Citation Nr: 1743440 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 09-16 23 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a compensable initial rating for atopic asthma. 2. Entitlement to an initial rating in excess of 20 percent disabling for right lower extremity numbness, pain, and tingling. 3. Entitlement to an initial rating in excess of 10 percent disabling for left lower extremity numbness, pain, and tingling. 4. Entitlement to an increased rating in excess of 40 percent disabling for chronic muscular strain superimposed on postoperative and degenerative instability (lumbar spine disability). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1974, November 2000 to December 2000, and June 2002 to September 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO) in October 2008 (granting service connection for atopic asthma with a noncompensable evaluation) and October 2012 (granting an initial rating of 20 percent disabling for right lower extremity numbness, pain, and tingling and an initial rating of 10 percent for left lower extremity numbness pain and tingling; and denying an increased rating for a lumbar spine disability). FINDINGS OF FACT 1. The most probative evidence of record reflects that the Veteran had a ratio of Forced Expiratory Volume in one second (FEV-1) to Forced Vital Capacity (FVC) (FEV-1/FVC) between 56 to 70 percent prior to July 24, 2006 and FEV-1 between 40 to 55 percent predicted thereafter. 2. Prior to May 7, 2012, the Veteran's right lower extremity numbness, pain, and tingling was moderate in severity. As of May 7, 2012, the evidence is at least in equipoise that his right lower extremity disability was moderately severe. 3. Prior to May 7, 2012, the Veteran's left lower extremity numbness, pain, and tingling was mild in severity. As of May 7, 2012, the evidence is at least in equipoise that his left lower extremity disability was moderately severe. 4. The Veteran has not had unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine during the appeal period. 5. The evidence is at least in equipoise that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment from June 13, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, prior to July 24, 2006 and 60 percent, but no higher, thereafter for atopic asthma have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (Code) 6602 (2016). 2. The criteria for a rating of 40 percent, but no higher, for right lower extremity numbness, pain, and tingling are met as of May 7, 2012, but not before. The criteria for a rating in excess of 20 percent have not been met prior to May 7, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8620 (2016). 3. The criteria for a rating of 40 percent, but no higher, for left lower extremity numbness, pain, and tingling are met as of May 7, 2012, but not before. The criteria for a rating in excess of 10 percent have not been met prior to May 7, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, Diagnostic Codes 8620 (2016). 4. The Veteran's lumbar spine disability does not warrant a rating in excess of 40 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016). 5. The criteria for entitlement to TDIU from June 13, 2012 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In consideration of Correia v. McDonald, 28 Vet. App. 158 (2016), the Board notes that the Veteran would need to demonstrate unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine to be granted an increased rating. The factors outlined in Correia are not pertinent to the symptoms which would necessitate a finding of unfavorable ankylosis, such as limited line of vision, breathing limited to diaphragmatic respiration, etc. Therefore, there is no prejudice to the Veteran in relying on the VA spine examinations of record and such reports are adequate for rating purposes because they include all findings necessary to decide this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Ratings a. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). b. Atopic asthma Factual Background The Veteran filed a claim for asthma in June 2005. In March 2005, the Veteran's pulmonary function tests (PFT) produced the following results: FEV-1 of 97 percent of predicted value on trial one and 87 percent on trials two and three. FVC results were 58 percent predicted on trial one, and 53 percent on trials two and three. FEV-1/FVC results were 77 percent for the first trial, and 69 percent for trials two and three. In May 2005, the Veteran was taking Coumadin, Vicodin as needed, Zyrtec daily, albuterol as needed, QVAR daily, Foradil daily, and ibuprofen every six to eight hours. In July 2005, he was taking QVAR, Coumadin, Toradol, Zyrtec every day, and Nasarel. In January 2006, PFTs showed FEV-1 results at 64, 63, and 63 percent predicted for his three trials and FVC results at 70, 72, and 73 percent predicted for his three trials. The FEV-1/FVC is 70 percent for trial one, 67 percent for trial two, and 68 percent for trial three. In July 2006, PFT results were: FEV-1 was 53 percent predicted pre-medication and 77 percent predicted post-medication; FVC was 61 percent predicted pre-medication and 91 percent predicted post-medication. FEV-1/FVC was 62 percent pre-medication and 61 percent post-medication. The Veteran's medication was QVAR, Foradil, albuterol, and Maxair. He reported that he wheezes four to