT lower extremity femoral radiculopathy under Diagnostic Code 8526 (paralysis or incomplete paralysis of the femoral nerve).  38 C.F.R. § 4.124a.  This was already discussed in detail above.  

On and after April 9, 2019, the Board in the present decision has assigned the Veteran’s IVDS of the lumbar spine a 60 percent rating based on his incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes per Diagnostic Code 5243 (IVDS).  See 38 C.F.R. § 4.71a.  This was already discussed in detail above.  

On and after April 9, 2019, the Board now turns to consideration of the combination of the Veteran’s orthopedic and neurologic manifestations for his IVDS of the lumbar spine under the General Rating Formula for Diseases and Injuries of the Spine.  For this time period, the Board must determine whether the combined evaluation for orthopedic and neurologic manifestations for his IVDS of the lumbar spine exceeds the 60 percent evaluation now assigned for incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

On and after April 9, 2019, with regard to orthopedic manifestations of the Veteran’s IVDS of the lumbar spine, the Board finds they are at the most 50 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine.  Specifically, according to an April 9, 2019 VA spine examiner, there was probative medical evidence of record revealing “unfavorable ankylosis of the entire thoracolumbar spine” when considering the factors of functional loss.  See again 38 C.F.R. § 4.71a, Diagnostic Code 5243.  His range of motion at the April 9, 2019 VA thoracolumbar spine examination was quite limited.  For the first time in the record, the Veteran was unable to perform repetitive motion x 3 at the April 9, 2019 VA examination.  His forward posture was “stooped.”  He was limited in his ability to stand erect and could not extend back.  This VA examiner opined the Veteran exhibited unfavorable ankylosis of the entire thoracolumbar spine, directly in support of a 50 percent rating.  Furthermore, a September 2019 VA addendum / clarification opinion from a VA nurse practitioner confirmed that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine.

In light of the above evidence, on and after April 9, 2019, the AOJ was correct in assigning a 50 percent rating under Diagnostic Code 5243 due to unfavorable ankylosis of the entire thoracolumbar spine.  

However, upon review of the evidence, on and after April 9, 2019, the Board concludes that the Veteran is not entitled to an initial rating in excess of 50 percent for his service-connected IVDS of the lumbar spine based on its orthopedic manifestations.  38 C.F.R. § 4.7.  In making this determination, the Board has considered both the competent and credible medical and lay evidence of record.  In this regard, the evidence of record, including the April 2019 VA thoracolumbar spine examination, does not reveal “unfavorable ankylosis of the entire spine” warranting a higher 100 percent evaluation.  38 C.F.R. § 4.71a.  The Veteran has never been diagnosed with unfavorable ankylosis of the entire spine to include the cervical spine.  Moreover, the Veteran is not service-connected for any cervical spine disability.  He is only service-connected for his lumbar spine.  Thus, a rating higher than 50 percent based on orthopedic manifestations of the thoracolumbar spine is not warranted on and after April 9, 2019.  

Once again, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, the Veteran’s IVDS (preoperatively or postoperatively) is evaluated under either (1) the General Rating Formula for Diseases and Injuries of the Spine, OR (2) the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 

Therefore, on and after April 9, 2019, the Board will now combine the above orthopedic and neurologic manifestations for IVDS in accordance with 38 C.F.R. §§ 4.25 and 4.26 (the combined rating table and bilateral factor).  In this vein, the orthopedic rating is 50 percent, the RIGHT lower extremity neurological ratings are 40 percent (sciatic nerve) and 30 percent (femoral nerve), and the LEFT lower extremity neurological rating is 40 percent (sciatic nerve).  It follows that 50 percent, 40 percent, 40 percent, and 30 percent combine to a 90 percent rating for IVDS under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. §§ 4.25 and 4.26.

On and after April 9, 2019, the combined 90 percent rating for the Veteran’s orthopedic and neurologic manifestations of IVDS under the General Rating Formula for Diseases and Injuries of the Spine is greater than the 60 percent rating for IVDS based on the Veteran’s incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The Board cannot assign both ratings during this time period – it is one or the other according to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243.  

Therefore, for the time period on and after April 9, 2019, the General Rating Formula for Diseases and Injuries of the Spine results in the greater 90 percent evaluation when all orthopedic and neurological disabilities are combined under 38 C.F.R. § 4.25.  

Accordingly, on and after April 9, 2019, the evidence continues to support an initial 50 percent rating, but no greater, for the Veteran’s IVDS of the lumbar spine based on its orthopedic manifestations.  38 C.F.R. § 4.3. 

