Citation Nr: 22019952 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 08-23 156A DATE: April 3, 2022 ORDER Entitlement to an initial evaluation higher than 20 percent prior to June 15, 2013, and to an evaluation higher than 40 percent on and after that date for service-connected lumbar spine degenerative disc disease is denied. Entitlement to an initial evaluation higher than 40 percent for service-connected left leg radiculopathy is denied. REMANDED Entitlement to a separate evaluation for right leg radiculopathy prior to September 15, 2014, is remanded. Entitlement to an initial evaluation higher than 40 percent for service-connected right leg radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 15, 2013, the Veteran's lumbar spine disorder was characterized by a history of muscle spasms and mild deviation of the spine to the right, but forward flexion was not limited to less than 30 degrees. Nor was the Veteran incapacitated up to for symptoms analogous to internal vertebral disc syndrome for four weeks or more and ankylosis is not shown. 2. On and after June 15, 2013, the Veteran's lumbar spine disorder resulted in forward flexion of the spine to less than 30 degrees, the evidence does not demonstrate ankylosis and the evidence demonstrates that he does not have intervertebral disc syndrome or symptoms akin to the severity of such resulting in incapacitating episodes for at least 6 weeks during a 12-month period. 3. The Veteran's left leg radiculopathy, at worst, most closely approximates moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to June 15, 2013, the criteria fora rating in excess of 20 percent for lumbar spine degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 2. From June 15, 2013, the criteria for a rating in excess of 40 percent for lumbar spine degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 3. The criteria for a disability rating in excess of 40 percent for left leg radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2002 to September 2003, with prior service in the Reserves since 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2013. The matter was most recently remanded by the Board in March 2021. During the pendency of the appeal, an October 2020 rating decision granted a separate evaluation for left lower extremity radiculopathy from the date of the grant of service connection for the underlying lumbar disorder. Thus, that issue is fully granted and no longer remains in appellate status. Entitlement to Ratings in Excess of 20 Percent prior to June 15, 2013, and in excess of 40 Percent thereafter for Lumbar Spine Degenerative Disc Disease. The Veteran contends that his lumbar spine disorder warrants disability ratings in excess of 20 percent prior to June 15, 2013, and in excess of 40 percent thereafter. The Veteran's degenerative disc disease is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for 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. 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. 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. Id. at Note 5. For intervertebral disc syndrome (IVDS), Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 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. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. These issues were considered by the Board in an April 2018 decision which was later vacated, in part, by the U.S. Court of Appeals for Veterans Claims following joint motion for remand by the parties to the appeal. While portions of the Board's analysis were found to be in error at that time, as much of the facts remain identical, some of the information below is the same. The Veteran first underwent a VA spine examination in March 2004. At that time, the Veteran reported a history of having back muscle tightness and numbness on the left side that he relieved by walking around. On examination, the Veteran accomplished lumbar flexion to 85 degrees, extension to 35 degrees, lateral flexion to 40 degrees, and rotation to 35 degrees. With tandem walking, the Veteran had mild incoordination. The examiner diagnosed lumbar-sacral pain with a history of muscle spasm and small anterior spurs at L2 and L4 with mild deviation of the spine to the right that caused mild to moderate functional impairment. The Veteran reported that he used to drive trucks but his Neurontin did not allow him to operate heavy machinery. He denied bowel or bladder impairment beyond stricture and stated that a provider had told him two weeks prior that he felt the Veteran had nerve or muscle damage on the inside of his leg secondary to his back. The examiner described the functional impairment due to chronic intermittent lumbar sacral pain as mild to moderate. An October 2004 VA physical therapy record documented the Veteran had chronic low back pain that was made worse with walking, and radiating pain down his left leg. The flexibility of the spine was limited in anterior bending and lateral rotation. An October 2006 and November 2006 private treatment records from Dr. MC documented the Veteran had ongoing lower back pain with a full range of motion, and his gait was normal. It was noted that the Veteran had lumbago, left sciatica and lumbar arthritis. In a January 25, 2007, private treatment record received February 26, 2007, from Dr. JD documented the Veteran had significant back pain secondary to arthritis and was severely limited by his pain. He was only able to forward flex to 40 degrees and had minimal ability to extend and laterally rotate the trunk. His back problems interfered with his ability to perform his job where he worked on military aircraft doing sheet metal repair. The Veteran underwent a VA spine examination in July 2007. The Veteran reported that he was employed repairing helicopters at Fort Rucker. He described problems with repetitive stooping and bending and with prolonged standing or climbing, and was unable to carry heavy weight. The Veteran reported ongoing lower back pain associated with malaise, numbness, and weakness with flares of pain every other day relieved by medication and sitting. He had an antalgic gait and had fallen twice over the prior year, and had also undergone a series of epidural blocks. The Veteran accomplished 66 degrees of range of motion in flexion and 20 degrees in extension, with pain on motion. There was increased pain, fatigue, weakness, exam, and lack of endurance on repetitive testing. On examination the Veteran had a positive left side left leg test. The examiner did not report evidence of ankylosis or incapacitating episodes, and diagnosed lumbar spine degenerative disc disease. It was noted that the Veteran worked as a contractor repairing helicopters. He reported he was no longer able to mow grass, bowl, or fish and had problems with repeated bending or stooping at work. He reported associated numbness of his left lower extremity. A November 2007 letter from the Veteran's private chiropractor, Thompson Family Chiropractic, documented a history of lower back pain with numbness and tingling in his lower extremities with a diagnosis of lumbar spine neuritis or radiculitis. A December 2009 VA treatment note documented the Veteran reported he could not take his back pain medication and work. A January 2010 VA primary care note documented the Veteran continued to have chronic lower back pain and was quite active and working two jobs. In an otherwise unrelated examination for mental health disorders, the Veteran reported that he was working full time as a helicopter mechanic. He explained during that examination that he had lost some days of work because of his chronic back pain. The Veteran underwent a VA spine examination in July 2011 and the examiner noted diagnoses of degenerative disc disease and chronic low back pain. The Veteran reported his back was constantly flared every hour of every day, and the examiner noted that the pain described was a chronic issue rather than a flare. The Veteran reported that his back pain was aggravated by physical activity, and that he was unable to sit or stand for long periods, which impacted his ability to do his job. Initial range of motion testing showed forward flexion limited to 50 degrees with objective evidence of painful motion at 10 degrees, and extension limited to 10 degrees with painful motion at 5 degrees. The Veteran was able to perform three repetitions without additional limitation of range of motion in flexion or extension. Overall, the functional impairment of the spine was characterized as less movement than normal and pain on movement. The Veteran reported that he was unable to sit or stand for a long period of time which impacted his ability to do his job. The Veteran had decreased sensation to light touch on both thighs, and a left leg straight leg test was positive. The examiner indicated the Veteran had no radicular pain or other signs or symptoms of radiculopathy. The examiner stated that the Veteran did not have intervertebral disc syndrome. A November 2011 Hughston Clinic record documented the Veteran had lower back pain that radiated to his bilateral legs. The pain was worse at night, and when standing or walking. The Veteran had normal gait and full range of motion of the lumbar spine, and radiographs were significant for severe facet arthrosis at L4-5 and moderate facet arthrosis at L5-S1, otherwise unremarkable study of the lumbar spine. The Veteran received nerve block injections that did not relieve his symptoms. At a March 2012 VA hernia examination, the Veteran reported that due to hernia and back pain he reported to work late about twice per month, but had not missed any full work days. At times, he received an accommodation in his tasks to allow for less overhead reaching or lying supine, and light lifting. A July 2013 private record from Dr. FB documented the Veteran had an exacerbation of lumbar spine pain after a fall at work. He also reported pain down his leg into his foot that was tingling, burning, and constant. Examination showed poor range of motion and a positive straight leg test on the right. The Veteran was referred for epidural injections and physical therapy. July 2013 treatment notes from Southern Bone and Joint Rehab documented the Veteran had constant back pain and numbness and tingling in lower extremities. His back pain was exacerbated by a fall at work that had occurred on June 15, 2013. Examinations showed that the Veteran had 15 percent of normal flexion of the lumbar spine and 30 percent of normal extension. Normal flexion is to 90 degrees, therefore 15 percent equates to 13.5 degrees in flexion. At his August 2013 hearing, the Veteran testified that he had been placed on light duty due to a recent fall, and had difficulty walking, sitting, or standing. He reported he was unable to take pain medication because his job did not allow any medication with side effects of grogginess. He reported difficulty sleeping due to the pain, and that his pain was unrelieved by physical therapy or epidurals. A September 2013 private rehab outcome summary documented the Veteran underwent testing to see the degree of functional impairment due to his work-related fall, and the results were invalid due to symptom and disability exaggeration, significant non-organic signs, and failed validity criteria that represented a conscious effort to demonstrate a greater degree of pain and disability than was present. Lumbar range of motion testing had shown the maximum lumbar flexion angle to be 15 degrees and the maximum extension angle to be to 5 degrees. Supine straight leg testing was positive bilaterally. The examiner reported the Veteran's results showed he was capable of light to medium physically demanding work, but this was not felt to be accurate due to the poor validity of the test. For example, the examiner noted that during the gait examination portion the Veteran had decreased speed and an antalgic gait, but during other portions of the examination he was noted to ambulate with no gait deviations and good speed. The Veteran was recommended to be released to full work duty. June through August 2014 treatment notes from Hughston Clinic documented the Veteran continued to work as a helicopter mechanic and was able to perform his job, but had some days where it was extremely difficulty due to back pain with radiating leg pain. The assessment was lumbosacral spondylosis and radiculitis. In June 2014, the Veteran was only able to accomplish forward flexion to 5 degrees in active range of motion, and extension was limited to 0. The Veteran underwent another VA spine examination in September 2014, at which time the examiner noted diagnoses of degenerative disease of the lumbar spine with radiculopathy and intervertebral disc syndrome which the examiner stated had been diagnosed in 2014. The Veteran reported flare-ups that impacted the function of the back and caused the Veteran to have difficulty performing his usual occupation. Range of motion testing showed flexion limited to 30 degrees with painful motion beginning at 0 degrees, and extension to 30 degrees or greater with pain at 0 degrees. After three repetitions, extension was additionally limited to 15 degrees. Straight leg testing was positive bilaterally and indicated involvement of the sciatic nerve. The examiner reported the Veteran had intervertebral disc syndrome with at least 6 weeks total of incapacitating episodes over the prior 12 months. The examiner indicated the Veteran had reduced muscle strength in the bilateral lower extremities and additional limitation of functional impairment during flare-ups characterized by extension additionally limited to 15 degrees. The Veteran stated he was unable to provide an estimate on the additional degree of functional impairment in terms of range of motion loss. October 2014 treatment records from the Hughston Clinic document the Veteran underwent cervical spine and left shoulder surgery in September 2014 and the physician indicated he was unable to work for 6 weeks. The Veteran applied for SSA disability benefits claiming that he was unable to work due to problems with his lower back, neck, shoulders, wrist, and PTSD. January 2015 SSA documents report The Veteran had the following exertional limitations: occasionally lifting 20 pounds, frequently lifting 10 pounds, standing or walking 6 hours, sitting for 6 hours, and occasional pulling and pushing. In May 2015, the Veteran wrote that he had 7 major surgeries over the past 5 years and eventually had to medically retire. He reported that since September 2014 he had neck and left shoulder surgery, and a nerve block for his lower back. He stated he had been approved for SSA disability benefits because he could no longer climb, bend, lift, or work overhead. In his July 2015 application for increased compensation based on unemployability, the Veteran reported his lower back prevented him from securing or following a substantially gainful occupation. He reported he last worked full time in September 2014 as a sheet metal mechanic and teacher. At a June 2015 VA mental health appointment, the Veteran stated that he had not been able to work since his shoulder surgery in March. In July 2015, the Veteran's employer returned an information form indicating that the Veteran went on medical leave on September 20, 2014. Prior to that he had worked full time as an aircraft structural mechanic. The employer did not indicate whether the Veteran had lost any time during the prior 12 months due to disability, or whether any concessions were made to the Veteran by reason of age or disability. The Veteran underwent another VA back examination in November 2015. The examiner diagnosed degenerative arthritis of the spine, degenerative disc disease of the spine, and lumbar radiculopathy. The Veteran reported ongoing back pain that worsened with prolonged immobility either sitting or standing. He had chronically decreased back motion and ongoing radicular symptoms of numbness, tingling, and burning down the back of his legs. He did not report any flares of back pain. Forward flexion was limited to 30 degrees and extension to 10 degrees. The Veteran had pain on motion and there was evidence of pain with weight bearing. There was no ankylosis, and the Veteran did not have intervertebral disc syndrome. A February 2017 VA primary care note documented the Veteran had lower back pain he rated at a 10 out of a scale of 1 to 10. He had normal range of motion. An April 2017 VA treatment record documented the Veteran was doing very well following his February 2017 lumbar spine surgery with reduced back pain. The Veteran underwent another VA examination in May 2017 and the examiner diagnosed degenerative lumbar spine disease status post laminectomy in 2017. The Veteran reported he underwent lumbar spine fusion surgery in February 2017. He reported that since his lumbar spine surgery he has soreness and stiffness in his hips with rainy weather and bilateral radiculopathy. He reported he was unable to lift over 25 pounds and could not do repetitive bending, but his surgery had resolved his back pain. He reported flare-ups of back symptoms described as increased stiffness in the back. He reported that due to back symptoms he could do no heavy lifting or repeated bending, and could only walk short distances. The Veteran accomplished 35 degrees in forward flexion on initial range of motion and 10 degrees in extension. There was no pain noted on examination in active or passive motion, or evidence of pain in weight bearing. He was able to perform three range of motion repetitions. The examiner indicated that lack of endurance significantly limited functional ability with repeated use over a period of time, but was unable to describe the additional loss of range of motion without direct observation at the time. There was no ankylosis, and the Veteran did not have intervertebral disc syndrome. The Veteran had scars related to his lumbar spine surgery; however, those scars were not painful, unstable, did not have a total area equal to or greater than 39 square centimeters, and were located on the lumbar spine area. The examiner indicated that due to the Veteran's lumbar spine disorder, he had limitations in sitting, bending, lifting over 25 pounds, or climbing. At an August 2017 VA appointment, the Veteran had normal range of motion of the back and a normal gait. At a February 2020 examination, the Veteran reported flareups with back pain every time the weather changed and with cold weather. the Veteran reported flare-ups which were moderate to severe rated from a six to seven out of ten in pain. It was noted that the Veteran had limited range of motion and mobility despite flareups. He explained that he was told by his physician not to do any long-term standing, sitting, and climbing because he was a fall hazard, he also stated he was not to bend or stoop. He stated that at any length of time he had to stop and stretch to continue. He stated that he used to go hunting but no longer could and that he could not bowl like he used to and do yard work it had to be in short spells. He stated that he could no longer walk, or run or do anything. Range of motion testing demonstrated forward flexion to 25 degrees and extension to five degrees. Repetitive testing demonstrated decreased motion after three repetitions, further limiting forward flexion to 20 degrees. Pain was described as limiting flexion to 15 degrees with repeated use over time. Flare-ups were described as limiting flexion to 10 degrees. The examiner was asked to comment as to whether the Veteran's lumbar spine disability symptoms approximated the symptom severity of ankylosis or intervertebral disc syndrome with incapacitating episodes of at least six weeks considering any additional loss of less movement, weakness, fatigability, incoordination, or lack of endurance. The examiner stated that there was no complete immobility of the lumbar spine, which was ankylosis. However, the examiner stated that there was evidence of intervertebral disc syndrome. The Veteran stated that when he overexerted himself a flareup would result in incapacitation lasting between two to four days, which caused loss of function, however there were no reports of episodes of incapacity which lasted six weeks or longer. Analysis The foregoing evidence demonstrates that, prior to June 15, 2013, the criteria for an initial 20 percent rating are not met as forward flexion of the spine was not limited to 30 degrees or less, and he did not have ankylosis or intervertebral disc syndrome with incapacitating episodes. See July 2007 and July 2011 spine examinations. While the Veteran reported constant flares of back pain, the July 2011 VA examiner explained his reports of flares were consistent with chronic symptoms rather than true flares. Although pain was noted at 10 degrees in flexion at the July 2011 VA examination, the Veteran was able to accomplish 50 degrees in flexion and had no reduction in range of motion following repetitive use testing. The Board does not find that the evidence of painful motion at 10 degrees in flexion warrants a higher rating as the Veteran was nevertheless able to accomplish flexion to 50 degrees. Also, private treatment records from November 2011 showed the Veteran had normal range of motion of the spine. As noted above, higher ratings are not available for the Veteran's spine symptoms during this time for ankylosis, as ankylosis is not demonstrated by the record. Inasmuch as the Veteran's February 2020 examiner compared the severity Veteran's symptoms to intervertebral disc syndrome, a higher evaluation is not available for the Veteran during this period based on that disability in excess of 20 percent because a higher, 40 percent rating requires incapacitating episodes having a total duration of at least four weeks. The evidence of record demonstrates some incapacitating episodes but the evidence of record simply does not describe such leading to a total duration of incapacitation up four weeks, instead demonstrating intermittent incapacitation lasting a few days. In sum, the Board finds that the evidence demonstrates that forward flexion of the lumbar spine was not limited to 30 degrees or less, even when considering additional functional limitation upon use, and there was no evidence of ankylosis or intervertebral disc syndrome, thus the criteria for an evaluation higher than 20 percent prior to June 15, 2013, are not met, and the 20 percent rating adequately describes the described functional impairment to include as due to pain. 38 C.F.R. § 4.71a DC 5242. On and after June 15, 2013, the evidence does not show that entitlement to an evaluation higher than 40 percent is warranted for the period on and after June 15, 2013, as the Veteran did not have ankylosis, even when considering additional functional loss, and the evidence does not show the Veteran has intervertebral disc syndrome or symptoms akin to the severity of such with incapacitating episodes totaling at least 6 weeks during a 12-month period. At no point has the Veteran been diagnosed with ankylosis of the lumbar spine or has limitation of motion be so restricted due to functional loss upon use or flare-ups that it approximates ankylosis. The Board notes that the September 2014 VA examiner diagnosed intervertebral disc syndrome with incapacitating episodes lasting at least 6 weeks over the prior 12 months. Significantly, however, the 2014 examiner did not cite to any evidence or testimony to explain that conclusion, and the examiner's findings are inconsistent with the other evidence of record; namely, September 2013 private rehabilitation documents showing the Veteran was released for full work duty and August 2014 private treatment records documenting that the Veteran only had some days where it was difficult to work due to back and leg pain. While the evidence shows the Veteran was unable to work for 6 weeks in 2014 due to cervical spine surgery, the Veteran is not service connected for a cervical spine disability. The November 2015 and May 2017 VA examiners also clarified that the Veteran did not have intervertebral disc syndrome. Finally, as noted above, while the February 2020 examiner found intervertebral disc syndrome, incapacitation for two to four days was found, but incapacitation due to intervertebral disc syndrome with a total duration of at least six weeks during the past year, was not. In sum, the evidence does not demonstrate that the Veteran has intervertebral disc syndrome with incapacitating episodes totaling 6 weeks and there is no evidence of ankylosis to warrant an evaluation higher than 40 percent at any point during the appeal period. The evidence does not demonstrate bowel or bladder impairment due to the Veteran's lumbar spine disorder which would result in an additional disability rating. Finally, the Veteran is not entitled to a compensable rating for his service-connected lumbar scars related to the February 2017 lumbar spine surgery as the scars are not painful or unstable; do not cover a total area greater than 6 inches; and are not located on the head, neck, or face. See 38 C.F.R. § 4.118, DCs 7800-7804. The issue of consideration of an extraschedular rating was raised by the Veteran through his representative in a February 2021 appellate brief. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings including loss of full motion in the spine and pain. Diagnostic Code 5242 does not specifically list all the Veteran's symptoms; however his symptoms have been compared to the incapacity described in diagnostic code 5243, even while the evidence only demonstrates the presence of intervertebral disc syndrome in some findings but not others. Further, the Veteran is additionally in receipt of associated neurological symptoms. See Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019). Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. Entitlement to a Rating in Excess of 40 Percent for Left Lower Extremity Radiculopathy. The Veteran contends that he is entitled to higher rating for his left lower extremity radiculopathy. Following a rating decision assigning an earlier effective date, the Veteran is now in receipt of service connection for radiculopathy of the left lower extremity associated with lumbar spine degenerative disc disease, rated at 40 percent disabling, from September 25, 2003. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Thus, for a higher schedule rating in this case for the Veteran's radiculopathy of the left lower leg, the evidence must demonstrate severe incomplete paralysis or complete paralysis, as described above. 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 of 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. Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran first underwent a VA spine examination in March 2004. The Veteran reported a history of having back muscle tightness and numbness on the left side that he relieved by walking around. The Veteran was found to have full strength of 5/5 in the legs with subjective numbness which, at the time was found to be likely secondary to ilioinguinal nerve damage, rather than due to the spine. An October 2004 VA physical therapy record documented the Veteran had chronic low back pain that was made worse with walking, and radiating pain down his left leg. October 2006 and November private treatment records from Dr. MC documented the Veteran had ongoing lower back pain. He was treated with epidurals. The Veteran underwent a VA spine examination in July 2007. On examination the Veteran reported associated numbness to his left lower extremity the Veteran had a positive left side left leg test. Leg strength was 5/5, distal sensation and pulses were intact. A November 2007 letter from the Veteran's private chiropractor, Thompson Family Chiropractic, documented the Veteran had a history of lower back pain with numbness and tingling in his lower extremities with a diagnosis of lumbar spine neuritis or radiculitis. The Veteran underwent another VA spine examination in July 2011 and the examiner noted diagnoses of degenerative disc disease and chronic low back pain. The Veteran reported that his back pain was aggravated by physical activity, and that he was unable to sit or stand for long periods, which impacted his ability to do his job. The Veteran had decreased sensation to light touch on both thighs, and a left leg straight leg test was positive. The Veteran had normal muscle strength and no muscle atrophy. The examiner indicated the Veteran had no radicular pain or other signs or symptoms of radiculopathy. A November 2011 Hughston Clinic record documented the Veteran had lower back pain that radiated to his bilateral legs. The pain was worse at night, and when standing or walking. The Veteran received nerve block injections that did not relieve his symptoms. A July 2013 private record from Dr. FB documented the Veteran had an exacerbation of lumbar spine pain after a fall at work. He also reported pain down his leg into his foot that was tingling, burning, and constant. Examination showed poor range of motion and a positive straight leg test on the right. The Veteran was referred for epidural injections and physical therapy. July 2013 treatment notes from Southern Bone and Joint Rehab documented the Veteran had constant back pain and numbness and tingling in lower extremities. At the August 2013 hearing, the Veteran testified that he experienced a burning sensation through his left groin, down his left leg. A September 2013 private rehab outcome summary documented the Veteran underwent testing to see the degree of functional impairment due to his work-related fall, and the results were invalid due to symptom and disability exaggeration, significant non-organic signs, and failed validity criteria that represented a conscious effort to demonstrate a greater degree of pain and disability than was present. Supine straight leg testing was positive bilaterally. June through August 2014 treatment notes from Hughston Clinic documented the Veteran continued to work as a helicopter mechanic and was able to perform his job, but had some days where it was extremely difficulty due to back pain with radiating leg pain. The assessment was lumbosacral spondylosis and radiculitis. The Veteran underwent another VA spine examination in September 2014, at which time the examiner noted diagnoses of degenerative disease of the lumbar spine with radiculopathy. The examiner indicated the Veteran had reduced muscle strength in the bilateral lower extremities. The Veteran underwent a VA examination of the peripheral nerves in November 2015. The Veteran was diagnosed at that time with ilioinguinal neuropathy and lumbar radiculopathy. During the examination the Veteran reported intermittent moderate pain, moderate paresthesias and/or dysesthesias and moderate numbness. Muscle strength was found to be normal, sensation was decreased, there were no trophic changes. The Veteran was found to have moderate, incomplete paralysis of the sciatic nerve. No muscle atrophy was found. October 2016 treatment records included the Veteran's complaints of low back and buttock pain. The Veteran reported bilateral lower extremity radiation. Muscle strength was normal and there was no atrophy. Treatment notes between November 2011 and August 2015 from the Hughston Clinic noted normal muscle strength and bulk of the left lower extremity. November 