Citation Nr: 18160113 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 09-15 898 DATE: December 21, 2018 ORDER Entitlement to a rating of 40 percent disabling, but no greater, for a service-connected lower back disability for the period prior to September 21, 2018 is granted. Entitlement to a rating in excess of 40 percent disabling for a service-connected lower back disability for the period since September 21, 2018 is denied. Entitlement to a rating of 40 percent, but not greater, for service-connected radiculopathy of the left lower extremity for the period from April 20, 2011 and thereafter is granted. Entitlement to a rating of 40 percent, but not greater, for service-connected radiculopathy of the right lower extremity for the period from April 20, 2011 and thereafter is granted. Entitlement to an effective date of April 20, 2011, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the period prior to September 21, 2018, the Veteran’s service-connected lower back disability most nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less; ankylosis was not shown. 2. For the period since September 21, 2018, the Veteran’s service-connected lower back disability most nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less; ankylosis is not shown. 3. For the period from April 20, 2011 and thereafter the Veteran’s radiculopathy most nearly approximated moderately severe incomplete paralysis of the sciatic nerve for each lower extremity. 4. For the period since April 20, 2011, the Veteran has been precluded from obtaining and maintaining substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for a service-connected lower back disability for the period prior to September 21, 2018 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for entitlement to a rating in excess of 40 percent disabling for a service-connected lower back disability for the period since September 21, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 3. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for service-connected radiculopathy of the right lower extremity for the for the period from April 20, 2011 to April 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for service-connected radiculopathy of the left lower extremity for the for the period from April 20, 2011 to April 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for service-connected radiculopathy of the right lower extremity for the for the period from April 1, 2015 to September 21, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for service-connected radiculopathy of the left lower extremity for the for the period from April 1, 2015 to September 21, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 7. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for service-connected radiculopathy of the right lower extremity for the for the period since September 21, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 8. The criteria for entitlement to a rating of 40 percent disabling, but no greater, for service-connected radiculopathy of the left lower extremity for the for the period since September 21, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 9. The criteria for entitlement to an effective date of April 20, 2011, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that that AOJ granted an increased 40 percent rating, effective September 21, 2018, for the Veteran’s service-connected disability in an October 2018 rating decision during the pendency of this appeal. Although the Veteran did not expressly disagree with the subject increase, as the decision represents an incomplete grant of benefits sought it remains part of the instant appeal. Additionally, the Board notes that, as indicated in a March 2015 Joint Motion for Partial Remand, the Veteran did not appeal the portion of Board’s previous September 2014 decision concerning the rating assigned for his lower back disability for the period prior to April 20, 2011, and accordingly the instant claim only concerns the period from April 20, 2011 forward. The Board further notes that the AOJ granted entitlement to a TDIU, effective September 21, 2018, in the October 2018 rating decision and indicated that the appeal of the issue was withdrawn, as it was a full grant of the benefits sought. However, as a TDIU is a component of an increased rating claim under Rice v. Shinseki, 22 Vet. App. 447 (2009), entitlement to an earlier effective date for a TDIU must also be considered in conjunction with the increased rating claim still on appeal. The Board further notes that the Veteran disagreed with the effective date assigned by the AOJ for entitlement to a TDIU in a November 2018 brief. Accordingly, the issue of entitlement to a TDIU remains on appeal. The Board also notes that the General Rating Formula for Disease and Injuries of the Spine requires associated objective neurologic abnormalities to be evaluated separately under appropriate diagnostic codes. See 38 C.F.R. § 4.71a, Note (1). As such, the propriety of the rating for the Veteran’s bilateral lower extremity radiculopathy is part and parcel of the increased rating for a lower back disability, which is part of the Veteran’s current appeal. In short, because of Note (1), the lower back disability issue on appeal includes a claim for an increased rating for associated radiculopathies. 1. Entitlement to an increased rating for a lower back disability A. Entitlement to a rating in excess of 20 percent for the period prior to September 21, 2018 The Veteran asserts that he is entitled to a rating in excess of 20 percent for the period on appeal prior to September 21, 2018, as his symptoms more nearly approximated the criteria for a higher rating. He is currently rated, in relevant part, for degenerative disc disease of the lumbar spine as 20 percent disabled for the period from April 20, 2011 to September 20, 2018, and as 40 percent disabled for the period since September 21, 2018. The Board finds that although the Veteran’s range of motion measured during the period prior to September 21, 2018 did not meet the criteria for a rating in excess of 20 percent disabling, the additional functional loss associated with the Veteran’s symptoms more nearly approximates and increased 40 percent rating for that period. In an April 2011 VA examination, the Veteran indicated that he had constant severe pain across the lower part of his back radiating to the groin and down both legs. He stated that it was very difficult to walk or get up and down in a chair, and almost impossible to get up or down on his knees. The examiner indicated that the Veteran was stooped and had an antalgic gait. He further noted that he used a back brace and cane, and was unable to walk more than a few yards. The examiner noted guarding, tenderness, weakness, and pain with motion, and noted that the tenderness or guarding was severe enough to be responsible for an abnormal gait or spinal contour. The examiner listed a history of fatigue, decreased motion, weakness, spasm, and spine pain. The Veteran exhibited a range of motion of: forward flexion of 80 degrees, extension of 15 degrees, left lateral flexion of 25 degrees, right lateral flexion of 20 degrees, left lateral rotation of 20 degrees, and right lateral rotation of 15 degrees. The examiner noted that there was pain on active motion and following repetitive motion testing, but indicated that there was no additional functional loss after repetitive motion testing. X-rays revealed marked degenerative changes of the lumbar spine, greatest in the lower lumbar area, with grade one to two anterolisthesis of the L4 on L5 vertebrae and mild scoliotic curvature of the lumbar spine. The examiner also noted changes related to a prior laminectomy procedure. In a February 2012 VA primary care note, the Veteran indicated that his pain was “debilitating.” An April 2012 VA CT scan revealed moderate to severe multilevel degenerative changes in the lumbar spine with disc height loss, facet hypertrophy A February 2013 private medical opinion indicated that the Veteran experienced severe back pain that radiated to his buttocks, hips, and legs. The private physician noted that he had difficulty getting up from a bent or sitting position and had to limit all of his activities due to pain. The physician indicated that he had been treated aggressively with numerous injections and physical therapy, but neither offered more than short-term relief. The physician noted that the Veteran had been prescribed prescription pain killers, but he experienced side-effects and had little success in relieving his back pain. The physician indicated that an MRI revealed diffused degenerative changes, including advanced disc degeneration, disc space collapse, spondylolisthesis, residual facet atrophy, and stenosis, as well as degenerative rotary scoliosis. In an August 2014 VA examination, the Veteran exhibited a range of motion of his thoracolumbar spine of: forward flexion of 75 degrees, with painful motion beginning at 30 degrees; extension of 25 degrees, with painful motion beginning at 20 degrees; right lateral flexion of 30 degrees or greater, with painful motion beginning at 20 degrees; left lateral flexion of 30 degrees or greater, with painful motion beginning at 20 degrees; right lateral rotation of 30 degrees or greater, with painful motion beginning at 30 degrees or greater; and left lateral rotation of 30 degrees or greater, with painful motion beginning at 30 degrees or greater. After repetitive-use testing, the Veteran’s exhibited a range of motion of: forward flexion of 90 degrees or greater; extension of 25 degrees; right lateral flexion of 30 degrees or greater; left lateral flexion of 30 degrees or greater; right lateral rotation of 30 degrees or greater; and left lateral rotation of 30 degrees or greater. The examiner indicated that although there was no additional limitation in range of motion following repetitive-use testing, the Veteran did experience functional loss of his thoracolumbar spine, in the form of less movement than normal and pain on movement, and utilized a cane and sometimes a walker to assist in ambulation. The examiner indicated that he used a cane primarily in connection with disabilities related to his knees and used a walker when the pain became “excruciating.” The examiner noted that no ankylosis of the spine or intervertebral disc syndrome was present. The examiner indicated that the Veteran’s lower back disability limited his ability to perform heavy or moderate physical activity, but his back disability alone did not preclude activities that were less physically demanding. In a July 2015 VA primary care note, the Veteran indicated that he has no relief from his constant pain. He stated that he tries to remain active, such as going up and down stairs, but by midday the pain becomes too much and he has to stop or slow down. He indicated that he joins his wife for trips to the store, but has to lean on a shopping cart or use his walker for support to get around and has to rest sometimes when the pain becomes too severe to continue. In an August 2015 addendum, the treating physician indicated the Veteran needed to undergo a nuclear stress test, but the test would have to be chemical instead of a treadmill test due to his chronic back pain. In a November 2015 Addendum to the August 2014 VA examination, the examiner indicated that during prolonged activity, pain and fatigability could limit forward flexion to approximately 50 degrees. A January 2016 private medical record indicated that the Veteran experienced significant back pain which was aggravated by “[w]alking, standing, activity” and relieved by laying down. The Veteran was diagnosed with low back pain with bilateral lower extremity radiculopathy and lumbar postlaminectomy pain syndrome. He was administered a lumbar epidural steroid injection to aid in easing his constant lower back pain. In a July 2017 private medical opinion, the examiner noted that the Veteran claimed after his laminectomy procedure in 2009, his pain subsided temporarily but returned and has progressively worsened since that time. The Veteran that he experienced constant pain and that if he sits, stands, or walks for more than five minutes, his pain escalates in intensity. He stated that he has difficulty going from a sitting to standing position, and that he woke several times each night due to pain in his back and extremities. The Veteran indicated that medicinal and physical therapy provided some mild relief, but he was not a candidate for surgical procedures which could possibly remedy his lower back pain. The examiner indicated that the record reflected the Veteran had been diagnosed with lumbar postlaminectomy pain syndrome and that pain caused by an accumulation of scar tissue around the site of surgical intervention was irremediable and could only be mitigated through medication. The examiner noted that the Veteran had been measured in the 2014 VA examination with a pain-free range of motion of 30 degrees of forward flexion, and that a normal range of motion is that which can be performed without pain. A March 2018 VA surgical consult note indicated that the Veteran used a rolling walker to get around and was in very obvious pain. The consulting physician indicated that he had foraminal stenosis at all lumbar levels below the L1 vertebrae, with grade 1 spondylolistheses of the L4 and L5 vertebrae, as well as retrolisthesis of the L2 and L3 vertebrae with foraminal stenosis at all listed levels. The physician noted that the Veteran had gotten some slight relief with the brace ordered at the time of the last visit, but he had been struggling with his back more recently, and confessed to “some falls in recent weeks.” The physician indicated that there were no surgical remedies available for the Veteran’s condition. The Board finds that for the period between on appeal prior to September 21, 2018, the Veteran’s lower back disability most nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less. Although the Veteran’s range of motion measurements at his April 2011 and August 2014 VA examinations exceeded the criteria for an increased 40 percent rating, both examiners noted that he exhibited objective pain on motion, with the August 2014 examiner noting that pain began at 30 degrees. Both examiners also noted that the Veteran’s disability resulted in functional loss due to pain and less movement than normal. The Veteran consistently described difficulty in transitioning from a sitting to standing position and required the use of assistive devices such as a cane or walk for ambulation. The record also reflects that the Veteran used a back brace on a consistent basis and prescription pain medication to mitigate his symptoms; however, due to side-effects from medications and an inability to surgically improve the Veteran’s condition, his ability to manage his lower back pain was limited. Accordingly, based upon the criteria set out in Deluca, supra, the Board finds that entitlement to a rating of 40 percent disabling is warranted for the Veteran’s lower back disability for the period on appeal prior to September 21, 2018. The Board notes that the Veteran has not been diagnosed with ankylosis of the thoracolumbar spine at any time during the period on appeal, and his symptoms do not more nearly approximate unfavorable ankylosis of the spine even when considering the additional functional loss caused by his symptoms. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran has some remaining range of motion for his thoracolumbar spine, and therefore it cannot be claimed that it is fixed in flexion or extension. Accordingly, entitlement to a rating in excess of 40 percent is not warranted for the period on appeal prior to September 21, 2018. B. Entitlement to a rating in excess of 40 percent for the period since September 21, 2018 The Veteran was afforded a VA examination in September 2018 which revealed a range of motion as follows: forward flexion of 30 degrees; extension of 15 degrees; right lateral flexion of 10 degrees; left lateral flexion of 10 degrees; right lateral rotation of 15 degrees; and left lateral rotation of 15 degrees. The examiner noted pain on examination in all ranges of motion. There was no additional loss of range of motion after repetitive use testing. Straight leg raising test results were positive for both legs. The Veteran indicated that he experienced severe lower back pain, which he treated with pain medication and injections. The examiner noted a 2017 MRI which showed progression of his degenerative disc disease and degenerative joint disease. The examiner indicated that the Veteran had intervertebral disc syndrome, but did not have any periods of prescribed bedrest in the past 12 months. The examiner noted that the Veteran occasionally used a brace or wheelchair, and regularly used a cane to assist in ambulation. There was no evidence of pain on passive range of motion testing or when the joint was used in non-weight bearing, and the range of motion in active and passive circumstances were equal. Again, the Board notes that the Veteran has not been diagnosed with ankylosis of the thoracolumbar spine at any time during the period on appeal, and his symptoms do not more nearly approximate unfavorable ankylosis of the spine even when considering the additional functional loss caused by his symptoms. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran has some remaining range of motion for his thoracolumbar spine, and therefore it cannot be claimed that it is fixed in flexion or extension. Accordingly, entitlement to a rating in excess of 40 percent is not warranted for the period on appeal since to September 21, 2018. 2. Entitlement to an increased rating for radiculopathy of the bilateral lower extremities The Veteran contends that he is entitled to an increased rating for his radiculopathy of the bilateral lower extremities. He is currently rated as 40 percent disabled for the period prior to April 1, 2015, 10 percent disabled for the period from April 1, 2015 to September 20, 2018, and 20 percent disabled for the period since September 21, 2018. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked atrophy. An 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or, very rarely, lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words slight, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124 (a). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement. When bilateral, they are combined with application of the bilateral factor. 38 C.F.R. § 4.124(a). A. Entitlement to a rating in excess of 40 percent disabling for the period from April 20, 2011 to April 1, 2015 The Veteran was originally granted entitlement to service connection for radiculopathy of the left and right lower extremities in a June 2012 rating decision, with a 40 percent rating for each, effective April 21, 2012. As indicated above, an increased rating claim for a lower back disability inherently includes an analysis of any associated objective neurologic abnormalities, including the propriety of any disability rating assigned for any such a condition, as well as the effective date of the disability rating. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). After a review of the evidence of record, the Board finds that a disability rating in excess of 40 percent for radiculopathy of the left and right lower extremities is not warranted for the period prior to April 1, 2015. However, the evidence of record indicates that the Veteran exhibited symptoms related to bilateral radiculopathy prior to the April 21, 2012 diagnosis, and imaging taken at an April 20, 2011 VA examination showed degenerative changes which the April 2012 examiner indicated would lead to bilateral radiculopathy. At his May 2010 Board hearing, the Veteran indicated that after his 2009 laminectomy surgery, his level of pain increased and ran down his legs. He stated that he sometimes woke up in the middle of the night with excruciating pain in his legs. At his April 2011 VA back examination, the Veteran indicated that the pain in his back radiated to his groin and down both legs. The examiner noted that both pain or pinprick and light touch examination revealed decreased sensation bilaterally. The straight leg raise test (Lasègue’s sign) was positive on both sides. An associated neurology consultation with nerve conduction studies revealed evidence of moderate bilateral sensorimotor axonal polyneuropathy bilaterally. The examiner noted that EMG testing was not conducted due to an existing infection in the Veteran’s leg. An April 2012 VA CT scan of the Veteran’s lumbar spine showed severe bilateral neural foraminal stenosis. A May 2012 addendum indicated that the recent CT examination of the lumbar spine indicated degenerative changes which would cause bilateral lumbar radiculopathy involving the femoral and sciatic nerves. The examiner indicated the Veteran’s symptoms indicated his radiculopathy was of moderate severity. In a February 2013 private medical opinion, the examiner indicated that the Veteran continued to experience severe back pain with pain radiating into the buttocks, hips, and legs. The examiner noted that an MRI of his lumbar spine showed advanced disc degeneration, disc space collapse, grade 1 spondylolisthesis, and residual facet arthropathy with severe far lateral, lateral recess stenosis at each level. In an August 2014 VA examination, the Veteran indicated that he had an aching dull pain in his back constantly, but also had sharp pain into his legs and his feet were chronically numb. The examiner indicated that there was no reduction in muscle strength of the lower extremities, and no muscle atrophy was present. The Veteran’s reflexes in both knees and ankles were hypoactive. The examiner indicated that sensation to light touch testing showed normal sensation bilateral in the upper anterior thigh and thigh/knee, but was decreased in the lower leg/ankle and foot/toes. The examiner further indicated that vibratory sensation was absent in his toes and decreased in his foot to mid-tibial area; that soft sensation was decreased in the foot/toes to mid-tibial area; and sharp sensation was decreased in the toes to mid-tibial area bilaterally. The examiner noted that proprioception was intact. Straight leg testing was negative for both legs. The examiner also noted the presence of radicular pain and indicated that the pain was intermittent (usually dull) and of mild severity. The examiner indicated that neither constant pain (may be excruciating at times), paresthesias and/or dysesthesias, nor numbness was present in either lower extremity. The examiner further indicated that the Veteran’s symptoms of reduced reflexes and sensation were related to his peripheral neuropathy of the lower extremities and not radiculopathy. The examiner indicated that the overall severity of his radiculopathy was mild in both lower extremities, and that no other neurologic abnormalities were present. The examiner noted that the Veteran used a can and walker for assistance in ambulation, but indicated that the devices were used in conjunction with the Veteran’s knee problems. The Veteran stated that he began having neuropathy pain in his legs again just before the examination and that he used his walker because the pain was “excruciating.” Therefore, the Board finds that the evidence of record indicates that the Veteran’s symptoms associated with radiculopathy of the bilateral lower extremities were present as early as April 20, 2011, and accordingly, the 40 percent rating assigned in the April 2012 rating decision should be effective as of the date of the onset of the disability. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (The effective date of an award for compensation is the date the claim was received by VA or the date entitlement arose, whichever is later). The Board notes that the period on appeal concerning the issues presented herein begins April 20, 2011, and therefore an effective date prior to that date is not applicable. Thus, an effective date of April 20, 2011, but no earlier, is warranted for entitlement to a 40 percent rating for radiculopathy of the bilateral lower extremities. The evidence of record does not indicate that the Veteran exhibited marked muscular atrophy or complete paralysis of the sciatic nerve in either of his lower extremities at any time prior to April 1, 2015, and therefore a rating in excess of 40 percent is not warranted. B. Entitlement to a rating in excess of 10 percent disabling for radiculopathy of the bilateral lower extremities for the period from April 1, 2015 to September 21, 2018 The AOJ reduced the Veteran’s rating for his radiculopathy of the bilateral lower extremities in a January 2015 rating decision, from 40 percent disabling for each leg to 10 percent disabling for each leg. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The appellant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The appellant is also to be informed that he/she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). In this case, the Board finds that the AOJ provided the Veteran with appropriate notice of the proposed reduction of his radiculopathy of the bilateral lower extremities evaluations in a September 2014 letter. The Veteran did not respond to the letter or submit any additional evidence, and the proposed reduction was effectuated in a January 2015 rating decision, effective April 1, 2015. Therefore, the Board find that the AOJ’s reduction of the evaluation of the Veteran’s knee disabilities was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. With respect to whether the evidentiary requirements for reducing the disability rating has been met in this case, the Board notes that the particular provisions of 38 C.F.R. § 3.344(a) and (b), pertaining to stabilization of disability ratings, are not for application regarding this issue because the 40 percent ratings for radiculopathy of the bilateral lower extremities had not been in effect for a period in excess of five (5) years. Rather, the 40 percent rating was only in effect from April 20, 2011 until the reduction was implemented on April 1, 2015. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (duration of rating is measured from effective date of actual reduction). According to 38 C.F.R. § 3.344(c), in cases where, as here, a rating has been in effect less than five years, examinations disclosing physical improvement in a disability warrant a rating reduction. See 38 C.F.R. § 3.344(c). A rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21. A rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that failure of examiner to review claims file rendered reduction decision void ab initio). Further, a rating reduction must have been supported by the evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The AOJ based its decision to reduce the Veteran’s disability rating for his radiculopathy of the bilateral lower extremities on the results of the August 2014 VA examination described above. In the January 2015 rating decision, the AOJ noted that the VA examination showed comorbid neurological disabilities affecting his lower extremities. The AOJ further noted that the August 2014 examiner indicated that the Veteran had mild radiculopathy of the bilateral lower extremities, but moderately severe diabetic peripheral neuropathy due to diabetes mellitus, which is not service-connected. The AOJ indicated that the examiner provided medical evidence supporting the separation of symptoms related to the two conditions and the respective severity of each condition. In a March 2015 notice of disagreement, the Veteran stated that he was unaware of any of the findings from the August 2014 examination report, and did not recall going through any examination related to the relevant portions of that report. He indicated that he was only asked to stand up, bend over at the waist, and turn around and walk away, then return. The Veteran stated that his symptoms have increased to “a point of almost total non[-]use” of his legs, and that the pain in his sciatic nerve was constant regardless of treatment. In a July 2015 primary care note, the Veteran indicated that he felt pain build in his neck and lower back, then it ran down the sciatic nerve canal, around the front of his thigh, and then down the rest of his leg. He noted that the pain was exacerbated by weakness in both of his legs. In an August 2017 private medical opinion, the Veteran stated that he experienced pain that radiated from his lumbar region into the middle of his thighs, down the anterior aspect of both legs, and into the big toe region of each foot. He indicated that his right lower extremity symptoms could be somewhat worse than those of his left lower extremity, and that if he attempted to stand, walk, or sit for too long (particularly with sitting), his pain significantly increased. He further indicated that if he sat for too long, he also experienced numbness and paresthesias, with the numbness and paresthesias being typically more prominent beginning at the level of his knees and extending into the big toe regions of his feet. He noted that when riding the exercise bike at physical therapy, he frequently had an onset of paresthesias in his lower extremities if he rode for an extended period. He stated that when the pain in his lower back increased, there was typically a corresponding increase in his radiculopathy of the bilateral lower extremities. The examiner noted that the clinical history of the Veteran pointed to his lower extremity radiculopathy as emanating from his lumbar region and not a peripheral diabetic neuropathy. The examiner indicated that his pain began in the lumbar region and radiated distally toward his feet, and described anatomically the L5 nerve root bilaterally. The examiner further noted that his symptoms were not consistent continuously, but varied, in particular with prolonged sitting and increased activity. The examiner indicated that peripheral neuropathy associated with diabetes begins distally (i.e., the fee/hands) and does not vary with prolonged sitting or increased activity. The examiner stated that he disagreed with the VA nurse practitioner’s August 2014 opinion regarding radiculopathy, and that his specialized qualifications as an American Academy of Orthopaedic Surgeons certified physician provided greater insight as to the nature and severity of the Veteran’s condition. The examiner noted previous findings related to the substantial degeneration of the Veteran’s spine, and documentation that the Veteran’s symptoms began with severe back pain that radiated outward to his lower extremities. The examiner indicated that private treatment records from steroid injections in January also indicated radiculopathy symptoms beginning in the lumbar region and radiating outward to the lower extremities. The examiner further noted that steroidal injections would have no effect on any diabetic peripheral neuropathy, and are known to sometimes aggravate a diabetic condition. Instead, the steroidal injections were meant to reduce inflammation of the nerve roots coming out of the spine. The examiner opined that the Veteran’s radiculopathy of the bilateral lower extremities was entirely due to his severe lumbar pathology, and not due to a diabetic condition. The examiner indicated that his radiculopathy was severe in nature regarding both lower extremities from April 2012 to the present. The examiner noted that the Veteran’s radiculopathy symptoms were permanent in nature, and that there was nothing medically available which was likely to succeed in mitigating the intensity of his symptoms. The Board finds the opinion of the August 2017 private examiner to be more probative in this instance. In addition to the medical specialization in orthopedic surgery, the examiner provided a detailed review of all medical evidence of record, with substantive analysis of the etiology and progression of the Veteran’s condition. The Board notes that the Veteran reported consistent symptoms related to his radiculopathy throughout the relevant period, and the degenerative changes to his spine leading to his radiculopathy symptoms did not improve during that period. Further, the August 2017 examiner indicated that the symptoms reported by the Veteran pointed to an origin related to his lower back disability, rather than a diabetic condition. Therefore, the Board finds that the reduction of the Veteran’s 40 percent ratings for radiculopathy of bilateral lower extremities was improper. The examiner noted that the Veteran’s symptoms have been consistent since April 2012, and the Board finds that that a reduction below the 40 percent level was not appropriate. The Board notes that although the August 2017 examiner stated that the Veteran’s radiculopathy symptoms were severe, the record does not indicate that he exhibited marked muscular atrophy or complete paralysis of either lower extremity during the period from April 1, 2015 to September 21, 2018.Therefore, a rating in excess of 40 percent disabling for that period is not warranted. C. Entitlement to a rating in excess of 20 percent disabling for the period since September 21, 2018. As an initial point, the Board notes that in light of the changes herein, the currently assigned 20 percent ratings for the Veteran’s radiculopathy of the lower extremities represents a reduction from the 40 percent ratings for the period prior to September 21, 2018. The Board further notes that the changes to the Veteran’s previously assigned ratings also have the effect that the 40 percent rating for each lower extremity was in place for over five years prior to the reduction. As noted above, where a rating has been in place for at least five years, 38 C.F.R. § 3.344(a) and (b) are applicable. 38 C.F.R. § 3.344(a) and (b) stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown, 5 Vet. App. at 417-18. The AOJ’s assignment of a 20 percent rating was based solely on the findings from a September 21, 2018 VA examination. Therefore, in accordance with the decisions herein, a reduction from a 40 percent disability rating to a 20 percent disability rating, effective September 21, 2018, would be improper regarding the Veteran’s radiculopathy of the bilateral lower extremities. As only one examination showing improvement in the severity of the Veteran’s radiculopathy of the bilateral lower extremities exists, the evidence of record is against a finding that his symptoms have undergone sustained improvement, and a reduction in the subject ratings is improper. The Board also notes that the September 21, 2018 examination did not indicate the presence of any marked muscular atrophy or complete paralysis of the Veteran’s lower extremities. Accordingly, ratings of 40 percent, but no greater, for radiculopathy of the bilateral lower extremities are warranted for the period since September 21, 2018. 3. Entitlement to an effective date prior to September 21, 2018 for the grant of entitlement to a TDIU As indicated above, the Veteran was granted entitlement to a TDIU effective September 21, 2018. However, as the rating assigned to his disabilities have changed pursuant to the instant decision, the Board must consider whether the criteria for entitlement to a TDIU were met at an earlier date under consideration herein. The Board notes that the Veteran reasonably raised the issue of entitlement to a TDIU under Rice, supra, prior to April 20, 2011. Therefore, the entire period on consideration for the Veteran’s claims for an increased rating is likewise applicable for the issue of entitlement to an earlier effective date for the grant of a TDIU. A TDIU is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Considering the ratings assigned pursuant to the instant decision, the Veteran meets the criteria for entitlement to a TDIU on a schedular basis for the entire period under consideration herein. The Veteran is currently service connected for a lower back disability, evaluated as 40 percent disabling; a right knee disability, evaluated as 20 percent disabling prior to July 27, 2011, 100 percent disabling from July 27, 2011 to September 1, 2012, and 30 percent disabling since September 1, 2012; radiculopathy of the left lower extremity, evaluated as 40 percent disabling; radiculopathy of the right lower extremity, evaluated as 40 percent disabling; a right elbow disability, evaluated as non-compensable; a cholecystectomy, evaluated as non-compensable; tension headaches, evaluated as non-compensable; and a surgical scar associated with a lower back disability, evaluated as non-compensable. The record indicates that the Veteran last worked on a full-time basis in 2007, and last worked in any capacity in 2016. The record reflects that from 2007 to 2016, the Veteran worked part-time as a substitute teacher. While, working part-time technically represents employment contrary to the definition of a TDIU, it is not necessarily considered substantially gainful employment, which is what VA evaluates in determining whether the Veteran is entitled to a TDIU. An earnings record from the Social Security Administration indicates that the most the Veteran made in one year after 2006 was just under $9,000. Here, the Board finds that the Veteran’s part-time employment as a substitute teacher does not constitute substantially gainful employment. As documented above, the Veteran’s lower back disability and associated radiculopathy of the bilateral lower extremities significantly impact his mobility and functional ability to perform any task requiring regular physical activity. These issues are further compounded by his right knee disability, which required a total knee replacement in 2011. The record indicates that due to these disabilities, the Veteran requires regular use of a cane or walker, and that even when using an assistive device, he cannot walk more than a short distance without increasing pain and weakness in his legs. Accordingly, the Veteran’s disabilities preclude him from working in any occupation which requires any significant degree of mobility or physical activity. The Board notes that the Veteran indicated he was forced to quit his position as a substitute teacher because he could no longer walk around the room to supervise a class. This highlights the substantial degree to which the Veteran’s disabilities impair his functional abilities. As also discussed above, the medical evidence of record indicates that the Veteran’s lower back disability and associated radiculopathy of the bilateral lower extremities limit his ability to remain seated for extended periods of time. The Veteran indicated that the severity of his symptoms increases substantially the longer he remains in a sitting position. In the August 2017 private medical opinion, the examiner stated that the Veteran’s service-connected orthopedic disabilities at least as likely as not precluded him from being able to obtain and maintain substantially gainful employment since his last year of full-time employment in 2007. The examiner noted that the symptoms associated with significant lumbar spine disabilities simply do not allow for prolonged periods of sitting or standing. The Board therefore finds that any occupation requiring remaining in a seated position for an extended period of time would at a minimum necessitate that the Veteran be allowed to change positions and take frequent, unscheduled breaks to mitigate his symptoms. In his May 2017 VA Form 21-8940, the Veteran indicated that he was only able to maintain his part-time job as a substitute teacher only because they allowed him substantial flexibility in affording him days off when his symptoms were severe. Accordingly, the Veteran is incapable of performing physically demanding work, and his limitations in occupations which would require him to sit for extended periods significantly limit any possibility of finding an employer who could accommodate the frequent periods of unavailability which his symptoms would impose. Thus, the Board finds that the Veteran’s service-connected disabilities   precluded him from obtaining and maintaining substantially gainful employment for the entire period since April 20, 2011, and entitlement to a TDIU is warranted effective as of April 20, 2011. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel