Citation Nr: 21014893 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-03 935 DATE: March 16, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for sinusitis with headaches is denied. Entitlement to an initial disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine prior to January 7, 2014, is denied. Entitlement to a disability rating of 40 percent, but no higher for moderately severe radiculopathy of the right lower extremity since November 17, 2020, is granted. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran experienced fewer than three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, and fewer than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, or; did not undergo radical surgery with osteomyelitis. 2. Prior to January 7, 2014, the evidence of record demonstrates the Veteran’s disability of the lumbar spine manifested to forward flexion of 30 degrees or less, without ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). 3. Since November 17, 2020, the evidence of record demonstrates that the Veteran’s radiculopathy of the right lower extremity manifested to symptoms of moderately severe incomplete paralysis with no marked muscular atrophy or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for sinusitis with headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6512 (2020). 2. The criteria for entitlement to an initial disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine prior to January 7, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2020). 3. The criteria for entitlement to a disability rating of 40 percent, but no higher for moderately severe radiculopathy of the right lower extremity since November 17, 2020, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.124a, DC 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active duty from September 1988 to September 2008. The issues come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded the Veteran’s claim for an increased initial rating for his service-connected sinusitis to obtain additional outstanding records. The Board denied the Veteran’s claim for increased initial ratings for the Veteran’s lumbar spine disability. The Veteran appealed the Board’s decision regarding the Veteran’s initial rating in excess of 20 percent for the lumbar spine disability prior to January 7, 2014. In April 2019, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR). The Court found that the Board failed to provide adequate reasons and bases for its denial of the Veteran’s claim. Specifically, the Court found the Board failed to provide the Veteran an adequate examination of the Veteran’s lumbar spine disability prior to January 7, 2014. Pursuant to the JMPR, the Court vacated and remanded the matters to the Board. In August 2019, the Board remanded the Veteran’s claim involving his lumbar spine disability, to provide a VA spine examination and obtain a medical opinion regarding the severity of the Veteran’s symptoms prior to January 7, 2014. The Board again remanded the Veteran’s sinusitis claim in April 2020 to obtain private medical treatment records. There has been substantial compliance with the remand directives, and the appeal is again before the Board. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In October 2020, the Board again remanded the Veteran’s increased rating claim for his lumbar spine condition to provide a retroactive medical opinion regarding the Veterans symptoms prior to January 7, 2014. In a December 2020 rating decision, the RO granted an increased initial rating of 40 percent for the Veteran’s lumbar spine disability prior to January 7, 2014. The Veteran submitted VA Form 20-995, Supplemental Claim Application, in December 2020. The Veteran identified the evaluation of his lumbar spine disability as the issue for the supplemental claim. The Veteran did not select to withdraw this Legacy issue already on appeal. The Veteran submitted a VA Form 21-4138, Statement in Support of Claim, along with the Supplemental Claim Application addressing the notification letter he received from VA dated December 7, 2020. The letter addressed the VA’s November 2020 rating decision to discontinue entitlement to special monthly compensation following the period of a total disability rating requiring convalescence. However, the Veteran indicated in his correspondence that he challenged the letter’s assessment of his lumbar back disability and symptoms associated with his condition since his December 2019 surgery. The RO made attempts to clarify the letter and to resolve any uncertainty in the Veterans Supplemental Claim Application. The Veteran did not contact the RO regarding his claim. The RO returned the Veteran’s claim to the Board to be adjudicated, continuing the Legacy appeal regarding the Veteran’s initial increased rating claim for his lumbar spine condition prior to January 7, 2014. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The Board determines the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. § 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to an initial rating in excess of 10 percent for sinusitis with headaches The Veteran contends he suffers from symptoms of chronic sinusitis more severe than compensated by his initial 10 percent disability rating. The Veteran’s service-connected sinusitis is rated under DC 6512 and is evaluated using the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, DC 6512. Under DC 6512, a noncompensable rating is given for sinusitis detected by X-ray only. A 10 percent rating is given for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is given for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a 50 percent rating is given following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. For ratings purposes an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. In