Citation Nr: 21022795 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-10 728 DATE: April 19, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative arthritis with spondylolisthesis of the L5 and S1 is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to an effective date earlier than December 20, 2018 for the grant of service connection for radiculopathy of the left lower extremity is denied. Entitlement to an earlier effective date of April 20, 2015 for the grant of service connection for radiculopathy of the right lower extremity is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service connected disabilities is remanded. FINDING OF FACT 1. The Veteran's lumbar spine was manifested by flexion limited to, at most, 45 degrees. There is no evidence of incapacitating episodes, ankylosis, or bowel or bladder impairment. 2. The competent and credible evidence shows the Veteran's radiculopathy of the left lower extremity is manifested by mild incomplete paralysis of the sciatic nerve. 3. The competent and credible evidence shows the Veteran's radiculopathy of the right lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve. 4. The December 2018, VA Form 21-526EZ is the date of receipt of the Veteran's increased rating claim for the lumbar spine disability. 5. As a result of findings noted during the January 2019 VA examination, the RO granted separate ratings for radiculopathy of the right and left lower extremities, effective from December 20, 2018, the date of receipt of the claim for an increased rating for the lumbar spine disability. 6. The record does not reflect the Veteran filed for service connection for radiculopathy of the right and left lower extremities prior to December 20, 2018. 7. The record reflects a diagnosis of radiculopathy of the right lower extremity from April 20, 2015. CONCLUSION OF LAW 1. The criteria are not met for a rating in excess of 20 percent for the lumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5242-5237. 2. The criteria are not met for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 3. The criteria are not met for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 4. The criteria for assignment of an earlier effective date of April 20, 2015, for the grant of service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. The criteria for assignment of an effective date earlier than December 20, 2018, for the grant of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1980 to August 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that, while pending on appeal, the Veteran's service connected degenerative arthritis with spondylolisthesis of the L5 and S1, was assigned an increased rating of 20 percent in a rating decision dated in March 2019, effective from December 20, 2018. Again, while pending on appeal, the Veteran's service-connected radiculopathy of the left and right lower extremities as secondary to his degenerative arthritis with spondylolisthesis of the L5 and S1 were assigned initial ratings of 10 percent and 20 percent respectively in a rating decision dated in March 2019, effective as of December 20, 2018. The claims remain in controversy because the highest ratings available were not awarded. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). Increased Rating The Veteran is seeking an increased rating for degenerative arthritis with spondylolisthesis of the L5 and S1 and radiculopathy of the left and right lower extremities, that he contends have worsened since the March 2016 rating decision. Specifically, the Veteran contends his arthritic pain is so great at times that he cannot complete tasks at work and must take extra breaks, at home he uses a TENS machine, heating pads, and must elevate his feet because NSAIDs do not work when used alone. The Veteran further contends that his degenerative arthritis with spondylolisthesis causes throbbing aching pain and muscle spasms, that cause him to walk with a limp, the symptoms become worse when he performs activities of daily living, and reports having spent more than one month out of the past 12 bedridden due to lower back pain. The Veteran also contends he has developed radiculopathy associated with his back disability, manifested as shooting pain and tingling. See March 2016 VA Form 9; December 2018 VA Form 21-4138 Statement in Support of Claim. Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2020); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2020). The Veteran's lumbar spine disability has been rated under Diagnostic Codes 5242-5237, which directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2020). Under Diagnostic Codes 5242-5237, this disability is rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to Diagnostic Code 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Otherwise, under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure,” for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The General Rating Formula for Diseases and Injuries of the Spine, provide further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. A 20 percent disability rating is assigned for moderate incomplete paralysis. If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.” The Board observes that the words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. VA recently published a final rule amending its regulations on musculoskeletal disabilities effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, “the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive.” Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, for the period beginning February 7, 2021, the version more favorable to the Veteran will apply. The regulation changes have not impacted the issues on appeal in this case. Factual Analysis The Veteran is seeking an initial compensable rating for his service connected degenerative arthritis with spondylolisthesis of the L5 and S1, and radiculopathy of the lower left and right extremities. By way of history, the Veteran was granted a 0 percent rating for his degenerative arthritis with spondylolisthesis in an August 2015 rating decision effective April 20, 2015. In a March 2016 rating decision, the rating was increased to 10 percent effective April 20, 2015. In a March 2019 rating decision, issued during the pendency of this appeal, the Veteran was assigned a rating of 20 percent, effective from December 20, 2018. Additionally, included in the March 2019 rating decision, the Veteran was granted service connection for radiculopathy of the left and right lower extremities with evaluation of 10 percent and 20 percent respectively effective December 20, 2018. In March 2006, the Veteran underwent an EMG motor nerve study, where he was diagnosed with mild right radiculopathy with no evidence of peripheral neuropathy. See March 2006 San Diego VA Medical Records at 252-253. Additionally, physical therapy notes from September 2014, document the Veteran reported “chronic constant low back pain that radiates down back of the right leg into bottom of the right foot also with numbness and tingling. . .. Sometimes his back locks up. He can not move for about 3 days.” See September 2014 San Diego VA Medical Records at 196. In July 2015, the Veteran presented to a VA Back (Thoracolumbar Spine) Conditions Disabilities Benefits Questionnaire (DBQ) Examination, where he was diagnosed with lumbosacral strain. See July 2015 VA Back (Thoracolumbar Spine) Conditions DBQ. At the examination the Veteran denied flare-ups, and it was noted he did not have functional loss or functional impairment of the thoracolumbar spine. It was also noted the Veteran had full normal range of motion; specifically, his flexion was zero to 90 degrees. No pain was reported during the examination to include no pain with weight bearing. Last, the examiner noted the Veteran’s back condition does not impact his ability to work. Id. The associated opinion with this examination granted service connection for his lower back condition. See July 2015 VA DBQ. In January 2019, the Veteran presented to a VA Back (Thoracolumbar Spine) Conditions DBQ, where he was diagnosed with Degenerative arthritis of the spine, spondylolisthesis and bilateral radiculopathy of the lower extremities. See January 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. The examiner noted the Veteran’s forward flexion was zero to 45 degrees, it was noted this limitation contributes to a functional loss as it impairs bending and causes painful forward flexion and extension. The veteran denied flare-ups of the thoracolumbar spine. However, he reported that he has functional loss associated with prolonged standing or walking and bending or lifting. Strength testing only showed diminished strength (4/5) in right knee extension. The Veteran’s radiculopathy was noted as moderate in the right leg and mild in the left leg. The Veteran did not report using an assistive device for ambulation. The examiner opined the Veteran’s thoracolumbar spine (back) condition impairs his “capacity for prolonged standing or walking more than 40 minutes and limits any bending or lifting.” Id. at 7. The Examiner further opined that there is “evidence of lumbar pain [with/without] weightbearing and with active and passive motion.” Lastly, the examiner opined that the Veteran’s “bilateral lumbar radiculopathy is a progression of his initial condition.” Id. at 8. In December 2019, the Veteran presented to a VA Back (Thoracolumbar Spine) Conditions DBQ, where he was diagnosed with degenerative arthritis of the spine, spondylolisthesis and bilateral radiculopathy of the lower extremities. See December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. The examiner noted the Veteran’s forward flexion was zero to 70 degrees, it was noted this limitation contributes to a functional loss as it impairs his range of motion; specifically, forward flexion. The examiner noted the Veteran’s forward flexion was zero to 60 degrees, during a flare-up. The examiner also noted pain with weight bearing, and tenderness of the lumbar spine area. The Veteran’s radiculopathy was noted as mild in the right and left legs. The examiner opined the Veteran has functional limitations of the lumbar spine on “prolonged sitting, walking and climbing of the stairs. He has limitation of physical activities especially running and unable to work as a gym [sic]. In the last 6 months, he missed work once a month.” Id. at 8. Finally, the examiner opined, the Veteran “has pain of the lumbar spine on active and passive range of motion as well as weight bearing. No pain of the lumbar spine on non-weight bearing.” Id. at 9. In late December 2019, the Veteran presented for an addendum examination in association with a VA Back (Thoracolumbar Spine) Conditions DBQ, where he was diagnosed with Degenerative arthritis of the spine, spondylolisthesis and bilateral radiculopathy of the lower extremities. See December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. The Veteran reported flare-ups associated with “prolonged sitting, walking and climbing the stairs” as well as associated functional loss of the same. Id. at 2-3. The examiner noted the Veteran’s forward flexion was zero to 70 degrees, it was noted this