Citation Nr: 21042449 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-16 798 DATE: July 13, 2021 ORDER Entitlement to an effective date of December 5, 2013, for the grant of service connection for radiculopathy of the right and left lower extremity sciatic nerves is granted. Entitlement to an initial rating in excess of 10 percent prior to December 5, 2013, for a low back condition is denied. Entitlement to a rating in excess of 40 percent, and no higher, from December 5, 2013, for a low back condition is granted. An initial rating of 40 percent for radiculopathy of the right lower extremity sciatic nerve is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 20 percent for radiculopathy, left lower extremity sciatic nerve is denied. REMANDED A separate evaluation for urinary incontinence as a neurological manifestation of service-connected low back disability is remanded. Entitlement to total disability based on individual unemployability due to service-connected conditions (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a low back condition was received on June 22, 2006; the presence of associated radiculopathy of the right and left lower extremity sciatic nerves is factually ascertainable as of December 5, 2013. 2. Prior to December 5, 2013, the Veteran's low back condition resulted in forward flexion of the thoracolumbar spine to 90 degrees and a combined thoracolumbar range of motion of 230 degrees. 3. From December 5, 2013, functional impairment from the Veteran's low back condition resulted in impairment that more nearly approximated forward flexion limited to 30 degrees or less. 4. The Veteran's radiculopathy of the right lower extremity sciatic nerve manifests as moderately severe incomplete paralysis. 5. The Veteran's radiculopathy of the left lower extremity sciatic nerve manifests as moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 5, 2013, for the grant of service connection for right and left lower extremity radiculopathy have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 4.71a (2020). 2. The criteria for a rating in excess of 10 percent for a low back condition prior to December 5, 2013 are not 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, Diagnostic Codes 5237, 5243 (2020). 3. The criteria for a 40 percent rating, but no higher, for a low back condition from December 5, 2013 are 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, Diagnostic Codes 5237, 5243 (2020). 4. The criteria for an initial rating of 40 percent for radiculopathy of the right lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). 5. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1970. The matter of entitlement to a higher initial rating for a low back condition initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a low back disability effective June 22, 2006, and assigned a 10 percent rating. A subsequent March 2014 rating decision increased the Veteran's disability rating to 20 percent effective December 5, 2013. As the maximum benefit was not granted, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's claim for TDIU is before the Board because the lack of an appeal from the denial of the Veteran's formal claim for TDIU does not affect a TDIU that is part and parcel of the claim for an increased rating for a higher initial rating for the lumbar spine. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The Veteran's ratings related to his service-connected radiculopathy of the right and left lower extremity sciatic nerves are now before the Board due to a recent decision of Chavis v. McDonough issued by the United States Court of Appeals for Veterans Claims (Court). See Chavis v. McDonough, No. 18-2928 (April 6, 2021). One of the holdings in Chavis v. McDonough is that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement (NOD) as to the radiculopathy ratings. After the Board's most recent remand (discussed below), the RO issued a rating decision in February 2021 that granted separate ratings for radiculopathy of the right and left lower extremity sciatic nerves. The Board therefore has jurisdiction to review the disability ratings assigned for the Veteran's radiculopathy of the right and left lower extremity sciatic nerves. In April 2018, the Board remanded the Veteran's appeals to the RO for further evidentiary development. As explained below, the RO took appropriate action by obtaining VA treatment records, requesting records from the Social Security Administration, scheduling a VA examination and medical opinion for the Veteran's low back, including whether the Veteran is confined to a wheelchair because of service-connected disabilities, and determining whether to refer the claim to the Director of Compensation Service for extraschedular consideration. Therefore, the RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Separate ratings for radiculopathy of the right and left lower extremities The Veteran was previously granted service-connected for a low back condition with an effective date of June 22, 2006. His lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243, Note (1). The Veteran was previously granted service connection for sciatic nerve radiculopathy of the right and left lower extremities effective from June 12, 2018. The evidence supports a finding that the Veteran had bilateral radiculopathy which warranted a separate rating from December 5, 2013 (bilateral reflexes impaired or absent, sensation to touch impaired). Prior to that date, the preponderance of the medical evidence of record is against a finding that the Veteran had any left lower extremity neurological impairment that would have warranted a separate rating (e.g. "mild incoordination, somewhat unsteady when he walks, has patch lack of sensation in legs and feet" in August 2010). The evidence prior to December 5, 2013, does not reflect significant neurological impairment as muscle strength testing and reflex testing were all normal on examination and there was no other indication of neurological impairment or radicular pain other than "patch lack of sensation" and mild incoordination. Additionally, the evidence does not reflect that the Veteran had bowel or bladder impairment. Therefore, the weight of the evidence supports separate ratings for radiculopathy of the right and left lower extremities from December 5, 2013 but is against a finding that the Veteran is entitled to separate compensable ratings before that date. Rating evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. 1. Entitlement to an initial rating in excess of 10 percent prior to December 5, 2013, for a low back condition This is an appeal of the initial May 2012 rating decision which granted service connection for a low back condition at a 10 percent disability rating effective June 22, 2006. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27 (2018). The hyphenated diagnostic code 5242-5237 used for the period from June 22, 2006, to December 5, 2013, indicates that the Veteran's degenerative arthritis of the spine (DC 5242) is rated by analogy under the criteria for lumbosacral or cervical strain under Diagnostic Code 5237. The hyphenated diagnostic code 5237-5243 used for the period from December 5, 2013, forward indicates that the Veteran's lumbosacral or cervical strain (DC 5237) is rated by analogy under the criteria for intervertebral disc syndrome (IVDS) under Diagnostic Code 5243. Lumbar spine disabilities are rated using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5237. The General Rating Formula provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted in cases of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 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 disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Under the IVDS Rating Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) provides that 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. Turning to the evidence, an April 2006 VA record notes that VA authorized an electric scooter to the Veteran due to his back pain. The note stated that the Veteran reported worsening pain and that he was being evaluated for back surgery. A March 2007 VA treatment record notes that the Veteran reported intermittent low back and hip pain. A June 2007 record stated, "low back pain still a concern." In a May 2007 Statement in Support of Claim, the Veteran described his in-service back injury and said that he is receiving treatment for the in-service injury at a VA hospital. In April 2009, friends of the Veteran wrote to VA, stating that the Veteran was treated by a doctor for back pain, that he was using an electric chair to move around, that he had medication for his back, and that he could not stand up for very long. In an August 2010 examination for his back, the Veteran reported persistent back pain which he said was worsening and said that he had significant back pain after walking for fifteen minutes. He reported flare ups about once or twice a day but said that he had no medically prescribed bed rest. On examination, the spine was convex, reversing the lumbar curve, and tender and there was some muscle spasm and guarding. On initial range of motion testing, the Veteran showed 90 degrees of flexion before pain, 20 degrees extension before pain, and right and left lateral flexion 25 degrees each before pain, and right and left lateral rotation 35-40 degrees before pain. The Veteran had mild incoordination and was somewhat unsteady in walking. He reported "patch" lack of sensation in his lower extremities. The examiner diagnosed degenerative disease of the lumbar spine with a probable compression fracture of L5. VA treatment records from December 2010 to May 2013 continued to list low back pain as an ongoing problem. The Veteran underwent another VA examination for back conditions in December 2013. The examiner diagnosed a compression fracture of L5, degenerative disc disease of multiple levels of the spine with severe degeneration, and hyperkyphosis of the thoracic and lumbar spine (first diagnosed in 2013). Initial range of motion testing showed forward flexion from 0 to pain at 50 degrees; extension from 0 to pain at 5 degrees, right and left lateral flexion from 0 to pain at 15 degrees; and right and left lateral rotation from 0 to 15 degrees. After three repetitions, forward flexion was reduced to 0 to 40 degrees and the other movements were unchanged. The Veteran's back showed less movement than normal, excess fatigability, pain on movement, deformity, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing, and lack of endurance. There was localized tenderness of the lumbar spine and a muscle spasm resulting in abnormal gait and/or abnormal spinal contour, but no guarding. Muscle strength was normal, with no atrophy. Bilateral ankle reflexes were absent, and bilateral knee reflexes hypoactive. The Veteran's sensation to touch in his bilateral thighs, knees, and ankles was normal, but in his feet the sensation was decreased. The examiner stated that there was no radiculopathy or other neurologic abnormalities. The Veteran was regularly using a wheelchair and cane. In terms of functional impact, the examiner stated that the Veteran was "unable to stand and/or walk without assistance." An October 2014 VA treatment record states that the Veteran was treated for back pain at an urgent care facility the month before, and that his back pain had become 6 on a scale of 10 in severity. In June 2018, a Disability Benefits Questionnaire for back conditions was completed. The Veteran reported that the condition had worsened with increased pain and decreased range of motion, and the Veteran said he was unable to walk without the use of a walker. Initial range of motion testing showed forward flexion of 0 to 50 degrees, extension 0 to 10 degrees (these are the correct numbers according to an October 2018 clarification by the examiner), right and left lateral flexion of 0 to 15 degrees, and right and left lateral rotation of 0 to 20 degrees. The examiner found that the back condition results in functional loss due to pain on movement, and that there was pain on all movements and on weight-bearing. The examiner found moderate tenderness to palpation of the lower lumbar. There was no change in the Veteran's range of motion after three repetitions. For repeated use over time, the Veteran's range of motion was also the same. Repeated use over time results in functional loss due to pain, weakness, and incoordination. During flare ups, the Veteran's range of motion decreased to forward flexion of 0 to 40 degrees, extension of 0 to 5 degrees, right and left lateral flexion of 0 to 10 degrees, and right and left lateral rotation of 0 to 15 degrees. There was no guarding or muscle spasm. The examiner found the following additional contributing factors to the Veteran's disability: "very poor balance, unable to stand or bend without support, unable to get in or out of wheelchair without assistance." The Veteran had no episodes requiring bed rest prescribed by a physician in the last 12 months. He used a wheelchair and walker on a regular basis. The examiner noted that X-rays showed a compression fracture of L5 and degenerative disc disease with extensive degenerative changes of the lumbar spine. In a September 2018 clarification, the June 2018 examiner stated that the Veteran is not strictly confined to a wheelchair because he uses a walker inside his home. In October 2018, the examiner clarified the June 2018 initial range of motion testing as noted above. VA treatment records continue to note back pain as an ongoing problem. A September 2020 record notes that the Veteran's back pain was moderate to severe. June 22, 2006 to December 5, 2013 Based on a thorough review of the evidence for this period, the Board finds that the Veteran's low back condition does not warrant a disability rating greater than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. A rating of 20 percent or higher is warranted only if the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine is not greater than 120 degrees; or, if the Veteran has muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The evidence of record does not demonstrate that the Veteran has exhibited forward flexion not greater than 60 degrees or a combined range of motion of 120 degrees or less, or muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour during the period prior to December 5, 2013. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). The Board recognizes the Veteran's complaints of pain and functional loss as a result of his low back condition. Although functional loss is shown from the Veteran's pain and limited motion as described, such is already contemplated in the assigned 10 percent rating, and the evidence does not more nearly approximate forward flexion greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Regarding evaluation under the Formula for IVDS Based on Incapacitating Episodes, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a rating in excess of 10 percent for this period. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent prior to December 5, 2013. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). From December 5, 2013 The Board finds that the Veteran is entitled to an increased 40 percent rating from December 5, 2013, the date of the VA examination finding forward flexion 0 to 50 degrees and a combined range of motion of 115 degrees, and also had abnormal kyphosis. The June 2018 examination found that during flare ups, the Veteran had forward flexion from 0 to 40 degrees and a combined thoracolumbar range of motion of 95 degrees. This qualifies for a 20 percent disability rating according to the General Rating Formula. 38 C.F.R. § 4.71a, Diagnostic Code 5237. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). The December 2013 examiner noted that the Veteran was impaired by less movement than normal, excess fatigability, pain on movement, deformity, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing, and lack of endurance. The June 2018 examination found that repeated use over time resulted in functional loss due to pain, weakness, and incoordination, and that the Veteran had very poor balance and was unable to stand, bend, or sit in his wheelchair or exit it without assistance. This evidence of the Veteran's functional loss indicates that his disability picture more nearly approximates the criteria for a 40 percent rating from December 5, 2013. The weight of the evidence is against a finding that the Veteran is entitled to a higher 60 percent rating as the evidence does not reflect findings that more nearly approximate unfavorable ankylosis. Although the Veteran indicated that his movement is severely limited during flare ups the evidence does not more nearly approximate that that the spine is fixed in flexion and includes one or more of the following symptoms: 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. There also is no evidence of incapacitating episodes due to intervertebral disc syndrome; therefore, a rating in excess of 40 percent based on incapacitating episodes is not warranted. 2. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity sciatic nerve and radiculopathy of the left lower extremity sciatic nerve The Veteran's radiculopathy of the right lower extremity sciatic nerve and radiculopathy of the left lower extremity sciatic nerve have been rated under the criteria of Diagnostic Code 8520. 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis of the sciatic nerve is to be rated as 10 percent disabling; moderate incomplete paralysis as 20 percent disabling, moderately severe incomplete paralysis as 40 percent disabling; and severe incomplete paralysis with marked muscular atrophy is to be rated as 60 percent disabling. Complete paralysis of the sciatic nerve is to be rated as 80 percent disabling. Complete paralysis is found in cases where the foot dangles and drops, there is no active movement possible in the muscles below the knee, and flexion of the knee is weakened or (rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The words "slight," "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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of 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. VA's Adjudication Manual gives the following guidance on cases where a peripheral nerve disability is only manifested by sensory impairment: "To make a choice between mild and moderate, consider the evidence of record and the following guidelines: The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous, assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. Reserve the moderate level of evaluation for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuous, assigned a higher medical grade reflecting greater impairment, and/or affecting a larger area in the nerve distribution." VA Adjudication Procedures Manual, III.iv.4.N.4.b (May 28, 2021). Turning to the evidence, the December 2013 examination for back conditions noted that the Veteran's bilateral ankle reflexes were absent and bilateral knee reflexes were hypoactive. His sensation to touch in his bilateral thighs, knees, and ankles was normal but sensation was decreased in his bilateral feet. The examiner stated that there was no radiculopathy or other neurologic abnormalities. The June 2018 examination for back conditions stated that the Veteran had bilateral sciatic nerve radiculopathy which the examiner said was moderate. The right lower extremity had no constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The left lower extremity had no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The Veteran's sensation to light touch was absent in his right thigh, knee, ankle and toes. His sensation to light touch was normal in his left thigh and knee but decreased in his left ankle and toes. Turning to whether the Veteran is entitled a rating in excess of 20 percent at any time during the appeal period, the preponderance of the evidence is against such a finding. The radiculopathy of the left leg lower extremity is not severe or moderately severe. As noted above, the June 2018 examination found that the Veteran had no continuous pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. His sensation to light touch was normal in the thigh and knee, but decreased in the ankle and toes. He had hypoactive reflexes in the left knee and ankle and muscle strength was 4/5 in hip flexion, knee extension, and ankle plantar flexion and 5/5 in ankle dorsiflexion and great toe extension. These symptoms do not correspond with a moderately severe or severe incomplete paralysis and therefore a rating in excess of 20 percent is not warranted for the left lower extremity. The radiculopathy of the right leg is moderately severe but not severe. The June 2018 clinical evaluation of the Veteran's symptoms reflected no continuous pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity. His sensation to light touch was absent in the right thigh, knee, ankle, and toes. He had hypoactive reflexes in the right knee and ankle. Muscle strength was 4/5 in hip flexion, knee extension, and ankle plantar flexion and 5/5 in ankle dorsiflexion and great toe extension. This is consistent with moderately severe paralysis and a rating of 40 percent is warranted. As the Veteran's muscle strength on the right side is 4/5 or 5/5, there is no muscle atrophy, his reflexes were hypoactive but present, and the examiner described his radiculopathy symptoms as moderate, the evidence is against assigning a higher rating for severe radiculopathy. The Board has also considered whether staged ratings are appropriate in this case. However, as described above the Veteran's symptomatology was most nearly approximated by moderate incomplete paralysis throughout the appeal period. Therefore, assigning a staged rating is not warranted in this case. For the entire period on appeal, the preponderance of the evidence is against a finding that the Veteran's left lower extremity radiculopathy symptoms more nearly approximate severe or moderately severe incomplete paralysis. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a disability rating in excess of 20 percent throughout the appeal period is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Urinary incontinence During a June 2018 VA spine examination, it was noted that the Veteran had urinary incontinence and that this neurological condition was related to his service-connected spine injury. Remand is necessary for a VA examination to determine the etiology and severity of the Veteran's urinary incontinence. Entitlement to total disability based on individual unemployability due to service-connected conditions (TDIU) is remanded. Finally, because a decision on the remanded issue of service connection for urinary incontinence could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his urinary incontinence. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the urinary incontinence at least as likely as not related to the Veteran's service-connected low back condition? 2. Issue rating decisions for the remanded issues, including entitlement to TDIU. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.