(On and after April 9, 2019, the AOJ is advised the Veteran will simultaneously receive VA compensation for the following: a 50 percent orthopedic rating for his IVDS of the lumbar spine, and separate, additional 40 percent, 40 percent, and 30 percent ratings for his right and left lower extremity sciatic and femoral radiculopathy). 

For the lumbar spine IVDS issue on and after April 9, 2019, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

H.  Scars Associated with Lumbar Spine Surgeries at 0 and 20 Percent

The Veteran is service-connected for multiple post-surgical lumbar spine scars.  These multiple scars are on appeal in the present decision.  

The Veteran is also service-connected for multiple scars on other areas of the body – the right knee, the right shoulder, left inguinal hernia, and the right neck.  These scars are technically not on appeal in the present decision.  However, these scars still could be considered for purposes of a higher rating under the more recent amendments to the rating criteria for the skin, in that two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved.  See 38 C.F.R. § 4.118(b) (August 13, 2018).  

The Veteran’s scar ratings for the lumbar spine have been staged by the AOJ for separate periods of time.  

From December 1, 2006 to May 1, 2015, the Veteran’s service-connected scar residuals of a lumbar spine surgery are rated as 0 percent disabling under Diagnostic Code 7805 (scars, other).  38 C.F.R. § 4.118.  

On and after May 1, 2015, the Veteran’s service-connected painful surgical scars associated with lumbar spine surgeries and right knee surgeries are rated as 20 percent disabling under Diagnostic Code 7804 (scars, unstable or painful).  38 C.F.R. § 4.118.  

On and after May 1, 2015, the Veteran’s service-connected surgical scars associated with lumbar spine surgeries on the anterior trunk are rated as 0 percent disabling under Diagnostic Code 7802 (scars not associated with soft tissue damage).  38 C.F.R. § 4.118.

On and after May 1, 2015, the Veteran’s service-connected surgical scars associated with lumbar spine surgeries on the posterior trunk are rated as 0 percent disabling under Diagnostic Code 7802 (scars not associated with soft tissue damage).  38 C.F.R. § 4.118.

In every case where the requirements for a compensable rating are not met, a zero percent evaluation may be assigned, even if the diagnostic schedule does not provide for such a noncompensable evaluation.  38 C.F.R. § 4.31 (2019).

The Veteran filed his initial rating claim for his post-surgical lumbar spine scars on July 27, 2006, a few months prior to separation from active duty in the Air Force.  The Veteran believes that the post-surgical lumbar spine scars located on both anterior and posterior areas of his trunk are worse than the 0 percent and 20 percent ratings assigned both prior to and after May 1, 2015.  At his August 2010 Travel Board hearing, the Veteran testified that his lumbar spine scars have “grown” due to multiple surgeries.  (For the record, the Veteran has undergone over 13 surgical procedures involving his lumbar spine IVDS).  These lumbar spine post-surgical scars are tender and painful “at times.”  In particular, his scars are painful when sitting for a time and when wearing a belt.  He must try to wear loose clothing to avoid irritating the scars.  He testified the scars did not have any loose covering – only a scab (so they are not unstable).  But the Veteran did feel that his scars were deep (had soft tissue damage).  He also asserted his scars cause limitation of motion of the lumbar spine, although he could not distinguish the degree of lumbar spine motion limited by his IVDS orthopedic disability vs. the degree of lumbar spine motion limited by his scars.  

During the course of the appeal, the rating criteria for the skin were amended twice.   

Effective October 23, 2008, during the course of the appeal, the criteria for rating skin / scar disabilities were revised.  See 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4).  However, the October 2008 amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria.  38 C.F.R. § 4.118 (after October 2008).  In the present case, the Veteran’s initial rating claim was filed in July 2006, prior to the October 2008 effective date.  But the VA has not received a specific request from the Veteran for consideration under the amended October 2008 criteria.  Regardless, since the AOJ appears to have considered both sets of criteria (the pre-October 2008 criteria and the amended October 2008 criteria), the Board will also consider both sets of criteria as well, to avoid any potential prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

Effective August 13, 2018, during the course of the appeal, the criteria for rating skin / scar disabilities were again revised.  See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018).  The Secretary of VA has determined that “claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.”  83 Fed. Reg. at 32593.  In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran.  See generally VAOPGCPREC 3-2000, 7-2003.  As noted above, the Veteran’s initial rating claim for all his disabilities including his scars was filed in June 2006.  Thus, the initial rating claim for his scars was pending prior to the August 13, 2018 revisions.  As such, the Veteran’s initial rating claim for his scars must be considered under the August 2018 amended rating criteria for the skin as well.  See again 83 Fed. Reg. at 32593 (emphasis added).