five times a week. In August 2006, his dosage for QVAR was increased to four puffs daily. During a September 2008 VA respiratory examination, the Veteran reported that he had a flare up of asthma at least once per month since 2002 and his bailout medicine, Maxair, usually resolved his wheezing within ten minutes. His medications included Zyrtec, Singulair, Nexium, Symbicort (three puffs twice a day), and Maxair on an emergency basis. PFTs showed FEV-1 as 46 percent of normal and FVC as 74 percent of normal. The examiner opined that the Veteran showed a good response to a bronchodilator, but that he was suffering from a severe obstructive lung defect at the present time. March 2009 PFT results, after taking albuterol, were FEV-1 at 57, 57, and 53 percent predicted for his three trials and FVC was 66, 68, and 67 percent predicted for his three trials. After calculation, the FEV-1/FVC is 68 percent for the first trial, 66 percent for the next trial, and 62 percent for last trial listed. The private physician noted that the Veteran had severe obstruction. In June 2009, private medical records reflect that the Veteran was given prednisone "again x 3d for another asthma exacerbation." The last dose was two days previously. During a January 2014 VA respiratory examination, the Veteran reported that his symptoms got worse after climbing stairs or extensive walking. The examiner reported that the Veteran did not have a respiratory condition requiring the use of oral or parenteral corticosteroid medications, but that he took inhalational bronchodilator therapy daily and inhalational anti-inflammatory medication daily. He further noted that the Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months. PFT results for FEV1 were 70 percent predicted pre-bronchodilator and 76 percent post-bronchodilator; FVC was 68 percent pre-bronchodilator and 80 percent post-bronchodilator. FEV-1/FVC was 103 percent and FEV-1/FVC was 96 percent. The examiner indicated that the FVC test results most accurately reflected the Veteran's level of disability. As of approximately August 2012, the Veteran was prescribed, cetirizine, esomeprazole, formoterol fumarate, and mometasone furoate. In approximately September 2013, he was prescribed budesonide/formoterol. Analysis The Veteran is currently rated under Code 6602, pertaining to asthma, bronchial. A 10 percent rating is assigned for FEV-1 of 71 to 80 percent of predicted value, or FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A (maximum) 100 percent rating is assigned for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. There does not appear to be a regulatory requirement that only the results of post-bronchodilator testing be used when evaluating under Code 6602. This Code appears to be expressly excluded from such requirement. See generally 38 C.F.R. § 4.96(d) and § 4.97, Code 6602. Because the Veteran had FEV-1/FVC results of 69 percent as of his March 2005 PFT, he is entitled to at least a 30 percent rating from the start of the appeal period (June 2005). His January 2006 PFT (FEV-1 of 63 percent predicted and FEV-1/FVC of 67 percent) continues his entitlement to at least a 30 percent rating. As of July 2006, the Veteran had an FEV-1 result of 53 percent predicted. Consequently, he is entitled to at least a 60 percent rating as of the date of that PFT (July 24, 2006). His September 2008 VA respiratory exam and March 2009 PFT, with FEV-1 results of 46 percent and 53 percent, respectively, continues entitlement to that 60 percent rating. Although the Veteran's January 2014 VA respiratory examination demonstrated better PFT results (FEV-1 of 70 percent and FEV-1/FVC of 96 percent), the examiner stated that the Veteran's FVC result was the best indicator of his disability, not his FEV-1 and FEV-1/FVC results. Additionally, these results appear contrary to the Veteran's pattern of worsening asthma throughout the appeal period. Accordingly, the Board does not assign these results as much weight as the other PFT results of record, and finds that the Veteran's rating of at least 60 percent disabling should continue up to the present time. Therefore, based on PFT results alone, the Veteran should be rated at 30 percent prior to July 24, 2006, and 60 percent thereafter. After considering additional criteria under Code 6022 other than PFT results, the Veteran's rating should not otherwise be increased. The record reflects that the Veteran was not regularly prescribed any systemic (oral or parenteral) corticosteroids during the appeal period. For example, QVAR is defined as a trademark for preparations of beclomethasone dipropionate. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1568 (32nd ed. 2012). Beclomethasone depropionate is a synthetic glucocorticoid administered by inhalation. Id. at 207. A glucocorticoid is a type of corticosteroid. See id. at 789. Nasarel is the trademark for a preparation of flunisolide, id. at 1232, which is a synthetic glucocorticoid administered by inhalation. Id. at 720. Budesonide is an anti-inflammatory glucocorticoid used by inhalation to treat asthma. Id. at 258. Maxair is a trademark for a preparation of pirbuterol acetate, id. at 1114, which is used as a bronchodilator. Id. at 1450. Finally, albuterol is administered by inhalation as a bronchodilator. Id. at 45. Therefore, the preponderance of the evidence is against increasing the Veteran's ratings beyond that warranted based on PFT results. Although the record reflects that the Veteran was given prednisone (a synthetic glucocorticoid administered orally, id. at 1508) at least three times as of June 2009, this does not constitute daily use of such medication; consequently, it cannot be used as a basis to increase the Veteran's rating from 60 percent (based on PFT results) to 100 percent during that year. The record does not reflect at least monthly visits to a physician for required care of exacerbations or more than one attack per week with episodes of respiratory failure. In July 2006, the Veteran reported that he "wheezes" four to five times a week, but the Board does not consider it evidence of respiratory failure because a medical professional has not diagnosed such events as respiratory failure. The Veteran does not appear to have asserted he experiences such respiratory failure, and the January 2014 VA examiner opined that the Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months. Additionally, the medical record does not reflect continued treatment for exacerbations prior to July 2006. Consequently, the preponderance of the evidence is against increasing the Veteran's claim based on respiratory attacks or exacerbations. Because the Veteran's asthma has its own Code is not otherwise rated by analogy, a rating assigned under a different Code is impermissible. See Copeland v. McDonald, 27 Vet. App. 333 (2015). Accordingly, a 30 percent rating prior to July 24, 2006, and 60 percent rating thereafter is warranted for the Veteran's atopic asthma. c. Right and left lower extremity numbness, pain, and tingling Factual Background The Veteran filed his claim for his lower extremities in January 2010. During that month, the Veteran stated that he had weakness going up and down the stairs as well as bilateral paresthesias below the knees to his foot. His right foot numbness had improved. In February 2010, the Veteran's private physician opened that he had mild to moderate bilateral acute radiculopathy. In March 2010, after spine surgery, the Veteran reported progressive improvement of all his lower left extremity symptoms and that his symptoms were not bothering him. He still had some right leg pain which was getting worse. He also reported that he felt weaker in his right leg. During a May 2010 VA spine examination, the Veteran reported that his worst lower extremity pain was in his right leg, and that his left leg had been better since his recent surgery. Numbness at the feet was "quite bothersome" in the right leg, but moderate on the left. In October 2010, the Veteran reported that he had numbness in both legs, but only very intermittent leg pain. In February 2011, the Veteran reported an increase in right leg pain, with significant right leg pain during the previous holiday season, which had since resolved. During a July 2011 VA spine examination, the Veteran reported that both of his legs had numbness and that his right leg had pain. Both feet had pain in the form of muscle cramps and numbness. The worst of the pain was his in right lower extremity. In April 2012, the Veteran's private physician opined that he had mild to moderately severe, chronic bilateral lumbosacral radiculopathy. During a May 2012 VA peripheral nerves examination, the Veteran reported that the numbness in his right foot was increasing and that he was having increasing difficulty negotiating stairs. He reported moderate intermittant pain (usually dull) in the right lower extremity, with severe paresthesias and dysesthesias; these symptoms were mild in the left lower extremity. Numbness was severe in the right lower extremity and moderate in the left lower extremity. The examiner opined that the Veteran did not have muscle atrophy and that the Veteran had mild to moderately severe, chronic bilateral radiculopathy. The examiner further stated that the Veteran cannot sit upright for more than 2 hours at a time and that he was retiring for medical reasons in June 2012. In September 2012, the Veteran's private physician opined that he had mild distal axonal polyneuropathy. In September 2013, the Veteran's private physician opined that he had mild to moderate chronic right L5 and S1 radiculopathy and mild, distal sensory-motor axonal polyneuropathy. In November 2013, after spine surgery, the Veteran reported he had no pain radiating down his legs. During a January 2014 VA peripheral nerves examination, the Veteran reported constant pain in the right lower extremity and constant numbness in both lower extremities. The examiner opined that the Veteran had mild incomplete paralysis in the right and left sciatic nerves. The examiner also found mild incomplete paralysis in the right external popliteal nerve. Due to his lower extremity disabilities, the Veteran could not stand or walk for prolonged periods of time, could not stoop or squat frequently, could not climb stairs or ladders, and could not lift more than 25 lbs. In March 2014, the Veteran stated that he was losing control of his legs. In October 2014, his private physician opined that he had moderately severe, chronic radiculopathy at the right L5 and left L4. During a March 2015 VA spine examination, the examiner opined that the Veteran had constant mild pain and mild numbness in the bilateral lower extremities. The sciatic nerve was affected. There was no muscle atrophy. In January 2016, the Veteran reported that he felt weak and had continuing pain down his right leg. He was very uncomfortable and it worsened the more he was active. Analysis The Veteran is currently rated under Code 8620 for his right and left lower extremity numbness, pain, and tingling disabilities. Diagnostic Code 8620, for neuritis of the sciatic nerve, provides that ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). With regard to rating neurologic disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. There is very little, if any, evidence of complete paralysis or muscular atrophy in either of the Veteran's lower extremities. Accordingly, the preponderance of the evidence is against a finding that the criteria for increases to 80 percent or 60 percent disabling have been met for either leg. Prior to the Veteran's May 2012 VA examination (on May 7, 2012), he reported primarily mild symptoms in his left lower extremity and moderate in his right. Indeed, in February 2010 he reported that his left lower extremity symptoms were not bothering him at all. His complaints of numbness and pain were consistently worse in his right leg than his left and his expressed difficulties were with weakness and navigating stairs. In October 2010 he had only very intermittent leg pain, though he reported numbness. Although in May 2010 he described his right leg pain as "quite bothersome" and moderate in the left leg, the evidence, as described above, more closely approximates the criteria for mild in the left leg and moderate in the right. Accordingly, increased ratings for his lower extremities are not warranted prior to May 7, 2012. The May 2012 VA examiner opined that the Veteran had mild to moderately severe, chronic bilateral lumbosacral radiculopathy in his lower extremities. The evidence thereafter is at least evenly balanced for and against a finding that the Veteran's symptoms in both lower extremities were moderately severe. Accordingly, an increase to 40 percent disabling is warranted in both lower extremities after May 7, 2012. The Board notes that although the January 2014 VA examiner found mild incomplete paralysis in the external popliteal (common peroneal) nerve, the preponderance of the evidence is against a finding that such nerve has been affected, because the other multiple VA examiners did not report this finding. The Board has considered whether a higher rating may be assigned under a different Code, however the same rating scale applies to Codes 8520 (incomplete paralysis of the sciatic nerve) and 8720 (neuralgia of the sciatic nerve). Additionally, a rating for neuralgia, usually characterized by a dull and intermittent pain of typical distribution so as to identify the nerve, has a maximum rating equal to moderate incomplete paralysis, which is lower than the moderately severe rating being assigned. See 38 C.F.R. § 4.124. Additionally, under the Codes for the external popliteal nerve (Codes 8521, 8621, 8721), the ratings for mild and moderate are the same as for Code 8620, but a severe rating warrants a lower rating than for moderately severe incomplete paralysis of the sciatic nerve. Accordingly, the Veteran is properly rated under to Code 8620. c. Lumbar spine disability Factual Background The Veteran filed his claim of an increased rating for his lumbar spine disability in January 2010. Accordingly, the period on appeal is from January 2009. See 38 C.F.R. § 3.400(o)(2). During a May 2010 VA spine examination, the Veteran reported chronic lower back pain and flare ups and that he has had four surgeries, the most recent in February 2010. He had flexion range of motion to 65 degrees, extension to three degrees, rotation to five degrees, and lateral bending to five degrees. Rotation and lateral bending were the same right and left. There was back pain over the full motion and muscle spasms. Prolonged bedrest was not being used and he was out of bed every day. His working capacity was diminished due to his severe back problem and he was limited to very light work. He was able to do desk work by being careful. During a July 2011 VA spine examination, the Veteran stated his symptoms have gotten worse; walking was limited to 15 minutes due to his back and lower extremity symptoms. Flexion was to 55 degrees, extension to three degrees, rotation to five degrees and lateral bending was to five degrees. Rotation and lateral bending were the same on the right and left. There was back pain over the full motion and some mild muscle spasms. Prolonged bedrest was not being used and he was out of bed every day. In March 2010, the Veteran stated that he has trouble sitting or standing for long periods of time due to his spine. In July 2013 private medical records, the Veteran's lumbar spine range of motion was within functional limits. During a January 2014 VA spine examination, the Veteran reported constant back pain and that he experienced flare ups after prolonged standing or walking, after frequent stooping or squatting, and after climbing or lifting. He had a spinal fusion in 2011. Forward flexion was 90 degrees or greater, with painful motion beginning at 80 degrees. Extension was 30 degrees or greater, with painful motion beginning at 20 degrees. Right and left lateral flexion was 30 degrees or greater, with painful motion beginning at 20 degrees. Right and left lateral rotation was 30 degrees or greater, with painful motion beginning at 20 degrees. The Veteran was able to perform repetitive-use testing with the same results. The examiner opined that the Veteran had increased pain but no additional decreased range of motion when experiencing flare ups. The examiner opined that the Veteran had favorable ankylosis of the entire thoracolumbar spine because he had a spinal fusion. During a March 2015 VA spine examination, the Veteran reported that his back problems had worsened since the last VA examination and that he could not stand or walk for prolonged periods of time, stoop, or kneel. He also could not repetitively climb stairs or lift over 50 lbs. of weight. He stated he had flare ups that resulted in increased pain. Forward flexion was to 70 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees. The examiner noted pain caused functional loss, but the Veteran did not have ankylosis of the spine. The examiner also opined that the Veteran's flare ups occurred one to two times a week, were mild, and lasted about one day; the examination supported the Veteran's statements describing functional loss during flare ups. Analysis The Veteran's lumbar spine disability has been rated under Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, the following ratings will apply: A 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which... the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." See id., Note (5). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although the Veteran has experienced severe restriction of range of motion, there is no evidence in the record that the Veteran suffers from unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. After considering DeLuca, the evidence still results in no finding of fixation in flexion or extension with any of the several additional symptoms required for a finding of unfavorable ankylosis, such as limited line of vision, restricted opening of the mouth, etc. Accordingly, an increased rating in excess of 40 percent disabling must be denied. The Board notes there is no evidence of invertebral disc syndrome (IVDS) in the record. Nonetheless, the Veteran would not be warranted a higher rating based on incapacitating episodes, as the record does not reflect incapacitating episodes having a total duration of at least one week during any 12 month period. Therefore, the Veteran is properly rated under the General Formula. III. TDIU Legal Criteria, Factual Background, and Analysis TDIU will be awarded when a veteran meets certain percentage standards and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2016). In addition, entitlement to TDIU is an element of all appeals for a higher rating when the Veteran or the record raises the issue of unemployability, which applies here. Rice v. Shinseki, 22 Vet. App. 447 (2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran reported that he stopped working full-time on June 12, 2012. See March 2014 Application for Increased Compensation Based on Unemployability. TDIU cannot be awarded while the Veteran is able to secure and follow full-time employment. There has been no argument or evidence that his employment was marginal in nature. Accordingly, TDIU cannot be granted prior to June 13, 2012, because he was working full-time. For the period after June 12, 2012, the Veteran meets the schedular criteria for TDIU and physicians have provided adequate opinions regarding the Veteran's inability to secure and follow substantial employment due to his service-connected disabilities. In particular, the May 2012 VA peripheral nerves examiner opined that the Veteran could not sit upright form more than two hours at a time due to his spine and lower extremity disabilities. Although a March 2015 VA examiner opined that the Veteran could seek and maintain such employment, he also noted several restrictions had to be met, such as not standing longer than 10 minutes at a time and not more than two times per hour, not walking father than 50 meters at a time and no more than two times per hour, amongst others. Such cumbersome restrictions, in addition to the restriction of not being able to sit for two hours, compel the Board to conclude that evidence is at least in equipoise that the Veteran could not secure and follow substantially gainful employment. Accordingly, TDIU from June 13, 2012 is warranted. (CONTINUED ON NEXT PAGE) ORDER An initial rating of 30 percent disabling prior to July 24, 2006 and 60 percent disabling thereafter for atopic asthma is granted. An initial rating in excess of 20 percent disabling for right lower extremity numbness, pain, and tingling prior to May 7, 2012 is denied; a rating of 40 percent disabling for right lower extremity numbness, pain, and tingling from May 7, 2012 is granted. An initial rating in excess of 10 percent disabling for left lower extremity numbness, pain, and tingling prior to May 7, 2012 is denied; a rating of 40 percent disabling for left lower extremity numbness, pain, and tingling from May 7, 2012 is granted. An increased rating in excess of 40 percent disabling for chronic muscular strain superimposed on postoperative and degenerative instability is denied. Entitlement to TDIU from June 13, 2012 is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs