Citation Nr: 21030976 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-10 776 DATE: May 20, 2021 ORDER Entitlement to a 40 percent rating for degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning March 1, 2012, is granted. Entitlement to a rating greater than 40 percent rating for degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning March 1, 2012, is denied. Entitlement to a separate rating for neurological symptoms associated with degenerative disc disease of L4-L5 with lumbar stenosis (other than peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerves of the lower extremities) is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis for the period from April 12, 2011, to September 11, 2019, is denied. Entitlement to a 40 percent rating for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning September 12, 2019, is granted. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning September 12, 2019, is denied. REMANDED The matter of entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to August 24, 2016, is remanded. FINDINGS OF FACT 1. It is at least as likely as that that for the period beginning March 1, 2012, degenerative disc disease at L4-L5 with lumbar stenosis resulted in forward flexion of the thoracolumbar spine being limited to 30 degrees or less. 2. For the period beginning March 1, 2012, degenerative disc disease at L4-L5 with lumbar stenosis did not result in unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of intervertebral disc disease (IVDS) having a total duration of at least six weeks during a twelve month period; or objective neurological abnormalities other than peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerves of the lower extremities. 3. Degenerative disc disease at L4-L5 with lumbar stenosis has not resulted in no objective neurological abnormalities other than peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerve of the lower extremities. 4. For the period from April 12, 2011, to September 11, 2019, right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis did not result in more than moderate incomplete paralysis. 5. A September 12, 2019, VA examination showed severe radiculopathy of the right sciatic nerve with no atrophy in the right lower extremity. 6. For the period beginning September 12, 2019, right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis did not result in severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 40 percent rating for degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning March 1, 2012, have been met. 38 U.S.C. §§ 1155, 5003, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2020). 2. The criteria for a rating in excess of 40 percent rating for degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning March 1, 2012, have not been met. 38 U.S.C. §§ 1155, 5003, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2020). 3. The criteria for a separate rating for neurological symptoms associated with degenerative disc disease of L4-L5 with lumbar stenosis (other than peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerves of the lower extremities) have not been met. 38 U.S.C. §§ 1155, 5003, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, DC 5243 (2020). 4. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis for the period from April 12, 2011, to September 11, 2019, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520 (2020). 5. The criteria for a 40 percent rating for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning September 12, 2019, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520 (2020). 6. The criteria for a rating in excess of 40 percent for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis for the period beginning September 12, 2019, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110 (a); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to November 1980 and from November 1989 to May 1995. This case was remanded by the Board of Veterans' Appeals (Board) in October 2018, March 2020, and May 2020 and is now ready for appellate review of the issues adjudicated herein. A separate appeal to the Board under the Appeals Modernization Act was submitted in October 2020 with respect to the matters of entitlement to an earlier effective date for a grant of service connection for an acquired psychiatric disorder and an increased rating for this disability, and these matters will be the subject of a separate Board decision. I. General Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and 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 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The effective date of an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. II. Analysis A. Lumbar Spine 1. Rating Criteria For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Traumatic arthritis is rated as for degenerative arthritis. DC 5010. The General Rating Formula for Diseases and Injuries of the Spine provides that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine that is not greater than 170 degrees, or if the spine disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The General Formula also includes the following notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. 2. Application of the Rating Criteria Historically, a temporary 100 percent rating for convalescence was assigned for the service-connected lumbar disability under 38 C.F.R. § 4.30 following L4-L5 lumbar vertebral/discectomy surgery initiated January 12, 2012, for the period from the date of this surgery to February 29, 2012. A 20 percent rating was assigned for this disability under DC 5243 effective from March 1, 2012, and a 40 percent rating was assigned for this disability under DC 5243 effective from August 1, 2016. As the effective date for this increase was not made effective from the date of the claim which gave rise to this appeal, the matter of whether a rating in excess of 20 percent for this disability may be assigned prior to August 1, 2016, has remained for consideration while this case has been on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The 40 percent rating for the lumbar spine disability rated under DC 5243 was assigned effective from an August 1, 2016, VA examination that showed limitation of thoracolumbar flexion to 30 degrees. Such a rating prior to that time would require evidence prior to August 1, 2016, demonstrating forward flexion of the thoracolumbar spine that was limited to 30 degrees or less; favorable ankylosis of the entire lumbosacral spine; episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period; or objective neurologic abnormalities aside from that contemplated by the ratings assigned for peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerves of the lower extremities granted as secondary to the service connected lumbar spine disability. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.71a, DC 5243. Reviewing the clinical evidence during the appeal period prior to August 1, 2016, while VA outpatient treatment reports and private treatment reports during this period do not specifically reveal the clinical evidence required for a 40 percent rating, these records reflect continuing lumbar spine pain and references to some functional impairment resulting therefrom. Retrospective medical opinions as to the degree of lumbar spine impairment prior to August 1, 2016, requested in the two most recent Board remands have not yielded definitive results. In point of fact, the Veteran was not afforded a VA examination to assess the severity of the residual lumbar spine impairment, to include any loss of motion, following the January 2012 surgery until August 2016; as such, it is within a reasonable degree of probability that had range of motion testing been performed prior to August 1, 2016, thoracolumbar flexion may have also been measured at 30 degrees or less. In short and after resolving all reasonable doubt in this regard, the Board finds that a 40 percent rating for degenerative disc disease at L4-L5 with lumbar stenosis for the entirety of the appeal period beginning March 1, 2012, is warranted on the basis of there being limitation of thoracolumbar flexion to 30 degrees from this date. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.71a, DC 5243. All reasonable doubt in making this determination has been resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra. As for a rating in excess of 40 percent for the service connected lumbar spine disability at issue for the period beginning March 1, 2012, such a rating would require unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of IVDS having a total duration of at least six weeks during a twelve month period; or objective neurological abnormalities other than peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerves of the lower extremities. The aforementioned August 2016 VA examination noted that there was no ankylosis and that while IVDS was present, such had not resulted in signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. This examination also noted that there were no neurologic abnormalities associated with the lumbar spine disability, such as bowel or bladder problems or pathologic reflexes. A September 2019 VA examination also demonstrated no ankylosis of the spine and this examination also found that IVDS was not present. In addition, this examination again found that there were no neurologic abnormalities associated with the lumbar spine disability at issue, such as bowel or bladder problems or pathologic reflexes. There otherwise being no clinical evidence dated on or after March 1, 2012, demonstrating the manifestations required for a rating in excess of 40 percent for the service connected lumbar spine disability, a rating in excess of 40 percent rating for this disability for the period beginning March 1, 2012 cannot be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.71a, DC 5243. With respect to the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), the September 2019 VA examiner noted that there was no objective evidence of pain with non-weight bearing testing of the back. Passive range of motion testing resulted in no difference in pain when compared to active motion and produced the following results: 80 degrees of flexion; 23 degrees of extension; and 20 degrees of lateral flexion and rotation to each side. In short, such findings do not warrant increased compensation with consideration of the principles of Correia. As for the findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Veteran in his own words described flare-ups in the lumbar spine at the August 2016 VA examination that involve increased back pain and bilateral lower extremity radicular symptoms with an inability to move or bend. The August 2016 VA examiner found the examination to be medically consistent with the Veteran's statements describing functional loss during flare-ups. At the September 2019 VA examination, the Veteran reported flare-ups in the lumbar spine in his own words as follows: "If I exert myself too long like standing up too long or sitting down too long. Or if I try and lift heavy objects. Or for instance if I walk too long that will flare up and start a reaction in my leg leading to pain in my leg and my lower back just ache[s] to where I have to stop what I'm doing and just rest until I don't feel pain anymore. I could just be doin' nothin' and get a flare up where my leg just ache, ache, ache." The examiner again found the examination to be medically consistent with the Veteran's statements describing functional loss during flare ups. The undersigned has considered this evidence but finds that the described impairment resulting from flare-ups is adequately compensated by the 40 percent rating under DC 5243 from March 1, 2012, that this decision has found to be warranted. With respect the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations discussed above document consideration of these principles, to include repetitive motion. In particular, while the August 2016 VA examination of the spine noted that repetitive motion could not be accomplished due to pain and noted that pain significantly limited functional ability with repeated use over a period of time, the September 2019 VA examiner was able to conduct repetitive motion which revealed only a slight loss of motion when compared to the initial range of motion testing. Again, the examiner stated that pain significantly limited functional ability with repeated use over a period of time. In short, the undersigned finds any limitation of functioning due to repetitive use to be adequately compensated by the 40 percent rating under DC 5243 from March 1, 2012, that this decision has found to be warranted, and that any additional compensation is not otherwise warranted with consideration of the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell. As for entitlement to a separate rating for neurological symptoms associated with degenerative disc disease of L4-L5 with lumbar stenosis other than peripheral neuropathy of the sciatic nerve of the lower extremities and radiculopathy of the femoral nerves of the lower extremities, as indicated, both the August 2016 and September 2019 VA examinations found that there were no neurologic abnormalities associated with the lumbar spine disability at issue, such as bowel or bladder problems or pathologic reflexes. As the clinical evidence otherwise preponderates against a finding that the criteria for a separate rating for additional neurological symptoms associated with the service-connected lumbar spine disability are met, entitlement to such a separate rating on this basis is not warranted. B. Right Lower Extremity Radiculopathy of the Sciatic Nerve 1. Rating Criteria In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Under 38 C.F.R. § 4.124a, DC 8520, a 40 percent rating is assigned for moderately severe incomplete paralysis of sciatic nerve and a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. 2. Application of the Rating Criteria Following development pursuant to the most recent remand, an August 2020 rating decision increased the rating for right lower extremity radiculopathy of the sciatic nerve associated with degenerative disc disease at L4-L5 with lumbar stenosis from 20 to 40 percent under DC 8520 effective from July 23, 2020. As the effective date for this increase was not made effective from the date of the claim which gave rise to this appeal, the matters for consideration are whether a rating in excess of 20 percent for this disability may be assigned during the appeal period between April 12, 2011 (the effective date of the prior 20 percent rating) and July 22, 2020, and whether a rating in excess of 40 percent may be assigned for the period beginning July 23, 2020. AB v. Brown, supra. The 40 percent rating for right lower extremity radiculopathy under DC 8520 was assigned effective from a July 23, 2020, VA examination which showed moderately severe incomplete paralysis of the right sciatic nerve. Reviewing the clinical evidence for the period from April 12, 2011, to July 22, 2020, a September 12, 2019, VA examination of the lumbar spine, while demonstrating no muscle atrophy in the right lower extremity, noted that there was severe radiculopathy involving the sciatic nerve of the right lower extremity manifested as severe intermittent and constant pain, severe paresthesias and/or dysesthesias, and severe numbness. Given the severe right lower extremity radiculopathy shown at the September 12, 2019, VA examination without atrophy, the undersigned finds that a 40 percent rating is warranted for right lower extremity radiculopathy effective from September 12, 2019. 38 U.S.C. §§ 5110(a); 38 C.F.R. §§ 3.400, 4.124a, DC 8520. Despite the showing of severe radiculopathy in the right lower extremity at the September 2019 VA examination, as a 60 percent rating under DC 8520 requires marked muscular atrophy in addition to severe incomplete paralysis, a 60 percent rating under DC 8520 cannot be assigned on the basis of the findings from the September 12, 2019, VA examination. As for a rating in excess of 20 percent for the period from April 12, 2011, to September 11, 2019, the aforementioned August 2016 VA examination of the spine showed only moderate dull pain, numbness, and paresthesias and/or dysesthesias in the right lower extremity, and there is otherwise no clinical evidence for the period from April 12, 2011, to September 11, 2019, of the "moderately severe" incomplete paralysis of the right sciatic nerve required for a 40 percent rating under DC 8520. As such, a rating in excess of 20 percent for right lower extremity radiculopathy for the period from April 12, 2011, to September 11, 2019, is not warranted. 38 U.S.C. §§ 5110(a); 38 C.F.R. §§ 3.400, 4.124a, DC 8520. With respect to a rating in excess of 40 percent for the period beginning September 12, 2019, such would require severe incomplete paralysis with marked muscular atrophy. As noted above, the September 2019 VA spine examination did not show any atrophy in the right lower extremity, nor did the July 2020 VA examination conducted specifically to assess the severity of the service-connected radiculopathy. This examination also only demonstrated "moderately severe" incomplete paralysis of the right sciatic nerve. As there is otherwise no clinical evidence for the period beginning September 12, 2019, that the Veteran has severe incomplete paralysis of the right sciatic nerve with marked muscular atrophy of the lower right extremity, a rating in excess of 40 percent for right lower extremity radiculopathy for the period beginning September 12, 2019, cannot be assigned. Id. C. Final Considerations In making the above rating determinations, the undersigned observes that she has carefully considered the Veteran's contentions with respect to the nature of the service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran's testimony with regard to the matters he is competent to address, she places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service connected Finally, in making the negative rating determinations above, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of increased compensation for the disabilities addressed above. As such, increased ratings for these disabilitiesaside from those to which the Veteran has been found to be entitled in the analysis abovemay not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. REASONS FOR REMAND While the Veteran's service-connected disabilities combine to be 100 percent disabling effective from August 24, 2016, the matter of entitlement to TDIU prior to that time during the appeal period is still for consideration. Evidence of record indicates that service-connected disability rendered the Veteran unemployable prior to August 24, 2016see eg. July 11, 2012, letter from J.R.C., M.D. and a vocational assessment following an August 10, 2015, interview with the Veteranbut during a period of time in which the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) were not met. The authority to grant TDIU on an extraschedular basis in the first instance has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service (Director) and not the Board. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). As such, and in light of the evidence of unemployability discussed above, the matter of entitlement to TDIU prior to August 24, 2016, must be referred to the Director pursuant to 38 C.F.R. § 4.16(b). For the reasons stated above, this case is REMANDED for the following action: 1. Ask the Veteran to provide IRS tax returns from 2012 through 2016 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2012 through 2016 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 2. Submit to the Director the matter of entitlement to TDIU on an extraschedular basis prior to August 24, 2016, in accordance with the provisions of 38 C.F.R. § 4.16(b). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.