The August 13, 2018 skin amendments introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity.  In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved.  If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used.  See 38 C.F.R. § 4.118(b) (August 13, 2018).  

In summary, the Board will consider all three sets of the rating criteria for the skin: the pre-October 2008 criteria, the amended October 2008 criteria, and the most recent August 2018 criteria.  

Upon review, from December 1, 2006 through the present, throughout the entire appeal period, a higher initial 20 percent rating, but no greater, for multiple painful surgical scars (4 scars in total) from lumbar spine surgeries and right knee surgeries under Diagnostic Code 7804 (scars, unstable or painful) is granted.  38 C.F.R. § 4.118.  (Previously, for the time period from December 1, 2006 to May 1, 2015, the Veteran’s service-connected multiple scars from a lumbar spine surgery were only rated as 0 percent disabling).  The Board has now increased this rating to 20 percent disabling during this time period.  In making this determination that a 20 percent rating is warranted throughout the entire appeal period, the Board has reviewed both the medical and lay evidence of record.  In awarding this higher 20 percent rating for multiple painful lumbar spine scars (and a right knee scar), the Board has applied the most recent August 2018 amended rating criteria for the skin for the entire appeal period, as these most recent skin amendments can be applied retroactively.  See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018).  

Specifically, these four service-connected painful scars include two posterior trunk scars of the lumbar spine, one anterior trunk scar of the lumbar spine, and one right knee scar.  See e.g., May 1, 2015 VA scars examination; April 2019 VA scars examination.  Thus, the evidence of record reveals four scars that are painful, supporting a higher 20 percent rating under the rating criteria listed under Diagnostic Code 7804.  See 38 C.F.R. § 4.118 (August 13, 2018).  Importantly, with regard to lay evidence, at his August 2010 Travel Board hearing, the Veteran testified that his lumbar spine scars have “grown” due to multiple surgeries.  (For the record, the Veteran has undergone over 13 surgical procedures involving his lumbar spine IVDS, with several of his scars opened up multiple times).  The Veteran has competently and credibly described in August 2010 that his lumbar spine post-surgical scars are tender and painful “at times.”  He has to wear loose clothing to avoid pain and irritation.  As a lay person, the Board emphasizes that the Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected scars.  See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  In this regard, the Court has held a skin condition is the type of condition lending itself to lay observation.  McCartt v. West, 12 Vet. App. 164, 167 (1999).  Moreover, some chronic conditions, in particular skin conditions, are subject to active and inactive stages.  See Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  As such, the fact that an earlier December 2007 VA scar examination found that the scars located on the Veteran’s posterior trunk of his lumbar spine were not tender or painful at that time is not dispositive of the claim.  

And importantly, both the May 2015 and April 2019 VA scar examiners determined that these four scars were painful.  The Veteran’s earlier August 2010 Travel Board hearing testimony also establishes that these scars were painful prior to May 1, 2015 (the AOJ had previously assigned a 0 percent rating prior to this date).  Thus, from December 1, 2006 to the present, which is throughout the entire appeal period, a higher initial 20 percent rating is warranted for 3-4 painful scars under Diagnostic Code 7804.  See 38 C.F.R. § 4.118 (August 13, 2018).  

The Board has considered that the AOJ previously staged the lumbar spine scars as 0 percent disabling prior to May 1, 2015 and as 20 percent disabling after May 1, 2015.  But notably, the Board cannot discern any difference for the Veteran’s lumbar spine scars for the time period from December 1, 2006 to May 1, 2015 (when he was previously assigned a lower 0 percent rating) vs. the time period on and after May 1, 2015 (for which the AOJ has already awarded a 20 percent rating for his multiple lumbar spine and knee scars).  Thus, a 20 percent rating for painful scars under DC 7804 is warranted back to December 1, 2006.  

However, under all three sets of skin criteria, throughout the entire appeal period from December 1, 2006 to the present, the evidence of record does not warrant an initial rating in excess of 20 percent for the painful surgical scars associated with lumbar spine surgeries and right knee surgeries, OR any additional, separate compensable scar rating under any other diagnostic code.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  In making this determination, the Board has reviewed both the medical and lay evidence of record.  

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  It is permissible to switch diagnostic codes to more accurately reflect a claimant’s current symptoms.  See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the situs of the disability, or the diagnostic code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability).  In this case, the Board has considered whether another rating code is “more appropriate” than the ones used by the AOJ for the Veteran’s multiple lumbar spine scars.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  In short, the Board will examine whether a higher or additional scar rating is warranted under Diagnostic Codes 7800-7805 under all three sets of skin criteria. (In addition to the Board’s grant in the present decision of a 20 percent rating under DC 7804 back to December 1, 2006)   

Under all three sets of skin criteria, for Diagnostic Code 7800, the Veteran does not contend, and the objective evidence does not demonstrate: burn scars, scars due to other causes, or disfigurement on the head, face, or neck with one characteristic of disfigurement; or disfigurement of the head, face, or neck.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  The Veteran’s service-connected scars on appeal are located on his anterior and posterior parts of his trunk / lumbar spine.  These scars are not located near the head, face, or neck.  Thus, Diagnostic Code 7800 does not apply to his service-connected scars on appeal.    

Under the most recent criteria, for Diagnostic Code 7801, a 10 percent rating is available for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying tissue damage (that are deep), at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches).  See 38 C.F.R. § 4.118 (August 13, 2018) (emphasis added).

Note (1) to Diagnostic Code 7801 provides that for the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Id.   

Note (2) to Diagnostic Code 7801 provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body.  Combine the separate evaluations under §4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.  Id.   

Under the October 2008 version of Diagnostic Code 7801, a 10 percent rating is available when there are burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches).  Note (2) to Diagnostic Code 7801 defines a “deep” scar as one associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (October 23, 2008) (emphasis added).

Under the pre-October 2008 version of Diagnostic Code 7801, a 10 percent rating is available for scar or scars that exceed 39 square cm (6 square inches) and are either deep (associated with underlying soft tissue damage) or cause limited motion.  Note (1) to Diagnostic Code 7801 defines a “deep” scar as one associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (2006) (emphasis added).

Under all three versions of Diagnostic Code 7801, the Board acknowledges the April 2019 VA scar examiner assessed three of the Veteran’s lumbar spine scars resulted in limitation of function to include limitation of motion.  These scars with implantable spinal devices affected his mobility.  The Veteran’s August 2010 hearing testimony also asserted limitation of motion caused by the lumbar scars.  The April 2019 VA scar examiner also assessed that the anterior trunk scar of the lumbar spine had underlying soft tissue damage of 12cm squared.  In addition, two scars on the posterior trunk of the lumbar spine had a combined area (when added together) of underlying soft tissue damage of 19cm squared.  (In others words all three of these particular scars of the lumbar spine were deep scars that caused limitation of motion).  This is because there were implanted spinal devices in place that affect underlying tissue.  In any event, adding the areas of the affected anterior and posterior lumbar spine scars together reveals underlying soft tissue damage of 31cm squared (19+12).  Regardless, no evidence suggests the total affected area of the three scars exceeded 39 square cm or 6 sq. inches.  This criterion must be met in order to afford the Veteran a separate compensable rating under Diagnostic Code 7801.  The findings of the earlier May 2015 and December 2007 VA scar examiners also provide no basis for a separate rating under Diagnostic Code 7801.  Also, an earlier September 2012 VA thoracolumbar spine examiner observed that the total area of all lumbar-related scars was not greater than 39 square cm (6 square inches).  Thus, the criteria for a 10 percent rating under all three versions of Diagnostic Code 7801 are not met here.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  

Under the most recent version of Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, affecting an area or areas of 144 square inches (929 sq. cm.) or greater.  Notes (1) and (2) to Diagnostic Code 7802 are identical to Notes (1) and (2) of Diagnostic Code 7801 above.  See 38 C.F.R. § 4.118 (August 13, 2018) (emphasis added).

Under the October 2008 version of Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater.  Note (1) to Diagnostic Code 7802 defines a “superficial” scar as one not associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (October 23, 2008) (emphasis added).  

Under the pre-October 2008 version of Diagnostic Code 7802, a maximum 10 percent rating is warranted if a scar on other than the head face or neck is superficial (not associated with soft tissue damage) and does not cause limited motion, affecting an area or areas of 144 square inches (929 sq. cm.) or greater.  Note (2) to Diagnostic Code 7802 defines a “superficial” scar as one not associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (2006) (emphasis added).