limitation contributes to a functional loss as it impairs his range of motion specifically, forward flexion. The examiner noted the Veteran’s forward flexion was zero to 60 degrees, during a flare-up. The examiner also noted the Veteran has pain with weight bearing and tenderness in the lumbar spine area. The Veteran’s radiculopathy was noted as mild in the right and left legs. The Examiner opined the Veteran has functional limitations of the lumbar spine on “prolonged sitting, walking and climbing of the stairs. He has limitation of physical activities especially running and unable to work as a gym [sic]. In the last 6 months, he missed work once a month.” Id. at 8. Finally, the examiner opined, the Veteran “has pain of the lumbar spine on active and passive range of motion as well as weight bearing. No pain of the lumbar spine on non-weight bearing.” Id. at 9. Legal Analysis 1. Degenerative arthritis with spondylolisthesis of the L5 and S1 Based on the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 10 percent for his service-connected Degenerative arthritis with spondylolisthesis of the L5 and S1 from April 2015 to November 2018, and a disability rating in excess of 20 percent since December 2018. In particular, the Board acknowledges the Veteran's complaints of back pain, which the record clearly documents. However, during the period from April 2015 to November 2018, the Veterans flexion was not limited to a compensable rating in excess of 10 percent. In fact, it was not until the January 2019 VA examination that his flexion was limited, at most, to 45 degrees. At the July 2015 and January 2019 examinations the Veteran denied flare-ups. See July 2015 VA Back (Thoracolumbar Spine) Conditions DBQ; January 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. During the December 2019 VA examinations the Veteran reported flare-ups, and the examiner noted reduced flexion during flare-ups to, at most, 60 degrees, and opined “pain of the lumbar spine on active and passive range of motion as well as weight bearing. No pain of the lumbar spine on non-weight bearing.” See December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ; December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. With respect to functional loss, the July 2015 VA examination did not note any pain or limitation in motion, further the examiner noted the Veteran did not have any functional limitations to include limitations in weight bearing and the veteran denied flare-ups. See July 2015 VA Back (Thoracolumbar Spine) Conditions DBQ. At that time the Veteran's range of motion for flexion was well in excess of 60 degrees, which is required for the next higher 20 percent rating for the entire period on appeal. Therefore, the Board finds that even when considering the functional limitations of pain on movement as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v. Shinseki, the Veteran's functional loss did not equate to the criteria required for a 20 percent rating when considering the cumulative picture of his lumbar spine disability. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Again, looking to functional loss, the January 2019 and the two December 2019 VA examinations, noted that, at worst, the Veteran’s flexion was limited, at most, to 45 degrees; furthermore, the veteran denied flare-ups. The Veteran was noted as having functional limitations in flexion and associated pain with prolonged standing or walking and bending or lifting. See January 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. The two examinations in December 2019 noted the Veteran’s flexion was limited, at most, to 70 degrees. However, the examiner noted during flare-ups the Veteran’s flexion was limited to, at most, 60 degrees. See December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ; December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. At each of the examinations the examiner opined the Veteran has functional limitations of the lumbar spine on “prolonged sitting, walking and climbing of the stairs. He has limitation of physical activities especially running and unable to work as a gym [sic]. In the last 6 months, he missed work once a month.” Id. at 8. The examiner also noted the Veteran does not use an assistive device. Finally, the examiner opined, the Veteran “has pain of the lumbar spine on active and passive range of motion as well as weight bearing. No pain of the lumbar spine on non-weight bearing.” Id. at 9. Therefore, the Board finds that even when considering the functional limitations of pain on movement as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v. Shinseki, the Veteran's functional loss did not equate to the criteria required for a 40 percent rating when considering the cumulative picture of his lumbar spine disability. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Further, to the extent the July 2015, January 2019, and the two December 2019 VA examinations did not comply with the holdings in Correia v. McDonald or Sharp v. Shulkin either individually or collectively, such non-compliance is harmless error. 28 Vet. App. 158 (2016), 29 Vet. App. 26, 34-35 (2017). In this respect, while the Veteran reported flare-ups, and there was evidence of pain during range of motion findings, to include pain on weight-bearing, there was no indication either of these factors resulted in additional loss in ranges of motion that would find the Veteran more limited and would require the next higher rating. There is no other medical evidence, aside from what has been discussed in detail above, which would support the Veteran's contentions that his lumbar spine disability has increased in severity beyond the currently assigned 10 and 20 percent ratings either prior to December 20, 2018, or since. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, as the Veteran is also service connected for radiculopathy of the left and right lower extremities, which are also currently on appeal, the Board will address these claims below. Regarding any other neurological manifestations, the Veteran has specifically denied the neurological symptoms of weakness or loss of bowel or bladder control. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his lumbar spine disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. Specifically, the Veteran’s contentions that his arthritic pain is so great at times that he cannot complete tasks at work and must take extra breaks, at home he uses a TENS machine, heating pads, and must elevate his feet because NSAIDs do not work when used alone. The Veteran further contends that his degenerative arthritis with spondylolisthesis causes throbbing aching pain and muscle spasms, that cause him to walk with a limp, the symptoms become worse when he performs activities of daily living, and reports having spent more than one month out of the past 12 months bedridden due to lower back pain. The Veteran also contends he has developed radiculopathy associated with his back disability, manifested as shooting pain and tingling. See March 2016 VA Form 9; December 2018 VA Form 21-4138 Statement in Support of Claim. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Bilateral radiculopathy of the lower extremities As noted above, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. For the sake of brevity, the Board will refer to the findings contained in the VA treatment records, and July 2015, January 2019, and the two December 2019 VA examinations, as discussed in detail above. Here, the Veteran is in receipt of a 10 percent for the left and 20 percent for the right for radiculopathy of the lower extremities involving the sciatic nerve, pursuant to Diagnostic Code 8520. The Board takes notice of VA medical records dated prior to the Veteran’s application for an increased rating of his service connected degenerative arthritis with spondylolisthesis of the L5 and S1. Specifically, in March 2006, the Veteran underwent an EMG motor nerve study, where he was diagnosed with mild right radiculopathy with no evidence of peripheral neuropathy. See March 2006 San Diego VA Medical Records at 252-253. Additionally, physical therapy notes from September 2014, document the Veteran reported “chronic constant low back pain that radiates down back of the right leg into bottom of the right foot also with numbness and tingling. . .. Sometimes his back locks up. He cannot move for about 3 days.” See September 2014 San Diego VA Medical Records at 196. The Veteran was initially examined in July 2015 in connection with his claim of entitlement to service connection for lumbosacral strain. At that examination the Veteran denied flare-ups, and it was noted he did not have functional loss or functional impairment of the thoracolumbar spine. It was also noted the Veteran had full normal range of motion; specifically, his flexion was zero to 90 degrees. No pain was reported during the examination to include no pain with weight bearing. Last, the examiner noted the Veteran’s back condition does not impact his ability to work. See July 2015 VA Back (Thoracolumbar Spine) Conditions DBQ. The examiner did not diagnose radiculopathy of the lower extremities. The Veteran was again examined in January 2019 in connection with a VA Back (Thoracolumbar Spine) Conditions DBQ, where he was diagnosed with bilateral radiculopathy of the lower extremities. See January 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. The Veteran’s radiculopathy was noted as moderate in the left leg and mild in the right leg. The Veteran did not report using an assistive device for ambulation. Id. The Veteran was last examined twice in December 2019 in connection with a VA Back (Thoracolumbar Spine) Conditions DBQ, where he was diagnosed with bilateral radiculopathy of the lower extremities. See December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ; December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. The Veteran’s radiculopathy was noted as mild in the right and left legs. Additionally, the VA treatment records dated throughout the appeals period support the findings included in the VA examinations as discussed. The Board finds that the radiculopathy of the left and right lower extremities is best rated as mild and moderate respectively and higher ratings are not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In fact, there is no evidence of record to suggest that the Veteran's left lower extremity radiculopathy is moderate, as is required for the next higher 20 percent rating. Furthermore, there is no evidence of record to suggest that the Veteran's right lower extremity radiculopathy is moderately severe, as is required for the next higher 40 percent rating. In addressing the Veteran’s left lower extremity and why he is not entitled to the next higher rating of 20 percent associated with moderate incomplete paralysis, the Board notes that, at no time during the appeal, did the Veteran present symptoms approaching this level of severity. Specifically, during each of the VA examinations, the Veteran had normal muscle strength and no muscle atrophy. Additionally, there is no evidence of foot paralysis at any point during the appeals period. In addressing the Veteran’s right lower extremity and why, he is not entitled to the next higher ratings of 40 percent associated with moderately severe incomplete paralysis, the Board notes that, at no time during the appeal, did the Veteran present symptoms approaching this level of severity. Specifically, during each of the VA examinations, the Veteran had normal muscle strength and no muscle atrophy. However, physical therapy notes from September 2014, document the Veteran reported “chronic constant low back pain that radiates down back of the right leg into bottom of the right foot also with numbness and tingling. . .. Sometimes his back locks up. He cannot move for about 3 days.” See September 2014 San Diego VA Medical Records at 196. As a preponderance of the evidence is against the award of higher initial ratings for the right and left lower extremity radiculopathy, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Effective Date 3. Radiculopathy of the left and right lower extremities The Veteran is seeking entitlement to effective dates earlier than December 20, 2018. At the outset, the Board notes that neither the Veteran nor his representative have submitted any specific arguments regarding these claims but, instead, is generally seeking earlier effective dates. Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C. § 5110(b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). By way of procedural history, the Board notes the Veteran filed a VA Form 21-526EZ on December 20, 2018, specifically regarding the right and left lower extremity radiculopathy. However, as these issues must be considered in connection with the claim for an increased initial rating for the lumbar spine, the Board finds that consideration from the date of the claim for service connection for the lumbar spine disability, April 20, 2015, is appropriate. Additionally, the Board notes that the evidence of record attributes the Veteran's service connected radiculopathy of the right and left lower extremities to his service connected lumbar spine disability. See January 2019 VA Back (Thoracolumbar Spine) Conditions DBQ (Finding, the Veteran’s “bilateral lumbar radiculopathy is a progression of his initial condition”). However, when the veteran filed a claim for service connection for the lumbar spine disability in April 2015, at the time of the initial adjudication for that disability, there was a current diagnosis of mild right lower extremity radiculopathy, characterized as “chronic constant low back pain that radiates down back of the right leg into bottom of the right foot also with numbness and tingling. . .. Sometimes his back locks up. He cannot move for about 3 days.” See March 2006 San Diego VA Medical Records at 252-253; September 2014 San Diego VA Medical Records at 196. A diagnosis pertaining to the left lower extremity was not given. Therefore, as the evidence shows the Veteran was diagnosed with radiculopathy of the right lower extremity in March 2006, prior to the January 2019 VA examination, the proper effective date is the date of receipt of the claim, or date entitlement arose, whichever is later. Consequently, the Board finds that April 20, 2015, the date of receipt of the claim for service connection for his lumbar spine disability, is the proper effective date as the medical evidence of record points toward a current diagnosis prior to the time of the original claim for service connection. Resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to earlier effective date of April 20, 2015, but no earlier, for radiculopathy of the lower right extremity, pursuant to 38 C.F.R. § 3.400(o)(1)(2) is warranted. Conversely, as the preponderance of the evidence is against the claim for an earlier effective date for radiculopathy of the lower left extremity, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the date of entitlement, which was shown to be via the diagnosis in the January 2019 VA examination, and no earlier, is later than the formal claim for service connection for the left lower extremity. Therefore, the proper effective date for the award of the separate rating for the left lower extremity is, in fact, December 20, 2018, the date of the claim. There is simply no indication that the Veteran was diagnosed with radiculopathy prior to the date of receipt of the claim. The claim for an earlier effective date for radiculopathy of the lower right extremity is granted, effective from April 20, 2015. The claim for an earlier effective date for radiculopathy of the lower left extremity is denied. REASONS FOR REMAND 1. TDIU The Board notes that a claim for TDIU is part and parcel of an increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that the Veteran has claimed that his service connected disabilities cause him to miss a significant amount of work days. The Veteran has reported missing one day per month over a six month period due to pain, and having spent more than one month out of the past 12 months bedridden due to lower back pain. See December 2019 VA Back (Thoracolumbar Spine) Conditions DBQ; March 2016 VA Form 9; December 2018 VA Form 21-4138 Statement in Support of Claim. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he complete and return VA Form 21-8490 (Application for Individual Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with a Claim for Disability Benefits) for his most recent employer. If the Veteran submits any form which is incomplete, he must be notified of such and afforded an opportunity to resubmit a complete form. 2. Then, the Veteran's claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.