Citation Nr: 21011031 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-02 457 DATE: February 26, 2021 ORDER Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease with sacroiliitis is denied. Entitlement to a separate 10 percent rating for right lower extremity radiculopathy is granted. Entitlement to a separate 10 percent rating for left lower extremity radiculopathy is granted. REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar DDD is manifest by, at worst, forward flexion to 70 degrees, a combined 190 degrees of movement, pain, and functional limitations related to walking and standing. The evidence of record does not show that the Veteran has had incapacitating episodes of back symptoms with a duration totaling at least 2 weeks. 2. Resolving reasonable doubt in the Veteran’s favor, he has mild incomplete paralysis of the sciatic nerve (radiculopathy) of the right lower extremity based on subjective complaint of radiation of pain and imaging showing L4-5 nerve abutment. 3. Resolving reasonable doubt in the Veteran’s favor, he has mild incomplete paralysis of the sciatic nerve (radiculopathy) of the right lower extremity based on subjective complaint of radiation of pain and imaging showing L4-5 nerve abutment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar spine DDD with sacroiliitis have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5242, 5243 (2020). 2. The criteria for entitlement to a separate 10 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124 DC 8520. 3. The criteria for entitlement to a separate 10 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124 DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1983 to May 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The October 2012 rating decision addressed 16 issues, including granting entitlement to service connection for lumbar spine DDD with an initial 10 percent rating assigned, effective March 5, 2012. The Veteran submitted a timely notice of disagreement for the issues addressed in the October 2012 rating decision. Following issuance of a Statement of the Case (SOC) in December 2014, the Veteran submitted a substantive appeal for the issues of an increased rating for his lumbar spine disability, and for entitlement to service connection for hypertension, pes planus, erectile dysfunction (ED), renal insufficiency, plantar fasciitis, a right calf disability, and entitlement to special monthly compensation (SMC) for loss of use of a creative organ. A June 2018 Board decision and remand reopened claims of entitlement to service connection for pes planus, right calf strain, and hypertension and denied entitlement to service connection for plantar fasciitis. The issues of entitlement to service connection for right calf strain, pes planus, hypertension, ED, renal insufficiency, entitlement to SMC, and entitlement to an increased rating for lumbar spine DDD were remanded for additional development. The issue of entitlement to an increased rating for lumbar spine DDD was remanded for an additional VA examination which complied with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). A June 2019 rating decision granted entitlement to service connection for bilateral pes planus, coronary artery disease, hypertension, and right calf strain. An August 2020 rating decision granted entitlement to service connection for chronic renal insufficiency and ED, and provided SMC (k) for loss of use of a creative organ. As such, the only issue remaining on appeal from the 2018 Board remand is entitlement to an increased rating for lumbar spine DDD. An August 2019 rating decision denied entitlement to service connection for bilateral lower extremity radiculopathy and added the disability of sacroiliitis to the Veteran’s service-connected lumbar DDD. Although the Veteran did not submit a NOD for the August 2019 rating decision denial of entitlement to service connection for bilateral lower extremity radiculopathy, the issue of separate ratings for neurological manifestations of lumbar spine disabilities remain on appeal as part of the criteria for rating disabilities of the spine. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. During the most recent spine examination, the Veteran reported he had not worked since September 2018. The examination also noted that his lumbar spine impacted his ability to work due to functional limitations associated with standing and walking. Treatment records from September and October 2015 included the Veteran’s fear that he would unable to keep his employment until he reached retirement age. The Board finds this evidence sufficient to reasonably raise entitlement to TDIU. 1. Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease with sacroiliitis is denied. 2. Entitlement to a separate 10 percent rating for right lower extremity radiculopathy is granted. 3. Entitlement to a separate 10 percent rating for left lower extremity radiculopathy is granted. The Veteran contends that his lumbar spine disability warrants a rating in excess of 10 percent. The Veteran’s November 2012 statement arguing for increased ratings included argument for separate 10 percent ratings for each segment of his spine (L3-4, L4-5, L5-S1), and for each diagnosis associated with these spinal segments (degenerative spine condition, muscle strain/mechanical back pain, “pain disorder,” spondylosis, herniated discs secondary to DDD, and sacroiliitis). He argued that receiving all of these separate ratings did not violate the rule against pyramiding because all of the above “secondary disabilities would not exist without the primary condition and does exist independent of each other, and thus should be recognized as such and rated accordingly.” He also felt that his pain was not “acknowledged at all” despite him having frequent and recurrent pain as well as “painful motion.” The Board acknowledges the Veteran’s assertions that separate ratings are warranted for his lumbar spine segments, and his various lumbar diagnoses. However, assigning separate disability ratings would constitute pyramiding because it would compensate the Veteran multiple times for the same spine symptomatology or impairment. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261. The Rule Against Pyramiding notes that disability from injuries of the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. The General Rating Formula for Diseases and Injuries of the Spine specifically rate the “thoracolumbar” spine; therefore, to assign separate ratings for different segments of the lumbar spine would constitute pyramiding. Notably, the Veteran’s statement did not indicate that he had manifestations of his lumbar spine that were not considered by the rating criteria. He argued that he had a “pain disorder” associated with his lumbar spine disabilities, but pain is contemplated in the General Rating Formula. Additionally, in the November 2012 NOD, the Veteran argued for separate 10 percent ratings for L5 radiculopathy. He noted that an August 2004 MRI showed that his L4 disc abutted his exiting nerve root, and that this objective data should have been considered “despite lack of other symptomatology on exam.” He explained that there are “no reflexes that can test for an L5 nerve root impingement (lower extremity reflex testing can only test for L3, L4, S1, and S2 conditions.” He argued he should be granted entitlement to a rating for radiculopathy based on his “reports of radiculopathy per history.” His “historical subjective complaints of radiculopathy in conjunction with MRI showing a nerve root impingement at the L4-5 level (which would cause L5 radiculopathy) should be afforded the ‘benefit of the doubt.’” The Veteran also submitted a copy of an online medical treatise from “neuroanatomy.wisc.edu” regarding radiculopathy, which included that the segmental innervation of some muscles of the lower limb included L5 impacting the “ankle dorsiflexion, aversion and inversion of hip abductors.” The record demonstrates that the Veteran’s occupation was as a respiratory therapist. As such, the Veteran has some medical training beyond that of the average lay person, which must be taken into consideration when considering and weighing his statements. The Veteran’s lumbar spine DDD with sacroiliitis is rated under 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 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.” The spine has no opposite joint. 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.] The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for lumbar DDD with sacroiliitis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during repetitive use over time, pain with motion, and fatigability. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had functional impairment after 15 minutes of walking or 10 minutes of standing, his inability to walk as fast, and of occasional flare-ups of symptoms lasting for half a day and relieved with Aleve and rest would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Lastly, the record does not support that he has had incapacitating episodes of his lumbar spine condition of at least two weeks duration in a 12 month period. The Board notes that the Veteran’s lumbar spine disability is service-connected from March 2012; however, the evidence prior to 2012 is relevant to providing the Veteran’s initial rating. A February 2004 VA examination included the veteran’s report of a moderate degree of low back discomfort after working 12-hour shifts as a respiratory therapist. The discomfort remains in the low back and was mild (1-2 out of 10 pain severity). He had self-medicated for this and did not seek medical treatment. He denied radiation of pain into the buttocks or down the posterior thighs. His low back pain did not interfere with his activities of daily living. On physical examination, his flexion was to 90 degrees, extension and lateral flexion were to 30 degrees each, and rotation was to 45 degrees each. Neurological examination showed no obvious motor or sensory losses. In May 2004, the Veteran sought private treatment for left low back/buttocks pain without radiation, that was worse with sitting. A July 1, 2004 x-ray showed mild degenerative changes from L3-S1. On July 22, 2004, the Veteran reported low back pain with radiation down his left leg. He was assessed with back pain with radiculopathy. An August 2, 2004 MRI showed L3-4 very mild circumferential disc bulge, L4-5 broad based disc bulge with small amount of signal in left paracentral region adjacent to the disc margin consistent with an annular fibrous tear. Perhaps mild degrees of facet osteoarthritis are present at this level as well. This region “does however appear to abut the exiting nerve root at this level.” A February 3, 2005 Anchor Plaza Family Practice Center included the Veteran’s complaint of low back pain that radiated to his left leg with simple movements. The handwriting is difficult but appears to note bending over caused pain to go down the right leg. His left leg would spasm and “turned toward” his right leg. He was assessed with left lower extremity radiculopathy and back pain. A June 28, 2006 record included the Veteran’s report of “occasional low back pain, rarely requiring two Aleve tablets for relief.” He did not report radicular symptoms. There is a handwritten note that appears to state tender lumbar spine with negative straight leg raise, mild spasm, no edema, and normal deep tendon reflexes. He was assessed with HNP (herniated nuclear pulposus) L4-5 with complaints of left radiculopathy (this is an interpretation of c with a line over it, capital L circled, and what appears to say “Rad.” underneath, but next to “HTN” [referring to hypertension]). On October 2, 2012, the Veteran participated in a VA examination provided based on his claim for service connection. The examiner diagnosed lumbar spine DDD, and noted his prior medical history of mechanical back pain. Since 1992, he had continued chronic pain in the low back, worse upon awakening in the morning. He was not able to “walk as fast or as far as he used to” due to pain. He also reported occasional radiation to the bilateral legs, worse in the right leg. He stated that the pain went all the way down to his toes. The Veteran reported flare-ups of symptoms, described as “occasional…flares of lower back pain that last for about half a day.” He did not know what caused a flare up, but they were relieved with Aleve and rest. He was not having a flare-up at the time of the examination. On range of motion testing, the Veteran had forward flexion to 80 degrees without objective evidence of painful motion. He had extension to 30 degrees, right and left lateral flexion to 20 degrees, and left and right lateral rotation to 30 degrees, all without objective evidence of painful motion. The Veteran was able to repeat range of motion testing without a change in range of motion. The Veteran was noted to have functional loss following repetitive use due to less movement than normal and pain on movement. He had tenderness to palpation of the paraspinal soft tissues of the lumbar spine. He did not have guarding or muscle spasm. He had full muscle strength, normal (2+) deep tendon reflexes, and normal light touch sensation throughout evaluation of his lower extremities. He had negative straight leg raise tests. Despite the Veteran reporting occasional radiculopathy in the introduction, the examiner noted that the Veteran did not have radicular pain or any other signs or symptoms of radiculopathy in the radiculopathy section, likely referring to the Veteran’s symptoms at the time of the examination. The examiner did not find that the Veteran had radiculopathy or any other neurologic abnormalities. The examiner found that the Veteran did not have IVDS. He did not use any assistive devices. The examiner noted that the Veteran had erect posture, and a brisk and coordinated gait without limp. Regarding the impact of the Veteran’s lumbar spine disability on his ability to work, the Veteran reported that “prolonged sitting cause[d] lower back pain.” The Board notes that the Veteran submitted a copy of the 2012 examination, wherein he circled the section that noted that a “diagnosis of IVDS and/or radiculopathy could be made by a history of characteristic radiating pain and/or sensory changes in the legs, and objective clinical findings, which may include the asymmetrical loss or decrease of reflexes, decreased strength, and/or abnormal sensation.” His circling of this direction in the examination was related to his November 2012 NOD wherein he noted that he had subjective complaints of radiculopathy, but also objective evidence via the MRI showing his L4 disc abutted his exiting nerve root. He argued that this was sufficient to meet the standards listed in the 2012 examination directions he circled. In December 2014, the Veteran submitted a statement arguing that his claim was not “fully developed” because his claim included “evidence of radiculopathy with nerve dysfunction.” An August 20, 2015 initial VA treatment, for establishing VA care, included the Veteran’s report of “on and off mild low back pain.” He denied muscle weakness and pain, denied numbness/weakness, and denied genitourinary symptoms. On evaluation, he had no CVA tenderness, no spinal tenderness, and no deformities. His gait was coordinated and smooth. His assessment included low back pain “mild, advised [weight] loss and stretching exercise.” A March 31, 2016 VA treatment record included that the Veteran complained of low back pain. He had a normal gait. He was again advised to lose weight and continue stretching exercises. In May 2019, the Veteran participated in a second VA spine examination. He was diagnosed with lumbar spine DDD. The Veteran described his pain as an intermittent aching sensation that began within 15 minutes of walking or 10 minutes of standing in one position. His pain ranged from a 4 to 8 out of 10 (highest pain level). He did not have a history of lumbar surgery. He had not received injections for pain control. He described functional limitations due to his back condition as limiting walking to 15 to 20 minutes, and standing in one position for 10 minutes. If the activities that worsened the pain were stopped, the pain level and activity level would go back to baseline after one hour. He did not report flare-ups of low back symptoms during this examination. Range of motion testing showed that the Veteran had flexion to 80 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees each, and right and lateral rotation to 30 degrees each. The total range of motion was 210 degrees. The objective pain on evaluation resulted in the functional loss shown. There was no evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissues of the back. The Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. The Veteran was not being examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran’s report of functional loss with use over time. The examiner was able to described the Veteran’s functional loss with repeated use over time (due to pain) in terms of range of motion, finding that the Veteran would have flexion limited to 70 degrees, extension to 30 degrees, right and left lateral flexion limited to 15 degrees, and right and left lateral rotation to 30 degrees. The combined range of motion for the estimated loss due to repeated use was 190 degrees. The examiner noted that the section on flare-ups was not applicable because the Veteran did not report flare-ups. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran had full muscle strength, no muscle atrophy, normal (2+) deep tendon reflexes, and normal sensory evaluation of his bilateral lower extremities. Regarding radiculopathy, the examiner selected that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He had negative straight leg raise tests bilaterally. He did not have ankylosis of the spine. He did not have any other neurologic abnormalities or findings related to his back condition. The examiner found that the Veteran did not have IVDS. He did not use any assistive devices. Regarding the impact of the Veteran’s low back disability on his ability to work, the examiner recited the Veteran’s limitations on walking and standing in one position listed above. The examiner then recited examination instructions and cited a large number of medical records he reviewed in conjunction with the examination. Thereafter, the examiner noted that the examination was completed without incident and the Veteran was given the chance to answer all questions, and that he left without being in distress and he did not express any complaints or concerns. The examiner described the difficulty in providing estimated ranges of motion of the back following repeated use over time, but noted that his estimates were provided based on a review of the record, examination of the Veteran, and the Veteran’s “subjective reporting.” The examiner noted that the Veteran “was felt to be a credible person. Therefore, since the history provided by the Veteran was felt to be reliable” the examiner provided the additional limitations based on repeated use over time. Regarding whether the Veteran had IVDS, the examiner noted that the presence of disc disease on imaging did not necessarily have to be associated with IVDS. The determination that the Veteran did not have IVDS was based on the clinical evaluation of the Veteran at the time of the examination. Thereafter, the examiner answered the Correia questions, noting that the Veteran had objective pain with active movement and passive movement. He did not have objective pain with weight-bearing. There was no change in range of motion with active movement, passive movement, with weight-bearing, and without weight bearing. The January 2021 Informal Hearing Presentation submitted by the Veteran’s representative requested remand for additional examination, arguing that the 2019 examination had not included the findings required by Correia. The Board notes that the examiner did address the findings required by Correia, which were at the end of the examination following recitation of the reviewed evidence. The Board finds that the 2019 examination was adequate. The examiner cited records, and used the Veteran’s lay reports to provide estimated additional range of motion loss. The 2019 examiner indicated that the Veteran did not report flare-ups during the examination. The Board notes that in 2012, the Veteran had reported flare-ups, and in his NOD had argued that an examination could only be adequate if it was provided during a flare-up. The Board notes that examinations provided not during a flare-up may still be considered adequate. The purpose of cases such as Correia and Sharp, wherein the examiners are reviewing treatment records and considering lay statements regarding flare-ups and functional limitations in attempting to determine any additional loss of range of motion indicate that examinations not during a flare-up and not during repeated use over time are still considered adequate. Occasionally, a veteran will have a treatment record that occurred during a flare-up of symptoms, and in those instances, VA has non-estimated findings related to loss during a flare-up. There are no such records in this Veteran’s case as there are very limited treatment records related to the Veteran’s spine, and none during the period on appeal where he sought treatment during a flare-up. His early complaints of back pain in 2004-2005 did not include range of motion testing results. Notably, the Veteran did not report flare-ups during the 2019 examination, as such there was no inadequacy of the examination for the examiner to not provide estimations based on flare-ups. Although the Veteran reported flare-ups during his 2012 examination, it appears that the flare-ups must have ceased by 2019, as the Veteran did not report flare-ups during that examination and his 2012 NOD indicated his knowledge of the appeals/rating process. As such, the Board finds the 2019 examination to be adequate as it involved range of motion testing, interview, consideration of lay statements, passive/active/weight-bearing/non weight-bearing considerations, and estimation of range of motion loss with repeated use over time. The Board notes that the available evidence does not support a rating in excess of 10 percent for lumbar DDD with sacroiliitis. At worst, the Veteran’s forward flexion has been limited to 70 degrees and a combined range of motion of 190 degrees (both estimations of additional loss based on lay statements). Notably, the Veteran’s objective range of motion during his 2012 and 2019 examinations were the same despite the 7 year gap between the examinations. VA examinations and treatment records all noted normal gait and did not indicate abnormal spinal contour. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The 2012 and 2019 examiners both found that the Veteran did not have IVDS. However, the Board considered if a higher rating was warranted based on IVDS given the Veteran’s argument that he should be considered for a rating under DC 5243. The evidence of record, including lay statements by the Veteran, do not show that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating (at least two weeks in a 12-month period). See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumbar spine DDD. 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. Regarding neurological impairment, the Veteran asserts that he has bilateral lower extremity radiculopathy due to his lumbar DDD with sacroiliitis. The Veteran is competent to report symptomatology that he experiences, and he is noted to have some medical training (with years of employment as a respiratory therapist) such that he is more competent than the average lay person to associate symptoms with a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). DC 8520 provides ratings for sciatic nerve disorders, with a 10 percent rating provided for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, and a 30 percent rating for severe incomplete paralysis. Complete paralysis of the sciatic nerve warranted a 40 percent rating with foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran has reported radicular symptoms from as early as 2004. His early reports of radicular symptoms in 2004/5 were assessed by private providers as radiculopathy related to his low back condition. He has also cited an MRI showing that his L4 disc abutted his exiting nerve root as objective evidence of radiculopathy despite VA examinations have not shown other objective findings of radiculopathy via muscle, deep tendon reflexes, or object sensory findings. Notably, without findings related to muscle, deep tendon reflexes, or sensory findings, the Veteran’s complaints of radicular pain are “wholly sensory.” The Board will resolve reasonable doubt in the Veteran’s favor that he has bilateral lower extremity radiculopathy based on occasional radiation of pain down both legs. The Board finds that the Veteran has mild incomplete paralysis of the sciatic nerve, as the evidence indicates that the Veteran has L5 radiculopathy. Separate 10 percent ratings for right and left mild lower extremity radiculopathy are warranted. REASONS FOR REMAND 1. Entitlement to total disability based on individual unemployability (TDIU) is remanded. The Board has found that a claim of TDIU is reasonably raised by the evidence of record in conjunction with the Veteran’s claim for an increased rating. However, the record does not contain sufficient evidence regarding the Veteran’s employment history or the last date of his substantially gainful employment. On remand, the Veteran should be asked to complete a TDIU claim form. Ongoing VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Provide the Veteran VA Form 21-8940 and request he provide details regarding his employment history and education. An appropriate period of time should be allowed for response. (Continued on the next page)   2. Ongoing VA treatment records should be associated with the electronic record. 3. Thereafter, adjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.