Citation Nr: 21069748 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-44 253 DATE: November 19, 2021 ORDER An initial rating higher than 20 percent from October 28, 2015 and continuing thereafter for a lumbar spine disorder, to include degenerative arthritis and intervertebral disc syndrome (IVDS) is denied. An initial rating higher than 20 percent from April 19, 2016 and continuing thereafter for a cervical spine disorder, to include degenerative arthritis and IVDS is denied. An initial rating higher than 40 percent from April 19, 2016 and continuing thereafter for right upper extremity radiculopathy is denied. An initial rating higher than 30 percent from April 19, 2016 and continuing thereafter for left upper extremity radiculopathy is denied. An initial 40 percent rating from October 28, 2015 to August 12, 2020 for right lower extremity sciatic nerve radiculopathy is granted. An initial 40 percent rating from October 28, 2015 to August 12, 2020 for left lower extremity sciatic nerve radiculopathy is granted. An increased 20 percent rating from May 21, 2017 and continuing thereafter for low back surgical scars is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders effective October 28, 2015 is granted. FINDINGS OF FACT 1. During the entirety of the rating period on appeal, the Veteran's lumbar spine flexion, at worst, was 35 degrees with no ankylosis. 2. During the entirety of the rating period on appeal, the Veteran's cervical spine flexion, at worst, was 20 degrees with no ankylosis. 3. During the entirety of the rating period on appeal, the severity of the Veteran's right upper extremity radiculopathy manifested as moderate incomplete paralysis. 4. During the entirety of the rating period on appeal, the severity of the Veteran's left upper extremity radiculopathy manifested as moderate incomplete paralysis. 5. With resolution of the doubt in his favor, from October 28, 2015 to August 12, 2020, the severity of the Veteran's right lower extremity sciatic nerve radiculopathy manifested as moderately severe incomplete paralysis. 6. With resolution of the doubt in his favor, from October 28, 2015 to August 12, 2020, the severity of the Veteran's left lower extremity sciatic nerve radiculopathy manifested as moderately severe incomplete paralysis. 7. With resolution of the doubt in his favor, from May 21, 2017 and continuing thereafter, the Veteran's three low back surgical scars manifested as painful. 8. With resolution of the doubt in his favor, effective October 28, 2015, the Veteran's service-connected disorders rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish an initial rating higher than 20 percent for the entirety of the rating period on appeal for a lumbar spine disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5243-5242. 2. The criteria to establish an initial rating higher than 20 percent for the entirety of the rating period on appeal for a cervical spine disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5243-5242. 3. The criteria to establish an initial rating higher than 40 percent for the entirety of the rating period on appeal for right upper extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.120, 4.124a, DC 8510. 4. The criteria to establish an initial rating higher than 30 percent for the entirety of the rating period on appeal for left upper extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.120, 4.124a, DC 8510. 5. The criteria to establish an initial 40 percent rating from October 28, 2015 to August 12, 2020 for right lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.120, 4.124a, DC 8520. 6. The criteria to establish an initial 40 percent rating from October 28, 2015 to August 12, 2020 for left lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.120, 4.124a, DC 8520. 7. The criteria to establish an increased 20 percent rating from May 21, 2017 and continuing thereafter for low back surgical scars have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, DC 7805. 8. The criteria to establish a TDIU effective October 28, 2015 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the San Diego, California Regional Office (RO). Effective November 2017, the Veteran's combined service-connected disability rating is 100%. In March 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Lumbar spine and cervical spine disorder Prior to February 7, 2021, DC 5242 was assigned for degenerative arthritis of the spine and DC 5243 for IVDS. As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS. Also amended was DC 5243 for IVDS, allowing the DC to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, otherwise DC 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating criteria under each DC was unchanged. DC 5243 instructs to evaluate IVDS 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 evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under DC 5243 for the General Rating Formula for Diseases and Injuries of the Spine, 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. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. There are also several relevant note provisions associated with DC 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine 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 (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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. Id. In Chavis v. McDonough, No. 18-2928 (April 16, 2021), the Court of Appeals for Veterans Claims (Court) found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 apply when evaluating joint disabilities and their manifestations, which may include ankylosis. These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." The Court in Chavis found that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. Under DC 5243 for the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Note (1) defines an incapacitating episode as 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. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. The Veteran's lumbar spine disorder is rated 20 percent disabling from October 28, 2015 and continuing thereafter and cervical spine disorder is rated 20 percent disabling from April 19, 2016 and continuing thereafter under DC 5243-5242. The appellate period for the Veteran's lumbar spine disorder is from October 28, 2015 and the cervical spine disorder is from April 19, 2016. During the January 2016 VA thoracolumbar spine examination, the Veteran reported flare-ups described as low back pain, limited range of motion, weakness, stiffness, and trouble with prolonged standing and sitting. Functional loss manifested as trouble with lifting, bending, physical activities, golfing, throwing, and prolonged standing and sitting. Initial range of motion for the thoracolumbar spine was flexion at 40 degrees, extension at 15 degrees, right lateral flexion at 15 degrees, left lateral flexion at 20 degrees, right lateral rotation at 15 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 125 degrees. The examiner noted painful motion and localized mild tenderness but no pain with weight-bearing. The Veteran performed repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use, but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Fatigue significantly limited functional ability with repetitive use. The examiner described in terms of range of motion as flexion at 35 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 15 degrees, right lateral rotation at 10 degrees, left lateral rotation at 10 degrees, and a combined range of motion at 95 degrees. The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Fatigue significantly limited functional ability with flare-ups. The examiner described in terms of range of motion as flexion at 35 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 15 degrees, right lateral rotation at 10 degrees, left lateral rotation at 15 degrees, and a combined range of motion at 95 degrees. The examiner noted no muscle spasms. Localized tenderness and guarding were noted but did not result in an abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's lumbar spine disorder were less movement than normal and weakened movement. Muscle strength testing revealed abnormal findings. There was no muscle atrophy, ankylosis, or other neurological abnormalities. The examiner noted IVDS but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran occasionally used a brace and cane. There were no other pertinent physical findings. A November 2015 VA treatment record reflects the Veteran's report of low back pain and trouble with prolonged standing and sitting. During April 2016 VA treatment, the Veteran reported neck pain exacerbated by sitting down, looking down, and turning his neck and underwent a cervical facet injection for neck pain. A May 2016 VA treatment record reflects neck limited range of motion for extension, but no degrees were provided. VA treatment records dated June 2016, July 2016, and August 2016 reflect the Veteran's report of neck pain and stiffness. In a September 2016 VA treatment record, the Veteran reported low back pain, trouble with prolonged sitting and standing, but denied incontinence and weakness. An October 2016 VA treatment record reflects the Veteran's report of low back and neck pain. During the January 2017 VA cervical spine examination, the Veteran reported flare-ups described as neck pain and functional loss manifested as neck limited range of motion. Initial range of motion for the cervical spine was flexion at 30 degrees, extension at 10 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 35 degrees, left lateral rotation at 35 degrees, and a combined range of motion at 150 degrees. There was no pain on motion and the range of motion contributed to functional loss. Mild cervical paravertebral tenderness was noted. The Veteran performed repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use, but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Fatigue significantly limited functional ability with repetitive use. The examiner described in terms of range of motion as flexion at 25 degrees, extension at 5 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 120 degrees. The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Fatigue significantly limited functional ability with flare-ups. The examiner described in terms of range of motion as flexion at 25 degrees, extension at 5 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 120 degrees. The examiner noted localized tenderness not resulting in an abnormal gait or abnormal spinal contour. There were no muscle spasms, guarding, muscle atrophy, ankylosis, or other neurological abnormalities. Less movement than normal was an additional factor contributing to the Veteran's cervical spine disorder. Muscle strength testing revealed abnormal findings. The examiner noted IVDS, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran regularly used a cane. There were no other pertinent physical findings. There was pain on passive range of motion and pain on non-weight-bearing testing. During the January 2017 VA thoracolumbar spine examination, the Veteran reported flare-ups described as low back pain and functional loss manifested as muscle spasms from prolonged standing and bending. Initial range of motion for the thoracolumbar spine was flexion at 60 degrees, extension at 10 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 25 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 155 degrees. There was pain on motion and the range of motion contributed to functional loss. The examiner noted moderate localized tenderness but no pain with weight-bearing. The Veteran performed repetitive-use testing with at least three repetitions with additional loss of function and range of motion. Pain and fatigue caused functional loss. Range of motion after three repetitions was flexion at 50 degrees, extension at 10 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 25 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 145 degrees. The Veteran was not examined immediately after repetitive use, but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Pain and fatigue significantly limited functional ability with repetitive use. The examiner described in terms of range of motion as flexion at 50 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees, left lateral rotation at 25 degrees, and a combined range of motion at 120 degrees. The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain and fatigue significantly limited functional ability with flare-ups. The examiner described in terms of range of motion as flexion at 50 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees, left lateral rotation at 25 degrees, and a combined range of motion at 120 degrees. There were no muscle spasms, muscle atrophy, ankylosis, other neurological abnormalities, or other pertinent physical findings. The examiner noted localized tenderness and guarding not resulting in an abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's lumbar spine disorder were less movement than normal and weakened movement. The examiner noted IVDS, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran regularly used a cane. The examiner did not conduct passive range of motion testing because it was not medically appropriate. There was pain on non-weight-bearing testing. In VA treatment records dated March 2017 and April 2017, the Veteran reported neck pain. During May 2017 VA treatment, the Veteran reported low back pain after lifting a king-size mattress and a lumbar spine radiograph revealed disc osteophyte complex with possible nerve root compromise, mild narrowing of neural foramina, and no definite acute fracture. During the May 2018 VA thoracolumbar spine examination, the Veteran reported flare-ups described as low back pain and functional loss manifested as muscle spasms. Initial range of motion for the thoracolumbar spine was flexion at 35 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 15 degrees, right lateral rotation at 15 degrees, left lateral rotation at 15 degrees, and a combined range of motion at 100 degrees. There was localized tenderness, pain on motion, and range of motion contributed to functional loss. There was no pain with weight-bearing. The Veteran performed repetitive-use testing with at least three repetitions with no additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use, but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use. The examiner could not say without mere speculation as to whether any pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use because the Veteran was not having a flare-up or using the joint repeatedly. The examination was not conducted during a flare-up, but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. use. The examiner could not say without mere speculation as to whether any pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups because the Veteran was not having a flare-up or using the joint repeatedly. The examiner noted muscle spasms and guarding not resulting in an abnormal gait or abnormal spinal contour. Disturbance of locomotion was an additional factor contributing to the Veteran's lumbar spine disorder. Muscle strength testing revealed normal findings. There was no muscle atrophy, ankylosis, other neurological abnormalities, or other pertinent physical findings. The examiner noted IVDS, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran regularly used a cane and occasionally used a walker. There was pain on passive range of motion testing and no pain on non-weight-bearing testing. During the May 2018 VA cervical spine examination, the Veteran reported flare-ups described as neck pain and stiffness and functional loss manifested as trouble with writing. Initial range of motion for the cervical spine was flexion at 20 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 90 degrees. There was localized tenderness, pain on motion that caused functional loss, and range of motion contributed to functional loss. There was no pain with weight-bearing. The Veteran performed repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use, but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use. The examiner could not say without mere speculation as to whether any pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use because the Veteran was not having a flare-up or using the joint repeatedly. The examination was not conducted during a flare-up, but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. The examiner could not say without mere speculation as to whether any pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups because the Veteran was not having a flare-up or using the joint repeatedly. The examiner noted muscle spasms and guarding did not result in an abnormal gait or abnormal spinal contour. No additional factors contributed to the Veteran's cervical spine disorder. Muscle strength testing revealed abnormal findings. There was no muscle atrophy, ankylosis, other neurological abnormalities, or other pertinent physical findings. The examiner noted IVDS, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran regularly used a cane and occasionally used a walker. There was pain on passive range of motion testing and no pain on non-weight-bearing testing. During the December 2019 VA cervical spine examination, the Veteran reported flare-ups described as neck pain exacerbated by physical activity and functional loss manifested as trouble turning his head and lifting arms. Initial range of motion testing for the cervical spine was flexion at 20 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 90 degrees. Pain on motion caused functional loss and the range of motion contributed to functional loss. There was localized tenderness and pain with weight-bearing. The Veteran performed repetitive-use testing with at least three repetitions with no additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use, but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Pain significantly limited functional ability with repetitive use. The examiner described in terms of range of motion as flexion at 20 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 90 degrees. The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain significantly limited functional ability with flare-ups. The examiner described in terms of range of motion as flexion at 20 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 90 degrees. The examiner noted muscle spasms and guarding but did not result in an abnormal gait or abnormal spinal contour. Less movement than normal was an additional factor contributing to the Veteran's cervical spine disorder. Muscle strength testing revealed abnormal findings. There was no muscle atrophy, ankylosis, other neurological abnormalities, or other pertinent physical findings. The examiner noted IVDS, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use assistive devices. There was pain on non-weight-bearing testing and passive range of motion was the same as active range of motion. During the August 2020 VA thoracolumbar spine examination, the Veteran reported flare-ups described as "flare-ups three to four times per week" and functional loss manifested as trouble walking and resting due to pain. Initial range of motion testing for the thoracolumbar spine was flexion at 60 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 160 degrees. The range of motion did not contribute to functional loss and pain on motion did not cause functional loss. There was localized tenderness and pain with weight-bearing. The Veteran performed repetitive-use testing with at least three repetitions with no additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use, but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Pain significantly limited functional ability with repetitive use. The examiner described in terms of range of motion as flexion at 60 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 160 degrees. The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain and weakness significantly limited functional ability with flare-ups. The examiner described in terms of range of motion as flexion at 60 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, left lateral rotation at 20 degrees, and a combined range of motion at 160 degrees. The examiner noted muscle spasms and guarding did not result in an abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's lumbar spine disorder were weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing revealed abnormal findings. There was no muscle atrophy, ankylosis, other neurological abnormalities, or other pertinent physical findings. The examiner noted IVDS, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran occasionally used a brace, cane, and walker. There was pain on non-weight-bearing testing and passive range of motion was the same as active range of motion. The preponderance of the evidence is against the assignment of an initial rating higher than 20 percent for the entirety of the rating period on appeal for the Veteran's thoracolumbar spine disorder under DC 5243-5242. During the entirety of the rating period on appeal, the Veteran's thoracolumbar spine flexion, at worst, was 35 degrees. The competent evidence does not show the Veteran's lumbar spine disorder having the functional equivalent of ankylosis as evidenced by three VA examiners indicating that the Veteran did not have thoracolumbar spine ankylosis. Additionally, the VA examiners noted no incapacitating episodes as to the Veteran's IVDS. Therefore, a higher initial rating is not warranted, and the claim is denied. A preponderance of the evidence is against a finding of an initial rating higher than 20 percent for the entirety of the rating period on appeal for the Veteran's cervical spine disorder under DC 5243-5242. During the entirety of the rating period on appeal, the Veteran's cervical spine flexion, at worst, was 20 degrees. The competent evidence does not show the Veteran's cervical spine disorder having the functional equivalent of ankylosis as evidenced by three VA examiners indicating that the Veteran did not have cervical spine ankylosis. Additionally, the VA examiners noted no incapacitating episodes as to the Veteran's IVDS. Therefore, a higher initial rating is not warranted, and the claim is denied. Right and left upper extremity radiculopathy Paralysis of the upper radicular group is rated under DC 8510. 38 C.F.R. § 4.124a, DC 8510. A 30 percent and 40 percent rating are assigned for moderate incomplete paralysis of the minor and major extremity, respectively. Id. A 40 percent and a 50 percent rating is assigned for severe incomplete paralysis of the minor and major extremity, respectively. Id. A 60 percent and a 70 percent rating is assigned for complete paralysis of all shoulder and elbow movement lost or severely affected, hand and wrist movements not affected of the minor and major extremity, respectively. Id. 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Neurological conditions are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.120. Complete or partial loss of one or more extremities, disturbances of gait, tremors, visceral manifestations, etc. are to be considered in rating such disabilities. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the side and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. Id. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decision will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such is not dispositive of an issue. Id. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's (major) right upper extremity radiculopathy is rated 40 percent disabling and (minor) left upper extremity radiculopathy is rated 30 percent disabling from April 19, 2016 and continuing thereafter under DC 8510. The appellate period for right and left upper extremity radiculopathy is from April 19, 2016. In a May 2016 VA treatment record, the Veteran reported bilateral upper extremity radiating pain and numbness right greater than left. VA treatment records dated May 2016 and August 2016 reflect the Veteran's diagnosis of cervical radiculopathy. During the January 2017 VA cervical spine examination, the Veteran reported bilateral upper extremity pain and numbness. The Veteran was noted as right-hand dominant. The Veteran's bilateral upper extremity radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. The examiner noted other symptoms of decreased hand grip strength and abnormal findings from nerve impingement tests. The examiner indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate. During the January 2017 VA peripheral nerve conditions examination, the Veteran reported bilateral upper extremity numbness, tingling, and pain. The Veteran was noted as right-hand dominant. The Veteran's bilateral upper extremity radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. Muscle strength, reflex, and sensory testing revealed abnormal findings. No tropic changes were noted. The examiner indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate incomplete paralysis. A May 2017 VA treatment record reflects the Veteran's report of bilateral upper extremity pain and numbness right greater than left. During the May 2018 VA cervical spine examination, the Veteran reported bilateral hand and finger numbness. The Veteran was noted as right-hand dominant. The Veteran's bilateral upper extremity radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. There were no other symptoms of bilateral upper extremity radiculopathy. The examiner indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate. During the May 2018 VA peripheral nerve conditions examination, the Veteran reported bilateral arm pain and numbness. The Veteran was noted as right-hand dominant. The Veteran's bilateral upper extremity radiculopathy symptoms were no constant pain; right upper extremity severe intermittent pain and left upper extremity moderate intermittent pain; right upper extremity severe paresthesias and left upper extremity moderate paresthesias; and right upper extremity severe numbness and left upper extremity moderate numbness. Muscle strength testing revealed abnormal findings. Reflex and sensory testing revealed normal findings. No tropic changes were noted. The examiner indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate incomplete paralysis. A June 2019 VA treatment record reflects the Veteran's report of left-hand numbness. During the December 2019 VA cervical spine examination, the Veteran reported bilateral hand pain and numbness. The Veteran was noted as right-hand dominant. The Veteran's bilateral upper extremity radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. There were no other symptoms of bilateral upper extremity radiculopathy. The examiner indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate. During the December 2019 VA peripheral nerve conditions examination, the Veteran reported bilateral upper extremity numbness. The Veteran was noted as right-hand dominant. The Veteran's bilateral upper extremity radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. Muscle strength and sensory testing revealed abnormal findings. Reflex testing revealed normal findings. No tropic changes were noted. The examiner indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate incomplete paralysis. The preponderance of the evidence is against the assignment of findings for of initial ratings higher than 40 percent and 30 percent for the entirety of the rating period on appeal for the Veteran's (major) right and (minor) left upper extremity radiculopathy under DC 8510, respectively. Six VA examiners noted the Veteran as right dominant. Three VA cervical spine examiners indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate and three VA peripheral nerve conditions examiners indicated the severity of the Veteran's bilateral upper extremity radiculopathy as moderate incomplete paralysis. The competent evidence shows the Veteran's bilateral upper extremity radiculopathy involvement as wholly sensory as evidenced by the Veteran's consistent reports of bilateral upper extremity tingling, numbness, and pain and VA examinations reflecting abnormal findings for sensory testing. Therefore, higher initial ratings are not warranted, and the claims are denied. Right and left lower extremity sciatic nerve radiculopathy Under DC 8520, ratings of 10, 20, 40, and 60 percent are assigned for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve, respectively. 38 C.F.R. § 4.124a, DC 8520. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. Id. 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Neurological conditions are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.120. Complete or partial loss of one or more extremities, disturbances of gait, tremors, visceral manifestations, etc. are to be considered in rating such disabilities. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the side and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. Id. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decision will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such is not dispositive of an issue. Id. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's right lower extremity sciatic nerve radiculopathy is rated 10 percent disabling from October 28, 2015 to April 18, 2016; 20 percent disabling from April 19, 2016 to August 12, 2020; and 10 percent disabling from August 13, 2020 and continuing thereafter under DC 8520. The Veteran's left lower extremity radiculopathy is rated 20 percent disabling from October 28, 2015 to August 12, 2020 and 10 percent disabling from August 13, 2020 and continuing thereafter. The appellate period for both claims is from October 28, 2015 to August 12, 2020. In a September 2020 rating decision, the RO decreased the increased ratings for both claims from 20 percent to 10 percent effective August 13, 2020. The Veteran did not appeal the September 2020 rating decision; therefore, the Board does not have jurisdiction as to those issues. During the January 2016 VA thoracolumbar spine examination, the Veteran reported bilateral leg tingling, numbness, and a left foot drop. The Veteran's bilateral lower extremity radiculopathy symptoms were no constant pain, no intermittent pain, mild paresthesias, and moderate numbness. Left ankle and foot weakness was noted. The examiner indicated the severity of the Veteran's right lower extremity sciatic nerve radiculopathy as mild and left lower extremity as moderate. A July 2016 VA treatment record reflects the Veteran's report of bilateral lower extremity numbness and aching. During the January 2017 VA peripheral nerve conditions examination, the Veteran's bilateral lower extremity sciatic nerve radiculopathy symptoms were no constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness. Reflex and sensory testing revealed abnormal findings. There were no trophic changes and the Veteran's abnormal gait resulted from unrelated foot pain. The examiner indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as moderate incomplete paralysis. During the January 2017 VA thoracolumbar spine examination, the Veteran's bilateral lower extremity sciatic nerve radiculopathy symptoms were no constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness. Decreased left foot and ankle strength was noted. The examiner indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as moderate. During the May 2018 VA peripheral nerve conditions examination, the Veteran's bilateral lower extremity sciatic nerve radiculopathy symptoms were no constant pain, right lower extremity moderate intermittent pain and left lower extremity severe intermittent pain, right lower extremity moderate paresthesias and left lower extremity severe paresthesias, and right lower extremity moderate numbness and left lower extremity severe numbness. No trophic changes were noted. The examiner indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as moderate incomplete paralysis. During the May 2018 VA thoracolumbar spine examination, the Veteran's bilateral lower extremity sciatic nerve radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. No other signs or symptoms of radiculopathy were noted. The examiner indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as moderate. During the December 2019 VA peripheral nerve conditions examination, the Veteran's bilateral lower extremity sciatic nerve radiculopathy symptoms were no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. No trophic changes were noted. The examiner indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as moderately severe incomplete paralysis. The Board will grant 40 percent initial ratings from October 28, 2015 to August 12, 2020 for the Veteran's right and left lower extremity sciatic nerve radiculopathy under DC 8520 based on the benefit-of-the-doubt doctrine. From October 2015 to May 2018, VA examiners indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as mild and/or moderate. However, the VA examinations reflect the Veteran's symptoms ranging from moderate to severe. Additionally, the December 2019 VA examiner indicated the severity of the Veteran's bilateral lower extremity sciatic nerve radiculopathy as moderately severe incomplete paralysis. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, higher initial ratings are warranted, and the claims are granted. Low back surgical scars DC 7805 instructs that scars and other effects of scars are rated as burn scar(s) of the head, face, or neck (DC 7800); scar(s) not of the head, face, or neck, that are associated with underlying soft tissue damage (DC 7801); scar(s) not of the head, face, or neck, that are not associated with underlying soft tissue damage (DC 7802); or unstable or painful scars (DC 7804). 38 C.F.R. § 4.118, DC 7805. Disabling effects not considered under ratings for scars are to be evaluated under an appropriate DC. Id. Under 7802, a 10 percent rating is assigned for scars not of the head, face, or neck, that are not associated with underlying soft tissue damage that cover an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. A 20 percent rating is assigned for three or four scars that are unstable or painful. Id. A 30 percent rating is assigned for five or more scars that are unstable or painful. Id. Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note (2) instructs that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id. The Veteran's low back surgical scars are rated 10 percent disabling from December 19, 2019 to August 12, 2020 and 20 percent disabling from August 13, 2020 and continuing thereafter under DC 7804 and noncompensable from April 19, 2016 and continuing thereafter under DC 7805. The appellate period is from April 19, 2016. The Veteran's scars are located on his low back and there is no indication the scars are associated with underlying soft tissue damage; therefore, DCs 7800 and 7801 are inapplicable. During the January 2017 VA thoracolumbar spine examination, the examiner noted a low back scar that was not painful, unstable, or having a total area equal to or greater than 39 square centimeters. The scar measured at 7 centimeters x 0.2 centimeters. On May 21, 2017, the Veteran underwent a lumbar spine decompressive laminectomy, medial facetectomy, and foraminotomy. The operation report reflects that "a #10 skin blade was used to make a skin incision in the midline from the L3 spinous process to the S1 spinous process." During the May 2018 VA thoracolumbar spine examination, the examiner noted a low back scar that was not painful, unstable, or having a total area equal to or greater than 39 square centimeters. The scar measured at 8 centimeters x 0.5 centimeters. During the August 2020 VA scars examination, the Veteran reported lumbar spine surgeries in August 2015 and May 2017 and that scars from the May 2017 lumbar surgery were painful. The examiner indicated the Veteran had a laminectomy in May 2017 resulting in three painful scars described as dull ache, tender to the touch, and pain with back movement. The scars were on the Veteran's posterior trunk in the thoracic and lumbar region. The examiner measured the three scars as 7 centimeters x 1 centimeter, 8 centimeters x 1 centimeter, and 7 centimeters x 1 centimeter. The scars were tender to palpation. The examiner indicated the scars were not unstable with frequent loss of covering of skin over the scars, no scars due to burns, and did not have underlying soft tissue damage. The approximate total scar area was 56 centimeters squared. The Board will grant a 20 percent increased rating from May 21, 2017 and continuing thereafter for the Veteran's low back surgical scars under DC 7804 based on the benefit-of-the-doubt doctrine. On May 21, 2017, the Veteran underwent a lumbar spine decompressive laminectomy, medial facetectomy, and foraminotomy. Although the May 2018 VA examiner identified one not painful and stable scar, the August 2020 VA examiner identified three painful scars from the May 2017 lumbar surgery. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased rating is warranted, and the claim is granted. A preponderance of the evidence is against a finding of an increased rating higher than 20 percent for the entirety of the rating period on appeal for the Veteran's low back surgical scars under DC 7804. The competent evidence does not show the Veteran with more than three painful scars from the May 2017 lumbar spine surgery. Additionally, a separate rating for the Veteran's low back surgical scars under DC 7802 is not warranted because the scars do not cover an area or areas of 144 square inches (929 square centimeters) or greater as evidenced by the August 2020 VA examiner measuring the approximate total scar area as 56 square centimeters. TDIU 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). With the present decision, the Veteran's service-connected disorders include: Sleep apnea rated 50 percent disabling from November 2, 2017 and continuing thereafter; Right upper extremity radiculopathy rated 40 percent disabling from April 19, 2016 and continuing thereafter; Left upper extremity radiculopathy rated April 19, 2016 and continuing thereafter; Lumbar spine disorder rated 20 percent disabling from October 28, 2015 and continuing thereafter; Cervical spine disorder rated April 19, 2016 and continuing thereafter; Low back surgical scars rated 20 percent disabling from May 21, 2017 and continuing thereafter; Tinnitus rated 10 percent disabling from February 28, 2017 and continuing thereafter; Right lower extremity sciatic nerve radiculopathy rated 40 percent disabling from October 28, 2015 to August 12, 2020 and 10 percent disabling from August 13, 2020 and continuing thereafter; Left lower extremity sciatic nerve radiculopathy rated 40 percent disabling from October 28, 2015 to August 12, 2020 and 10 percent disabling from August 13, 2020 and continuing thereafter; Right lower extremity femoral nerve radiculopathy rated 10 percent disabling from August 13, 2020 and continuing thereafter; Left lower extremity femoral nerve radiculopathy rated 10 percent disabling from August 13, 2020 and continuing thereafter; Low back surgical scar rated noncompensable from April 19, 2016 and continuing thereafter; Right lower extremity internal saphenous nerve radiculopathy rated noncompensable from December 19, 2019 to August 13, 2020; Left lower extremity internal saphenous nerve radiculopathy rated noncompensable from December 19, 2019 to August 13, 2020; Right lower extremity obturator nerve radiculopathy rated noncompensable from December 19, 2019 and continuing thereafter; Left lower extremity obturator nerve radiculopathy rated noncompensable from December 19, 2019 and continuing thereafter; Right lower extremity external cutaneous nerve radiculopathy rated noncompensable from December 19, 2019 and continuing thereafter and; Left lower extremity external cutaneous nerve radiculopathy rated noncompensable from December 19, 2019 and continuing thereafter. The Veteran has met the schedular criteria under § 4.16(a) effective October 28, 2015. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In his April 2016 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated he last worked full time, became too disabled to work, and disabilities affected full time employment on October 1, 2010. Social security administration (SSA) records reflect the Veteran as not employed since October 2010. As noted, the Veteran has met the schedular criteria under § 4.16(a) effective October 28, 2015. The Veteran does not have any service-connected disabilities prior to October 28, 2015. (CONTINUED ON THE NEXT PAGE) The Board will grant a TDIU effective October 28, 2015 based on the benefit-of-the-doubt doctrine. Several VA examiners indicated that the Veteran could perform in a sedentary occupation. However, the probative weight of the evidence, to include the Veteran meeting the schedular criteria under § 4.16(a) effective October 28, 2015, the May 2018 non-VA examiner's opinion that the Veteran's service-connected disorders impact his ability to work, VA treatment records reflecting the Veteran's functional impairment, and other VA examiners opining that the Veteran cannot work in any type of occupation indicates that the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted, and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.