Citation Nr: 21042508 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-41 495A DATE: July 13, 2021 ORDER Entitlement to a rating greater than 20 percent for intervertebral disc disease (IVDD) of the lumbar spine is denied. Entitlement to a rating greater than 10 percent for left lower extremity (LLE) radiculopathy is denied. Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the right lower extremity (RLE) is denied. Entitlement to an initial compensable rating for a surgical scar, status post (SP) lumbar discectomy is denied. Entitlement to an effective date prior to October 3, 2018 for service connection for peripheral neuropathy of the RLE is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's IVDD of the lumbar spine has not caused limitation of thoracolumbar flexion of 30 degrees or less; there is no favorable ankylosis of the entire thoracolumbar spine; and he had not been prescribed bedrest for any incapacitating episodes. 2. The Veteran's LLE radiculopathy is manifested by no more than mild neurologic impairment. 3. The Veteran's RLE peripheral neuropathy is manifested by no more than mild neurologic impairment. 4. The Veteran's surgical scar, SP lumbar discectomy has been painless, stable, nonadherent to underlying tissue, involves an area of less than 39 sq. cms., and is asymptomatic and not productive of any functional impairment. 5. On December 4, 2009, VA received the Veteran's claim for service connection for residuals of a low back disability and disability claimed as pain in both legs; but it is not until VA examination on October 3, 2018 that it was clinically demonstrated he had peripheral neuropathy of the RLE. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for IVDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 -4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating greater than 10 percent for radiculopathy of LLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 -4.3, 4.7, 4.10, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8621. 3. The criteria for an initial rating greater than 10 percent for peripheral neuropathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 -4.3, 4.7, 4.10, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8521. 4. The criteria for an initial compensable rating for a surgical scar, SP lumbar discectomy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.31, 4.118, Diagnostic Code 7802. 5. The criteria for an effective date prior to October 3, 2018 for service connection for peripheral neuropathy of the RLE have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1972 to January 1976. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal originated from a December 2010 rating decision that granted service connection for lumbar IVDD and assigned an initial rating of 20 percent, and granted service connection for LLE radiculopathy, assigned an initial 10% rating, all effective December 4, 2009; and denied service connection for a right leg condition and a TDIU rating. The Veteran perfected an appeal from that decision. In May 2018, the Board remanded the issues of the higher ratings for service-connected lumbar IVDD and LLE radiculopathy for additional development and remanded the claim for service connection for a right leg disability, to include as secondary to the service-connected lumbar spine disability. In December 2018, the RO granted service connection for RLE peripheral neuropathy rated as 10% disabling, effective October3, 2018 (date of VA examination with underlying medical opinion of a confirmed diagnosis of RLE peripheral neuropathy), thus satisfying that issue on appeal. That rating decision also granted service connection for a residual surgical scar, SP lumbar laminectomy, and assigned a noncompensable rating. The Veteran perfected an appeal from that rating decision as to the ratings for both disabilities and the assigned effective date for service connection for RLE peripheral neuropathy. In April 2020 the Board granted an effective date of December 4, 2009 (date of receipt of claim for service connection for a low back disability) for service connection for surgical scar, SP lumbar discectomy, which was effectuated by a July 2020 rating decision. The Board remanded the remaining issues for additional development. General Rating Principles Disability evaluations are determined by considering the entire clinical history and evaluating the extent to which a service-connected disability(ies) adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is considered in all cases. Fenderson v. West, 12 Vet. App. 119, 126 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates those criteria; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Not all cases will show the criteria specified in applicable Diagnostic Codes but findings sufficiently characteristic to identify the disability and coordination of ratings with impairment of function is expected. 38 C.F.R. § 4.21. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating greater than 20 percent for lumbar IVDD The Veteran, and his representative, contend that a higher rating is warranted. The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine disability. Neither the lay nor the medical evidence shows that the Veteran's symptoms more nearly approximate the criteria for a higher rating. The Veteran's lumbar spine disability is not more nearly manifested by favorable ankylosis of the entire thoracolumbar (TL) spine; limitation of flexion to 30 degrees or less; or, IVDS, with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, that requires bed rest prescribed by a physician and treatment by a physician. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the (TL) spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the TL spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the TL spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the TL spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire TL spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire TL spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine. Note 2 to the General Rating Formula provides that normal TL spinal forward flexion is to 90 degrees, extension is to 30 degrees, left and right lateral flexion as well as left and right lateral rotation are to 30 degrees. The combined range of motion refers to the sum of these ranges of motion, which for the TL spine is 240 degrees. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire TL, 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." Id. Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59 painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Consideration is given to functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see 38 C.F.R. §§ 4.40, 4.45, 4.59. On VA spinal examination on September 22, 2010, the Veteran's records were reviewed. He reported having had continuous back problems since service despite multiple treatment modalities, including injections for pain relief and chiropractic care. He had a lumbar laminectomy in 2006 due to disc protrusion at L4-5 and herniation at L5-S1. He reported having continued unrelenting, severe back pain. He related that use of a cane added some stability but he requested a walker. The Veteran related having severe flareups of lumbar pain every 2 to 3 weeks, lasting 1 to 2 days and that during such flareups he was rendered completely useless and immobile. On physical examination, the Veteran walked slowly and with use of a cane, slightly favoring his left leg. The only abnormality of the spine was some listing and there was no TL ankylosis. He had spasm and guarding of the TL sacrospinalis muscles, bilaterally, which affected his gait but no weakness or atrophy. He had pain with left-sided motion. TL motion was 50 degrees of flexion with pain beginning at 20 degrees, extension to 20 degrees with pain beginning at 10 degrees; left and right lateral bending to 30 degrees with pain beginning at 10 degrees; and left and right lateral rotation to 25 degrees with pain beginning at 10 degrees. For a total of 180 degrees of motion and 70 degrees of painless motion. Three repetitions of motion did not cause any additional loss of motion. The relevant diagnoses were lumbar IVDD and degenerative joint disease (DJD). The examiner noted that the Veteran needed a considerable amount of assistance with many activities of daily living and, due to his low back, he had difficulty getting dressed and bathing himself. However, other diagnoses were cervical spine DJD and left cervical C5 and C6 radiculopathy. On VA spinal examination on October 3, 2018, the Veteran's records were reviewed. The Veteran did not report having TL spine flareups or functional loss or impairment. On physical examination, he had no ankylosis and there was no evidence of pain on passive range of motion testing, pain in nonweight-bearing, or pain on palpation of the joints or associated soft tissue. He had painless TL spine motion of 85 degrees of flexion, 25 degrees of extension and lateral bending in each direction, and 30 degrees of rotation in each direction. There was no evidence of pain on weight-bearing or localized tenderness or. There was no additional loss of function or range of motion after three repetitions of motion and no guarding or muscle spasm. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. It was reported that the Veteran constantly used a cane as an ambulatory aid but that a cane was not required for ambulation. As to the impact on his ability to work, the examiner reported that the Veteran had functional limitations in prolonged ambulation. On VA spinal examination on October 8, 2020, the Veteran's records were reviewed. The Veteran complained of constant and radicular pain which radiated down both legs, as well as flareups about twice a month of unbearable pain. He reported that at times he could not dress himself or put on his socks, but he had not seen a neurologist recently. He was able to drive a car and, at times went shopping for groceries. He related having flareups twice monthly and, due to flareups, once a month he was bedridden for a week. On physical examination, the Veteran had active and passive TL spine motion of 40 degrees of flexion, and 20 degrees of extension, lateral bending in each direction, and rotation in each direction. He had pain in all planes of motion and on weight-bearing, but his pain did not result in or cause functional loss. There was objective evidence of localized tenderness or pain on palpation throughout the spine and associated soft tissues. He performed three repetitions of motion without additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. However, pain significantly limited functional ability during flare-ups. There was no guarding or muscle spasm. The examiner reported that the Veteran had IVDD but no episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran regularly used a walker and occasionally a brace as ambulatory aids. X-rays had confirmed lumbar arthritis but there was no thoracic vertebral fracture with loss of 50 percent or more of height. As to the impact on his ability to work, he would have pain with walking or bending. The facts of this case simply do not support the assignment of a rating in excess of 20 percent. First, VA must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, and here the Veteran has reported having severe flareups which he states, in essence, incapacitate him. However, even though he uses an ambulatory aid, and there is some evidence of a need for dressing or bathing, the evidence also shows that he drives an automobile and shops for groceries. Moreover, despite his complaint of severely incapacitating episodes, he has not been prescribed bed rest by a physician. Second, even were the Board to accept that a higher rating may be assigned based on the functional impairment equivalent of ankylosis, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss, to include functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements, and that he experiences flare-ups, would not result in limitation of motion more nearly approximating favorable ankylosis of the entire TL spine. In fact, the 2010 examination found that TL flexion was to more than half of normal, and even when considering the range of motion in which he had pain, he still had 30 degrees of painless motion, which is one-third of normal and painless flexion, and repetitive motion did not cause additional loss of motion. He had even better range of flexion on examination in 2018, with almost full flexion and, again, repetitive motion did not cause additional loss of motion. He had a little less than half of normal flexion on examination in 2020, with pain in all planes of motion and in weight-bearing but, again, repetitive motion did not cause additional loss of motion. Also, the examiner noted that pain did not cause functional loss. Lastly, consideration has also been given to assigning a rating under the Formula for IVDS Based on Incapacitating Episodes. However, the evidence is against a finding that the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. In fact, he has never been prescribed bed rest by a physician for any length of time. 2. Entitlement to a rating greater than 10 percent for LLE radiculopathy The Veteran, and his representative, contends that he is entitled to a higher rating for his LLE radiculopathy because of pain. The Board concludes, first, that the evidence does not support the assignment of a rating in excess of 10 percent rating because when all the symptoms and findings are viewed together, on balance, they show that the preponderance of the evidence is against finding that the Veteran's LLE radiculopathy of the external popliteal nerve has been manifested by more than mild incomplete paralysis. Neither the lay nor the medical evidence more nearly reflects the criteria for a higher rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.24a, Diagnostic Code 8621. With respect to disability ratings for peripheral nerve disorders of each lower extremity, the Veteran is evaluated under 38 C.F.R. § 4.124a, Diagnostic Codes 8521(for the RLE) and 8621 (for the LLE), paralysis and neuritis, of the external popliteal (common peroneal) nerve of each lower extremity. The rating criteria provide that mild incomplete paralysis or neuritis is rated 10 percent disabling; moderate incomplete paralysis or neuritis is rated 20 percent; severe incomplete paralysis or neuritis is rated 30 percent; and complete paralysis, with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot; extension (dorsiflexion) of the proximal phalanges of the toes is lost; abduction of the foot is lost; adduction weakened; and anesthesia covers the entire dorsum the foot and toes, is rated 40 percent. 38 C.F.R. § 4.124A, Diagnostic Codes 8521 and 8621. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). On VA spinal and neurology examination on September 22, 2010 the Veteran's records were reviewed. He reported that even though he had had low back surgery 2006 his back pain radiated down both legs to his toes, greater in the LLE than the RLE and that the pain was associated with left leg weakness. He related that use of a cane added some stability, but he requested a walker. He had a history of numbness and paresthesia, and foot weakness. On examination, he walked slowly and with use of a cane, slightly favoring his left leg. In the LLE, sensation to pinprick and light touch were decreased. Strength was decreased with mild diffuse weakness, at 4/5, in the LLE but there was normal muscle tone and no muscle atrophy. On VA spinal and neurology examinations on October 3, 2018 the Veteran's records were reviewed. On spinal examination strength, deep tendon reflexes, and sensation to light touch were normal throughout both lower extremities and there was no muscle atrophy. He had radicular signs consisting of mild numbness and mild intermittent pain, bilaterally, but no paresthesias and/or dysesthesias. It was reported that the Veteran constantly used a cane as an ambulatory aid but that a cane was not required for ambulation. On neurology examination, the examiner reported that he had mild incomplete paralysis of the external popliteal (common peroneal) nerve of each leg. He had radicular signs consisting of mild intermittent pain, bilaterally, but no numbness, paresthesias and/or dysesthesias. He had not trophic changes of the skin. His gait was normal. On VA spinal examination on October 8, 2020, the Veteran's records were reviewed. The Veteran reported having severe intermittent pain and tingling in both legs, but that he had not seen a neurologist recently. However, an October 2020 EMG was normal. The examiner noted that the results of a May 2012 neurological examination were that there was sensory loss and absent ankle jerk in the LLE, relative to the RLE. On current examination, strength and sensation to light touch were normal throughout and there was no muscle atrophy. Deep tendon reflexes were normal in both legs except for a slight decrease, at 1+, at the left ankle. The Veteran regularly used a walker and occasionally a brace as ambulatory aids. On VA neurology examination on October 8, 2020, the Veteran's records were reviewed. He had not trophic changes of the lower extremities. His gait was antalgic due to his low back disability. The examiner reported that all peripheral nerves in both lower extremities were normal. It was noted that EMG testing in December 2011 of the LLE had been normal, and that EMG testing in October 2020 had been normal as to both lower extremities and that testing revealed no distinct electrodiagnostic evidence of mononeuropathy, plexopathy, radiculopathy, or necrotizing/inflammatory myopathy to the bilateral lower extremities. Thus, the examiner stated that the peripheral nerve conditions did not impact the Veteran's ability to work because there was no current EMG evidence of peripheral neuropathy or radiculopathy. In sum, the 2010 examination found only minimal neurologic abnormalities, and the 2018 examiner's opinion of no more than mild impairment was consistent with the examination findings at that time. Moreover, the recent 2020 examination specifically noted that there was no electrodiagnostic evidence of neuropathy. The Board accepts that the Veteran is competent to report on his observable symptomatology. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this matter. Further, although the Veteran may believe that he meets the criteria for a higher disability rating for his left lower extremity, his complaints along with the medical findings do not comport with the assignment of higher evaluations, as discussed above. The Board acknowledges that the Veteran uses an assistive device due but this is due primarily to his service connected low back disability. In any event, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Accordingly, the claim is denied. There is no doubt to resolve. 38 C.F.R. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an initial rating greater than 10 percent for RLE peripheral neuropathy The Veteran, and his representative, contends that he is entitled to a higher rating for his RLE peripheral neuropathy because of pain. The Board concludes, first, that the evidence does not support the assignment of a rating in excess of 10 percent rating because when all the symptoms and findings are viewed together, on balance, they show that the preponderance of the evidence is against finding that the Veteran's RLE peripheral neuropathy of the external popliteal nerve has been manifested by more than mild incomplete paralysis. Neither the lay nor the medical evidence more nearly reflects the criteria for a higher rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.24a, Diagnostic Code 8521. On VA spinal and neurology examination on September 22, 2010 the Veteran's records were reviewed. He reported having had pain radiating down both legs to his toes, greater in the LLE than the RLE, and that the pain was associated with left leg weakness. He related that use of a cane added some stability but he requested a walker. He had a history of numbness and paresthesia, and foot weakness. On examination all sensations in the RLE, to vibration, positions, pain or pinprick and light touch were normal. Strength was normal throughout the RLE and there was normal muscle tone and no muscle atrophy. On VA spinal examination on October 3, 2018, the Veteran's records were reviewed and on examination strength, deep tendon reflexes, and sensation to light touch were normal throughout both lower extremities and there was no muscle atrophy. He had radicular signs consisting of mild numbness and mild intermittent pain, bilaterally, but no paresthesias and/or dysesthesias. On VA neurology examination on October 3, 2018, it was noted that he had trophic changes of the skin. The examiner found that the Veteran had mild incomplete paralysis of the external popliteal (common peroneal) nerve of each leg. On VA spinal examination on October 8, 2020, the Veteran's records were reviewed. The Veteran complained of constant pain which radiated down both legs, and having severe intermittent pain and tingling in both legs. However, the examiner noted that an October 2020 EMG was normal revealing no distinct electrodiagnostic evidence of mononeuropathy, plexopathy, radiculopathy, or necrotizing/inflammatory myopathy to the bilateral lower extremities. On physical examination strength and sensation to light touch were normal throughout and there was no muscle atrophy. Deep tendon reflexes were normal in the right leg. The Veteran regularly used a walker and occasionally a brace as ambulatory aids but on neurology examination it was reported that his gait was antalgic due to his low back disability. The neurology examination found that he had no trophic changes and that all peripheral nerves in both lower extremities were normal. Thus, the examiner stated that the peripheral nerve conditions did not impact the Veteran's ability to work because there was no current EMG evidence of peripheral neuropathy or radiculopathy. In sum, the 2010 examination found only minimal neurologic abnormalities, and the 2018 examiner's opinion of no more than mild impairment was consistent with the examination findings at that time. Moreover, the recent 2020 examination specifically noted that there was no electrodiagnostic evidence of neuropathy. The Board accepts that the Veteran is competent to report on his observable symptomatology. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this matter. Further, although the Veteran may believe that he meets the criteria for a higher disability rating for each extremity, his complaints along with the medical findings do not comport with the assignment of a higher evaluation, as explained above. The Board acknowledges that the Veteran uses an assistive device due but this is due primarily to his service connected low back disability. In any event, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Accordingly, the claim is denied. There is no doubt to resolve. 38 C.F.R. § 5107(b); 38 C.F.R. § 4.3. 4. Entitlement to an initial compensable rating for a surgical scar, SP lumbar discectomy The Veteran's surgical scar, SP lumbar discectomy is rated under 38 C.F.R. § 4.118, Diagnostic Code 7802 for scars, other than burn scars, not of the head, face or neck that are not associated with underlying soft tissue damage, which provides for a 10 percent rating only if the area involved is 144 square inches (929 sq. cm.) or greater. In every instance where the schedule does not provide a zero (0) percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran's PO lumbar scar has been superficial, without damage to underlying tissue, and has not been painful or unstable. In essence, it has been asymptomatic. In fact, at the VA dermatology examination on October 8, 2020, he reported that he had "no problem with my scar that I know of" and the examiner specifically noted that medical records since December 2009 were silent for complaints of unstable or painful scar and for any assessment of an abnormal scar. A VA spinal examination on October 3, 2018 and the October 2020 VA dermatology examination found that the scar was not painful or unstable and did not have total area equal to or greater than 39 sq. cms. Rather, the 2020 VA dermatology examination found that it was superficial, linear, and 3 cms. long by 0.5 cms. wide, with an approximate total area of 1.5 sq. cms. and no underlying tissue damage or limitation of function. Because the preponderance of the evidence clearly establishes that the PO lumbar scar has been asymptomatic and not productive of any functional impairment, the criteria for a compensable rating under Diagnostic Code 7802 are not met which, under 38 C.F.R. § 4.31, requires the assignment of a noncompensable disability rating. There is no doubt to be resolved in this matter. 5. Entitlement to an effective date prior to October 3, 2018 for service connection for peripheral neuropathy of the RLE Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The implementing regulation clarifies this to mean that the effective date of an evaluation and an 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 the later." 38 C.F.R. § 3.400. It is contended that the proper effective date for service connection for RLE peripheral neuropathy should be December 4, 2009, when the Veteran filed a claim for service connection for his service connected low back disability, particularly because this is also the date granted for service connection for LLE radiculopathy, and it is asserted that he had neuropathy of both lower extremities at that time. The Board concludes that notwithstanding that the Veteran file a claim in December 2009 for low back disability and disorders of each leg, which he described as being pain stemming from his low back, the evidence did not demonstrate that he had RLE peripheral neuropathy until it was clinically demonstrated and diagnosed on VA examination on October 3, 2018. The Veteran's initial claim for compensation for an inservice back injury was received on August 15, 1977. No reference was made to radicular or peripheral neuropathic symptoms. By letter of September 14, 1977, he was notified of a rating decision that month, which denied his claim. The Veteran again filed a claim for service connection for residuals of a back injury on May 11, 1979, and again no reference was made to radicular or peripheral neuropathic symptoms. The application to reopen that claim was denied in January 1980. A subsequent application to reopen the claim for service connection for residuals of a back injury, VA Form 21-526, was received on December 4, 2009, in which he related having had a back injury and leg nerve damage, with pain in his back and legs during service. He also related having had recurring back injuries after service, including a motor vehicle accident on March 4, 2006 in which he reinjured his back and required surgery in July 2007. An accompanying December 4, 2009, letter from this then representative stated that he desired service connection for, in part, "back injury with nerve damage bilateral leg condition." The Veteran also submitted a letter at that time stating that since an inservice injury he had had pain in his low back and his legs. Received with the December 4, 2009, application to reopen were private clinical records. These included multiple statement of Dr. P, who reported in a June 27, 2007 statement that the Veteran had had back and leg pain since a March 4, 2006 motor vehicle accident (MVA) and an MRI showed a herniated nucleus pulposus at L5-S1 on the left. A July 26, 2007, statement reflects that since a discectomy for L5-S1 herniated disc the Veteran had had resolution of left lower extremity radicular pain. An August 21, 2007 statement shows that the Veteran had done well since a July 9, 2007 discectomy with only some residual back pain but he no longer had any lower extremity pain. A treatment note from that physician of that same date stated that the Veteran was neurologically intact and he denied having any lower extremity symptoms. Although an October 3, 2018 VA neurology examination indicated that peripheral neuropathy of each lower extremity had been diagnosed in 2008, a VA examination on September 22, 2010 found that all sensations in the RLE, i.e., to vibration, position, pain to pinprick, and light touch, were normal; strength was normal throughout the RLE; and there was normal muscle tone and no atrophy. The examiner diagnosed lumbar IVDD and associated left L5-S1 radiculopathy; however, although the examiner considered the Veteran's complaint of pain radiating down both legs, in the absence of clinical findings there was no diagnosis of any neurologic pathology in the Veteran's RLE. It was not until the October 3, 2018 VA neurology examination that an examiner rendered a diagnosis of mild incomplete paralysis of the external popliteal (common peroneal) nerve in each lower extremity. Accordingly, considering post-service private clinical records and VA clinical records, it was not until the October 3, 2018 VA neurology examination that it was shown, on a "facts found" basis that the Veteran had RLE peripheral neuropathy. In this regard, the Veteran's complaints of RLE pain, alone, were insufficient to establish that he actually had some form of neuropathy associated with his low back disorder, even when coupled with his lay belief that the pain was due to his low back disorder. This is because he lacks the education, training, and expertise to render a diagnosis. Because the law prescribes that the effective date shall be the later of the date of receipt of claim or the date entitlement is shown on a facts found basis, and because in this case the facts found basis is after the receipt of claim, the proper effective date for service connection is the date of the October 3, 2018 VA examination. The preponderance of the evidence is against the claim for an earlier effective date for service connection; therefore, there is no doubt to be resolved. REASONS FOR REMAND 1. Entitlement to a TDIU rating In compliance with the April 2020 Board remand, the RO sent the Veteran and his attorney a July 13, 2020 letter requesting that if he believed that he was entitled to compensation at the 100 percent rate by reason of being unable to secure and follow a substantially gainful occupation due to service-connected disabilities, he should complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. He was also requested to have each of his past employers, as identified in the VA Form 21-8940, complete VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, and also to provide information regarding his work history, to include a statement as to his current employment status. There was no response from neither the Veteran nor his attorney. Nevertheless, in a March 16, 2021 letter, the Veteran's attorney requested extraschedular TDIU consideration under 38 C.F.R. § 4.16(b) for any period of time in which the Veteran did not meet the requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a). However, the Board must note that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Veteran and his attorney should cooperate in fulfilling the terms of the April 2020 Board remand by fulfilling the requests stated in the July 3, 2020 RO letter. The matter is REMANDED for the following action: The RO should again ask the Veteran to complete a VA Form 21-8940, Application for TDIU, and obtain clarification from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.