Citation Nr: 21076067 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-08 934 DATE: December 22, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for the Veteran's cervical spine (neck) disability is denied. Entitlement to an initial disability rating in excess of 20 percent for the Veteran's left upper extremity radiculopathy is denied. Entitlement to an initial disability in excess of 20 percent for the Veteran's right upper extremity radiculopathy is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's lumbar spine (back) disability is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's left lower extremity sciatic nerve radiculopathy is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's left lower extremity femoral nerve radiculopathy is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's right lower extremity sciatic nerve radiculopathy is denied. Entitlement to a disability rating in excess of 10 percent for the Veteran's right lower extremity femoral nerve radiculopathy is denied. Entitlement to an initial disability rating in excess of 50 percent for the Veteran's left hip joint replacement is denied. Entitlement to an initial compensable disability rating for the Veteran's right hip extension is denied. Entitlement to an initial compensable disability rating for the Veteran's right hip flexion is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's right hip abduction is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At worst, the Veteran's neck disability manifested to forward flexion to 25 degrees. 2. The Veteran's left upper extremity radiculopathy manifested as mild incomplete paralysis. 3. The Veteran's right upper extremity radiculopathy manifested as mild incomplete paralysis. 4. At worst, the Veteran's back disability manifested as forward flexion to 65 degrees and a combined range of motion of 140 degrees. 5. The Veteran's left lower extremity sciatic nerve radiculopathy manifested as mild incomplete paralysis. 6. The Veteran's left lower extremity femoral nerve radiculopathy manifested as mild incomplete paralysis. 7. The Veteran's right lower extremity sciatic nerve radiculopathy manifested as mild incomplete paralysis. 8. The Veteran's right lower extremity femoral nerve radiculopathy manifested as mild incomplete paralysis. 9. The Veteran's residuals from her left hip joint replacement manifested as moderately severe residuals of weakness, pain, or limitation of motion 10. At worst, the Veteran's right hip extension is limited to 15 degrees after repeated use over time. 11. At worst, the Veteran's right hip flexion is limited to 95 degrees after repeated use over time. 12. At worst, the Veteran's right hip abduction is limited to 20 degrees after repeated use over time. 13. The Veteran's right hip adduction prevents her from being able to cross her legs. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for the Veteran's neck disability 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. 2. The criteria for an initial disability rating in excess of 20 percent for the Veteran's left upper extremity radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8510. 3. The criteria for an initial disability rating in excess of 20 percent for the Veteran's right upper extremity radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8510. 4. The criteria for an initial disability rating in excess of 10 percent for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 5. The criteria for an initial disability rating in excess of 10 percent for the Veteran's left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for an initial disability rating in excess of 10 percent for the Veteran's left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8526. 7. The criteria for an initial disability rating in excess of 10 percent for the Veteran's right lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 8. The criteria for an initial disability rating in excess of 10 percent for the Veteran's right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8526. 9. The criteria for an initial disability rating in excess of 50 percent for left hip joint replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054. 10. The criteria for an initial compensable disability rating for the Veteran's right hip extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 11. The criteria for an initial compensable disability rating for the Veteran's right hip flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 12. The criteria for an initial disability rating in excess of 10 percent for the Veteran's right hip abduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1986 to July 1986, February 1991 to July 1991, August 1991 to August 1995, and February 1966 to January 2013. In June 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for her neck, back, and hip disabilities. Specifically, the Board remanded the claims to ensure the VA examinations tested active and passive ranges of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran received new VA neck, back, and hip examinations in September 2020 that complied with the Correia requirements, as discussed below. The Veteran also underwent neurological examinations for her radiculopathy of the upper and lower extremities. The VA examinations obtained on remand thoroughly assessed the severity of her disabilities so that the Board can make a well-informed decision. The September 2020 examinations are adequate. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2021). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2021). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for all the disabilities. Fenderson v. West, 12 Vet. App. 119 (1999). The effective date of all the initial ratings in this case is February 1, 2013, which is the date after the Veteran separated from active duty. 1. Neck disability The Veteran's neck disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this Diagnostic Code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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 in September 2013. Although the June 2020 Board remand found this examination inadequate, that finding was only for the range of motion testing. The examination report contains other information relevant to the claim. She reported chronic neck pain that radiated down her shoulders to her left arm. During flareups, she reported that her left arm was slightly weakened from pain. The examiner found that she did not have functional loss due to her neck disability. She did not experience guarding or muscle spasms and had normal muscle strength and reflexes. She did not use an assistive device for her neck disability. Additionally, the examiner specifically reported that there would be no additional limitation of motion due to pain during flareups. The Veteran's most recent VA examination in September 2020. She reported experiencing intermittent pain that radiated down both sides of her neck and caused numbness and tingling. She also had pain with physical activity and was limited in bending/twisting, pushing, pulling, carrying, and lifting moderately heavy objects. She denied experiencing flare-ups. Her range of motion was flexion to 35 degrees, extension to 35 degrees, right lateral flexion to 35 degrees, left lateral flexion to 35 degrees, right lateral rotation to 65 degrees, and left lateral rotation to 65 degrees. She had pain with all range of motion testing that contributed to functional loss. There was no change in her range of motion after repetitive-use testing. After repeated use over time her functional ability was limited by pain, and she experienced decreased range of motion. Her range of motion decreased to flexion to 25 degrees, extension to 35 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 50 degrees. No opinion was provided concerning flareups, the examiner explained that the Veteran denied experiencing flareups. Her muscle spasms did not result in abnormal gait or abnormal spinal contour. No additional factors contributed to her disability and she did not have ankylosis. Last, she had pain with weight bearing but not with non weight bearing testing. Passive range of motion testing was not performed. However, the examiner explained that it was "not feasible to do this in a safe and reasonable manner." The examination complies with Corriea because the examiner explained why it was not possible to test passive range of motion of the neck. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for her neck disability. At worst, the Veteran's forward flexion of her cervical spine was limited to 25 degrees after repeated use over time. This range of motion is contemplated by a 20 percent disability rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss such as limitations in her ability to bend, push, pull, carry, and lift. Furthermore, she experienced functional loss in the form of pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation did not result in limitation of forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Additionally, her limitation of motion is not the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Normal range of motion for the neck is flexion and extension to 45 degrees each, lateral flexion to 45 degrees bilaterally, and rotation to 80 degrees bilaterally. The worst ranges of motion were the examiner's estimations of them after repeated use over time. She retained approximately half of forward flexion, extension, and bilateral lateral flexion. She retained nearly two thirds of her bilateral lateral rotation. This is significant retained functional capacity in all planes of motion and is not more accurately described as the functional equivalent of not being able to move the cervical spine. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for her neck disability. 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. The Veteran's neurological impairments due to her cervical spine are addressed below. 2. Left and Right Upper Extremity Radiculopathy The Veteran's left and right upper extremity radiculopathy is rated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8510. The disability ratings are divided by major and minor extremity, depending on which extremity is dominant for the Veteran. The Veteran is right-hand dominant. For mild incomplete paralysis, a 20 percent rating is warranted for a major or minor extremity. For moderate incomplete paralysis, a 30 percent disability rating is warranted for minor extremity and a 40 percent disability rating is warranted for a major extremity. For severe incomplete paralysis, a 40 percent disability rating is warranted for minor extremity and a 50 percent disability rating is warranted for a major extremity. For complete paralysis, a 60 percent disability rating is warranted for minor extremity and a 70 percent disability rating is warranted for a major extremity. 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 received a VA examination in September 2013. She reported pain radiating down into her left shoulder. Her muscle strength, reflex, and sensory exams were normal. She did not have any muscle atrophy. The examiner noted that she had mild intermittent pain in her left upper extremity and rated her overall disability as mild. There were no symptoms in her right upper extremity. She underwent a peripheral nerves examination in September 2020. She reported that in addition to her left arm symptoms, she how was also "now" experiencing intermittent pain, numbness, and tingling in her right arm as well. Upon examination, she had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in both upper extremities. She did not have constant pain in either upper extremity. She experienced decreased sensation in her hand/fingers. She had normal sensation over her shoulder area and inner/outer forearm. There were no trophic changes. She continued to have normal muscle strength and reflexes as well as no muscle atrophy. For both her right and left upper extremities her disability caused mild intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner rated her disabilities as mild. Her September 2020 VA neck examination also addressed her upper extremity radiculopathy and provided similar information to her peripheral nerves examination. The Veteran reported pain radiating into her upper extremities with numbness and tingling. Her strength and reflexes were normal. She had decreased sensation over her hand/fingers in both arms, but normal sensation in her shoulder area and inner/outer forearm. She had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. She did not have constant pain. The examiner characterized her radiculopathy of the upper extremities as mild. The Board finds the evidence shows the Veteran's right and left upper extremity disabilities are best captured by the 20 percent rating as mild incomplete paralysis. The September 2020 VA examinations show a worsening in her left upper extremity disability. Nevertheless, the Board finds that her disability is still best characterized as mild. Her symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness were described as mild and there is no evidence of decreased muscle strength or reflexes. Although she had a sensory deficit in her hand and fingers, her sensation was normal in the rest of her upper extremities. Additionally, she did not have constant pain. She has not provided a lay statement describing the severity of her right and left upper extremity radiculopathy. The Board finds that at worst, the Veteran's disability is characterized as mild incomplete paralysis and thus a 20 percent disability rating is warranted for each. The Veteran's initial 20 percent rating for her right upper extremity radiculopathy was effective September 3, 2020, which is the date of her VA examination. There must be a factual basis for choosing an earlier date. The information in the September 3, 2020 examination report does not show when the right upper extremity disability first manifested. In September 2013, the examiner found that she did not have right upper extremity radiculopathy. The evidence of record after September 2013 but before her September 2020 examination does not show when the right upper extremity radiculopathy began. It is not possible to factually ascertain from the medical or lay evidence when it first manifested, and therefore September 3, 2020 is the correct effective date for the award of the 20 percent rating for right upper extremity radiculopathy. 3. Lumbosacral spine The Veteran's back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, specifically Diagnostic Code 5237. See 38 C.F.R. § 4.71a. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this Diagnostic Code was not changed. Under this Diagnostic Code, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. "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." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The record consistently shows that the Veteran does not have Intervertebral Disc Syndrome (IVDS). Consequently, a disability rating under Diagnostic Code 5243 will not be considered. The Veteran received a VA examination in September 2013. She reported chronic back pain that radiated down to her left thighs and flare ups which caused difficulty walking due to pain. Her active range of motion was normal and there was no pain upon testing. She also did not have a decrease in her range of motion after repetitive-use testing and no functional loss. She did not have guarding or muscle spasm. Her strength was normal, and she did not have muscle atrophy. She reported having flare ups but the examiner specifically found that there was no additional limitation of motion due to pain during flare-ups or when her back was used repeatedly over a period of time. Her next VA back examination was in September 2020. She experienced intermittent pain as well as numbness and tingling in her lower extremities. She denied having flareups but had functional impairment such that she could not run or do any physical activities. Her range of motion had decreased since her last examination. Her flexion was to 75 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Her combined range of motion was 175 degrees. She had pain with all range of motion testing that contributed to functional loss. There was no change in her range of motion after repetitive-use testing. After repeated use over time her functional ability was limited by pain, and she experienced decreased range of motion. Her range of motion decreased to flexion to 65 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Her combined range of motion would be 140 degrees. No opinion was provided concerning flareups because the Veteran denied experiencing flareups. No additional factors contributed to her disability and she did not have ankylosis. She had pain with weight bearing but not with non weight bearing testing. Passive range of motion testing was conducted, and the examiner explained that "it is not feasible to do this in a safe and reasonable manner." The examination complies with Corriea because the examiner explained why it was not possible to test passive range of motion of the back. The Board finds the Veteran's disability is best captured by a 10 percent rating. Her forward was, at worst, 65 degrees; this range of motion was noted by the VA examiner when considering how her range of motion would be impacted by repeated use over time. This range of motion is contemplated by a 10 percent rating. A higher rating is not warranted because she did not have forward flexion between 30 and 60 degrees. Additionally, her combined range of motion was not less than 120 degrees; at worst, her combined range of motion was 140 degrees. This combined range of motion is also contemplated by a 10 percent disability rating. She has not provided a lay statement describing the severity of her back disability. The Board must also consider the Veteran's functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45. While the Veteran experienced functional loss in the form of pain and difficulty walking, these additional limitations did not cause her forward flexion or combined range of motion to decrease to the requisite level for a 20 percent disability rating. Therefore, even considering the Veteran's functional loss, the Board concludes the Veteran's back disability does not equate to more than the disability picture contemplated by the 10 percent rating already assigned. 38 C.F.R. § 4.71a. The Veteran's neurological complications are addressed below. 4. Left and Right Lower Extremity Radiculopathy The Veteran's right and left lower extremity sciatic nerve radiculopathy are rated under Diagnostic Code 8520. Under Diagnostic Code 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; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The Veteran's right and left lower extremity femoral nerve radiculopathy are rated under Diagnostic Code 8526. Under Diagnostic Code 8526, mild incomplete paralysis of the femoral nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; and severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the femoral nerve warrants a 40 percent evaluation; with complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a. The Veteran received a VA back examination in September 2013. Her muscle strength, reflex, and sensory exams were normal. She did not have any muscle atrophy. Her straight leg raising test was negative bilaterally. A positive test suggests radiculopathy. The examiner noted that she had mild intermittent pain in her left lower extremity and rated her overall disability as mild. She did not have constant pain, paresthesias and/or dysesthesias, or numbness in either lower extremity. The examiner found that her left sciatic nerve was involved. The examiner found that the Veteran's right lower extremity was not affected. Her next VA back examination was in September 2020. She reported that she "now" had radiating pain to both lower extremities, with numbness and tingling. She experienced decreased sensation in her foot and toes bilaterally. Her straight leg raising test was positive bilaterally. She continued to have normal muscle strength and reflexes as well as no muscle atrophy. For both her right and left lower extremities her disability caused mild intermittent pain, paresthesias and/or dysesthesias, and numbness. She did not have constant pain. The examiner documented that the Veteran had mild incomplete sciatic nerve and femoral nerve paralysis for both lower extremities. She underwent a VA peripheral nerve conditions examination in September 2020, with results similar to the findings at her back conditions examination. She had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in both lower extremities. She did not have constant pain. Her strength and reflexes were normal bilaterally. She had decreased sensation in her foot and toes bilaterally, but her sensory examination was otherwise normal. She did not have trophic changes. Her sciatic and femoral nerves were both affected, and the examiner described the severity as mild incomplete paralysis bilaterally. She did not use assistive devices. The Veteran's bilateral lower extremity radiculopathy is more accurately described as mild incomplete paralysis in each leg. The VA examinations shows that she experiences mild intermittent pain, paresthesia and/or dysesthesias, and numbness. She did not have constant pain, and her symptoms were described as mild, as opposed to moderate or severe. Her strength and reflexes were normal. She had a decreased, but not absent, sensation in her feet and toes, and the remainder of the sensory examination of the lower extremities was normal. Significantly, the examiner described the severity level in both legs as mild. Accordingly, the Board finds that a 10 percent disability rating is appropriate for her right and left lower extremity sciatic nerve and femoral nerve radiculopathy. The Veteran's left leg sciatic radiculopathy's initial rating was effective February 1, 2013 and has been in effect for the entire appeal period. Her femoral radiculopathy in both legs, and her sciatic radiculopathy in her right leg were assigned initial ratings effective September 3, 2020, which is the date of her VA examinations. There must be a factual basis for choosing an earlier date. The information in the September 2020 examination report does not show when her left femoral nerve became involved, nor does it show when her right leg radiculopathy began in either the sciatic or femoral nerves. The medical and lay evidence of record after September 2013 but before her September 2020 examination does not show when her left femoral nerve became involved or when her right leg radiculopathy began. It is not possible to factually ascertain from the evidence when these conditions first manifested. September 3, 2020 is the correct effective date for the award of the initial ratings for the femoral nerve of the left lower extremity and the sciatic and femoral nerves of the right lower extremity. 5. Left and Right Hip The Veteran had a left hip replacement in October 2007 and her left hip disability is rated under Diagnostic Code 5054, hip replacement. Her initial 50 percent rating was assigned effective February 1, 2013, more than one year after her surgery. Under Diagnostic Code 5054, a 100 percent disability rating is granted for one year following implantation of prosthesis. A 90 percent disability rating is warranted for painful motion or weakness such as to require the use of crutches. A 70 percent disability rating is warranted for markedly severe residual weakness, pain or limitation of motion following implantation of prothesis. A 50 percent disability rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5054. The terms "moderately severe" and "markedly severe" to establish 50 percent and 70 percent ratings are not defined in the above criteria. The Board needs to offer a standard for comparing and assessing undefined terms in the rating criteria. Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018). The Veteran's limited right hip extension is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. The Veteran's limited right hip flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. For VA purposes, a normal range of hip motion is from 0 degrees of thigh extension to 125 degrees of thigh flexion and from 0 to 45 degrees of abduction. 38 C.F.R. § 4.71a, Plate II. The Veteran's limited right hip abduction is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253, for impairment of the thigh. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. There are additional Diagnostic Codes that apply to hip disorders. Diagnostic Code 5250 pertains to ankylosis of the hip, Diagnostic Code 5254 pertains to a flail joint of the hip, and Diagnostic Code 5255 pertains to impairment of the femur, whether from fracture or malunion. The Board will not consider these Diagnostic Codes as they do not apply to the Veteran's disabilities. The Veteran received a VA examination in September 2013. Although the Board found this examination inadequate in its June 2020 remand, that was due to non-compliance with Correia for range of motion testing. There is information in the examination report that does not pertain to range of motion testing. The examiner diagnosed right hip arthritis and noted that the Veteran had a left hip replacement in October 2007. She reported chronic pain and flareups that interfered with ambulation. She was able to cross her legs and toe out more than 15 degrees. She did not use assistive devices. Her strength was normal in both hips. The examiner specifically stated that there would be "[n]o additional limitation of motion due to pain during flare-ups or when joint is used repeatedly over a period of time." The examiner also specifically found that the Veteran did not experience any residuals from her left hip surgery. The examiner described the functional impact of her hip disabilities as "[i]nterferes with weight-bearing and ambulation occasionally." The Veteran received another VA examination in April 2017. Although the Board found this examination inadequate in its June 2020 remand, that was due to non-compliance with Correia for range of motion testing. There is information in the examination report that does not pertain to range of motion testing. She reported increased pain which she rated as a 4 to 5 out of 10. She denied having flareups but had limitations in her walking. She was able to cross her legs but did have pain with flexion and abduction. Additionally, with her right hip she experienced pain in her groin area and with weight bearing testing. The examiner also opined that the Veteran did not experience any residuals from her left hip surgery. Her most recent VA examination was in September 2020. This is the most probative examination report of record, and was the basis for the October 2020 AOJ grant of an initial 50 percent rating. It contained the worst range of motion findings. At her examination, she continued to experience pain and limited range of motion that interfered with ambulation. She also had difficulty with prolonged sitting, walking, and standing. She denied having flareups. Her range of motion for her right hip was flexion to 105 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 20 degrees. Her range of motion for her left hip was flexion to 110 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 20 degrees. For both hips she experienced pain with all range of motion testing and weight bearing. However, only for her right hip was she unable to cross her legs. There was no change in her range of motion after repetitive use testing but pain caused functional loss and decreased her range of motion after repeated use over time. Her right hip range of motion decreased to flexion to 95 degrees, extension to 15 degrees, abduction to 20 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 20 degrees. Her left hip range of motion decreased to flexion to 105 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 15 degrees, external rotation to 40 degrees, and internal rotation to 25 degrees. Even after repeated use over time, she was still able to cross her legs with her left hip. The examiner opined that her left hip surgery residuals were moderately severe causing weakness, pain, or limitation of motion. There was objective evidence of pain on passive range of motion testing. There was no objective evidence of pain when the joint was used in non-weight bearing. Left Hip As an initial matter, the Board notes that the Veteran does not warrant separate compensable ratings for limited range of motion of her left hip under DCs 5251, 5252, and 5253. Her limitation of motion is considered under DC 5054 for her hip replacement, she is not entitled to separate ratings as this would constitute pyramiding. 38 C.F.R. § 4.14. The Board finds that the Veteran's left hip disability is appropriately rated at 50 percent. To meet the criteria for the 70 percent rating, markedly severe residuals of weakness, pain, or limitation of motion needs to have been shown. The term "markedly severe" is not defined in the rating criteria. The September 2020 VA examiner found that she had moderately severe residuals of weakness, pain, or limitation of motion. The record does not show that her left hip has any weakness. The Veteran has consistently had normal strength in her left hip, which supports a finding that she does not have weakness. Additionally, the September 2020 examiner found that fatigability and incoordination did not significantly limit functional ability with repeated use over time. The absence of weakness supports a finding that she does not have residual weakness of any level of severity, even moderate. The Board finds that at least some degree of weakness would be needed in this case for the Veteran's hip replacement residuals to be considered markedly severe, especially in light of the fact that she retains a majority of her ranges of motion such that they cannot be described as a "markedly severe" residual. Regarding limitation of motion, her worst results were the September 2020 examiner's description of what her ranges of motion would be after repeated use over time. Her flexion would be 105 degrees (out of 125), which means she retains 84 percent of her flexion, this is more than three quarters of her flexion. Her extension would be 20 degrees (out of 30), meaning that she retains two thirds of her extension. Similarly her abduction would be 30 degrees (out of 45), and her external rotation would be 40 degrees (out of 60), meaning that she retains two thirds of her abduction and external rotation. Her adduction would be 15 degrees (out of 25), meaning she retains 60 percent of her abduction. Her internal rotation would be 25 degrees (out of 40), meaning she retains 62 percent of her internal rotation. Even after repetitive use over time, she retains a significant majority of her ranges of motion in all planes. The examiner found that her extension, adduction, and external rotation would not be impacted by pain after repeated use over time. Only her flexion, abduction, and internal rotation changed. For these reasons, her limitation of motion cannot be accurately described as "markedly severe." The Veteran experienced pain during active and passive range of motion testing, but not when the hip was used in non-weight bearing. She stated that it interfered with her ability to walk. She had tenderness with palpation of the left hip joint that the examiner described as being "mild." After repetitive motion testing (at least three repetitions), the examiner stated that pain did not cause additional functional loss. This is more accurately described as moderately severe pain. It is reasonable to state that a markedly severe level of pain would impact repetitive motion testing for at least three repetitions. The examiner estimated that after repeated use over time, pain would additionally limit her motion. However, as noted above, even while having pain, she would retain a significant majority of her ability to move her left hip joint after repetitive use over time. It is reasonable to conclude that markedly severe pain would cause a greater decrease in ranges of motion or would result in additional functional limitations such as interference with sitting, standing, or balance, and the examiner found that these factors were not present. Her pain is accurately categorized as "moderately severe." She did not provide a lay statement describing the severity of her left hip disability. There is no probative evidence of left hip ankylosis, a flail hip joint, or impairment of the femur. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the hip, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. A 70 percent disability rating is denied. Additionally, her disability does not reach the even higher 90 percent criteria because she does not use crutches or any other assistive device such as a walker, wheelchair, cane, or brace. Right Hip The Veteran is receiving the minimum compensable rating for painful motion of the right hip joint. 38 C.F.R. § 4.59. She has a 10 percent rating under Diagnostic Code 5253. The September 2013 VA examiner found that she had right hip pain during her range of motion testing her right hip adduction was limited such that she could not cross her legs. This meets the 10 percent criteria under Diagnostic Code 5253. The record does not show that her abduction motion is lost beyond 10 degrees. At worst, her abduction would be 20 degrees after repeated use over time. The 20 percent criteria are not met. The September 2020 VA examination provides the worst range of motion results, and it shows painful extension and flexion. At worst, her extension would be 15 degrees and her flexion would be 95 degrees after repeated use over time. Although she experiences functional loss due to the factors set forth in 38 C.F.R. §§ 4.40 and 4.45, the criteria for a higher rating are not met. Her flexion would need to be limited to 45 degrees, and her extension would need to be limited to 5 degrees. See 38 C.F.R. §§ 4.40, 4.45. Her right hip disability does not require separate ratings under other Diagnostic Codes. She does not have ankylosis to warrant a rating under Diagnostic Code 5250. She remains able to move her right hip in all planes. She denied experiencing flare-ups at her April 2017 and September 2020 examinations, and the September 2013 examiner concluded that even though she reported flare-ups, they did not cause additional limitation of motion. She does not experience the functional equivalent of ankylosis. REASONS FOR REMAND TDIU The Veteran's combined rating is 100 percent and has been so for the entire appeal period. However, a 100 percent combined disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). A TDIU satisfies the total (100 percent) rating requirement for establishing special monthly compensation (SMC) if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more. See Bradley v Peake, 22 Vet. App. 280 (2008). A TDIU has been raised in this case because at her September 2020 hip examination, the Veteran reported that she had to reduce her hours as a massage therapist to only two days per week. However, the record does not contain her salary information. As a result, the Board cannot determine if her employment is marginal. She should be provided an opportunity to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) to provide VA with her educational and occupational history, her salary, and the number of hours she works each week. This matter is remanded for the following actions: (Continued on the next page) 1. Provide the Veteran with a VA Form 21-8940 to allow her the opportunity to provide VA with information relevant to her TDIU claim. 2. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.