2016 records from the Hughston Clinic note that the Veteran reported constant stabbing, burning, and tingling in the lower back which radiated bilaterally into his legs stopping at the mid-calf. The Veteran reported subjective weakness in the left leg. At a May 2017 examination of the spine, muscle strength testing was normal and no muscle atrophy was noted. Sensory examination was normal and straight leg testing was negative. The examiner found that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. During a November 2018 examination, the Veteran reported numbness in the left thigh, however the Veteran's symptoms were related to his non-service-connected inguinal hernia. Muscle strength testing was normal. Nerve findings were normal however it was noted that no EMG test was conducted and the Veteran did not provide EMG/NCV findings showing radiculopathy of the lower extremities. The examiner stated, "there was no objective evidence on day of exam that supports Veteran's claim of ...lower extremity radiculopathy." Following efforts to clarify whether the Veteran's neurological symptoms were based upon damage to the ilioinguinal nerve or radiculopathy, the Veteran's claims file was provided for review for a medical opinion in February 2020. The examiner stated that the Veteran's symptoms were more consistent with lumbar radiculopathy effecting other nerve groups, as opposed to ilioinguinal nerve damage. Physical examination of the Veteran's spine disorder in February 2020 found normal muscle strength, and no muscle atrophy. Sensation to touch was decreased on the left side and the Veteran had a positive straight leg test on the left. The Veteran was found to report moderate constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness in the left lower extremity. The Veteran was reported as having moderately severe radiculopathy in the left lower extremity. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by symptoms more severe than those described in the schedular, 40 percent, rating criteria. In so finding, the Board notes that severe incomplete paralysis with marked muscular atrophy is not demonstrate by the record, with much of the record demonstrating no atrophy whatsoever and complete paralysis is not demonstrated. Although there appears to be reduced muscle strength, this does not more nearly approximate marked muscular atrophy. As such, a 40 percent rating most closely approximates the Veteran's symptoms. The Board acknowledges the Veteran's assertion that his symptoms are not contemplated under the schedular criteria. However, given the broad nature of § 4.120, finding symptoms not contemplated by 'impairment of motor, sensory or mental function' language presents quite a challenge." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). Moreover, under Diagnostic Code 8520, the rating criteria does not explicitly include particular symptoms, but instead describes impairment or severity level. As a result, Diagnostic Code 8520 contemplates the entire range of impairment resulting from the Veteran's left lower extremity disability. For this reason, the Board finds that the Veteran's specific symptoms and their severity are contemplated by the rating schedule. See, e.g., Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018). REASONS FOR REMAND Entitlement to a separate evaluation for right leg radiculopathy prior to September 15, 2014, is remanded. Entitlement to an initial evaluation higher than 40 percent for service-connected right leg radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. In October 2019, the Board remanded the issue of whether separate evaluations for left and right leg radiculopathy was warranted prior to September 15, 2014, for a medical opinion. In its remand, the Board cited a diagnosis of lumbar spine neuritis or radiculitis reported in a November 19, 2007, note from a private treatment provider, who also documented the Veteran had a history of numbness and tingling in his lower extremities Following remand, the Veteran was afforded a new examination in February 2020, the examiner determined that the Veteran's left lower extremity symptoms were more consistent with lumbar radiculopathy as opposed to ilioinguinal nerve damage. In October 2020, an examiner reviewed the Veteran's record and determined that, based on May 2017 examination findings, right lower extremity radiculopathy could not be substantiated following a laminectomy/fusion. Regrettably, neither examiner addressed the Veteran's documented complaints and radiating symptoms down his right leg as well as his left, and whether these symptoms were demonstrative of right lower extremity radiculopathy prior to September 15, 2014. As such, a new opinion is necessary Finally, because a decision on this issue could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Furnish the claims file to an appropriate clinician for review: The examiner is requested to opine whether lumbar radiculopathy in the right lower extremity was present prior to November 2007, and if so, based on which medical evidence. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38C.F.R. §§3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 2. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.