Citation Nr: 21005196 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 10-49 705 DATE: January 29, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to December 4, 2019, and in excess of 20 percent thereafter, is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to December 4, 2019, and in excess of 20 percent thereafter, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from February 2019, is granted. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has not manifested by severe limitation of motion; severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, at any time during the period on appeal. 2. Prior to December 4, 2019, the Veteran’s bilateral lower extremity radiculopathy did not more closely approximate moderate incomplete paralysis of the sciatic nerve. 3. Since December 4, 2019, the Veteran’s bilateral lower extremity radiculopathy has not more closely approximated moderately severe incomplete paralysis of the sciatic nerve at any time. 4. From February 2019, the Veteran was unable to maintain substantially gainful employment due to the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met for any period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5292, 5295 (effective before September 26, 2003), Diagnostic Codes 5237, 5242 (effective September 26, 2003). 2. The criteria for a higher initial rating for left lower extremity radiculopathy, in excess of 10 percent prior to December 4, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a higher initial rating for right lower extremity radiculopathy, in excess of 10 percent prior to December 4, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met from February 2019. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2001 to July 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2003, September 2004, and February 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case has a long and complicated procedural history, which has been previously outlined by the Board in July 2016 and October 2019 decisions. For the sake of brevity, it will not be repeated herein. The Veteran has provided testimony with regard to the issues on appeal before the three undersigned Veterans Law Judges (VLJs). He testified before VLJ Parker in February 2013, VLJ Martin in January 2018, and VLJ Rein in April 2019. As such, the following panel decision is reviewed and signed by VLJ Parker, VLJ Martin, and VLJ Rein in accordance with 38 C.F.R. § 20.707. See also Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). This case was most recently before the Board in October 2019, when an initial rating of 30 percent for bilateral plantar fasciitis from July 12, 2003 to March 1, 2013 was granted, an initial rating in excess of 50 percent for bilateral plantar fasciitis from November 1, 2013 was denied, and claims for higher ratings for a lumbar spine disability and bilateral lower extremity radiculopathy were remanded for further evidentiary development. While the matters were in remand status, the RO issued an August 2020 rating decision granting higher ratings of 20 percent for bilateral lower extremity radiculopathies, for the stage of the rating from December 4, 2019. As the Veteran continues to appeal for higher ratings, the issues have been recharacterized accordingly to reflect the staged ratings. AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum rating allowed by law). At a December 2019 VA examination, the Veteran reported that that he is no longer able to work as a correctional officer due to the symptoms of the service-connected lumbar spine disability. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part and parcel of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the above, the issue of entitlement to a TDIU has been raised by the record pursuant to Rice and is within the jurisdiction of the Board. As the actions specified in the most recent remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the issues addressed herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor the representative has advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Disability Rating Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence, and it should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Gonzales, 218 F. 3d at 1381; see also Timberlake v. Gober, 14 Vet. App. 122, 129-30 (2000). The Board has addressed its reasons for rejecting evidence favorable to the claimant. Timberlake, 14 Vet. App at 129. Hence, the Board will summarize the relevant evidence as appropriate, with the below analysis focusing on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the issues on appeal. Factual Background The Veteran underwent a pre-discharge VA examination in June 2003. On examination, the Veteran reported experiencing daily posterior superior iliac spine pain, on the left side greater than the right, with a “catching” sensation with movement. He rated his pain as “8 to 9” on a scale of 10 and stated that the pain improves with stretching. Examination of his lumbar spine revealed full lumbar range of motion with tenderness to palpation at the left paraspinal region L1-L4 with pain on lumbar extension. Normal heal-to-toe gait was demonstrated. The Veteran was diagnosed with mechanical low back pain. A February 2004 magnetic resonance imaging (MRI) of the lumbar spine documented diffuse disc bulge with central disc extrusion; mild central spinal stenosis; mild disc space narrowing; mild right and left foraminal stenosis; and hypertrophic bilateral facets. In an April 2004 lay statement, the Veteran reported that his back problem caused him to miss work and affects his family life. He states that he is unable to do any form of exercise or any form of physical training to stay conditioned for his job as a prison correctional officer. He reported that he cannot play with his children like he was able to before his back injury. According to a July 12, 2004 VA pain clinic note, the Veteran reported pain in the low back as “8 out of 10.” The treating physician found the Veteran to be in “obvious distress and unable to sit in one position.” Range of motion testing showed forward flexion to 50 degrees with paraspinal muscle tenderness. A lumbar spine MRI showed the Veteran’s bilateral foraminal stenosis to have progressed from “mild” to “moderate.” At an orthopedic clinic follow-up on July 23, the Veteran reported no improvement in symptoms. Physical examination found full ranges of motion in the lumbar spine, with forward flexion to 90 degrees and extension to 30 degrees. In an October 2004 statement, the Veteran reported that he cannot lift over 25 pounds without pain in his back and he cannot sit or stand “for any period of time.” A November 2004 physical therapy note remarks that the Veteran was issued a cane for leg and back pain. The Veteran received treatments including multiple pain medications, including NSAIDs, opioids, and tricyclics, Fentanyl pain patches, epidural steroid injections, physical therapy, and a TENS unit, with little to no symptom improvement or pain relief reported. In December 2004, the Veteran reported to his VA doctor that his back pain had worsened over the past six months. He reported “stabbing” back pain in the central lumbar spine region with radiating pain down his bilateral legs to his toes. The Veteran rated his pain “10 out of 10.” He also complained of general lower extremity weakness and stated that he has fallen on multiple occasions due to his back pain. He denied any loss of bowel or bladder control. Range of motion was noted to be “limited in all planes due to pain.” The Veteran reported tenderness with light palpation of skin, but the physician was unable to palpate the muscle or bony spine due to reported “extreme tenderness.” In February 2005, the Veteran reported severe pain, rated (“10 out of 10”) with sharp, burning pain radiating down the left leg. On range of motion testing, there was full forward flexion. The VA doctor assessed chronic pain syndrome and noted that, on examination, the Veteran had positive Waddell signs (detecting possible psychogenic, rather than organic, manifestations of back pain) and non-anatomic symptoms that confound his pain picture. At a June 2005 VA physical medicine and rehabilitation services consultation, range of motion testing of the lumbar spine was “within functional limits.” In October 2005, the Veteran was noted to have decreased range of motion of the lumbar spine due to pain and there was evidence of palpable muscle spasm, with good muscle bulk, strength, and dexterity. There no was evidence of radiculopathy. In November 2006, the Veteran underwent a VA compensation and pension (C&P) examination of the lumbar spine. The Veteran reported to the VA examiner that he experiences constant daily “sharp, stabbing, burning-type pain” in his low back, which he rated “7 out of 10.” He also reported experiencing twice-daily flare-ups of pain, rated “10 out of 10,” which last anywhere from an hour to all day. He stated that the precipitating factor for these flare-ups is any activity or sleeping the wrong way; the alleviating factor is laying down in a certain way. During these flare-ups, he cannot walk or get out of bed. The VA examiner noted that the Veteran walked slowly with a cane. Physical examination of the lumbar spine in November 2006 did not reveal any erythema, edema, or muscle spasm. The VA examiner noted that, on range of motion testing, there was forward flexion to 30 degrees with pain; however, when getting up from the examination table, the VA examiner observed the Veteran bending to 45 degrees – a finding that shows more motion than what the Veteran presented to the VA examiner during the time of observation and testing. On repetitive use testing, the Veteran complained of pain and fatigue. The VA examiner determined that the lumbar spine disability is manifested by limited range of motion, but there is no additional loss of range of motion (in terms of degrees) or additional functional impairment due to pain, pain on repeated use, fatigue, weakness, incoordination, or lack of endurance. On examination, the Veteran also reported experiencing numbness in the hips on a daily basis that lasts 20 minutes or more, and that he had weakness in the lower legs. The Veteran reported bowel incontinence in the last year approximately seven times, which required treatment in the emergency room. The VA examiner assessed such reported symptoms inconsistent with the findings contemporaneous to such event: “incontinence of bowel and bladder with back pain is a dangerous sign of cord compression; it is difficult to think that [the patient] did not have immediate MRIs and neurosurgical consultation with these types of symptoms.” Electromyography conducted in November 2006 was positive for mild neuropathy in the bilateral lower extremities; however, there was no evidence for lumbar radiculopathy. The neuropathy was determined not to be due to his lumbar spine disability. The Veteran underwent another VA C&P examination in March 2007. The Veteran reported chronic left lower extremity radicular pain down to his toes that does not go away. On physical examination, the Veteran was noted to have some midline tenderness to deep palpation of his lumbar spine. Range of motion testing revealed forward flexion to 60 degrees and extension to 10 degrees. The Veteran reported some discomfort with extension. An MRI taken at the time of the examination showed mild degenerative changes at the lumbosacral level, well-maintained vertebral body heights and intervertebral disc spaces, and no spondylolisthesis. At a February 2008 VA C&P examination, the Veteran reported that he experiences constant low back pain, which he rated “7 to 10 out of 10” in intensity, that fluctuates throughout the day, and radiation of pain from the bilateral buttock/posterior leg to the toes intermittently throughout the day. The Veteran did not report flare-ups, but stated that his back pain is exacerbated both by sitting and moving around after walking one block or riding in a car for 10 miles, and that he occasionally needs assistance from his wife for dressing and getting in and out of the shower due to his back pain. Range of motion testing at the February 2008 VA examination revealed forward flexion to 70 degrees (with pain reported by the Veteran to have begun at 40 degrees) and extension to 20 degrees (with pain reported by the Veteran to have begun at 10 degrees). On repetitive use testing, pain was not noted to intensify with additional repetitions, and weakness, lack of endurance, or incoordination were assessed by the VA examiner to not be factors. The Veteran did not report bowel or bladder incontinence. At the February 2008 examination, the Veteran reported that he had been placed on bed rest for one week, prescribed by a doctor, due to increased back pain after a slip and fall last December. The VA examiner noted that “this does not necessarily represent a period of incapacitation due to exacerbation of a lumbar disc syndrome. Rather it more likely represents an exacerbation of underlying low back condition due to a new injury (slip and fall).” The VA examiner also noted that recent MRI scan of the lumbar spine and electrophysiological studies do not demonstrate a radiculopathy due to the lumbar spine disability. The VA examiner further remarked as follows: it is very difficult to account for the degree of pain which this veteran states he is experiencing from a mechanical low back pain syndrome alone and considering only minor anomalies on the [most recent] MRI scan are appreciated. It is reasonable that this Veteran has developed a central pain syndrome/myofascial pain syndrome which could account in part for his present symptoms. However, symptom magnification is not uncommon in those seeking secondary gain… Additionally, [the Veteran] states he has had no improvement of his low back condition after lumbar epidural steroid injections which would suggest that… symptoms are not entirely organic. The Veteran underwent another VA C&P examination in January 2014. The Veteran reported experiencing pain in the entire thoracolumbar area bilaterally. He stated that the pain is there all the time at a pain level of “4 or 5 out of 10” that increases to a maximum of “8 out of 10” with or without any activity. When asked about radiation of pain, the Veteran reported pain that goes to his left hip and left thigh anteriorly; however, the VA examiner noted that the Veteran has separate pathological conditions of the left hip, left knee, and foot and, therefore, determined that the reported pain in the left lower extremity is not true radicular pain. The Veteran denied bowel or bladder incontinence. The Veteran reported experiencing flare-ups a few times per day when the pain increases up to “8 out of 10.” The Veteran stated that he has to take medications and wait for the pain to improve. Range of motion testing revealed forward flexion to 80 degrees and extension to 25 degrees. Repetitive use testing did not result in additional limitation in range of motion. Some functional loss was noted due to excess fatigability and pain on movement. There was no evidence of muscle spasm, ankylosis, reduced muscle strength, radiculopathy, or IVDS. At a January 2016 VA C&P examination, the Veteran denied experiencing flare-ups but reported functional loss due to an inability to sit or stand for prolonged periods. Range of motion testing revealed forward flexion to 70 degrees and extension to 10 degrees. Pain was noted on examination, but it did not result in or cause functional loss. The Veteran did not exhibit any additional loss of function or range of motion after repetitive use testing. Muscle strength testing was normal, and no muscle atrophy was noted. The examiner assessed mild radiculopathy involving the right sciatic nerve. The symptoms included mild intermittent pain and paresthesias of the right lower extremity. Left lower extremity radiculopathy was not noted. There was no ankylosis of the spine and no evidence of IVDS. At a VA C&P examination in January 2017, the Veteran reported constant pain in the lumbar spine which he rated “8 out of 10.” When asked about flare-ups, the Veteran reported that he sometimes experiences increased pain above that level a few times per month, and that this exacerbation occurs mostly at the end of a workday and he alleviates the pain with rest and Tylenol. Range of motion testing revealed forward flexion to 70 degrees and extension to 25 degrees. While pain was noted on examination, it did not result in or cause functional loss. The Veteran did not exhibit any additional loss of function or range of motion after repetitive use testing. The VA examiner noted that additional loss was not noted during repetitive use testing and the Veteran was unable to provide an answer as to additional loss of range of motion during a flare-up. Radiculopathy, ankylosis, or IVDS were not documented. Muscle strength testing was normal. A May 2019 MRI of the lumbar spine showed mild posterior disc protrusion at L5-S1 and neural foraminal narrowing, mild at L4-5 and moderate at L5-S1. It was negative for significant lumbar disc herniation. At a VA C&P examination of the lumbar spine in December 2019, the Veteran reported constant, stabbing pain in the low and middle back that radiates to the left hip, daily low back spasm, and bilateral lower extremity pain, numbness, and tingling. He denied any problems with bowel or bladder control, and stated that he was not receiving any current treatment for his disability. The Veteran denied experiencing flare-ups, but endorsed functional loss due to pain, stiffness, and decreased range of motion with prolonged sitting, standing, and bending, and that he was unable to lift over 25 pounds due to pain. Range of motion testing in December 2019 revealed forward flexion to 60 degrees and extension to 10 degrees. The VA examiner noted that there was pain on examination that causes functional loss. Mild pain on palpation in the left sacroiliac joint was noted. The Veteran declined to perform repetitive use testing due to fear of pain; however, the VA examiner determined, based on a review of the Veteran’s subjective and objective complaints and other medical evidence of record, there is no basis to offer additional loss of function or motion with regard to repeated use over time. Muscle strength testing was normal, and there was no evidence of ankylosis or IVDS. The VA examiner determined that the Veteran has bilateral lower extremity radiculopathy involving the sciatic nerve, which was noted to be characterized by moderate intermittent pain and mild paresthesias and numbness. The VA examiner assessed the severity of the bilateral radiculopathy to be “moderate.” 1. Initial rating of the lumbar spine disability The Veteran is in receipt of an initial 20 percent rating for the service-connected lumbar spine disability from July 12, 2003. Throughout the initial rating period on appeal, the Veteran has generally contended that the lumbar spine disability and its associated symptoms are more severe than contemplated by a 20 percent rating. During the pendency of this appeal, the regulations for rating disabilities of the spine were revised. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). When a law or regulation changes during the pendency of a claim, the version most favorable to the claimant applies from the effective date of the change; however, the previous version of the regulation applies prior to the date of the change. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); see also 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00. Prior to September 26, 2003, the relevant diagnostic codes (DCs) pertaining to the lumbar spine included those for rating residuals of vertebral fracture (DC 5285), ankylosis (DC 5289), limitation of motion (5292), intervertebral disc syndrome (IVDS) (DC 5293), and lumbosacral strain (DC 5295). 38 C.F.R. § 4.71a. As a vertebral fracture, ankylosis, or IVDS have not been shown in the instant case, DCs 5285, 5289, and 5293 will not be considered. Therefore, under the regulations in effect prior to September 26, 2003, a (maximum) 40 percent rating is warranted for severe limitation of motion of the lumbar spine under Diagnostic Code 5292, or severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion under Diagnostic Code 5295. The terms “severe” and “marked” as used in the diagnostic codes pertaining to disabilities of the spine under the prior version of 38 C.F.R. § 4.71a were not defined in VA’s Rating Schedule. Therefore, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that decisions will be “equitable and just.” 38 C.F.R. § 4.6. Effective September 26, 2003, disabilities of the spine are rated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (encompassing Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). Pursuant to the General Rating Formula, in pertinent part, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. These criteria are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Note (2); see also Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. at Note (5). The evidence shows that the Veteran has not been diagnosed with intervertebral disc syndrome at any time during the period on appeal. As such, the Board need not consider the application of the Formula for Rating IVDS Based on Incapacitating Episodes under Diagnostic Code 5243. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness, to include with repeated use or during periods of flare-up, causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. After careful review of relevant evidence of record, the Board finds that the criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met or more nearly approximated under any of the diagnostic codes pertaining to the lumbar spine disability under either the “old” or “new” regulations. As noted above, to qualify for the next higher rating of 40 percent, the lumbar spine disability must be manifested by: severe limitation of motion of the lumbar spine; severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; or, from September 26, 2003, forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. First, with regard to the regulations in effect prior to September 26, 2003, the evidence does not support a finding that the lumbar spine disability manifested by severe limitation of motion or severe lumbosacral strain at any time. While mild disc space narrowing was shown on MRI, at no time was this narrowing accompanied by severe lumbosacral strain, as required under Diagnostic Code 5295 (2003). In making this finding, the Board acknowledges that the Veteran has consistently reported to his treating physicians and VA examiners that he suffers from severe low back pain throughout the appeal period; however, the evidence as a whole does not show severe limitation of motion or severe lumbosacral strain. For instance, radiological findings on MRI consistently found the Veteran’s lumbar spine abnormalities to be no more than moderate in severity. On physical examination of the lumbar spine, physicians and examiners never characterized the disability as “severe” at any time, despite the Veteran’s contemporaneous reports of experiencing severe (sometimes rated “10 out of 10”) levels of pain. The February 2008 VA examiner assessed that the degree of pain reported by the Veteran did not correspond with the relatively minor abnormalities found on MRI and other physical findings on examination and, therefore, suggested that there may be a non-organic component to the chronic low back pain. The other examination findings do not support a conclusion that the Veteran suffers from “severe” disability. Range of motion testing consistently revealed limited, but not severely restricted, motion; there was no evidence of ankylosis, loss of strength, muscle atrophy; and only occasional muscle spasm was documented. As such, the Board finds that the objective medical evidence does not show a disability picture that more closely approximates severe limitation of motion or severe lumbosacral strain. Turning to the question of a rating in excess of 20 percent under the revised spine rating regulations, the Board finds that the weight of the evidence does not show that the Veteran’s lumbar spine disability manifested predominately by, or more closely approximated, forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In making this finding, the Board acknowledges that at a November 2006 VA examination, the examiner noted that on range of motion testing, the Veteran had forward flexion to 30 degrees with pain; however, this notation is contradicted by the fact that, at the same examination, when getting up from the examination table and while motion was not specifically being measured in a manner noticeable to the Veteran, the examiner observed the Veteran bending to 45 degrees in flexion. Moreover, out of the six other VA examinations conducted during the appeal period, the Veteran was never recorded to have forward flexion limited to less than 50 degrees; therefore, the preponderance of the evidence is against a finding that of forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-07. In this regard, the evidence reflects that the currently-assigned 20 percent rating properly compensates the Veteran for the extent of functional loss resulting from such symptoms and impairment. While the Veteran has consistently reported experiencing functional loss due to pain and difficulty with prolonged sitting, standing, or heavy lifting, such limitations were considered by the Board. Such factors were also considered by VA examiners in January 2014 and December 2019, who noted that the Veteran experiences functional loss due to factors such as pain, painful motion, and excess fatiguability. With regard to the actual functional limitations, the evidence does not show additional limitation of range of motion on active motion or after repetitive use testing due to these factors. The Board also notes that the November 2006, January 2014, and January 2017 VA examiners noted that the Veteran reported experiencing flare-ups of back pain. At all other examinations, the Veteran denied flare-ups. While the above VA examiners did not provide additional limitation of range of motion estimates in degrees with regard to these reported flare-ups, as noted by the January 2017 examiner, there is no basis to conclude that flare-ups would result in additional range of motion loss when such has not been reported by the Veteran or shown after repetitive use testing, as the Veteran has not asserted or reported specific limitations during flareups that meet the 40 percent rating criteria. Finally, in addition to testing, the Veteran had been asked to describe functional loss and impairment in various situations and he has never stated that he has loss of motion to the degree required for a higher 40 percent rating. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, as well as the Veteran’s reports of increased pain and limited mobility during periods of flare-up, the Board does not find that the Veteran’s functional losses equate to the criteria required for a 40 percent or greater rating under either the old or new regulations. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 204-07. Finally, the Board has considered whether the Veteran is entitled to a separate rating for any associated neurological abnormalities related to his lumbar spine disability at any time during the period under consideration. See 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1). The Board notes that the Veteran is already in receipt of separate ratings for radiculopathy of the left and right lower extremities associated with his lumbar spine disability (evaluated below). As no other neurological abnormalities have been shown by the objective evidence of record, the Board does not find that separate disability ratings for any other neurological manifestations are warranted. Accordingly, the Board finds that an initial rating in excess of 20 percent is not warranted for the lumbar spine disability at any time from July 12, 2003. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal for higher rating for lumbar spine disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Initial ratings for right lower extremity radiculopathy 3. Initial ratings for left lower extremity radiculopathy The Veteran is in receipt of an initial 10 percent rating for left lower extremity radiculopathy from July 12, 2003, and a 20 percent rating from December 4, 2019. He is also in receipt of an initial 10 percent rating for right lower extremity radiculopathy from January 21, 2016, and a 20 percent rating from December 4, 2019. The Veteran contends that he should be awarded an increased 20 percent rating for both extremities back to the date of grant of service connection (July 2003). The lower extremity radiculopathies are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve where, in pertinent part, a 20 percent rating is assigned for moderate incomplete paralysis of the nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the nerve; and a 60 percent rating is assigned for severe incomplete paralysis of the nerve with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the nerve. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Words such as “mild,” “moderate,” and “severe” 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. After careful review of the relevant evidence of record, as outlined above, the Board does not find that the criteria for higher initial ratings for bilateral lower extremity radiculopathy have been met at any time. Throughout the period on appeal, the the Veteran has consistently reported experiencing lower extremity radicular pain, tingling, and numbness that goes from his hips and thighs down to his toes. Prior to December 4, 2019, the objective medical evidence of record does not demonstrate that the Veteran’s symptoms of radiculopathy were more severe than “mild.” Electromyography conducted in November 2006 was positive for mild neuropathy in the left lower extremity. At the January 2016 VA examination, the examiner found the Veteran to have mild radiculopathy involving the right sciatic nerve. His symptoms included mild intermittent pain and paresthesias of the right lower extremity. Although, admittedly, the objective medical evidence of record is limited prior to December 4, 2019 (due to the majority of VA examiners concluding that the Veteran’s radicular complaints were not associated with his lumbar spine disability), the Board does not find any evidence that the Veteran’s lower extremity radiculopathy more closely approximated moderate incomplete paralysis of the sciatic nerve at any time. As such, initial ratings in excess of 10 percent are not warranted for the left or right lower extremity radiculopathy prior to December 4, 2019 under Diagnostic Code 8520. Since December 4, 2019, the Board finds that the objective medical evidence of record does not demonstrate that the Veteran’s symptoms of radiculopathy are more severe than “moderate.” In this regard, at the December 2016 VA examination, the VA examiner determined that the Veteran experiences moderate intermittent pain and mild paresthesias and numbness involving the sciatic nerve. The examiner characterized the severity of his radiculopathy as moderate in both lower extremities. In light of the above, the Board does not find any evidence that the Veteran’s bilateral lower extremity radiculopathies more closely approximated moderately severe incomplete paralysis of the sciatic nerve at any time. As such, initial ratings in excess of 20 percent are not warranted for the left or right lower extremity radiculopathy at any time since December 4, 2019 under Diagnostic Code 8520. Accordingly, the Board finds that initial ratings in excess of 10 percent for left and right lower extremity radiculopathy prior to December 4, 2019, and in excess of 20 percent thereafter, are not warranted. As the evidence of record preponderates against the claims, the benefit-of-the-doubt doctrine is not for application, and the appeal for higher ratings must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert at 49. 4. TDIU TDIU Legal Authority It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body 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), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran’s service-connected disabilities render him or her incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one, but rather, a determination for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran’s ability to obtain and maintain employment. TDIU Analysis The Veteran’s claim for a TDIU from February 2019 has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that he has been unable to maintain substantially gainful employment from February 2019. While there have been open ratings prior to February 2019 to which it was possible for a TDIU claim to attach, in this case the Veteran has not contended, and the evidence has not suggested, that the Veteran was not working full-time substantially gainful employment prior to February 2019; therefore, the TDIU claim raised in this case is limited to the rating period beginning February 2019. The service-connected disabilities are bilateral plantar fasciitis (rated 30 percent disabling, prior to November 1, 2013); a lumbar spine disability (rated 20 percent disabling); a cervical spine disability (rated 20 percent disabling); right upper extremity radiculopathy (rated 20 percent disabling); right lower extremity radiculopathy (rated 20 percent disabling); left lower extremity radiculopathy (rated 20 percent disabling); gallbladder removal with tender scar (rated 10 percent disabling); and hearing impairment (rated noncompensable). The combined disability rating was 60 percent prior to November 1, 2013, and therefore, did not meet the TDIU eligibility criteria at 4.16(a); however, the Veteran did not raise entitlement to a TDIU until the April 2019 Board hearing when he stated that he had been on medical leave from his employment due to his service-connected disabilities as of February 2019. From November 1, 2013, the Veteran is in receipt of a 50 percent rating for bilateral plantar fasciitis and has a combined disability rating of 70 percent. As such, as of November 1, 2013, the service-connected disabilities meet the combined rating percentage requirements under 38 C.F.R. § 4.16(a) for consideration of a TDIU. The question remaining before the Board is whether the Veteran is precluded from obtaining or maintaining a substantially gainful occupation as a result of all the service-connected disabilities. The Board finds that the evidence is at least in equipoise on the question of whether all the service-connected disabilities render the Veteran unable to maintain substantially gainful employment from February 2019. The evidence of record indicates that the Veteran has worked as a correctional officer in a prison since shortly after his discharge from military service, in approximately 2004. He also obtained a business management certificate from Heartland Community College in 2005. VA treatment records indicate that the Veteran was placed on light duty or temporary leave from his job several times throughout the years for various medical reasons, to include his service-connected lumbar spine and bilateral foot disabilities. At the April 2019 Board hearing, the Veteran testified that he has been on medical leave from his job since February 2019 due to the physical limitations caused by service-connected lumbar spine, lower extremity radiculopathy, and bilateral foot disabilities. Prior to February 2019, the Veteran indicated that he had been placed on light desk duty for an unspecified period of time due to his medical conditions and limited mobility; as such, the Veteran has not asserted that he was rendered unemployable prior to February 2019. This shows some physical impairment due to the service-connected disabilities prior to February 2019, which is being compensated by the disability compensation for the service-connected disabilities, but does not show or even suggest less than substantially gainful employment prior to February 2019. At the December 2019 VA thoracolumbar spine examination, the Veteran reported that he is no longer able to work as a correctional officer, especially due to the lumbar spine disability due to pain with prolonged sitting, standing, walking, or going up and down stairs. As of April 2020, VA treatment records indicate that the Veteran had not returned to work at the prison. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the service-connected disabilities have precluded the Veteran from maintaining substantially gainful employment from February 2019, to warrant a TDIU from February 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. LESLEY REIN Veterans Law Judge Board of Veterans’ Appeals J. PARKER Veterans Law Judge Board of Veterans’ Appeals, concurring in part and dissenting in part MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals J. PARKER, OPINION CONCURRING IN PART AND DISSENTING IN PART The above dissenting Veterans Law Judge concurs with the above Board decision to the extent that it (1) denies a higher initial disability rating than 20 percent for the lumbar spine disability and (2) grants a TDIU from February 2019. The above dissenting Veterans Law Judge respectfully dissents from the above Board decision to the extent that the majority finds that the Board has jurisdiction over the issue of rating the service-connected right and left lower extremity neuropathies. For reasons and legal authorities already delineated in the dissent to the Board’s July 2016 remand, and in the October 2019 Board decision and remand, the above dissenting Veterans Law Judge would find that the Veteran did not file notices of disagreement with the initial disability ratings assigned for the separately granted right and left lower extremity radiculopathies and, as such, these separately granted and rated service-connected disabilities are not in appellate status before the Board. The Veteran would not have been prejudiced by this finding as claims for increased ratings have been available since the initial rating decision in September 2004 that initially rated the neuropathies. As the September 2004 rating decision became final (in September 2005), any newly filed claims for increased rating would have resulted in new assistance including examination, a new rating decision, and new opportunity for the Veteran to appeal the rating; hence, even though higher ratings in fact have been granted pursuant to what the majority in this Board decision found to be appealed issues, the same result maximizing compensation would equally have been achieved by adjudicating a new claim (or claims) for increased rating. In this manner, the notice of disagreement requirement for Board jurisdiction following separate grants of service connection and separate ratings would have been respected. Attorney for the Board Melissa Barbee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.