October 2009, the Veteran underwent a VA examination to address his chronic sinus problems. The Veteran reported a history of symptoms of itchy watery eyes, nasal congestion and drainage. The Veteran reported taking a daily nasal steroid spray and oral allergy treatment. The Veteran stated that he had not been on antibiotics for treatment of his sinus problems. The Veteran noted that during periods of cold weather, he typically feels pain around his sinuses and jaw. He noted this pain four or five times per year lasting five to seven days. The Veteran also complained of symptoms of vertigo. The Veteran did not report suffering from purulent discharge or crusting. The VA examiner noted the Veteran’s diagnosis of chronic sinusitis and allergic rhinitis, but found his symptoms resulted in no functional limitation. The RO provided the Veteran a VA examination again in September 2012. The VA examiner found a diagnosis of chronic pansinusitis. The Veteran described his history of symptoms of nasal congestion and drainage. The Veteran noted he was treated by a private physician with antibiotics for sinus infections three times over the past year. The VA examiner reported that the Veteran had experienced four non-incapacitating episodes of sinusitis. The examiner noted the Veteran’s sinusitis was characterized as chronic nasal congestion and drainage. The VA examination did not note symptoms of headache, pain and tenderness of affected sinus, or purulent discharge. The VA examination noted the Veteran did not experience incapacitating episodes of sinusitis. Additionally, the examiner noted the Veteran had not had sinus surgery. The VA examiner noted the Veteran’s sinusitis had no functional impact on the Veteran’s ability to work. The Veteran underwent a VA sinus condition examination in January 2014. Following examination, the VA examiner provided the diagnosis of chronic frontal and ethmoid sinusitis. The examiner noted the Veteran demonstrated symptoms of pain and tenderness of affected sinus, purulent discharge or crusting, and congestion and pressure around maxillary areas. The Veteran reported that he blew is nose constantly and continued to use nasal spray regularly. The VA examination noted the Veteran had not experienced incapacitating or non-incapacitating episodes of sinusitis characterized by headaches, pain, purulent discharge or crusting in the past 12 months. The VA examination noted the Veteran had not had sinus surgery. The examination reported the symptoms of the Veteran’s sinusitis had no functional impact of the Veteran’s occupational ability. The Veteran’s private and VA medical treatment records demonstrate the Veteran continued to experience symptoms of chronic sinusitis requiring use of daily nasal steroid spray and treatment. The record contains a VA otolaryngology treatment record from November 2009, which notes the Veteran complained of nasal congestion, facial pain, and nasal discharge three times a year for several years. The November 2009 VA treatment record noted the Veteran was asymptomatic at the time. The Veteran’s July 2014 VA treatment record noted the Veteran’s history of recurrent sinus infections. The Veteran’s February 2016 VA treatment record noted the Veteran complained of symptoms of sinusitis, to include eye irritation, and tooth pain, for two weeks, requiring treatment with antibiotics. The Veteran’s October 2017 VA treatment record noted the Veteran’s complaints of sinus pressure and congestion, requiring the treatment with antibiotics. The Board finds that the Veteran’s symptoms of chronic sinusitis have not risen to the level compensated under the criteria for 30 percent disabling under the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, DC 6512. Although the Veteran provided lay evidence during his September 2012 VA examination that he required antibiotic treatment three times within the year, the VA examination recorded that the Veteran did not experience incapacitating episodes of sinusitis requiring prolonged (four to six weeks) of antibiotic treatments. The Veteran’s lay statements are consistent with the Veteran’s VA medical treatment records noting the Veteran received antibiotics to treat occurrences of sinusitis in February 2016 and October 2017. However, the VA treatment records show the Veteran did not require prolonged periods of antibiotic treatment. Additionally, the probative evidence of record demonstrates that at no time during the pendency of the Veteran’s appeal did the Veteran experience three or more incapacitating episodes of sinusitis. The Board acknowledges the Veteran’s VA examinations noted the Veteran suffered from symptoms of sinusitis, to include headaches, pain, and purulent discharge or crusting. However, the October 2009 and September 2012 VA examinations reported the Veteran experienced, at worst four non-incapacitating episodes of sinusitis, while the Veteran’s January 2014 VA examination noted the Veteran had not experienced a non-incapacitating sinusitis episode the previous year. Moreover, the evidence of record at no point during the period on appeal showed the Veteran had sinus surgery. Thus, the Board finds the evidence of record demonstrates the Veteran’s symptoms of chronic sinusitis have not increased to the levels warranting an increased initial rating in excess of what is currently assigned. 38 C.F.R. § 4.97, DC 6512. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against granting an initial rating in excess of 10 percent disabling. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to an initial disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine prior to January 7, 2014 The Veteran contends that the severity of the symptoms of his lumbar spine disability warrants an increased initial rating in excess of 40 percent prior to January 7, 2014. The Veteran’s lumber spine disability is rated as 40 percent disabling under DC 5243, intervertebral disc syndrome. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined ROM 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243. Additionally, under the Formula for IVDS Based on Incapacitating Episodes, a 10 percent rating is awarded for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is awarded for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is awarded for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243. Note (1): For purposes of evaluations 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. Id. Effective February 7, 2021, the rating criteria for the musculoskeletal system was revised. In regard to DC 5243, the criteria were amended to state that for Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign code 5242 to all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). From February 7, 2021, the Board will apply the most favorable DC. In this case, it is most favorable to the Veteran to rate the lumbar spine disability under the General Rating Formula for the spine and IVDS. In October 2009, the Veteran had a VA examination to address his lumbar spine disability. The Veteran reported back pain with radiation to the left thigh. An MRI showed the Veteran had degenerative changes of the lumbar spine at multiple levels with a disc protrusion. The Veteran did not complain of limitations at work or in daily living. The Veteran’s forward flexion range of motion was measured to 90 degrees and extension to 20 degrees. The Veteran’s lateral bend and rotation were 30 degrees. The VA examiner noted the Veteran’s lateral bend to the left was decreased to 15 degrees due to increased discomfort. The examiner noted no evidence of weakness, fatigability, or incoordination. The Veteran underwent a VA examination to address his lumbar spine condition in January 2014. The VA examiner diagnosed the Veteran’s back condition as degenerative arthritis of the spine. The Veteran complained of lower back pain with a history of a herniated disc in the past. The Veteran reported flare-ups with sharp increased pain. The Veteran noted his back locked up during flare-ups and he experienced radiating pain in his left leg. The Veteran noted bending over aggravated his lumbar spine condition and a back brace is required. The Veteran’s forward flexion was measured to 30 degrees with evidence of painful motion noted at10 degrees. The Veteran did not demonstrate evidence of ankylosis of the spine. The VA examination noted the Veteran did not have a diagnosis of IVDS. Finally, the VA examiner noted the Veteran’s lumbar spine disability did not impact his ability to work. Pursuant to the Board remand, the RO provided a VA thoracolumbar spine examination in February 2020. The Veteran reported a history of extreme lower back pain. He noted his back was stiff to move. The Veteran reported difficulties in bending forward. The Veteran reported a history of constant pain, soreness, stiffness, numbness and fatigue in his lower back. He wore a back brace for support. The Veteran reported flare-ups occurred daily. The VA examiner reviewed the available records from prior to January 7, 2014 and provided that the examiner was unable to determine where the Veteran’s pain began and ended on range of motion testing found on prior examinations. The examiner noted the examinations prior to January 7, 2014 did not report additional degrees of limitation of range of motion caused by functional loss during flare-ups. In November 2020, the Veteran received another VA examination. The VA examiner provided a diagnosis of IVDS. The Veteran reported that his lumbar spine disability began in 2000 and progressively worsened. The Veteran noted he had lumbar spine surgery in December 2019. He noted the pain radiating down his right leg to his feet had worsened. The VA examiner reviewed the January 7, 2014 VA examination and noted the Veteran’s forward flexion was 30 degrees. The VA examiner provided the medical opinion that it was more likely than not that the Veteran’s forward flexion was also around 30 degrees, prior to that examination date. The RO provided the Veteran with an addendum medical opinion in December 2020 regarding the incomplete VA spine examinations prior to January 7, 2014. VA requested the examiner review the evidence of record prior to January 7, 2014 and provide a medical opinion of the Veteran’s limitation of movement with passive range of motion, non-weightbearing, after repetitive use over time, and during flare-ups. Following a review of the record, the VA examiner opined that it was at least as likely as not that the Veteran’s measured ranges of motion measured during his active range of motion, weightbearing, after repetitive use over time, and during flare-ups, prior to January 2014, were limited to 30 degrees or less for forward flexion. The VA examiner rationalized that the evidence of record presented only snapshots of specific clinic visits with normal range of motion measurements. The October 2009 examination did not demonstrate the expected mechanical stress associated with repetitive use over time and during flare-ups. The VA examiner identified findings on the Veteran’s MRI report that caused potentially severe intermittent pain. The Board finds the evidence of record does not show the symptoms of the Veteran’s lumbar spine disability manifested to the level of severity to merit an increased initial disability rating in excess of 40 percent. While the Board notes the Veteran described locking symptoms and painful motion of his lumbar spine, the evidence demonstrates that throughout the appeal period, the Veteran was able to move his spine in all directions. Additionally, the evidence of record is absent of a diagnosis of favorable or unfavorable ankylosis of the entire thoracolumbar spine. As such, the Veteran’s thoracolumbar spine was not ankylosed, either favorably or unfavorably. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Therefore, ratings of 100 or 50 percent due to ankylosis are not available under the General Formula prior to January 7, 2014. 38 C.F.R. § 4.71a, DC 5243. As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, VA considered the evidence of functional impairment due to pain found in the record, applying the Veteran’s 40 percent initial disability rating during the pendency of appeal. Further, even considering the Veteran’s reports of pain and symptoms, functional loss equivalent to ankylosis of the thoracolumbar spine or incapacitating episodes of IVDS has not been shown. Thus, consideration under DeLuca has been provided and additional consideration for a rating in excess of 40 percent is not warranted. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether higher ratings may be available under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DC 5243. While the evidence of record shows the Veteran was later diagnosed with IVDS, no medical evidence of record shows the Veteran has required bedrest prescribed by a physician at any time prior to January 7, 2014. Regarding neurological dysfunction related to the lumbar spine, the Board notes that the Veteran is already in receipt of separate ratings for bilateral lower extremity radiculopathy secondary to his lumbar spine disability prior to January 7, 2014. Accordingly, the evidence of record is against a rating in excess of 40 percent for the Veteran’s service-connected lumbar spine disability prior to January 7, 2014, and the claim is denied. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating in excess of that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. Entitlement to a disability rating of 40 percent, but no higher for moderately severe radiculopathy of the right lower extremity since November 17, 2020 The Veteran claimed in his December 2020 statement in support of his claim that he has returned to using his cane after his spine surgery, because he experienced numbness and tingling that radiates down his right leg. He noted that he cannot stand or walk for a long period of time, which has affected his ability to work. The Veteran is currently rated as 10 percent disabling for his radiculopathy of the right lower extremity under DC 8520 for the Sciatic Nerve. Under DC 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, 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, DC 8520. The terms “mild,” “moderate” and “severe” are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “mild” or “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As noted above, the Veteran underwent a VA examination on November 17, 2020, as requested in the Board’s October 2020 remand to obtain a retroactive medical opinion regarding the Veteran’s lumbar spine symptoms prior to January 7, 2014. During the examination, the Veteran reported pain that radiated down his entire right leg. The Veteran noted falling twice since his back surgery. The VA examiner recorded hypoactive reflexes or the Veteran’s right knee. The examiner found no muscle atrophy. The Veteran’s sensory examination noted decreased sensation to light touch for the Veteran’s lower leg and foot. The Veteran was unable to perform the straight leg raising test. The VA examiner recorded the Veteran suffered severe intermittent (usually dull) radicular pain of the right lower extremity. The VA examination also noted moderate paresthesias and/or dysesthesias, and numbness of the right leg. The VA examiner indicated the Veteran suffered moderate symptoms of radiculopathy involving the right sciatic nerve. The Board finds the November 17, 2020 VA examination is probative evidence that the Veteran’s radiculopathy of the right lower extremity increased to moderately severe symptoms of incomplete paralysis, warranting an increased rating of 40 percent disabling under 38 C.F.R. § 4.124a, DC 8520. A rating in excess of 40 percent is not warranted, as the evidence of record does not demonstrate severe incomplete paralysis with marked muscular atrophy, or complete paralysis. Finally, the Veteran reported in his December 2020 statement in support of his claim, that his back and radicular symptoms affected his job duties that called for long periods of standing and walking. Here, the Board acknowledges the Veteran has reasonably raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). However, the Board notes the Veteran’s combined evaluation for compensation is 100 percent disabling, assigned since January 1, 2011. A grant of a combined 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a service-connected disability rated as total, to include a finding of entitlement to a TDIU based solely on that disability, and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s); Bradley, 22 Vet. App. at 289-90. In this case, the Veteran does not have a 100 percent disability rating for a single disability, and the evidence does not show, nor does the Veteran specifically contend, that TDIU is warranted for a single service-connected disability or that any combination of disabilities could establish entitlement to a SMC pursuant to 38 U.S.C. § 1114. Although the Veteran said the symptoms affected his work, he has not indicated that he is unemployed or in marginal employment during the appeal period. See 38 U.S.C. § 1114(s). Therefore, as he is in receipt of maximum benefits since January 1, 2011, the issue of entitlement to a TDIU is moot. See 38 U.S.C. § 7104; Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, Associate 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.