Citation Nr: 1455167 Decision Date: 12/15/14 Archive Date: 12/24/14 DOCKET NO. 97-06 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for lumbosacral strain and scoliosis prior to May 10, 2011. 2. Entitlement to an effective date earlier than April 29, 2011, for the grant of a separate 20 percent rating for left lower extremity radiculopathy of the sciatic nerve. 3. Entitlement to an effective date earlier than April 29, 2011, for the grant of a separate 10 percent rating for right lower extremity radiculopathy of the sciatic nerve. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 19, 2011. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from April 1960 to January 1965. This appeal to the Board of Veterans Appeals (Board) arises from an October 1996 rating action that granted service connection for a low back disability and assigned an initial 40 percent rating from January 1990. This appeal also comes to the Board from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that granted a separate 20 percent rating for left lower extremity radiculopathy of the sciatic nerve and a separate 10 percent rating for right lower extremity radiculopathy of the sciatic nerve, effective May 19, 2011. In addition, the RO granted a TDIU, effective from May 19, 2011. The matter of entitlement to a TDIU for the period prior to May 19, 2011, remains for appellate consideration. In February 1997 and April 1999, the Veteran testified at hearings before hearing officers at the RO. In June 1999, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. By decisions of February 2000 and February 2005, the Board remanded this case for further development of the evidence and for due process development. By decision of December 2007, the Board denied an initial rating in excess of 40 percent for lumbosacral strain with scoliosis and radiculopathy. The Veteran appealed the denial to the Court. By April 2009 Order, the Court vacated that portion of the Board's December 2007 decision that denied an initial rating in excess of 40 percent for lumbosacral strain with scoliosis and radiculopathy, and remanded the matter to the Board for compliance with instructions contained in a March 2009 Joint Motion for Partial Remand. By decision of September 2009, the Board again denied an initial rating in excess of 40 percent for lumbosacral strain with scoliosis and radiculopathy. The Veteran again appealed the denial to the Court. By April 2010 Order, the Court vacated the Board's September 2009 decision, and remanded the matter to the Board for compliance with instructions contained in an April 2010 Joint Motion for Vacatur and Remand of the appellant and the VA Secretary. In September 2010 and again in August 2011, the Board remanded this case to the RO for further development of the evidence and for due process development An August 2012 RO rating decision granted separate 20 percent and 10 percent ratings for left and right lower extremity radiculopathy, effective May 19, 2011, and entitlement to a TDIU, effective May 19, 2011. Although the August 2012 rating decision granted as claim for TDIU, effective May 19, 2011, that award did not encompass the entire appellate period. The Board inferred a TDIU claim for the appellate period prior to May 19, 2011 and has taken jurisdiction over it. Rice v. Shinseki, 22 Vet. App. 447 (2009), In an August 2013 decision, the Board denied an initial rating in excess of 40 percent for a low back disability for the period prior to May 10, 2011, granted a higher 60 percent rating for a low back disability effective May 10, 2011, found that the criteria for an extraschedular rating for the Veteran's low back disability was not met, denied higher initial ratings for the Veteran's left and right lower radiculopathy of the sciatic nerve, and granted an earlier effective date of April 29, 2011 for the grant of separate ratings for radiculopathy of the right and left lower extremities. The Board also remanded the issue of entitlement to a TDIU for the period prior to May 19, 2011, for additional development. The Veteran appealed the denial of the claim for a rating in excess of 40 percent for the Veteran's low back disability for the period prior to May 10, 2011, and for entitlement to earlier effective dates for the grant of separate ratings for radiculopathy of the right and left lower extremities to the Court. By June 2014 Order, the Court vacated the Board's August 2013 decision specific to those issues only and remanded those matters to the Board for actions consistent with the terms of the May 2014 Joint Motion for Partial Remand. In addition, the appeal as to the remaining issues was dismissed. In a September 2014 supplemental statement of the case, the RO denied entitlement to a TDIU for the period prior to May 19, 2011. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. From the January 22, 1990, effective date of the grant of service connection to September 13,1996, medical evidence does not show intervertebral disc syndrome (IVDS) which was pronounced in degree, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the cite of the diseased disc and little intermittent relief. 2. As of September 14, 1996, the medical evidence shows that the degree of impairment from the Veteran's IVDS more nearly approximates a finding of pronounced IVDS with persistent symptoms and characteristic pain compatible with sciatic neuropathy with intermittent relief. 3. As of September 26, 2003, VA regulations provide for separate ratings for any objective neurologic abnormality associated with a spine disability. However, as the Veteran's low back disability is being assigned a 60 percent rating under the former criteria for rating IVDS, which encompasses both orthopedic and neurological manifestations, separate ratings for radiculopathy are not warranted. Therefore, the issue of earlier effective dates is moot. 4. For the period prior to September 14, 1996, service connection was in effect for a low back disability, rated 40 percent disabling, which does not meet the schedular percentage criteria for a TDIU. The probative evidence shows that for the period prior to September 14, 1996, the Veteran's service-connected low back disability was not of such severity to preclude substantially gainful employment. 5. Resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected low back disability precluded gainful employment consistent with his education and occupational experience, effective September 14, 1996. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent since the January 22, 1990, effective date of the grant of service connection to September 13, 1996, for a low back disability, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.20, 4.27, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (as in effect prior to September 26, 2003); General Rating Formula for Diseases and Injuries of the Spine (as in effect since September 26, 2003). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 60 percent rating, but not higher, for the Veteran's service-connected low back disability, was met for the period beginning on September 14, 1996. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.20, 4.27, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295 (as in effect prior to September 26, 2003); General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 (as in effect since September 26, 2003). 3. The criteria for an effective date earlier than April 29, 2011, for the grant of separate ratings for radiculopathy of the right and left lower extremities have not been met. 38 U.S.C.A. §§ 5103A , 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p) , 3.155(a), 3.400(o) (2014). 4. The criteria for a TDIU for the period prior to September 14, 1996, have not been met. 38 U.S.C.A §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.16 (2014). 5. With resolution of all reasonable doubt in the Veteran's favor, the criteria for a TDIU were met effective September 14, 1996. 38 U.S.C.A §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2004, January 2006, November 2011, and in August 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and attorney suggest actual knowledge of the elements necessary to substantiate all of the claims on appeal. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate claim). Further, the Board notes that where service connection has been granted and an initial rating has been assigned, the claim for service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's initial disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Accordingly, as the notice provided before service connection was granted for the lumbar spine in an October 1996 rating decision and for radiculopathy of the bilateral lower in the August 2012 rating decision was legally sufficient, VA's duty to notify the Veteran in regard to his claims of entitlement to increased initial disability ratings in this case was satisfied. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent August 2012, December 2012, and September 2014 supplemental statements of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). Thus, the Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background An April 1994 VA examination report shows that the Veteran complained of pain radiating to the right lower extremity. The back had no postural abnormality or fixed deformity. Range of motion measurements were forward flexion to 90 degrees, backward extension to 10 degrees, left lateral flexion to 40 degrees, right lateral flexion to 30 degrees, rotation left to 40 degrees, and rotation right to 30 degrees. The examiner noted that there was no demonstrable pain on motion and there was no evidence of neurological involvement. Nevertheless, the doctor concluded that the appellant had herniated disc disease at L4-5. A September 14, 1996, VA examination report reflects that the Veteran complained of daily pain in his lower back with occasional radiation into both thighs. He denied weakness in his lower extremities as a result of the back disability and he also stated that his bowel/bladder functions were normal. Upon completion of the physical examination, the examiner determined that there appeared to be about 30 degrees of flexion of the lumbar spine. He bent only about 20 degrees to the right and 10 degrees to the left. He really didn't extend his back beyond neutral. The Veteran complained of tenderness mainly in the lower back in the left paravertebral region. The impression was chronic low back pain with old compression fracture of L1 and scoliosis of lumbar spine. An April 1998 VA medical record notes that the Veteran reported having pain/numbness in both legs and that the Veteran had it for a while. A May 1998 VA examination included range of motion testing showing flexion to 82 degrees, extension to 15 degrees, left lateral flexion to 35 degrees, right lateral flexion to 41 degrees, and bilateral rotation to 35 degrees. Neurological examination revealed cranial nerves II through XII were intact. Examination of the motor, sensory, and cerebellar systems revealed no abnormalities. The diagnoses included osteoarthritis of the lumbar spine and bilateral lumbar radiculopathy as a cause of his hip and leg pain. An August 1998 VA medical record notes that the Veteran complained of constant back pain. Extension of the back caused bilateral leg tingling sensation, left more involved than the right. Objective findings included that the Veteran had an antalgic gait, listing to the left side and was side bent. X-rays were positive for wedge compression deformity at L1 and there was scoliosis deformity on nonstanding x-rays. He had decreased range of motion in the axial spine, but negative straight leg raising signs. Electrodiagnostic evaluation showed that the left peroneal motor nerve condition velocity was 45.9 meters per second and bilateral lower extremity EMG was normal. The analysis was left meralgia paresthetica (lateral femorocutaneous nerve entrapment), chronic low back pain with scoliosis, traumatic arthritis, L1 wedge compression, and neurogenic bladder with urgency. A March 1999 MRI report found diffuse and severe complex degenerative changes involving the entire lumbar spine and mild stenosis at L1-L2 and L3 with spondylolisthesis at L3-L4. A September 2004 VA examiner report shows that the Veteran complained of pain radiating to his lower extremities. He had no bowel or bladder symptoms and he did not have any incapacitating episodes during the previous twelve months. He reported that he was limited in the amount of time he could be in one position. The examiner noted that the appellant had a slow, limping, antalgic gait and that pain was observed. Examination of the lumbar spine revealed no tenderness and no spasms in the lumbar area and there is very poor muscle tone. The Veteran could flex to 50 degrees but pain started at 5 degrees