Under all three versions of Diagnostic Code 7802, the Board acknowledges the April 2019 VA scar examiner assessed the Veteran had multiple superficial, non-linear scars located on the anterior and posterior trunks of his lumbar spine.  It was noted by this VA examiner that for VA purposes, superficial non-linear scars are those not associated with underlying soft tissue damage.  However, the Board sees that the total area of these scars did not cover an area of 144 square inches (929 sq. cm.) or greater.  This criterion is necessary for a compensable rating under all three versions of Diagnostic Code 7802.  The findings of the earlier May 2015 and December 2007 VA scar examiners also provide no basis for a separate compensable rating under Diagnostic Code 7802.  Thus, the criteria for a 10 percent rating under all three versions of Diagnostic Code 7802 are not met here.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  

In fact, on and after May 1, 2015, the AOJ has already assigned two separate zero percent ratings for the Veteran’s lumbar spine surgical scars on the anterior and posterior trunks under Diagnostic Code 7802.  See 38 C.F.R. § 4.118.  In every case where the requirements for a compensable rating are not met, a zero percent evaluation may be assigned, even if the diagnostic schedule does not provide for such a noncompensable evaluation.  38 C.F.R. § 4.31.  In light of the above discussion, the Board finds no basis in the record to increase the 0 percent ratings to 10 percent under any of the three versions of Diagnostic Code 7802.  

Under the pre-October 2008 version of Diagnostic Code 7803, a “superficial and unstable” scar may be assigned a maximum 10 percent rating.  Note (1) to Diagnostic Code 7803 defines an “unstable” scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  Under the latter October 2008 and August 2018 skin criteria, Diagnostic Code 7803 no longer exists, as it was incorporated into Diagnostic Code 7804.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  

Under the pre-October 2008 version of Diagnostic Code 7803, the Veteran does not contend, and the objective evidence does not demonstrate, a superficial and unstable scar of the lumbar spine.  See 38 C.F.R. § 4.118 (2006).  None of the Veteran’s service-connected scars on appeal located on his anterior and posterior parts of his trunk / lumbar spine have been assessed as “unstable.”  At the December 2007 VA scar examination, the VA examiner determined there was no skin ulceration or breakdown or adherence to underlying tissue for any of the four surgical scars identified at that time on the posterior trunk of the Veteran’s lumbar spine.  A February 2008 VA physician H&P note documented several “well-healed” surgical scars on the lumbar spine and a recent surgical scar on the left flank and low thoracic spine where the stimulator leads were placed.  At the August 2010 Travel Board hearing, the Veteran testified the scars did not have any loose covering – only a scab (they are not unstable).  A March 2011 private neurosurgeon letter observed that the Veteran’s surgical wounds are “well-healed.”  A September 2012 VA thoracolumbar spine examiner observed that none of the Veteran’s lumbar spine scars were unstable.  The May 2015 and April 2019 VA scars examiners remarked that although the Veteran had three painful lumbar spine surgical scars, there were no unstable scars with frequent loss of covering.  Thus, a separate compensable rating is not warranted under the pre-October 2008 version of Diagnostic Code 7803 for any unstable scar.   

Under the pre-October 2008 version of Diagnostic Code 7804, a scar that is superficial and painful “on examination” may be assigned a maximum 10 percent rating.  See 38 C.F.R. § 4.118 (2006). 

The October 2008 and August 2018 versions of the rating criteria for Diagnostic Code 7804 are the same.  In other words, there is no difference between these two versions of Diagnostic Code 7804.  A 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A maximum 30 percent rating is warranted for five or more scars that are unstable or painful.  

Note (1) to Diagnostic Code 7804 defines an “unstable” scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  Id.  

Note (2) to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation based on the total number of unstable or painful scars.  Id. 

Note (3) to Diagnostic Code 7804 provides that scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also be rated under Diagnostic Code 7804.   

Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008). 

Upon review, under all three sets of skin criteria, from December 1, 2006 to the present, the evidence of record does not warrant an initial rating in excess of the 20 percent (already awarded) for the painful surgical scars associated with lumbar spine surgeries and right knee surgeries under Diagnostic Code 7804.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  Under the most recent August 2018 version of Diagnostic Code 7804, the Veteran does not exhibit five or more scars that are unstable or painful, which is required for a higher 30 percent rating.  Instead, both the May 2015 and April 2019 VA scar examiners determined that in total there were four painful scars.  Specifically, these four service-connected painful scars include two posterior trunk scars of the lumbar spine, one anterior trunk scar of the lumbar spine, and one right knee scar.  No other VA examiner or VA or private clinician of record identified any other tender or painful scars.  Earlier December 2007 and September 2012 VA scar examinations found that the scars located on the Veteran’s posterior trunk of his lumbar spine were not tender or painful at that time.  With regard to lay evidence, at his August 2010 Travel Board hearing, the Veteran testified that his lumbar spine scars are tender and painful “at times.”  But he did not identify the number of scars at the time except to say they were located near his tailbone.  Moreover, no scar was unstable or had loss of covering over the scar at any VA examination.  And no scar was both painful and unstable.  Thus, from December 1, 2006 to the present, the rating criteria for Diagnostic Code 7804 does not provide the Veteran with a rating higher than the 20 percent rating he already has throughout the entire appeal period for his four painful scars.  See 38 C.F.R. § 4.118 (August 13, 2018).   

Finally, under the pre-October 2008 version of Diagnostic Code 7805, “other” scars are rated according to limitation of function of the affected part.  See 38 C.F.R. § 4.118 (2006). 

The latter October 2008 and August 2018 versions for Diagnostic Code 7805 are essentially the same.  In other words, there is no substantive difference between these two versions of Diagnostic Code 7805.  Under these versions of Diagnostic Code 7805 for other scars including linear scars, a separate rating (under an appropriate diagnostic code) can also be warranted for any disabling effects not considered under Diagnostic Codes 7800-7804.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  This could include, for example, residuals of associated muscle or nerve injury.  See e.g., Note (4) to Diagnostic Code 7800.  Another example would be a scar causing limitation of motion.  

Upon review, under all three sets of skin criteria, a separate compensable 10 percent rating is not warranted under Diagnostic Code 7805.  None of the Veteran’s lumbar spine post-surgical scars resulted in muscle or nerve damage.  The Board acknowledges the April 2019 VA scar examiner assessed three of the Veteran’s lumbar spine scars resulted in limitation of function to include limitation of motion.  These lumbar scars with implantable spinal devices affected his mobility.  The Veteran’s August 2010 hearing testimony also asserted limitation of motion of the lumbar spine caused by the lumbar scars.  However, the Veteran could not distinguish the degree of lumbar spine motion limited by his IVDS orthopedic disability vs. the degree of lumbar spine motion limited by his scars.  To this point, the Board finds that any loss of lumbar spine motion caused by the Veteran’s painful lumbar scar is already well compensated within the 20 percent, 40 percent, and 50 percent ratings the Veteran has been assigned for the orthopedic manifestations of his lumbar spine IVDS throughout the entire appeal period.  Moreover, the earlier December 2007 and May 2015 VA scar examiners concluded the Veteran’s lumbar spine scars did not result in limitation of motion or loss of function or functional impairment.  What’s more, VA and private and SSA treatment records dated from 2006 to 2019 are also negative for any complaints pertaining to the Veteran’s lumbar spine scars.  There are no other “disabling” effects of these scars not already considered in the current 20 percent rating provided under Diagnostic Code 7804.  

In fact, from December 1, 2006 to May 1, 2015, the AOJ has already assigned a separate 0 percent rating for the Veteran’s scar residuals of a lumbar spine surgery under Diagnostic Code 7805 (scars, other).  See 38 C.F.R. § 4.118.  In every case where the requirements for a compensable rating are not met, a zero percent evaluation may be assigned, even if the diagnostic schedule does not provide for such a noncompensable evaluation.  38 C.F.R. § 4.31.  In light of the above discussion, the Board finds no basis in the record to increase the 0 percent rating to 10 percent under any of the three versions of Diagnostic Code 7805.  

Thus, the criteria for a compensable 10 percent rating under all three versions of Diagnostic Code 7805 are not met here.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (2006).  

Accordingly, from December 1, 2006 to the present, an initial 20 percent rating, but no greater, for multiple painful scars (under Diagnostic Code 7804) associated with lumbar spine surgeries and right knee surgeries is granted.  38 C.F.R. § 4.3.  

Finally, for the increased rating issue for painful scars of the lumbar spine, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

III.  TDIU

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  38 U.S.C. § 1155.  Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  Total disability may or may not be permanent.  Id.  Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).  

A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  Id.  

But for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.

The Court recently defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic.  The economic component means that the occupation must be one where the veteran can earn more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.  The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019).

In a TDIU analysis, a veteran’s particular circumstances must be addressed to determine his capabilities for employment – his educational and vocational attainment, his training, his work history, and all other factors having a bearing on the issue.  Pederson v. McDonald, 27 Vet. App. 276, 286 (2015).  For example, the fact that a veteran may be physically able to perform sedentary employment does not mean that he is educationally and vocationally qualified to perform such employment.  Id. at 294.  

TDIU must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age.  38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.

The Veteran’s TDIU claim stems from a pre-discharge July 27, 2006 Application for Compensation (VA Form 21-526) for service connection for low back, psychiatric, and other disabilities that are now service-connected by the AOJ.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a TDIU can be part and parcel of an increased or initial rating claim).  Once the issue of entitlement to a TDIU is raised, it is “part of the claim for benefits for the underlying disability.”  Id.  Once entitlement to a TDIU is at issue as part of a claim for an increased rating before the Board, a claimant need not appeal an earlier denial by the AOJ for the TDIU issue to remain in appellate status before the Board.  Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018).  The Board is cognizant of the Court’s holding that a grant of TDIU that covers only part of the period on appeal does not end the TDIU analysis.  Harper, 30 Vet. App. at 360. The Board retains jurisdiction of the remaining, unresolved portion of the appeal period for TDIU.  Id.  In light of this caselaw, the appeal period for consideration of the TDIU issue begins on the day after the Veteran’s separation from service – here being December 1, 2006.    

Beginning on December 1, 2006, the Veteran is service-connected for the following disabilities: lumbar spine IVDS, sciatic radiculopathy of the lower extremities, a right knee instability and right knee medical meniscectomy, multiple surgical scars, PTSD with major depression, tinnitus with Meniere’s disease, left ear hearing loss, migraine headaches, and hypertension.  Based on the Board’s increased rating awards in the present decision, as of December 1, 2006, the combined service-connected disability rating is at least 70 percent with considering of the bilateral factor for paired extremities under the combined ratings table.  38 C.F.R. §§ 4.16(a), 4.25, 4.26.  Therefore, as of December 1, 2006, the schedular percentage criteria for TDIU have been met.  38 C.F.R. § 4.16(a).  

Consequently, the only remaining question here is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  38 C.F.R. § 4.16(a).  

As to the relevant background facts, the Veteran is currently 53 years old.  The Veteran last worked in late 2011.  He has a Bachelor of Science (BS) in Information Systems and a Master’s Degree in Information Systems Management.  During active duty service in the Air Force from 1986 to 2006, his military occupational specialty (MOS) was an aircraft mechanic.  His vocational history post-service included full-time employment as an IT Information Systems Specialist at the State of Florida Department of Health from 2006 to 2010.  His specialty was computer mapping for purposes of disaster preparedness and emergency response.  For the year 2011, he worked full-time as an IT project manager in the private corporate sector at Hospital Corporation of America.  His post-service employment from 2006 to 2012 was mostly a sedentary desk job in an office setting.  He managed and implemented IT reports.  

An April 2016 Social Security Administration (SSA) decision awarded the Veteran SSDI benefits due to “severe” impairment from multiple service-connected disabilities: lumbar spinal stenosis, spondyloarthritis, chronic back pain with radicular syndrome, status post multiple back surgeries, and right total knee replacement.  The SSA determined that considering his age, education, work experience, and residual functional capacity, no jobs existed in significant numbers in the national economy that the Veteran can perform.  He was unable to perform any past relevant work as a computer programmer.   

Upon review, in the present case, effective January 1, 2012, the Board grants the appeal for an award of a TDIU rating under 38 C.F.R. § 4.16(a).  That is, the medical and lay evidence of establishes that the Veteran’s service-connected low back IVDS disability, OR in the alternative his service-connected PTSD with major depression, each standing alone, prevent him from securing or following a substantially gainful occupation, beginning on January 1, 2012.   He worked full-time until the approximate date of January 1, 2012.  

The following evidence of record supports the award of a TDIU based on his 70 percent rated PTSD disability or his 60 percent rated IVDS of the lumbar spine disability: 2008 to 2012 Premier Pain Management records showing the Veteran was increasingly missing time from work due to pain from his service-connected IVDS of the lumbar spine with lower extremity radiculopathy; 2010 to 2011 VA psychiatry treatment notes and examinations documenting increasing problems at work after altercations with co-workers due to service-connected anger issues from his PTSD; a January 20, 2012 VA thoracolumbar spine examination assessing the Veteran is unable to do any type of physical work but also has great difficulty with sedentary employment due to his service-connected lumbar spine; 2012 to 2016 VA mental health attending notes repeating a history of the Veteran being fired from his final job in late 2011 because of aggressiveness and confrontations with co-workers due to his service-connected PTSD.

The following evidence of record also supports the award of a TDIU based on his 70 percent rated PTSD disability or his 60 percent rated IVDS of the lumbar spine disability: a September 26, 2012 VA thoracolumbar spine examination found that the Veteran’s service-connected lumbar spine and associated radiculopathy severely impact his ability to work as he experiences increased pain upon lifting, bending, sitting, standing, and walking; a September 26, 2012 VA medical opinion on employability opined that due to impairment in his service-connected lumbar spine and associated radiculopathy, it would be difficult for this Veteran to maintain gainful sedentary physical and sedentary employment; and a September 2013 VA ASI note discussed the impact the Veteran’s service-connected PTSD had on his employment and determined that the information that the Veteran provided concerning employment problems was not significantly distorted by any misrepresentation.

The following evidence of record also supports the award of a TDIU based on his 70 percent rated PTSD disability or his 60 percent rated IVDS of the lumbar spine disability: August 2014 and February 2016 letters from L.H., APRN, a pain management provider who determined that due to chronic pain from his service-connected lumbar spine arthritis and his failed lumbar spine surgeries, the Veteran is unable to maintain employment and is placed on long term disability – he will “likely” not be able to work in the future given his service-connected lumbar spine pathology and need for a repeat lumbar fusion; a May 1, 2015 VA thoracolumbar spine examination that remarked that “extreme” pain from the Veteran’s service-connected lumbar spine affected any functioning as the Veteran was “incapacitated” with limited ability to sit or walk for a prolonged time; and an April 2019 VA addendum opinion on TDIU stating that his service-connected lumbar spine entails that his activities of daily living are “very limited” and this prevents him from working in all fields of labor including sedentary, light, medium, or heavy labor due to constant pain.

In a June 2009 rating decision, effective May 24, 2019, the AOJ granted the Veteran basic eligibility to Chapter 35 Dependents’ Education Assistance (DEA) benefits because the Veteran has a permanent and total (P&T) service-connected disability – his PTSD with major depression, rated as 70 percent disabling. 

The Board adds that even though the Veteran’s PTSD with major depression does not cause the “total occupational and social impairment” required for a 100 percent rating under 38 C.F.R. § 4.130 (Diagnostic Code 9411), this does not prevent the Board from finding the Veteran is unable to secure and follow substantially gainful employment, the latter being the appropriate, less onerous requirement for establishing a TDIU.  Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).  

Accordingly, the TDIU appeal is granted, effective back to January 1, 2012 (approximate date of last full-time employment for this Veteran).  38 C.F.R. § 4.3.

In making this favorable determination for TDIU, the Board emphasizes that in the present case, the TDIU award can be based solely on the effects of the Veteran’s service-connected PTSD with major depression disability, standing alone.  Or the TDIU award can be based solely on the effects of the Veteran’s service-connected IVDS of the lumbar spine disability, standing alone.  Therefore, the Veteran’s inability to work can be caused by either of these disabilities, standing alone, as opposed to a combination of his multiple service-connected disabilities including his right knee disabilities, his scars, hypertension, migraine headaches, hearing loss, tinnitus with Meniere’s disease, etc.  See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008).  This is significant because a TDIU rating based on multiple service-connected disabilities would not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114(s).  Bradley, 22 Vet. App. 290-91.  

Thus, effective January 1, 2012, but at no time prior, it is apparent from the record that the Veteran’s service-connected PTSD with major depression disability standing alone, OR the Veteran’s service-connected IVDS of the lumbar spine standing alone, would prevent him from working.  

On a side note, the Board has considered that the Veteran failed to submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), despite being requested to do so.  However, despite the Veteran’s lack of cooperation on this matter, the Board can make a decision regarding entitlement to TDIU based on the available evidence of record.  It is also abundantly clear from the clinical evidence of record that the Veteran has not engaged in any type of substantially gainful employment starting approximately January 1, 2012, such that the submission of a VA Form 21-8940 would have no impact on the outcome of the current appeal.  Its absence in this instance is inconsequential and, therefore, at most harmless error.  See 38 C.F.R. § 20.1102.  In the present case, the Board believes that applying the benefit-of-the-doubt doctrine to grant the Veteran’s TDIU claim under 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102, is the fairest course of action.  This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such 

 

benefits.  Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54).   

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.