Citation Nr: 21073390 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-05 820 DATE: December 8, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss is denied. Entitlement to a rating higher than 10 percent for a lumbar spine disability also is denied. FINDINGS OF FACT 1. At no time during the rating period on appeal has the Veteran's left ear hearing loss been worse than Level III impairment. 2. At no time during the rating period on appeal has his lumbar spine disability manifested in forward flexion not greater than 60 degrees, a combined range of motion of his thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes of at least two weeks in a 12-month period. 3. At no time during the rating period on appeal has his lumbar spine disability manifested in greater than mild radiculopathy of his lower extremities. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a compensable rating for left ear hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC/Code) 6100. 2. The criteria also are not met for entitlement to a rating higher than 10 percent for the lumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1968. In June 2021, in support of these claims, the Veteran testified at a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In August 2021, the Board remanded these claims back to the RO, which is the Agency of Original Jurisdiction (AOJ), for further development and consideration including to obtain any outstanding treatment records relevant to these claims and then for VA examinations reassessing the severity of these disabilities. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R.§ 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. According to 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating can be up to one year prior to the date of receipt of the increased rating claim provided the evidence reflects a worsening of the disability during that immediately preceding year; in other words, this must be factually ascertainable. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Thus, to this end, the Board has considered the evidence from one year prior to the date on which the Veteran filed these increased-rating claims to determine whether it reflects a worsening of these disabilities during that period such that higher ratings are warranted. See Harper v. Brown, 10 Vet. App. 125 (1997). 1. Entitlement to a compensable rating for the left ear hearing loss The Veteran's left ear hearing loss is "mixed" (meaning it has both conductive and sensorineural components) but, in any event, is evaluated as 0-percent disabling, so noncompensable, effective from the date of service connection in March 2014 under 38 C.F.R. § 4.85, DC 6100. (He is not in receipt of service connection for right ear hearing loss, although he is for tinnitus (ringing in his ears) and has the maximum permissible 10 percent rating for that disease. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260.) In July 2018, the Veteran filed a claim for an increased (compensable) rating for his service-connected left ear mixed hearing loss. Disability ratings for hearing loss are derived from a "mechanical" (meaning nondiscretionary) application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Ratings for hearing loss range from 0 percent (noncompensable) to 100 percent based on impairment of hearing acuity as measured by speech discrimination tests (Maryland CNC) and pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, DC 6100. The results are charted on Table VI or Table VIA. The Rating Schedule establishes 11 auditory acuity levels designated from Level I (for normal hearing) through Level XI (for profound deafness). 38 C.F.R. § 4.85(h). Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI or VIA. 38 C.F.R. § 4.85. A March 2017 audiology Disability Benefits Questionnaire (DBQ) reflects the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 30 35 55 45 On the basis of the numbers shown above, the Veteran's puretone threshold average for the left ear was recorded as 41.25. His speech recognition ability was 94 percent for the left ear using the Maryland CNC speech recognition test. Applying those test results to Table VI, he had Level I impairment. A September 2018 audiology DBQ reflects the Veteran's relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 20 20 50 35 On the basis of the numbers shown above, the Veteran's puretone threshold average for the left ear was recorded as 31.25. His speech recognition ability was 96 percent for the left ear using the Maryland CNC speech recognition test. Applying those test results to Table VI, he again had Level I impairment. A September 2021 audiology DBQ reflects the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 40 50 75 65 Based on those results, the Veteran's puretone threshold average for his left ear was 58 decibels. His speech recognition ability was 90 percent using the Maryland CNC speech recognition test. Applying those test results to Table VI, this time he had Level III impairment. When, as here, impaired hearing is service-connected in only one ear, to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation Level I unless special consideration for paired organs is warranted according to 38 C.F.R. § 3.383(a)(3), which is not shown in this instance. Thus, when applying the levels of impairment shown to Table VII, the Veteran's hearing loss correlates to a 0 percent (noncompensable) rating throughout the review period. Hence, this rating cannot be "staged". The Board also has considered the provisions of 38 C.F.R. § 4.86, but the Veteran's hearing does not meet the criteria for an exceptional pattern of hearing impairment. Clinical records also reflect that the Veteran's hearing has been assessed using the NU-6 word recognition list; but those results are not valid for rating his hearing loss for VA compensation purposes because the rating code specifically requires use of the Maryland CNC test. See 38 C.F.R. § 4.85. The Board acknowledges the Veteran's personal lay statements regarding his hearing acuity (lack thereof), so including that he needs to look at people face-to-face to understand them, and that he puts his phone on speaker. The Board does not dispute that he has hearing loss, especially in these regards and when accepting that it already has been determined this is a service-connected disability. However, in determining the actual degree or extent of disability, the results of the objective examinations (hearing tests) are more probative of the amount of his impairment than his lay statements. Furthermore, his opinions and observations cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, DC 6100, with respect to determining the severity of his service-connected left ear hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2). The Veteran has sufficient hearing loss in this ear to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a ratable disability, and he accordingly is in receipt of service connection for this disability albeit, as mentioned, at the most minimum noncompensable level. However, his hearing loss disability does not rise to the level of severity warranting financial compensation under the applicable rating criteria. In essence, although he has difficulty hearing, his impairment is considered noncompensable according to VA regulations. The rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. When "hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the scheduler rating criteria." See Doucette v. Shulkin, 28 Vet. App. 366 (2017); Rossy v. Shulkin, 29 Vet. App. 142 (2017). Recognizing all this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111(2008). The Veteran has not alleged, and the evidence does not otherwise show, any symptoms or impairment indicative of an unusual or unique disability picture not contemplated by the rating criteria; thus, the schedular criteria are wholly adequate. As a result, extra-schedular referral is not required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337(1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable since there is not at least relative balance of evidence for versus against this claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In a November 2021 brief, the Veteran's representative argued that service connection is warranted additionally for right ear hearing loss. The claim for service connection for right ear hearing loss was denied by the RO in September 2014 and June 2017 rating decisions that were not appealed and consequently are final and binding determinations. Effective March 24, 2015, so in the interim, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. 38 C.F.R. §§ 3.151, 3.155, 3.157. If the Veteran wants to refile a claim for service connection for right ear hearing loss, he may do so under the current Appeals Modernization Act (AMA) (which took effect as of February 19, 2019). 2. Entitlement to an increased rating for the lumbar spine disability The Veteran's low back disability is evaluated as 10-percent disabling effective from the date of service connection in March 2014. In July 2018, he filed a claim for an increased rating. His disability is currently rated under DC 5242-5243 for lumbar spine strain with degenerative arthritis, spondylosis, facet joint arthritis, and Intervertebral Disc Syndrome (IVDS). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran would be entitled to a higher rating of 20 percent if he had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a 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. Even higher ratings would be warranted for more severe impairment. 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, that is, when additionally considering the adjacent cervical segment. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. See Note (1) in the General Rating Formula for Diseases and Injuries of the Spine, DCs 5235-42. The Formula for Rating IVDS Based on Incapacitating Episodes provides that 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. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The rating criteria for the spine were most recently updated effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , DC 5239). When, as here, the rating criteria are amended during the pendency of the appeal (review period), the Board considers both the former and revised criteria and applies whichever version is more favorable to the Veteran. However, should an increased rating be warranted under the revised criteria, the award may not be made effective before the effective date of the change unless expressly provided for in the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. However, DC 5243 only had a minor change under the February 7, 2021 regulatory amendments, that being clarification that DC 5243 now is only for application when there is disc herniation with compression and/or irritation of the adjacent nerve root. The Formula for Rating IVDS Based on Incapacitating Episodes and the General Formula for Disease and Injuries of the Spine did not change. Rather, the change clarifies when to rate a disability under DC 5243 versus 5242. Turning now to this Veteran's claim, a February 2017 DBQ reflects that he reported flare ups of his back condition in that standing, walking, lying down, and sitting make it ache sharply. On range-of-motion testing, he had forward flexion from 0 to 80 degrees and extension from 0 to 20 degrees. All other ranges of motion were full. He had pain in all ranges of motion, but the examiner found that additional loss of range of motion would not occur during repetitive use or a flare-up. The Veteran did not have muscle spasm, and guarding or localized tenderness did not result in abnormal gait or abnormal spine contour. A September 2018 DBQ reflects that, during a flare up, the Veteran has dull-to- sharp pain in his low back. He reported that his overall functional impairment was difficulty with bending and heavy lifting. Upon examination, he had full forward flexion (0 to 90 degrees), and all other ranges of motion from 0 to 20 degrees (normal being to 30 degrees). See 38 C.F.R. § 4.71A, Plate V. Pain was noted only on extension, but there was no evidence of pain with weight bearing. He did not have guarding or muscle spasm. Moreover, after repetitive use testing, he had no additional loss of range of motion. A November 2018 VA clinical record reflects that the Veteran golfs twice a week and usually plays nine holes, although sometimes 18. A January 2020 record reflects that in September 2019, he started an exercise class and that after starting this new class, he began to spasm while playing golf, so he stopped golfing and exercising. However, in January 2020, he returned to golfing approximately once a week and modified his movements by avoiding twisting. A February 2020 record reflects that he had returned to golfing twice a week and walks the course rather than using a golf cart. A March 2021 VA clinical record reflects that the Veteran plays golf three times a week and walks 2.5 miles two to three times a week. A May 2021 VA clinical record reflects that the Veteran described his low back pain as "intermittent' and requested a referral for physical therapy which had helped his back. He also requested a heating pad and lidocaine patch renewal which he used when he plays golf. He denied any worsening of pain or symptoms such as numbness, tingling, weakness, falls, incontinence, or saddle paresthesias. It was again noted that he plays golf three times a week and walks 2.5 miles 2-3 times a week. This evidence weighs against severe impairment. The Board can reasonably find that playing nine holes of golf involves considerable standing, walking, and bending, especially as he did not use a cart to move about the course, and he reported his pain as "intermittent". A September 2021 DBQ reflects that the Veteran reported severe aching pain to lower back daily and lasts all day. He reported that he cannot lay on his back. He takes ibuprofen as needed for pain. He denied flare-ups. He reported that he had difficulty bending, reaching, laying on his back and standing for extended periods of time. Upon testing, he had forward flexion from 0 to 80 degrees, extension from 0 to 10 degrees, right lateral flexion and rotation to 10 degrees, and left lateral flexion and rotation to 15 degrees. Passive range of motion testing revealed the same ranges of motion as active range of motion. All ranges of motion exhibited pain upon testing. There was also pain with weight-bearing. Pain did not result in additional functional loss. After repeated use of over time, it was estimated that he would lose 5 degrees of left lateral flexion and 5 degrees of left lateral rotation. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id., at 43. Here, the evidence does not support that an evaluation exceeding 10 percent is warranted for any period on appeal. Not only does the Veteran's range of motion limitation not rise to the level of restriction that would warrant a higher rating, even after repetitive use it does not. The Board acknowledges his report that he cannot lay on his back, however, this does not indicate significant impairment as it would not interfere with activities such as walking or sitting, and the evidence does not support that he is employed in a position that requires him to lay on his back; instead, he is employed as a reverse mortgage advisor. Moreover, it has not been shown that he cannot sleep on his sides or stomach. There equally is no probative evidence that his disability is the functional equivalent of ankylosis, even during a flare up. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position."). He has far greater range of motion, even after repetitive use, and has not alleged that during a flare-up his spine is immobile, but rather that he has "difficulty" with heavy lifting, bending, reaching, standing, and laying on his back for extended periods of time. The Board finds that this does not rise to the level of ankylosis or something akin or tantamount to it. 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 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the 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). Further, § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." See Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As discussed, the Veteran either did not report flare ups, or no additional loss of range of motion was presumed during a flare-up that would rise to the severity warranting a higher rating. Even considering that in September 2019, he began to spasm while playing golf, the evidence does not suggest that he had significant loss of forward flexion, abnormal gait, or significant loss of the thoracolumbar spine combined range of motion. In addition, the evidence does not reflect that the Veteran has had incapacitating episodes as defined by VA regulation, to include having a total duration of at least two weeks during a 12-month period (e.g., see February 2017 and September 2021 DBQs). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. See Note (1) in the General Rating Formula for Diseases and Injuries of the Spine. The evidence does not support bowel or bladder impairment (see DBQs). He is already separately compensated for associated radiculopathy of his left lower extremity evaluated as 10 percent-disabling, and for associated radiculopathy of his right lower extremity also evaluated as 10-percent disabling. The ratings currently assigned for the Veteran's lower extremity radiculopathies are provided by 38 C.F.R. § 4.124a, DC 8520, pertaining to the sciatic nerve. According to DC 8520, mild incomplete paralysis of the sciatic nerve 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, when 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. These descriptive terms "mild", "moderate", "moderately severe", and "severe" are not specifically defined in the Rating Schedule. But regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. Miller v. Shulkin, 28 Vet. App. 376 (2017). Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent, or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature. The Veteran testified that when he has a muscle spasm, it begins to shoot down his leg. Back pain, whether or not it radiates, is considered in the rating criteria for the spine. The February 2017 DBQ reflects that the Veteran had mild constant pain bilaterally, but no other symptoms of radiculopathy. A September 2018 DBQ reflects that the Veteran had no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. He had all normal strength, all normal reflexes, and all normal sensory findings. The examiner assessed the overall severity of radiculopathy as mild bilaterally. The September 2021 DBQ reflects that the Veteran denied any numbness or tingling sensation in the lower extremities. The examiner found that he did not have radicular pain or other signs or symptoms due to radiculopathy, and specifically noted "[t]here were no symptoms of bilateral lower extremity radiculopathy on day of exam". The Veteran did not use any assistive device as a normal mode or locomotion. For these reasons and bases, the preponderance of the evidence is against more than mild radiculopathy; thus, higher ratings are not warranted. Derivative total disability rating based on individual unemployability (TDIU) Finally, the Board has considered whether the Veteran is entitled to a TDIU based on his service-connected disabilities. A claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating for that disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has considered the September 2021 Individual Unemployability Statement indicating the Veteran can perform light work, such as exerting up to 20 pounds of force occasionally, and up to 10 pounds of force frequently, and can work in more than sedentary employment. The Veteran is employed as a consultant for reverse mortgages (see November 2018 VA clinical record and September 2021 DBQ). The evidence does not reflect that it is not substantially gainful employment. Thus, the issue of entitlement to a TDIU has not been reasonably raised. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.