in any movement of the lumbar spine. Extension was only to 5 degrees and pain occurred at 0. Rotation bilaterally was 20 degrees with pain starting at 5 to 10 degrees bilaterally. Side bending was to 10 degrees with pain starting at 5 degrees. The range of motion of the lumbar spine was limited by pain, fatigue, weakness, and lack of endurance, with some incoordination. There was no ankylosis noted of the lumbar spine. Sensory examination was normal except for an area of the left lateral thigh that had decreased sensory to light touch. The Veteran was found to have degenerative disk disease, spinal stenosis/degenerative disk disease with residual neurogenic claudication that occurs with severe functional loss secondary to pain as the main factor. A February 2008 VA spine examination report shows that on physical examination there were no abnormalities of the spine. The Veteran had normal posture and head position and there was symmetry in appearance. Motor examination was 5/5 in the lower extremities with normal muscle tone. There was no muscle atrophy. Lower extremities had normal sensation. Range of motion testing revealed left lateral flexion 0 to 20 degrees with pain beginning at 15 degrees, with pain on active and passive motion and pain after repetitive use. There was no additional loss of motion on repetitive use. A December 2010 VA examination report shows that the Veteran complained that his back hurt constantly and during humid weather, it hurt more. He felt pain in his lower back and the pain went into both of his legs. He sometimes took over the counter pain medications. He had not had surgery and he did not wear a brace or use any walking aids. The Veteran reported flare-ups, described as severe, like an electric shock when bending to pick up something. He had no additional limitation of motion or other functional impairment during flare-ups. The Veteran denied urinary problems. He indicated that he had numbness, but no paresthesias, leg or foot weakness, falls, or unsteadiness. He had no fatigue, decreased motion, weakness or spasms. He reported stiffness and spine pain in the lower back. The onset was with any movement, sitting too long, and bending. The Veteran described the severity from moderate to severe, constant, on a daily basis with a dull aching pain radiating to both legs. The examiner noted that there were no incapacitating episodes of spine disease. The Veteran was unable to walk more than a few yards. Inspection of the spine revealed normal posture and head position. There was symmetry in appearance and his gait was normal. There was no abnormal spinal curvatures aside from scoliosis, as noted. Physical examination revealed no spasms, atrophy, guarding, or weakness. He had pain with motion and tenderness on both sides. There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing revealed flexion from 0 to 65 without pain and with pain up to 80 degrees. Extension was from 0 to 15 without pain and with pain up to 20 degrees. Left lateral flexion was from 0 to 30 degrees without pain and with pain up to 35 degrees. Left lateral rotation was from 0 to 45 with no pain. Right lateral flexion was from 0 to 25 degrees without pain and with pain up to 30 degrees. Right lateral rotation was from 0 to 45 with no pain. There was objective evidence of pain on active range of motion as well as following repetitive motion. There was no additional limitation after three repetitions of range of motion. Reflexes were normal. Sensory and motor examinations were normal. Muscle tone was normal and there was no muscle atrophy. The examiner stated that the range of movements of the spine appeared within normal limits. He had difficulty walking on heels and was able to squat. The diagnosis was degenerative disc disease of the lumbar spine with mild to moderate loss of function. An associated problem was chronic lumbosacral strain. An April 29, 2011, private medical record noted that the Veteran had chronic low back pain and was experiencing right sciatica. Forward flexion was limited to 30 degrees. Lumbar CT revealed mild to moderate scoliosis convex to the left at lumbar three level. There was severe osteoarthritic involvement of the lumbar spine with marked degenerative disc disease. In a May 10, 2011, letter, W.D. Smith, M.D., stated that he did not find ankylosis of the entire thoracolumbar spine. There was pronounced intervertebral disc disease which corresponded to the Veteran's persistent symptoms with associated right sciatic neuropathy. There were no neurologic deficits. The Veteran had been experiencing incapacitating episodes over the past year. Those have varied in intensity, but had always persisted in excess of six weeks per episode. His activities of daily living such as stair climbing or any attempts at bending, squatting, or kneeling, had been severely affected. In the physician's judgment, the spinal condition precluded the Veteran from being involved in gainful employment. A February 2012 QTC examination report shows that the Veteran complained of numbness and tingling down both legs, left greater than right, on the lateral sides and going past the knee. The Veteran reported constant pain with flare-ups due to weather changes and exercise. He fell down if he bent too fast. Range of motion testing revealed that forward flexion ended at 35 degrees, with evidence of pain at 5 degrees. Extension ended at 5 degrees with painful motion at 0 degrees. Right and left lateral flexion were to 10 degrees with pain, and right and left lateral rotation to 10 degrees with pain. The Veteran performed repetitive-use testing with post test range of motion results showing forward flexion to 10 degrees, extension to 0 degrees, and bilateral lateral flexion and bilateral rotation to 10 degrees. The examiner noted that the Veteran had additional limitation in range of motion following repetitive use testing. The Veteran also had functional loss or functional impairment of the thoracolumbar spine to include less movement than normal, pain on movement, deformity, and interference with sitting, standing, and weight-bearing. The Veteran had tenderness from T12 to the coccyx. He had abnormal spinal contour. He did not have muscle atrophy. Sensory examination revealed decreased sensation in the right foot/toes and absent in the left foot/toes. The Veteran had radiculopathy in the right lower extremity of mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesia and mild numbness. In the left lower extremity, he had moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesia and moderate numbness. The Veteran had bilateral involvement of the sciatic nerve which was mild on the right side and moderate on the left side. He did not have any additional neurologic abnormalities. The Veteran had intervertebral disc syndrome with incapacitating episodes of at least two weeks but less than four weeks. He occasionally used a crutch and a walker and regularly used devices to help him dress and to keep from falling. The examiner noted that the Veteran last worked in 1983 and quit due to his back condition. He had a great deal of trouble with activities of daily life due to his back. In a March 2012 addendum, the examiner stated that the Veteran had been unable to work due to his back condition since 1983. The examiner believed that the back pain, stiffness, and radiating pain prevented the Veteran from standing or sitting for long periods of time. His service-connected disability rendered him unable to secure and maintain gainful employment. He had trouble dressing himself, or putting on trousers, socks, and shoes. He could not sit still or bend over to pick up objects and could not wash dishes at the sink or mow his lawn. In November 2012, the Director of VA compensation provided an opinion regarding extra-schedular consideration. The Director discussed pertinent medical evidence of record. The Director noted that the Veteran's treatment records showed he had numerous non service-connected disabilities that may affect employability including coronary artery disease, gastroesophageal reflux disease, chronic obstructive pulmonary disease, arthritis in the cervical spine, hypertension, carpal tunnel syndrome, anemia, and macular degeneration. The Veteran had good range of motion in the spine, all the way up to the time of the last examination prior to the TDIU being awarded, in December 2010. No incapacitating episodes were noted and the Veteran had not been hospitalized for any extended periods of time due to the spine at the time of the December 2010 VA examination. The Director noted that the December 2010 VA examiner indicated that the Veteran's spinal condition would only cause mild to moderate loss of function. The Director concluded that the totality of the evidence did not support the contention that the Veteran's service-connected back condition was so exceptional or unusual as to render the use of the regular rating schedular standards impractical. Therefore, entitlement to an extra-schedular rating was denied. In addition, there is also no evidence that the Veteran's back condition, alone, would preclude gainful employment in all settings, including a sedentary position. Therefore, the Director concluded that entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) was denied. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2014). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2014). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on that basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that 38 C.F.R. § 4.40 does not require a separate rating for pain but provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). An October 1996 rating decision granted service connection and assigned an initial 40 percent rating for chronic lumbosacral strain with scoliosis, pursuant to Diagnostic Code 5295, effective January 22, 1990. Prior to September 26, 2003, lumbosacral strain was rated under diagnostic code 5295. Under that diagnostic code, a maximum 40 percent rating was warranted when there was listing of the whole spine to the opposite side, a positive Goldthwaite's sign, a marked limitation of forward bending in the standing position, a loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the foregoing with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Alternatively, a 40 percent rating was assigned for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The criteria for intervertebral disc syndrome, in effect prior to September 23, 2002, provided that a maximum 60 percent rating was assigned when the condition was pronounced in degree, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the cite of the diseased disc and little intermittent relief. A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief. A 20 percent rating was assigned for moderate intervertebral disc synd4rome with recurrent attacks. A 10 percent rating was assigned for mild intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). A 60 percent rating was assigned under Diagnostic Code 5285 for the residuals of fractured vertebrae without cord involvement characterized with abnormal mobility requiring a neck brace. A 100 percent rating was assigned for the residuals of fractured vertebrae with cord involvement, where the veteran was bedridden, or where long leg braces were required. A 100 percent rating was also assigned under the provisions of special monthly compensation for lesser involvement with limited motion and nerve paralysis. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002). Under Diagnostic Code 5286, a 60 percent rating was warranted for ankylosis of the spine at a favorable angle. A 100 percent rating was warranted for ankylosis of the spine at an unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). Under Diagnostic Code 5289, a 50 percent rating was warranted for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71(a), Diagnostic Codes 5286, 5289 (2002). Effective September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) will be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate ratings of chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher evaluation. The criteria for rating intervertebral disc syndrome permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. The formula for rating intervertebral disc syndrome based on incapacitating episodes provides for a 40 percent rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2014). For purposes of ratings under Diagnostic Code 5293, 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. Chronic orthopedic and neurologic manifestations means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. When rating on the basis of chronic manifestations, rate orthopedic disabilities using rating criteria for the most appropriate orthopedic diagnostic code or codes. Rate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. Part 4, § 4 .71a, Diagnostic Code 5293, Notes (1), (2) (effective September 23, 2002). Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the rating of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). Either the old or new rating criteria may apply, whichever are most favorable to the veteran, although the new rating criteria are only applicable since their effective date. The RO has considered and notified the Veteran of both the old and the new versions of the relevant criteria. Therefore, the Board's following decision results in no prejudice to the Veteran in terms of lack of notice of the regulatory revisions. Bernard v. Brown, 4 Vet. App. 384 (1993). Under the General Rating Formula for Diseases and Injuries of the Spine, a rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. The criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2014). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2014). For VA purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2014). The terms mild, moderate, and severe are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6 (2013). When rating spine disabilities under the revised criteria, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The Veteran's statements regarding the severity of his back disorder are deemed competent with regard to the description of symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, those statements must be considered with the clinical evidence in conjunction with the appropriate rating criteria. The 40 percent rating in effect for the low back disability is the maximum rating available under Diagnostic Code 5295 for severe lumbosacral strain and under 5292, which contemplates severe limitation of motion of the lumbar spine; therefore, this criterion is also not for application. In addition, because unfavorable ankylosis of the lumbar segment of the spine has not been diagnosed, Diagnostic Codes 5289 and 5240 are not for application. Since the Veteran has not been diagnosed as having favorable ankylosis of the spine, or fusion of the lumbarical segments, then Diagnostic Codes 5286, 5289, and 5241 are also not for application. The Veteran's service medical records do not indicate that the Veteran fractured any of his vertebrae while in service. Therefore, because the Veteran did not fracture his vertebrae, Diagnostic Codes 5285 and 5235 are not for application. 38 C.F.R. Part 4 (2002) and (2014). Thus, the remaining question is whether the Veteran met the criteria for a higher rating pursuant to the rating criteria for intervertebral disc syndrome during any period of the appeal. Resolving all reasonable doubt in favor of the Veteran, the Board finds that effective from the September 1996 VA examination, a 60 percent rating was warranted under the old criteria for Diagnostic Code 5293, effective prior to September 26, 2003, as there is evidence that the Veteran's symptoms more nearly approximated pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a , Diagnostic Code 5293 (effective prior to September 26, 2003). The Board notes that while it was not until an August 1998 medical record that the Veteran's complaints of pain and radiation were related to diagnoses of left meralgia paresthetica (lateral femorocutaneous nerve entrapment), chronic low back pain with scoliosis, traumatic arthritis, L1 wedge compression, and neurogenic bladder with urgency, the Veteran did have similar complaints that he had indicated had been going on for a while and were noted as early as September 1996. Further, the September 1996 VA examiner determined that there appeared to be about 30 degrees of flexion of the Veteran's lumbar spine. It is at that VA examination that the Veteran's low back disability demonstrated a significant increase in disability and while not specifying the specific level of IVDS impairment, the Board will resolve all reasonable doubt in favor of the Veteran that pronounced impairment was supported based on the decrease in range of motion coupled with the Veteran's complaints of tenderness, daily pain and occasional radiation into both thighs. However, prior to the September 1996 VA examination, there is no evidence that can be liberally construed as more nearly approximating the criteria for a 60 percent rating for IVDS under the old criteria. In fact, the April 1994 VA examination shows that while the Veteran complained of radiating pain, he had normal flexion to 90 degrees with no demonstrable pain on motion and no evidence of neurological involvement. Thus, the Board finds that for the period prior to September 1996, the criteria for a rating greater than 40 percent for the low back disability were not met as neurologic involvement was not shown. With regard to establishing loss of function due to pain, the provisions of the general rating schedule for spinal disorders are controlling whether or not there are symptoms of pain, and irrespective whether the pain radiates. While the evidence of record shows varies reports of pain on motion and after repetitions, there is no indication that pain, due to disability of the back, caused functional loss greater than that contemplated by the 40 percent rating for the period prior to September 14, 1996 or in excess of 60 percent thereafter. 38 C.F.R. §§ 4.40, 4.45 (2014). A separate rating for pain is not for assignment and the Veteran was assigned the highest rating available for limitation of motion. The Board also notes that prior to September 23, 2002, orthopedic and neurological manifestations of the Veteran's low back disability were part and parcel of former Diagnostic Code 5293 and separate ratings were not assignable. Therefore assigning separate disability ratings for objective neurological abnormalities manifested in the lower extremities represents pyramiding, as that would consider the same symptomatology already provided for under the 60 percent rating being granted by this decision under former Diagnostic Code 5293. That is specifically prohibited by the Rating Schedule. Because Diagnostic Code 5293 considers neurologic symptoms in the legs, a separate rating for neurologic symptoms in the legs cannot be assigned with a rating pursuant to Diagnostic Code 5293. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2014). However, effective September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) could also be rated by combining under 38 C.F.R. § 4.25 separate ratings of chronic orthopedic and neurologic manifestations with ratings for all other disabilities, whichever method resulted in the higher rating. The range of motion of the Veteran's spine warrants a 40 percent rating under the old diagnostic criteria of Diagnostic Code 5292. That is the maximum rating available under Diagnostic Code 5292. The Veteran has been awarded a separate 20 percent rating for left lower extremity radiculopathy and a 10 percent rating for right lower extremity radiculopathy associated with his service-connected lumbar spine disability, effective April 29, 2011. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2014). When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (not combined) before proceeding with further combinations, or converting to the degree of disability. The bilateral factor is applied to such bilateral disabilities before other combinations are carried out, and the rating for such disabilities, including the bilateral factor, is treated as one disability for the purpose of arranging in order of severity and for all further combinations. 38 C.F.R. § 4.26 (2014). Here, applying the bilateral factor to the Veteran's right and left lower extremity radiculopathy and combining with the 40 percent rating for orthopedic findings would not yield a rating higher than 60 percent. 38 C.F.R. §§ 4.25, 4.26 (2014). The application of 38 C.F.R. § 4.25 results in an overall rating of less than under the new criteria, which when rounded up results in a 60 percent rating. Under these circumstances, the Veteran's low back disability warrants no more than a 60 percent rating under former Diagnostic Code 5293, and it would not be more beneficial to him to have the low back disability separately rated under the revised criteria by assigning independent ratings for his orthopedic and neurologic manifestations. The Board has also considered whether rating of the Veteran's disability under any other former or revised diagnostic codes could result in a rating higher than 60 percent. Pursuant to the former criteria, because the evidence is negative for any spinal cord involvement with fractured vertebra or ankylosis of the whole spine, there is no basis for a higher rating. Similarly, because a 60 percent rating is the maximum rating available under Diagnostic Code 5293 (now 5243), and since the Veteran does not have unfavorable ankylosis of the whole spine, a rating in excess of 40 percent is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (2009). The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point during this appeal has the Veteran's service-connected low back disability been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2014). In November 2012, the Director of VA compensation concluded that the totality of the evidence did not support the contention that the Veteran's service-connected back condition was so exceptional or unusual as to render the use of the regular rating schedular standards. Because the appropriate VA authority has adjudicated entitlement to an extraschedular rating, the Board may now consider the issue. The threshold question is whether the rating criteria adequately contemplate the Veteran's disability. In this case, the Board finds that the schedular criteria provides for higher disability ratings for the Veteran's low back disability on appeal during each period on appeal. However, the Veteran's low back disability has not been shown to have been manifested by symptoms required to achieve the next higher rating during either period. Further, there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization. There is no objective evidence revealing that his low back disability alone caused marked interference with employment, e.g., employers' statements or sick leave records, beyond that already contemplated by the schedular rating criteria. In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's low back disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned. The assigned schedular disability ratings are therefore adequate. Thun v. Peake, 22 Vet. App. 111 (2008). Because the schedular criteria adequately compensated the Veteran for the level of disability and symptomatology of his low back disability during each period on appeal, the threshold for an extraschedular rating were not met and the second step of the inquiry need not be addressed. Earlier Effective Date The Veteran is seeking an effective date prior to April 29, 2011, for the grant of separate ratings for bilateral lower extremity radiculopathy, secondary to the service-connected lumbar spine disability. Generally, the effective date of a rating and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2014). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2014). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 C.F.R. § 3.400(o)(2) (2014). Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400 (0)(2) (2014); Harper v. Brown, 10 Vet. App. 125 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence of record. Quarles v. Derwinski, 3 Vet. App. 129 (1992). An August 2012 RO rating decision granted separate ratings for right and left lower extremity radiculopathy, secondary to service-connected lumbar spine degenerative disc disease, effective May 19, 2011, the date of correspondence that the RO accepted as claim for individual unemployability, which the RO considered a claim for increase. In an August 2013 decision, the Board granted an effective date of April 29, 2011. In this case, the Veteran seeks earlier effective dates prior to April 29, 2011, for separate ratings for bilateral lower extremity radiculopathy. The grant of the separate ratings essentially constituted an increase rating for the symptomatology associated with the Veteran's lumbar spine disability, following the initial appeal for an increased rating for lumbar spine disability. The separate ratings was awarded during the pendency of the Veteran's original appeal for initial increased rating for lumbar spine disability. During the pendency of the Veteran's original initial increased rating appeal, effective September 26, 2003, substantive changes were made to the schedular criteria for rating of diseases and injuries of the spine, including providing for a separate compensable rating for any associated objective neurologic abnormalities under the appropriate diagnostic code. 38 C.F.R. § 4.71a, general rating formula for diseases and injuries of the spine, Note (1) (2014). Prior to the 2003 amendments, the rating criteria for rating lumbar spine disabilities included neurologic impairment under Diagnostic Code 5293. The amended regulations as of September 26, 2003, provided for separate ratings for neurologic impairments affecting each extremity as a result of spine disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2014). The Veteran was assigned the separate ratings for bilateral lower extremity radiculopathy as secondary to his lumbar spine disability in accordance with Note (1) of the amended regulations. In the August 2012 rating decision, the RO specifically noted that it was not until a May 19, 2011, claim when it was found that the lumbosacral spine condition alone met the revised rating criteria for a 40 percent rating without including the radiculopathy. However, in the August 2013 decision, the Board granted a 60 percent rating for intervertebral disc syndrome based on pronounced impairment with persistent symptoms compatible with sciatic neuropathy as well as incapacitating episodes having a total duration in excess of six weeks over the past twelve month. Further, in the current decision, the Board is granting a higher 60 percent rating for the period beginning on September 14, 1996 under the former criteria for rating intervertebral disc syndrome under Diagnostic Code 5293, which includes consideration of both orthopedic and neurological manifestations. A rating assigned under the intervertebral disc syndrome Formula contemplates both orthopedic and neurological manifestations of disc disease, whether under the former or the revised criteria; therefore, assigning a rating under the intervertebral disc syndrome Formula and a separate rating for neurological symptoms, contemplates impermissible pyramiding. 38 C.F.R. § 4.14 (2014). The General Rating Formula provides that for diagnostic codes 5235 to 5243 unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2014). The Notes to rate orthopedic and neurological symptoms separately are listed only under the General Rating Formula. The Intervertebral Disc Syndrome Formula includes no such directives. Moreover, when the revised criteria for rating intervertebral disc syndrome were first amended in September 2002, VA addressed comments that acute incapacitating symptoms should be rated separately from chronic orthopedic and neurological manifestations and then the ratings combined. The commenter gave an example of a veteran having foot drop as a result of IVDS that interfered with earning capacity and also requiring frequent bed rest due to IVDS that affects earning capacity, arguing that the veteran has separate disabilities that should be evaluated separately and then combined, rather than rating based on the higher of the two respective evaluations. In response, VA explained: We have provided alternative methods of evaluation that allow the use of either the chronic manifestations or the total duration of incapacitating episodes for evaluation, whichever results in a higher evaluation. But, in our view, assigning an evaluation under both methods for functional impairment due to IVDS would clearly result in duplicate evaluations of a single disability, and therefore would constitute pyramiding, which is prohibited by 38 CFR 4.14. 67 Fed. Reg. 54345, 54346 (Aug. 22, 2002). Thus, in light of above findings that the Veteran's low back disability warrants a 60 percent rating under former Diagnostic Code 5293, and that it would not be more beneficial to him to have his low back disability separately rated under the revised criteria by assigning independent evaluations for orthopedic and neurologic manifestations, the Veteran is no longer assigned a 40 percent rating under the General Rating Formula for diseases and injuries of the spine. Therefore, separate compensable ratings for radiculopathy are not warranted and the issue of an earlier effective date is moot. Therefore, an earlier effective date for any separate neurologic manifestations must be denied. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2014). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2014). TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a) (2014). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2014). Prior to September 14, 1996 Prior to September 14, 1996, service connection was in effect for a single disability, lumbosacral strain, rated 40 percent. Thus, the Veteran did not meet the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for consideration of a TDIU. However, TDIU may nonetheless be granted, in exceptional cases, pursuant to specifically prescribed procedures, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2014). Therefore, consideration of whether the Veteran was, in fact, unemployable, is still necessary. Here, the Board does not doubt that the Veteran's service-connected low back disability caused the Veteran occupational impairment prior to September 14, 1996. However, the Board finds that the greater weight of the probative evidence is against finding that the Veteran was unable to secure and follow a substantially gainful occupation solely by reason of the service-connected low back disability for the period prior to September 14, 1996. No other disabilities were service-connected prior to September 14, 1996. The Board notes that there is sparse medical evidence prior to September 14, 1996, regarding the extent of the Veteran's low back disability. However, an April 1994 VA examination report shows that while the Veteran complained of pain radiating to the right lower extremity, he had normal forward flexion to 90 degrees. Further, the examiner noted that there was no demonstrable pain on motion and there was no evidence of neurological involvement. Additionally, in November 2012 the VA Director of compensation concluded that there was no evidence that the Veteran's back condition, alone, would preclude gainful employment in all settings, including a sedentary position. In support, the Director noted that treatment records showed that the Veteran had numerous nonservice-connected disabilities that may affect employability including: coronary artery disease, gastroesophageal reflux disease, chronic obstructive pulmonary disease, arthritis in the cervical spine, hypertension, carpal tunnel syndrome, anemia, and macular degeneration. The Board has fully considered the nature of the Veteran's low back disability, as reported by the Veteran and as shown by the objective medical evidence prior to September 14, 1996. The Board finds that the Veteran's reported manifestations and VA examination evidence are probative on the issue of a TDIU for the period prior to September 14, 1996. Moreover, while the service-connected low back disability may have caused some economic inadaptability that is taken into account in the assigned rating for the period prior to September 14, 1996. In this case, the Board finds that the preponderance of the evidence is against a finding of total individual unemployability based solely on his service-connected low back disability. 38 C.F.R. § 4.1 (2014). The preponderance of the medical evidence shows that the Veteran's service-connected low back disability alone, without consideration of any nonservice-connected disability, did not render him unable to secure or follow a substantially gainful occupation prior to September 14, 1996. 38 C.F.R. § 4.16(b) (2014). Accordingly, the Board finds that entitlement to a TDIU prior to September 14, 1996 is not warranted. The preponderance of the evidence is against that claim, which must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of September 14, 1996 In the decision above, the Veteran has been awarded a 60 percent rating for a lumbar spine disability, effective September 14, 1996. Therefore, the Veteran met the minimum percentage requirements of 38 C.F.R. § 4.16(a) as of September 14, 1996. The remaining question is whether the Veteran's service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation as of September 14, 1996. The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a July 1986 form submitted to VA, the Veteran indicated that he became totally disabled in January 1985 after being self employed as a carpenter. He indicated that his illnesses in the past twelve months were his back, blood pressure, and heart, and that in June 1986 he was hospitalized for blood pressure and heart problems. In an October 1996 claim for TDIU, the Veteran stated that he last worked full-time in 1981 and that was when he became too disabled to work due to a back disability. He stated that because of his back, he had to quit construction work and had been unable to work since that time in 1981. In a May 10, 2011, letter, W.D. Smith, M.D., stated that in his judgment, the spinal condition precluded the Veteran from being involved in gainful employment. In a March 2012 addendum opinion, a VA examiner stated that the Veteran had been unable to work due to his back disability since 1983. The examiner believed that the back pain, stiffness, and radiating pain prevented the Veteran from standing or sitting for long periods of time. The service-connected disability rendered him unable to secure and maintain gainful employment. In October 2013, a VA retrospective medical opinion was obtained based on a review of the entire record. The VA physician opined that the Veteran's service-connected thoracic, lumbar, and sacral intervertebral discs with bilateral sciatic neuropathies present in September 28, 2004, in aggregate, more likely than not rendered him unable to secure or follow a substantially gainful occupation from at least September 28, 2004, when objective changes in the spine were documented by diagnostic testing. The VA physician further opined that any date of inability to obtain or maintain gainful employment prior to the noted objective findings present on September 28, 2004, was more likely than not related to the multiple medical nonservice-connected conditions which include chronic obstructive pulmonary disease, atrial fibrillation, coronary artery disease, and gastroesophageal reflux disease, all active problem documented in the record prior to 2004. The Board finds that it is at least as likely as not that as of September 14, 1996, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected low back disability. That finding considers the Veteran's educational and employment history, and the more recent increase to 60 percent for the service-connected back disability, effective September 14, 1996. The Board notes that there is conflicting evidence as to when the Veteran become unable to secure or follow substantially gainful employment due to the service-connected low back disability. While the most recent October 2013 VA examiner opined that the Veteran's service-connected thoracic, lumbar, and sacral intervertebral discs with bilateral sciatic neuropathies, in aggregate, more likely than not rendered him unable to secure or follow a substantially gainful occupation from at least September 28, 2004; there is a converse March 2012 VA opinion that the Veteran has been unable to secure and maintain gainful employment due to his back condition since 1983. In regards to the March 2012 VA opinion, the Board notes that in a July 1986 VA income- net worth and employment statement, the Veteran indicated that he first became totally disabled in January 1985, not in 1983. Furthermore, the October 2013 VA examiner found that prior to September 28, 2004, the Veteran had several nonservice-connected disabilities that contributed to his unemployability and not solely the service-connected back disability. However, in light of the recent grant of a 60 percent disability rating for the Veteran's low back disability from September 14, 1996, the Board resolves all reasonable doubt in favor of the Veteran that based on the increase of severity, his service-connected low back disability rendered him unable to secure or follow a substantially gainful employment as of September 14, 1996. The Board finds that the preponderance of the evidence is against the assignment of a TDIU rating prior to September 14, 1996. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 40 percent for a lumbosacral spine disability prior to September 14, 1996, is denied. Entitlement to a 60 percent rating, but not higher, for a lumbosacral spine disability as of September 14, 1996, is granted. Entitlement to an effective date earlier than April 29, 2011, for the grant of a separate 20 percent disability rating for left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to an effective date earlier than April 29, 2011, for the grant of a separate 10 percent disability rating for right lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to TDIU prior to September 14, 1996, is denied. Entitlement to TDIU as of September 14, 1996 is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs