Citation Nr: 22016383 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 13-03 276 DATE: March 22, 2022 ORDER Entitlement to a rating in excess of 20 percent prior to May 8, 2019 for a lower back disability, and a rating in excess of 40 percent thereafter, is denied. Entitlement to a separate 10 percent rating for right lower extremity radiculopathy as secondary to the lower back disability is granted, from June 6, 2021. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) prior to April 16, 2021 is remanded. FINDINGS OF FACT 1. Prior to May 8, 2019, range of motion testing (ROM), even contemplating repetitive use testing, was not shown to functionally limit the forward flexion of the Veteran's thoracolumbar spine to 30 degrees or less; ankylosis of the spine was not shown; and incapacitating episodes requiring physician-prescribed bed rest having a total duration of at least four weeks during a 12-month period were not shown. 2. Since May 8, 2019, at no time has either ankylosis of the entire thoracolumbar spine or physician-prescribed bed rest having a total duration of at least six weeks during a 12-month period been shown. 3. The probative evidence of record shows that the Veteran has suffered from radiculopathy of the right lower extremity, a neurological manifestation of the Veteran's lower back disability, with mild incomplete paralysis symptoms from June 6, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to May 8, 2019 for a lower back disability, and a rating in excess of 40 percent thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for a separate disability rating of 10 percent, but no higher, for radiculopathy of the right lower extremity from June 6, 2021 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2003 to December 2006. The Board denied the issue of entitlement to a rating in excess of 20 percent prior to May 8, 2019 and a rating in excess of 40 percent since May 8, 2019 for a lumbar spine disability in October 2019. In November 2020, this matter was vacated and remanded by the Court of Appeals for Veterans Claims (CAVC) pursuant to the parties' joint motion, to obtain additional VA medical records since 2014, to obtain private medical treatment records, and to obtain a new VA examination of the Veteran's back. In accordance with the CAVC order, the Board remanded the case in April 2021 to the Agency of Original Jurisdiction (AOJ) with directives to carry out the three requirements noted above. The additional VA medical records and private treatment records were received in April 2021. The new VA examination was conducted in June 2021. The matter has now been returned to the Board for adjudication. The Board finds there has been substantial compliance with the April 2021 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146047 (1999). 1. Entitlement to a rating in excess of 20 percent prior to May 8, 2019 for a lower back disability, and a rating in excess of 40 percent thereafter The Veteran contends he is entitled to a rating in excess of 20 percent prior to May 8, 2019 for a lower back disability, and a rating in excess of 40 percent thereafter. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affect his/her ability to function under the ordinary conditions of daily living, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, 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."). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell, 25 Vet. App. at 43. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Diagnostic Criteria Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or, for Diagnostic Code 5243, the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes requiring bed rest and having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes requiring bed rest having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes requiring bed rest having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes requiring bed rest having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). This standard cannot be satisfied by self-imposed bed rest, i.e., a veteran's testimony or contention that he or she needed to lie in bed due to the pain or symptoms will be insufficient to meet the criteria. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation 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; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, at Note 5. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The Board notes that VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a ). As pertinent to the present appeal, effective February 7, 2021, degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. 