Citation Nr: 18142130 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 10-10 292 DATE: October 16, 2018 ORDER A disability rating greater than 20 percent for degenerative arthritis of the lumbar spine is denied. An effective date of July 7, 2014, but no earlier, for the assignment of a 20 percent disability rating for degenerative arthritis of the lumbar spine is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The evidence does not show limitation of flexion of the lumbosacral spine to less than 30 degrees during the appeal period. 2. An informal formal claim for an increased rating for the Veteran’s lumbar spine disability was received on July 7, 2014. 3. It is reasonable to assume that, since July 7, 2014, the Veteran’s degenerative arthritis of the lumbar spine has met the requirement for a 20 percent disability rating. 4. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5242-5237. 2. The criteria for assignment of an effective date of July 7, 2014, and no earlier, for a 20 percent rating for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. § 5110(b); 38 C.F.R. §§ 3.157(b)(1), 3.400(o)(2), 4.7, 4.130, DCs 5242-5237. 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 16 to October 30, 1987 and again from February 1992 to February 1995. By way of history, in a March 2013 rating decision, the RO granted service connection for arthralgia of the spine with degenerative arthritis secondary to the Veteran’s service-connected left knee disability assigning a 10 percent disability rating effective April 8, 2011, the date of the Veteran’s claim. Subsequently, in an August 2013 Board decision pertaining to the Veteran’s service-connected knee disabilities, the Board took jurisdiction of the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded this issue for appropriate action. Thereafter, in July 2014, the Veteran submitted a formal claim for a TDIU and wrote that his service-connected lumbar spine disability affected his employability. In connection with this claim, the Veteran was afforded a VA spine examination in December 2014. This case comes before the Board of Veterans Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs(VA) Regional Office (RO) in St. Louis, Missouri which granted service connection for degenerative arthritis of the lumbar spine (previously rated as arthralgia), assigning a 20 percent disability rating effective December 4, 2014, the date of the VA examination, and denied a TDIU. The Veteran disagreed with this decision and perfected an appeal. In July 2017, the Board remanded the case for additional development. In a December 2017 rating decision, the RO found that the Veteran had failed to submit new and material evidence to reopen previously denied claims of specially adapted housing and special home adaptation. Later that month, the Veteran entered a notice of disagreement (NOD) with the Agency of Original Jurisdiction (AOJ) as to this decision. In a May 2018 rating decision, the RO assigned disability ratings for the Veteran’s bilateral knee disabilities and granted service connection for depressive disorder, assigning an initial 30 percent disability rating. In July 2018, the Veteran entered an NOD with the AOJ as to this decision. In a June 2018 rating decision, the RO denied service connection for a cervical spine and sleep apnea. In September 2018, the Veteran entered an NOD with the AOJ as to this decision. When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the AOJ has acknowledged receipt of the NODs and is actively developing these claims. Accordingly, the Board declines to exercise jurisdiction over these claims for Manlincon purposes as no such action on the part of the Board is warranted at this time. 1. A disability rating greater than 20 percent for degenerative arthritis of the lumbar spine Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of 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 of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain “on use or due to flare-ups.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also, the Court has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Back disabilities may be evaluated under either of two general rating formulas. One applies to intervertebral disc syndrome (IVDS), and is based upon the duration of incapacitating episodes. The other general rating formula involves the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, DCs 5235-5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; and a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as 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, DC 5243, Note (1). Evidence relevant to the level of severity of the Veteran’s lumbar spine disability during the pendency of this appeal includes VA examination reports dated in December 2014 and February 2017. During the December 2014 VA examination, the examiner noted diagnoses of degenerative arthritis of the spine as well as scoliosis. At that time, the Veteran reported experiencing flare-ups of the back when he will have difficulty even getting out of bed secondary to back pain. The Veteran also reported experiencing functional loss due to his back disability, specifically reduced range of motion with pain. On range of motion testing the Veteran had forward flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees (bilaterally), and lateral rotation to 25 degrees (bilaterally). There was evidence of pain with weight bearing as well as localized tenderness or pain on palpation of the joints across the lower back with radiation to the bilateral legs. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. While the Veteran was not examined immediately after repetitive use over time, it was noted that the examination neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limited the functional ability of the Veteran’s lumbar spine with repeated use over a period of time without speculation. With regard to the Veteran’s claimed flare-ups, the examination was not conducted during a flare-up but the Veteran reported experiencing moderate flare-ups three times per week which lasted approximately one day. According to the examiner, the examiner neither supported nor contradicted the Veteran’s statements describing functional loss during flare-ups. The examiner was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups without speculation. This was because it would be speculative to describe the flare-up in terms of range of motion since the back was not acutely flared during the examination. There were muscle spasms of the thoracolumbar spine which resulted in abnormal gait or abnormal spinal contour. The Veteran’s localized tenderness and guarding did not result in abnormal gait or abnormal spinal contour. The Veteran also experienced disturbance of locomotion and interference with standing due to pain. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensory examination were also normal. Straight leg testing was positive and there was evidence of moderate radiculopathy of the bilateral lower extremities resulting in moderate constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias. There was no ankylosis of the spine and there were no other neurologic abnormalities or findings related to the thoracolumbar spine. The examiner noted that the Veteran had IVDS. With regard to assistive devices, it was noted that the Veteran regularly used a cane due to his back disability. The examiner noted that there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings. While there was evidence of arthritis, there was no evidence of a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner wrote that the Veteran’s lumbar spine disability impacted his ability to work, noting that the Veteran would have difficulty with any type of employment with extended standing, walking, climbing, stairs, bending, or carrying. During the February 2017 VA examination, the examiner noted diagnoses of degenerative arthritis of the spine, IVDS, spondylolisthesis, and scoliosis. At that time, the Veteran reported experiencing flare-ups of the back, described a constant dull ache rated as a 6 on a scale from 1 to 10 with flare-up precipitated by weather changes, prolonged walking, prolonged standing, prolonged sitting, lying down, and certain movements which increase his pain to an 8 or 9 on a scale from 1 to 10. The Veteran also reported experiencing functional loss due to his back disability, specifically it was noted that the Veteran was in the National Guard but was being medically boarded out. He had no primary job but worked as a transit driver until October 2016, just prior to the surgery on his right knee. The Veteran’s lumbar spine disability, along with cervical spine and bilateral knee disabilities, limit his ability to lift or carry, assist passengers, and/or drive a vehicle for long periods of time. On active range of motion testing the Veteran had forward flexion to 45 degrees, extension to 25 degrees, lateral flexion to 25 degrees (bilaterally), and lateral rotation to 25 degrees (bilaterally). There was evidence of pain with weight bearing as well as localized tenderness or pain on palpation of the joints or associated soft tissue of the lumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. While the Veteran was not examined immediately after repetitive use over time, it was noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limited the functional ability of the Veteran’s lumbar spine with repeated use over a period of time without speculation. Specifically, the examiner noted that such opinion was not feasible as there was no definition of “a period of time.” Furthermore, pain and fatigability are subjective by nature, not quantifiable, and vary from individual to individual. Weakness and incoordination are subjective as well. Historically, compensation and pension examiners have been required to provide opinions based on facts, medical literature, and measurable data, not mere speculation. With that being said, the examiner wrote that it was obvious from the observed pain response that the condition would limit the Veteran’s ability to perform repeated movement over an unspecified period of time. With regard to the Veteran’s claimed flare-ups, the examination was not conducted during a flare-up but that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups without speculation. Specifically, the examiner noted that such opinion was not feasible for the same reasons noted above. There were muscle spasms of the thoracolumbar spine which resulted in abnormal gait or abnormal spinal contour but there was no guarding. The Veteran also experienced less movement than normal, disturbance of locomotion, and interference with sitting/standing. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was normal for the bilateral knees but was hypoactive for the bilateral ankles. Sensory examination was normal for the bilateral thighs but decreased for the lower leg/ankles/feet/toes. Straight leg testing was positive and there was evidence of moderate radiculopathy of the bilateral lower extremities resulting in moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. There was no ankylosis of the spine and there were no other neurologic abnormalities or findings related to the thoracolumbar spine. The examiner noted that the Veteran had IVDS but that such had not resulted in any incapacitating episodes which require bed rest prescribed by a physician in the past 12 months. With regard to assistive devices, it was noted that the Veteran regularly used a brace and constantly used both a cane and a walker due to his back disability. The examiner noted that there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings. While there was evidence of arthritis, there was no evidence of a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner wrote that the Veteran’s lumbar spine disability impacted his ability to work, noting that the Veteran was in the National Guard but was being medically boarded out. He had no primary job but worked as a transit driver until October 2016, just prior to the surgery on his right knee. His back, neck, and knee conditions limited the Veteran’s ability to lift or carry, assist passengers or drive a vehicle for long periods of time. With regard to the examination requirements of Correia, the examiner noted that there was pain with weight bearing, nonweight being, passive range of motion, and active range of motion. On passive range of motion testing the Veteran had forward flexion to 50 degrees, extension to 30 degrees, lateral flexion to 30 degrees (bilaterally), and lateral rotation to 30 degrees (bilaterally). On weightbearing range of motion testing the Veteran had forward flexion to 40 degrees, extension to 20 degrees, lateral flexion to 20 degrees (bilaterally), and lateral rotation to 25 degrees (bilaterally). Also of record are VA treatment records dated through September 2018. These records show treatment for the Veteran’s lumbar spine but are negative for any incapacitating episodes requiring bedrest by a physician nor any range of motion findings. Given the evidence of record, the Board finds that a disability rating greater than 20 percent is not warranted during the entire appeal period because there is no medical evidence of limitation of forward flexion to 30 degrees or fewer or evidence of favorable ankylosis of the entire thoracolumbar spine. As above, the December 2014 examination showed forward flexion to 60 degrees and the February 2017 VA examination showed flexion to 45 degrees. While the Veteran contends that he experiences flare-ups, and, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered, there is no indication that the Veteran’s flare-ups result in additional loss of motion. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) will be expanded and it is found that flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. The Board has also considered whether any other diagnostic codes might serve as a basis for an increased rating. In this regard, DC 5003 addresses degenerative arthritis. However, in this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Therefore, it does not allow for a higher evaluation. Also, while the Veteran has been diagnosed with IVDS, the evidence is negative for any incapacitating episodes requiring bedrest by a physician. There are no other applicable codes available for consideration. In denying a higher rating for the Veteran’s back disability, the Board has considered the Veteran’s statements that his back disability is worse, as well as his report of flare-ups of pain, inability to walk or stand for prolonged periods, and his use of a cane to ambulate. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s back disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain and limitation of function. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion limited to 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or incapacitating episode of at least four weeks, etc.) such as to enable a finding that the disability picture more nearly approximates the next-higher, 40 percent, rating under the General Rating Formula for Diseases and Injuries of the Spine for the any part of the rating period on appeal. Despite the Veteran’s contention of a debilitating back disability, the disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluation assigned by VA recognize his painful motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. The Board has also contemplated whether any separate evaluations are applicable here for additional disability associated with the service-connected back disability. However, the Board notes that the Veteran is currently in receipt of separate ratings for his radiculopathy of the lower extremities. Furthermore, there is no evidence of associated bowel or bladder disability. As such, no additional separate evaluations are warranted for the Veteran’s lumbar spine disability. 2. An effective date of July 7, 2014, and no earlier, for the assignment of a 20 percent disability rating for degenerative arthritis of the lumbar spine The effective date of an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). VA regulations provide that the effective date for increases shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C. § 5107(b). 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). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). As above, in a March 2013 rating decision, the RO granted service connection for arthralgia of the spine with degenerative arthritis secondary to the Veteran’s service-connected left knee disability assigning a 10 percent disability rating effective April 8, 2011, the date of the Veteran’s claim. Subsequently, in an August 2013 Board decision pertaining to the Veteran’s service-connected knee disabilities, the Board took jurisdiction of a TDIU claim pursuant to Rice and remanded this issue for appropriate action. Thereafter, on July 7, 2014, the Veteran submitted a formal claim for a TDIU and wrote that his service-connected lumbar spine disability affected his employability. In connection with this claim, the Veteran was afforded a VA spine examination in December 2014. Subsequently, by rating decision dated in September 2015, the RO granted service connection for degenerative arthritis of the lumbar spine (previously rated as arthralgia), assigning a 20 percent disability rating effective December 4, 2014, the date of the VA examination. The Veteran disagreed with this decision and perfected an appeal. In this case, while the Veteran did not specifically request a higher rating for his lumbar spine disability in his July 7, 2014 formal claim for a TDIU, he did write that he was unable to work due to his lumbar spine disability. As such, in affording the Veteran the benefit of the doubt, the Board finds that his claim for a higher rating has been pending since July 7, 2014. As such, it is necessary to determine whether, sometime between July 7, 2014, and December 4, 2014, an increase in the Veteran’s lumbar spine disability became factually ascertainable. To do so, the rating criteria for this disability must be examined. As above, the Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, DCs 5242-5237 which provides for assignment of a 20 percent rating when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis While a review of the pertinent medical evidence dated between July 7, 2014 and December 4, 2014 is negative for any range of motion findings for the lumbar spine, in affording the Veteran the benefit of the doubt, the Board finds that it is reasonable to assume that the Veteran had a loss of flexion that would warrant a 20 percent disability rating for his lumbar spine as early as July 7, 2014 and, as such, July 7, 2014 is a reasonable effective date for the assignment of a 20 percent disability rating for service-connected degenerative arthritis of the lumbar spine. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). As for the potential of an effective date earlier than July 7, 2014, although the Veteran may have experienced a loss of flexion that would warrant a 20 percent disability rating prior to July 7, 2014, there is nothing that can be construed as a claim for increase between the March 2013 rating decision which granted service connection for arthralgia of the spine with degenerative arthritis secondary to the Veteran’s service-connected left knee disability assigning a 10 percent disability rating and the July 7, 2014 claim on appeal. As noted above, VA regulations provide that the effective date for increases shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1). Furthermore, the Veteran has not requested an effective date earlier than July 7, 2014. 3. Entitlement to a TDIU A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has established service connection for arthritis of the left knee, rated 30 percent disabling; arthritis of the right knee, rated 30 percent disabling; persistent depressive disorder, rated 30 percent disabling; left knee instability, rated 20 percent disabling; radiculopathy of the right lower extremity, rated 20 percent disabling; arthritis of the lumbar spine, rated 20 percent disabling; radiculopathy of the left lower extremity, rated 10 percent disabling; right knee surgical repair, rated 10 percent disabling; right middle finger fracture, rated noncompensably disabling; bilateral herniorrhaphy, rated noncompensably disabling; and right knee scar, rated noncompensably disabling. The Veteran’s combined rating for compensation purposes was 10 percent effective February 12, 1995; 30 percent effective January 30, 1998; 100 percent effective July 6, 2004; 30 percent effective September 1, 2004; 50 percent effective April 30, 2009; 70 percent effective April 8, 2011; 80 percent effective September 6, 2016; 100 percent effective October 8, 2016; 80 percent effective December 1, 2016; and 90 percent effective June 6, 2017. 38 C.F.R. § 4.25. Therefore, he has met the threshold criteria for a TDIU since April 8, 2011. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A review of the record shows that the Veteran has had a very sporadic employment history since September 2008. Specifically, in his most recent formal claim for a TDIU dated in May 2018, the Veteran wrote that he worked in building maintenance from April 2006 to June 2006, worked as a corrections officer from June 2006 to December 2007, worked in quality control from March 2008 to September 2008, worked as a security guard from August 2014 to September 2015, and worked in medical transport from April 2016 to October 2016. As above, the December 2014 and February 2017 VA examiners found that the Veteran’s lumbar spine disability impacted his ability to work. Specifically, the December 2014 examiner found that the Veteran’s lumbar spine disability impacted his ability to work, noting that the Veteran would have difficulty with any type of employment with extended standing, walking, climbing, stairs, bending, or carrying. The February 2017 examiner found that the Veteran’s lumbar spine disability impacted his ability to work, noting that the Veteran was in the National Guard but was being medically boarded out. He had no primary job but worked as a transit driver until October 2016, just prior to the surgery on his right knee. His back, neck, and knee conditions limited the Veteran’s ability to lift or carry, assist passengers or drive a vehicle for long periods of time. Similarly, December 2014, February 2017, and May 2018 VA knee examiners found that the Veteran’s bilateral knee disabilities impacted his ability to work. Based on the foregoing, the Board finds that the medical evidence supports a finding that the Veteran’s service-connected disabilities make him unemployable. As above, the December 2014, February 2017, and May 2018 VA examiners have found that the Veteran’s service-connected disabilities severely restrict employment. Therefore, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability and, therefore a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel