Citation Nr: 21065530 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-59 657 DATE: October 26, 2021 ORDER Entitlement to a rating in excess of 10 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine prior to August 2, 2017 is denied. Entitlement to a rating of 40 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine effective August 2, 2017 is granted. Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine is denied. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine prior to March 18, 2019 is denied. Entitlement to a rating of 30 percent for degenerative arthritis of the cervical spine effective March 18, 2019 is granted. Entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine is denied. Entitlement to a rating of 40 percent for radiculopathy right lower extremity (sciatic nerve) is granted. Entitlement to a rating of 40 percent for radiculopathy left lower extremity (sciatic nerve) is granted. Entitlement to a rating in excess of 40 percent for radiculopathy right lower extremity (sciatic nerve) is denied. Entitlement to a rating in excess of 40 percent for radiculopathy left lower extremity (sciatic nerve) is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted effective December 8, 2016. FINDINGS OF FACT 1. The Veteran's intervertebral disc syndrome with degenerative joint disease of the lumbar spine prior to August 2, 2017 was manifest by pain and stiffness, with forward flexion to 80 degrees at worst. 2. From August 2, 2017, the Veteran's intervertebral disc syndrome with degenerative joint disease of the lumbar spine was manifest by pain and stiffness, with forward flexion to 15 degrees. 3. The Veteran's intervertebral disc syndrome with degenerative joint disease of the lumbar spine is manifest by pain and stiffness, with forward flexion to 15 degrees at worst. There is no ankylosis. 4. Degenerative arthritis of the cervical spine prior to March 18, 2019 was manifest by pain and stiffness with forward flexion to 45 degrees at worst. 5. From March 18, 2019, degenerative arthritis of the cervical spine was manifest by pain, with forward flexion to 15 degrees. 6. Degenerative arthritis of the cervical spine is manifest by pain with forward flexion to 15 degrees at worst. There is no ankylosis. 7. For the entire period on appeal, the Veteran's radiculopathy of right lower extremity is manifest by pain, numbness, and loss of reflexes. 8. For the entire period on appeal, the Veteran's radiculopathy of left lower extremity is manifest by pain, numbness, and loss of reflexes. 9. Radiculopathy of right lower extremity is manifested by no more than moderate severe incomplete paralysis. 10. Radiculopathy of left lower extremity is manifested by no more than moderate severe incomplete paralysis. 11. The Veteran's service-connected disabilities preclude her from securing and following a substantially gainful occupation as of December 8, 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine prior to August 2, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. The criteria for a rating of 40 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine effective August 2, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 3. The criteria for a rating in excess of 40 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 4. The criteria for a rating in excess of 10 percent for degenerative arthritis of the cervical spine prior to March 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. The criteria for a rating of 30 percent for degenerative arthritis of the cervical spine effective March 18, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 6. The criteria for a rating in excess of 30 percent for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 7. The criteria for a rating of 40 percent for radiculopathy of the right lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 8. The criteria for a rating of 40 percent for radiculopathy of the left lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 9. The criteria for a rating in excess of 40 percent for radiculopathy right lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 10. The criteria for a rating in excess of 40 percent for radiculopathy left lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 11. The criteria for a TDIU have been met as of December 8, 2016. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to February 1993 and from October 1998 to April 1999. A hearing was held before the undersigned veterans law judge in August 2020. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. We note that the record reflects that the Veteran has multiple claims at multiple stages of development with VA. This has created a somewhat complex procedural situation. Accordingly, it was specifically clarified at the hearing that the issues listed above are the only ones associated with this appeal. This was discussed with the Veteran and her representative at the beginning of the hearing, and it was referenced throughout the hearing. The parties were in agreement. Thus, we will review these four issues only at this time. This case was previously before the Board in January 2021, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 10 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine prior to August 2, 2017 The Veteran's intervertebral disc syndrome with degenerative disc disease of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran received a VA examination for the thoracolumbar spine in June 2016. She reported back pain managed by over the counter (OTC) analgesics. She denied flare-ups. Upon examination she exhibited forward flexion to 80 degrees and a combined range of motion of 175 degrees. Pain was noted on movement, but there was no additional loss of function after repetitive testing. There was no guarding or muscle spasm and no ankylosis. Sensory testing was normal, and the Veteran did not report radicular symptoms. The examiner indicated that IVDS was not present. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for IVDS with degenerative arthritis of the lumbar spine based on incapacitating episodes. The Veteran did not have IVDS during this period, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician. The preponderance of the evidence is also against a rating in excess of 10 percent under the General Rating Criteria. To warrant a 20 percent rating, the Veteran would need to have forward flexion limited to 60 degrees or less or combined range of motion limited to 120 degrees or less. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, the record does not show, and the Veteran's statements regarding pain would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Regarding neurological impairment, the Veteran has already been granted service connection for right and left sciatic nerve radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability during this period. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for IVDS with degenerative arthritis of the lumbar spine (for this period of time). In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating of 40 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine effective August 2, 2017 Currently, the Veteran's lumbar spine disability is rated as 10 percent from January 29, 2015, 20 percent from August 1, 2018 and 40 percent from May 20, 2021. The Board finds that the 40 percent rating is warranted from August 2, 2017. An August 2, 2017 physical therapy evaluation states that the Veteran exhibited forward flexion of 15 percent. Normal forward flexion is to 90 degrees, so 15 percent is 13.5 degrees. Under the General Rating Schedule for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine to 30 degrees or less warrants a 40 percent rating. The Veteran received VA examinations in August 2018 and October 2018. At the August 2018 examination, the ROM could not be measured due to the Veteran's pain. At the October 2018 examination, forward flexion was to 45 degrees after repetitive use. The examiner estimated that the Veteran's forward flexion during flare-ups was 55 degrees. However, the Veteran's reports regarding flare-ups during this time state that she experienced spasms and excess pain and cramping and could not move. The Veteran received another VA examination in October 2019. She reported pain and stiffness, with spasms and cramps. She also reported flares that caused her pain to increase to the point that she stays in bed. Upon examination, the Veteran exhibited forward flexion to 30 degrees. There was guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. The examiner also noted IVDS but stated that there were no episodes requiring bed rest prescribed by a physician. The Board finds that a 40 percent rating is warranted effective August 2, 2017 due to the limited range of motion. The Veteran exhibited forward flexion to 30 degrees or less at both the August 2017 physical therapy evaluation and the October 2019 VA examination. While she exhibited forward flexion to 45 degrees at the October 2018 examination, the examiner noted reports of flare-ups during which the Veteran stated she could not move. Therefore, the Board finds that the Veteran's overall condition during this period warrants a 40 percent rating. We also note that a2018 report of a better range of motion during flare-ups significantly reduces the credibility of the report. 3. Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome with degenerative joint disease of the lumbar spine In addition to the examinations mentioned above, the Veteran received a VA examination for the thoracolumbar spine in May 2021. The Veteran reported constant pain which worsens with prolonged sitting/standing/walking. She walks with a cane most of the time. Upon examination she exhibited forward flexion to 30 degrees, with the examiner estimating that it is limited to 15 degrees during flares. There was no ankylosis. The examiner noted IVDS but stated that there was no bed rest required. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for IVDS with degenerative joint disease of the lumbar spine based on incapacitating episodes. The Veteran has noted IVDS, but the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for any duration. To warrant a 60 percent rating, there would need to be incapacitating episodes (requiring bed rest prescribed by a physician) for at least 6 weeks during the past 12 months. That is not shown here. The preponderance of the evidence is also against a rating in excess of 40 percent under the General Rating Criteria. To warrant a 50 percent rating there would need to be unfavorable ankylosis of the entire thoracolumbar spine. No ankylosis has been shown here. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that she has flare ups that cause increased pain and require her to rest would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity radiculopathy as well as urinary incontinence, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for IVDS with degenerative joint disease of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine prior to March 18, 2019 The Veteran's degenerative arthritis of the cervical spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran received a VA examination for the cervical spine in June 2016. She reported pain as well as snapping and crackling sounds. She denied flare ups. Upon examination she exhibited forward flexion to 45 degrees. There was no additional loss of range of motion after repetitive testing. No guarding or muscle spasm were noted. There was no ankylosis and no IVDS. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative arthritis of the cervical spine. To warrant a 20 percent rating, there would need to be forward flexion limited to 30 degrees or less. The Veteran's forward flexion was 45 degrees at worst. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. Additionally, the Veteran did not have muscle spasm or guarding. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician Regarding neurological impairment, the Veteran has already been granted service connection for bilateral upper extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her cervical spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for degenerative arthritis of the cervical spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a rating of 30 percent for degenerative arthritis of the cervical spine effective March 18, 2019 The Veteran received a VA examination in March 2019. She reported neck pain with radiating symptoms down the left arm to the fingers. She denied flare ups. Upon examination the Veteran exhibited forward flexion to 15 degrees after repetitive testing. There was no ankylosis or IVDS. At another VA examination in October 2019, the Veteran reported increased pain and stiffness in her neck that caused difficulty sleeping and driving. She stated that she has flares from overactivity that reduce range of motion by 100 percent and require her to stay in bed and wear a soft c-collar. Upon examination she exhibited forward flexion to 20 degrees. The examiner stated that there was no additional loss of range of motion with repetitive testing. No estimate for loss of motion during flares was provided, but the Veteran's reports of loss of motion of 100 percent was noted. There was no ankylosis and no IVDS. The Veteran received another VA examination in May 2021. She reported flare ups occurring 2 times per week that last for 2-3 days and are alleviated by rest and pain medication. Upon examination she exhibited forward flexion to 30 degrees. The examiner estimated that forward flexion was to 30 degrees during flare ups as well. There was no ankylosis or IVDS. The Board finds that, giving the Veteran the benefit of the doubt, the evidence of record warrants a 30 percent rating from March 18, 2019. At the examination of this date, the Veteran's forward flexion was limited to 15 degrees, which meets the criteria for a 30 percent rating. While the Veteran's forward flexion was greater at subsequent examinations, she continued to report frequent flare ups lasting 2-3 days which caused her to be unable to move her neck due to pain. Therefore, the Veteran's overall condition during this period most closely approximates forward flexion to 15 degrees or less. 6. Entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for degenerative arthritis of the cervical spine. To warrant a 40 percent rating, there would need to be unfavorable ankylosis of the entire cervical spine. There has not been any ankylosis of the cervical spine noted at any point during the appeal period. While the Veteran's flare-ups are severe and result in very limited range of motion, they do not approximate unfavorable ankylosis. There is no evidence of record to support a finding of 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. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician Regarding neurological impairment, the Veteran has already been granted service connection for bilateral upper extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for degenerative arthritis of the cervical spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 7. Entitlement to a 40 percent rating for radiculopathy of right lower extremity (sciatic nerve) 8. Entitlement to a rating in excess of 10 percent for radiculopathy left lower extremity prior to October 29, 2018 Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran was seen for radicular pain in December 2016, and a subsequent MRI confirmed radiculopathy. At this time she reported numbness and tingling throughout both legs, as well as weakness. Treatment records show that in October 2017 the Veteran reported weakness and numbness in the lower extremities, with tripping, falling, and foot dragging. Examination showed trace reflexes and negative straight leg raising tests. VA examination for the thoracolumbar spine in August 2018 recorded 4/5 muscle strength, hypoactive reflexes and normal sensory examinations bilaterally. The examiner reported that there were no radicular symptoms but did not address the Veteran's prior reports of weakness, numbness, and motor impairment or the prior findings. The Veteran received another VA examination for the thoracolumbar spine in October 2018. There was no muscle atrophy. Reflexes were hypoactive at both knee and ankle bilaterally. There was decreased sensation at all points on the left lower extremity. Straight leg raising test was positive bilaterally. The right lower extremity had moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. The left lower extremity had severe constant pain, severe paresthesias and/or dysesthesias and severe numbness. The examiner noted that there was moderate radiculopathy of the right lower extremity and severe radiculopathy of the left lower extremity. At the Veteran's March 2019 VA examination for the thoracolumbar spine, the examiner found muscle strength of 4/5 for all points bilaterally, except right great toe extension, which was 5/5. There was no muscle atrophy. Right knee and ankle reflexes were normal; left reflexes were hypoactive. There was decreased sensation for the right upper anterior thigh and for all points on the left lower extremity. The straight leg raising test was positive for the left lower extremity, and negative for the right lower extremity. The examiner noted moderate radiculopathy of each lower extremity. It was also noted that the Veteran used a cane due to weakness of the lower extremities. At the Veteran's October 2019 VA examination for the thoracolumbar spine, the examiner found muscle strength of 5/5 for all points bilaterally. There was no muscle atrophy. Knee and ankle reflexes were hypoactive bilaterally. There was decreased sensation for the right and left foot/toes. The straight leg raising test was not performed. The right lower extremity had no constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias and mild numbness. The left lower extremity had no constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias and mild numbness. The examiner noted mild radiculopathy of each lower extremity. The Veteran received a peripheral nerves examination in May 2021. The right lower extremity had severe constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. The left lower extremity had severe constant pain, no intermittent pain, severe paresthesias and/or dysesthesias and severe numbness. Muscle strength testing was 5/5 for all points tested. Reflexes were all normal. There was decreased sensation in the right thigh/knee, right lower leg/ankle, and left foot/toes. There were no trophic changes. The examiner noted mild incomplete paralysis of the sciatic nerve bilaterally. At the Veteran's May 2021 VA examination for the thoracolumbar spine, the examiner found muscle strength of 4/5 for all points bilaterally, except the great toe extension which was 3/5 bilaterally. There was no muscle atrophy. Knee and ankle reflexes were hypoactive bilaterally. There was decreased sensation for all points bilaterally. The straight leg raising test was positive bilaterally. The right lower extremity had no constant pain, mild intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. The left lower extremity had no constant pain, mild intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. Regarding impairment of motor functions, the 2017 treatment record notes the Veteran's reports of tripping, falling and foot dropping. Later examinations noted that the Veteran used a cane due to weakness as a result of her bilateral radiculopathy. Regarding trophic changes, there is no evidence of trophic changes at any point. Regarding sensory disturbance, the Veteran's response to sensation testing has been inconsistent. However, most testing found some degree of decreased sensation bilaterally. Regarding loss of reflexes, examinations have been inconsistent with regard to the degree of lost reflexes, but the overall picture suggests some loss of reflexes bilaterally. Regarding pain, the Veteran has consistently reported pain in the lower extremities bilaterally. Examination reports have been inconsistent as to the severity and consistency of the pain, though it has predominantly been either moderate or severe. Regarding muscle atrophy, there is no evidence of muscle atrophy at any point. Regarding complete paralysis, there is no evidence of complete paralysis. The Veteran has continued to have reflexes and muscle strength bilaterally, with no evidence of foot drop. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis throughout the entire period on appeal. The Board notes that no peripheral nerves examination was performed prior to determination of the initial rating. The Veteran has complained of weakness and pain causing falling and tripping since shortly after being granted service connection for the lower extremity radiculopathies. Examinations, while inconsistent, have found severe pain and numbness, loss of reflexes, and sensory disturbances throughout the appeal period. It has also been noted that the Veteran used a cane for walking due to the symptoms from her lower extremity radiculopathies. Therefore, the Board finds that a 40 percent rating is warranted for radiculopathy of each lower extremity sciatic nerve effective December 8, 2016. 9. Entitlement to a rating in excess of 40 percent for radiculopathy right lower extremity (sciatic nerve) 10. Entitlement to a rating in excess of 40 percent for radiculopathy left lower extremity (sciatic nerve) The Board finds that a rating in excess of 40 percent is not warranted for either lower extremity. To warrant a 60 percent rating, there must be severe incomplete paralysis, with marked muscle atrophy. There has not been any evidence of muscle atrophy in either lower extremity at any point during the appeal. Therefore, a rating of 60 percent or greater for radiculopathy of the right or left lower extremity is not warranted. 11. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to June 4, 2018 The issue of TDIU has been raised by the record per Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has been in receipt of TDIU since June 4, 2018, when she first met the schedular criteria. Given the above rating increases, the Veteran meets the schedular criteria for TDIU as of December 8, 2016. Further, medical records show that she was unable to work during this time. Vocational rehabilitation records note that she was unable to work and was not a candidate for vocational rehabilitation. Examinations indicated that she was unable to sit, stand or walk for prolonged periods. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.