85 Fed. Reg. 76462 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a , DC 5242). Further, a rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76462-64 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, DC 5243). However, the Board notes that there have been no substantive changes to the General Rating Formula during the period on appeal. Analysis Here, there is no evidence the Veteran has ever been placed on physician-prescribed bed rest. The Veteran asserted in his March 2011 notice of disagreement that he had been placed on bed rest twice; however, the only indication of bed rest is from an April 2008 VA examination, in which the VA examiner noted that bed rest and medication were reported to be alleviating factors for his back pain, but did not note bed rest had actually been prescribed by a physician. The Veteran's representative also argued in a March 2021 submission and a February 2022 post-remand submission that the Veteran warranted a 60 percent rating based on a diagnosis of intervertebral disc disease, as indicated on the May 2019 VA examination. However, the June 2021 VA examination did not confer a diagnosis of IVDS. Regardless, because the prescription of bed rest is a foundational requirement of a rating under this criteria, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not warranted, and the Veteran's lumbar spine disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran was awarded an increased evaluation of his lower back disability of 40 percent disabling based on a May 8, 2019 VA examination. The Veteran had filed a claim in May 2010 seeking an increased rating in excess of 20 percent for his lower back disability, and was afforded a VA examination in July 2010. Although the July 2010 examination was subsequently found to be inadequate for failure to address additional functional limitations during flare-ups, this does not render all testing results and information contained in the report inadequate. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"). There is no credible evidence that the examiner's documented results were inaccurate or that the other information contained in the report is inaccurate. It is one of the few records reflecting range of motion measurements. Therefore, the Board will consider it along with other evidence of record, including VA treatment records, private treatment records, and lay statements. At the July 2010 examination, the Veteran demonstrated forward flexion to 50 degrees, extension to 15 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees. There was no evidence of muscle weakness on muscle testing, and no sensory, motor, or neurological deficits were noted. The examiner did indicate that repetitive motion further decreased the forward flexion of the spine from 50 to 40 degrees due to increasing pain. The Veteran reported flare-ups occurring every three weeks and lasting around 24 hours. There was no ankylosis of the spine. No VA examinations of the back were conducted between the July 2010 examination and the May 2019 examination. The majority of the Veteran's VA medical treatment records do not contain any demonstrable range-of-motion measurements. For example, chiropractic records from 2009 through 2014 generally note that active range of motion was "limited in the sagittal plane due to pain," or "limited at mid-range with left sided muscle tightness" or "limited and painful in all planes." However, some VA chiropractic medical records from September and October 2009 annotate that the Veteran's range of motion in forward flexion was 45 degrees. This range substantially exceeds the criterion of forward flexion under 30 degrees as required for a 40 percent rating. An MRI in October 2012 showed no disc herniation, thecal sac stenosis, or neural foraminal stenosis. Although the records reflect consistent complaints of pain, the Veteran reported that his pain was well controlled by repeat treatments of radio frequency ablation (RFA). In September 2014, the Veteran reported his lower back pain at a 6 out of 10 on the pain scale. In November 2013, the Veteran reported his pain score as a 6 out of 10. In October 2013, he reported his pain score as an 8 out of 10. In November and December 2010, he reported his pain score as an 8 out of 10. The Veteran's previously submitted private treatment records reflect consistent complaints of pain and tingling down the left leg which improved with sacroiliac RFA, but similarly fail to show the requisite limitation of motion necessary to support a rating in excess of 20 percent prior to May 8, 2019, noting only a "moderate" restriction of range of motion. The private records also reflect the pain was well-controlled and that the Veteran received near-complete relief of pain for 6-8 months following each RFA procedure. The Veteran's lay statements described significant pain, but similarly fail to show that his range of motion was limited by that pain (or other factors) to such a degree as to warrant an increased rating in excess of 20 percent prior to the May 2019 examination. Post-2014 VA medical records were associated with the record per remand directive, but upon review of the same, it appears the Veteran did not seek treatment from VA during this time. An October 25, 2018 notation in the Veteran's medical records reflects a communication note: "The [patient] is part of the lost user campaign; [patient] states he is seen by a private provider." The most recent of the private medical records submitted is from August 2018. It comments that the Veteran's pain levels had improved since undergoing RFA. Lumbar spine examination noted did not include any annotation of range of motion, stating only "no lumbar or sacral tenderness. Strength strong lower extremities. Normal gait." A July 2018 note reflects administration of RFA at L5-S3. A June 2018 note annotates lumbar spine examination as follows: "tenderness to palpation present in the left lower lumbar gluteal sacroiliac region. Strength is strong in the lower extremities bilaterally." No range of motion measurements were conducted or reflected. The chief complaint was "left lumbar gluteal pain tingling down the left lower extremity through the calf" and repeat RFA was scheduled, with notation that the prior RFA procedure had resulted in 6-8 months of near-complete relief. A June 2017 note annotates lumbar spine examination as follows: "strong strength is present in the lower extremities. Tenderness in the lower left lumbar, left sacroiliac region." No range of motion measurements were conducted or reflected. Lidoderm patches were prescribed and stretching was recommended. The May 2019 VA examination diagnosed the Veteran with a lumbosacral strain, Intervertebral Disc Syndrome (IVDS), and left lower extremity sciatic radiculopathy. Active range of motion was noted to be 40 degrees forward flexion, and 15 degrees in all other planes of motion. Repetitive use testing indicated reduction in forward flexion to 35 degrees. It was estimated that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time and result in additional functional loss limiting forward flexion to 30 degrees and limiting range of motion in the other planes of motion to 10 degrees. It was estimated that pain and lack of endurance associated with flare-ups would further decrease forward flexion to 25 degrees, and other planes of motion to 5 or 10 degrees. Accordingly, based on estimated forward flexion less than thirty degrees during flare-ups, a rating of 40 percent was assigned from the date of the examination. Although the case was remanded with directives to include another VA examination, this examination was not itself found to be inadequate, as the rationale for remand was based on missing medical records not associated with the Veteran's file. The evidence of record does not support a finding that the Veteran's disability more closely approximated the criteria for a 40 percent rating prior to the May 2019 VA examination; even at that examination, his active range of motion and repetitive use in flexion remained in the 20 percent rating criteria threshold, and it was only the examiner's estimation of the likely impact of flare-ups that placed him within the criteria for a 40 percent rating. In consideration of the evidence of record, there is no factually ascertainable reduction in range of motion prior to the May 2019 examination that could warrant an increased rating prior to that time, even considering the Veteran's reports of flare-ups occurring every three weeks at the July 2010 examination. While the Board does not discount the pain and difficulty experienced during these flare-ups, their relative infrequency does not indicate that this was the Veteran's predominant disability picture at the time of the July 2010 examination. Put another way, the Veteran's report at that examination of flare-ups once every three weeks for 24 hours comprised four to five percent of a three-week time period. During the remaining 95 percent of the time when he was not experiencing flare-ups, his flexion more nearly approximated the 50 degrees found by the VA examiner. As there is no other probative evidence of limitation of range of motion satisfying the criteria for a 40 percent rating prior to the May 2019 VA examination, and the Veteran's medical records do not reflect reports of significant limitation of motion, a rating in excess of 20 percent is not warranted prior to the May 2019 VA examination. Nor does the evidence support a rating higher than 40 percent disabling since the May 2019 examination. In connection with the remand, the Veteran was afforded another VA examination in June 2021. The examiner indicated she had reviewed the Veteran's VA medical records and private medical records, including a recent MRI in February 2021. The June 2021 VA examiner diagnosed the Veteran with L5-S1 disc disease with chronic lumbosacral strain and moderate mechanical low back pain. The examiner also diagnosed the Veteran with bilateral lower extremity radiculopathy. The examiner indicated that the Veteran was currently experiencing a flare-up during the examination. The Veteran reported flare-ups lasting for hours occurring primarily at night, and resulting in throbbing, sharp, radiating pain. The Veteran's active and passive ranges of motion in forward flexion were noted to be 5 degrees. Extension was zero degrees, lateral flexion was 5 degrees bilaterally, right lateral rotation was 5 degrees, and left lateral rotation was 10 degrees. All active and passive ranges of motion exhibited pain. The Veteran declined to perform repetitive use testing due to fear of pain. The examiner did not indicate more limited ranges of motion during flare-ups or after repetitive use, as the Veteran was being examined during a flare-up. The examiner noted the Veteran had localized tenderness, guarding, and muscle spasm, which did not result in abnormal gait or abnormal spinal contour, but caused redness, soreness, and sensitivity to touch. Additional contributing factors of disability were noted to be pain with prolonged usage and movements like bending and walking. Getting out of bed was noted to be painful. Standing and sitting more than five minutes at a time during flare-ups was noted to be painful. Bilateral lower extremity radiculopathy was noted, with moderate "constant pain" bilaterally due to radiculopathy. No ankylosis of the spine was found. It was noted that the Veteran regularly used a cane for assistance in ambulation. The examiner noted that surgery had been recommended. The examiner concluded that the Veteran's "disease has now advanced, causing him more physical pain and now causing bilateral lower extremity radiculopathy, which is limiting the veteran's physical mobility and causing him more pain." The June 2021 examination and the additional records received since the Board's remand continue to support an evaluation of 40 percent disabling. The Veteran reports extreme pain, but pain, even at extreme levels, is contemplated in the schedular criteria. Pain in and of itself cannot result in a higher rating without additional functional limitation. Moreover, the VA examiner did annotate that the Veteran's pain and flare-ups caused decreased functionalities and decreased range of motion which corresponded with an evaluation of 40 percent disabling. The evidence does not establish that the Veteran's lower back disability resulted in ankylosis of the spine or was the functional equivalent of ankylosis, even with consideration of functional impairment. Therefore, a 50 percent rating is not warranted. Moreover, to the extent the Veteran complains of shooting, sharp, and tingling pain, this may be attributable to his neurological symptoms and radiculopathy rather than his mechanical lower back disability. The Veteran is currently already separately rated at 20 percent for his left lower extremity radiculopathy. As discussed in the subsequent section, the evidence also warrants an evaluation and separate award for right lower extremity radiculopathy. Although the Board is sympathetic to the Veteran's heightened and reported constant levels of pain, the evidence does not support an increased rating in excess of 20 percent prior to May 8, 2019, nor a rating in excess of 40 percent since May 8, 2019, for the Veteran's lower back disability. The Board concludes that as the evidence persuasively favors against the claim for an increased rating of the Veteran's lower back disability, it is not in approximate balance, and the benefit of the doubt doctrine is not applicable. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to a separate 10 percent rating for right lower extremity radiculopathy as secondary to the lower back disability In claims concerning diseases and injuries of the spine, the Board must consider, as part and parcel of that claim, whether there is any associated neurological impairment, to include radiculopathy of the lower extremities. See 38 C.F.R. § 4.71a, Note (1) to Diagnostic Codes (DCs) 5235-42. Moreover, the VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Although the issue of entitlement to a separate evaluation for radiculopathy of the right lower extremity has not been formally certified to the Board, the issue has been raised through the record and is inextricably intertwined with the issue pertaining to the evaluation of the Veteran's lower back disability. The Board finds that it is appropriate to take jurisdiction over the intertwined issue as part of the matters currently before the Board. See 38 C.F.R. § 19.35 (indicating that a VA Form 8, Certification of Appeal, is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue). Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve (lower extremity radiculopathy) is rated at 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy is rated 60 percent disabling. Complete paralysis of the sciatic nerve, where the foot dangles and drops, with no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Upon review of the evidence, the Board finds that in addition to his service-connected left lower extremity radiculopathy, the Veteran also suffers from mild radiculopathy of the right lower extremity. As this is a neurological manifestation caused by the Veteran's lower back disability, a separate compensable evaluation for radiculopathy of the right lower extremity is warranted. A February 2021 MRI indicated moderate to severe left facet arthropathy at L5-S1 and moderate arthropathy on the right side, along with conjoined left L5 and S1 nerve roots. There were also mild disk bulges with bilateral facet arthropathy at L3-L4 and L4-L5 and mild bilateral neuroforaminal narrowing at L4-L5. No spinal stenosis was found, and no acute osseous abnormalities were noted. The Veteran was diagnosed with bilateral lower extremity radiculopathy of the sciatic nerves at the June 2021 VA examination. The examiner noted that the Veteran's lower back disability had worsened, causing additional pain and now causing bilateral lower extremity radiculopathy. The straight leg raising test yielded a positive result bilaterally. As to the right lower extremity symptoms, the examiner noted the Veteran suffered from constant moderate pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. The right-sided facet arthropathy, disk bulges, and neuroforaminal narrowing as identified on the February 2021 MRI report are likely to result in nerve impingement, and lend support to the examiner's diagnosis of right-sided radiculopathy. While the left-sided radiculopathy has been a persistent complaint throughout the Veteran's medical history, and much of his past treatment has been directed at treating his left-sided symptoms, the right-sided radiculopathy is a recent diagnosis with lesser degree of severity and, as shown by imaging studies, lesser underlying pathology compared to the left side. Although the left-sided radiculopathy is rated as moderate incomplete paralysis under Diagnostic Code 8520, the subjective symptoms of right-side numbness, tingling, and pain more closely approximate the criteria associated with a "mild" incomplete paralysis evaluation under Diagnostic Code 8520. A mild evaluation is typically assigned for any sensory impairments including subjective complaints of pain, numbness, and tingling. While the June 2021 examination noted that the Veteran had moderate pain due to his right lower extremity radiculopathy, his numbness and paresthesias/dysesthesias were both determined to be mild. As such, the Board finds the evidence shows that the Veteran's right lower extremity radiculopathy is overall mild in severity. The evidence does not establish total absence of sensation that would warrant a rating of moderate incomplete paralysis of the sciatic nerve, nor any motor dysfunction, atrophy, or lost muscle strength due to peripheral nerve disease that would warrant an evaluation of moderately severe incomplete paralysis. Therefore, an initial rating of 10 percent, but no higher, for right lower extremity radiculopathy is granted from June 6, 2021. REASONS FOR REMAND Entitlement to a total disability based on individual unemployability (TDIU) prior to April 16, 2021 is remanded. The evidence of record raises a claim of entitlement to a TDIU prior to April 16, 2021. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Here, the evidence reflects that the Veteran expressly raised a claim for TDIU through a submission in August 2021, in which he contends he cannot work due to both his lower back disability and his PTSD. The Board notes that the issue of TDIU is moot after April 16, 2021, as the RO granted a 100 percent rating for PTSD and awarded special monthly compensation (SMC) at the housebound rate. The evidence reflects that the Veteran was employed until March 2020. He indicated he lost his job due to the COVID-19 pandemic. It is unclear whether the Veteran has worked at all since that time. The June 2021 VA examiner indicated that standing for more than 30 minutes would exacerbate the Veteran's back pain and that the Veteran would need to take frequent breaks at work, but the Veteran's comments during the examination reflect that standing or sitting for more than 5 minutes was nearly intolerable due to pain levels. The Veteran submitted a self-statement in August 2021, in which he contends his service-connected disabilities of PTSD and his lower back condition, in combination, preclude him from obtaining or maintaining employment. In this statement, he expressed significant homicidal ideations interfering with occupational and social functioning. The Veteran's representative, in an April 2021 submission, had also contended that the Veteran was unable to maintain gainful employment and that he met the criteria for a TDIU. The Board finds that the evidence reasonably raises the question of entitlement to a TDIU rating. However, the evidence of record is insufficient to adjudicate a claim for TDIU, as the record is unclear regarding the Veteran's employment history or employability; therefore, remand is required. The Veteran has not been provided adequate notice of the requirements to substantiate a TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran with notice of the requirements to substantiate a claim for TDIU. Ask him to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development necessary. 2. After completion of the above and any other development indicated, adjudicate the issue of entitlement to a TDIU prior to April 16, 2021, to include referral to the Director, Compensation and Pension Service, if warranted. If the benefit sought is denied, provide a supplemental statement of the case to the Veteran and his representative and provide an appropriate amount of time for response. Thereafter, return the case to the Board for review. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.