Citation Nr: 21004355 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-33 205 DATE: January 26, 2021 ORDER A disability rating greater than 20 percent prior to June 18, 2016 and greater than 40 percent thereafter for spondylolisthesis, L5-S1 to include degenerative disc disease (DDD), lumbar spine, is denied. An effective date earlier than November 5, 2015 for the grant of service connection for radiculopathy of the left lower extremity is denied. An effective date earlier than November 5, 2015 for the grant of service connection for radiculopathy of the right lower extremity is denied. An effective date of July 12, 2015, and no earlier, for the assignment of a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is granted. FINDINGS OF FACT 1. Prior to June 18, 2016, the Veteran’s lumbar spine disability was manifested by functional impairment consisting of subjective complaints of pain and objective limitation of motion to 80 degrees of flexion. Incapacitating episodes were not shown, and the evidence did not show any objective neurologic abnormalities associated with the back disability, apart from the already compensated bilateral lower extremity radiculopathy. 2. Beginning June 18, 2016, the Veteran’s lumbar spine disability has been manifested by functional impairment consisting of subjective complaints of pain and objective limitation of motion to 10 degrees of flexion, without ankylosis of the thoracolumbar spine. Incapacitating episodes have not been shown. 3. In November 2009, the Veteran submitted a claim for an increased rating for his service-connected lumbar spine disability and, in a November 2015 rating decision, the RO granted service connection for bilateral lower extremity radiculopathy, assigning separate 10 percent disability ratings for each extremity effective November 5, 2015, the date of the most recent VA spine examination report. The Veteran submitted a timely notice of disagreement as to the effective dates assigned in this decision. 4. Following the November 2009 claim, the earliest evidence of radiculopathy of the bilateral lower extremities is a November 5, 2015 VA examination diagnosing sciatica, bilateral lower extremities (beginning in 2015). 5. An inferred claim of entitlement to a TDIU was received by VA in January 2010 and a formal claim for entitlement to a TDIU was received by VA in May 2016; the Veteran first became eligible for a TDIU on a schedular basis on May 6, 2016. 6. Since July 12, 2015, the evidence demonstrates that the Veteran’s service-connected disabilities preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 26, 2016, the criteria for a disability rating greater than 20 percent for the Veteran’s lumbar spine disability were not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5239.  2. Beginning June 26, 2016, the criteria for a disability rating greater than 40 percent for the Veteran’s lumbar spine disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.71a, DC 5239. 3. The criteria for an effective date of earlier than November 5, 2015 for the grant of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § §§ 1110, 1154(a), 5107(b), 5109A, 5110(a), 7105(c); 38 C.F.R. § §§ 3.102, 3.156, 3.303, 3.400. 4. The criteria for an effective date of earlier than November 5, 2015 for the grant of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § §§ 1110, 1154(a), 5107(b), 5109A, 5110(a), 7105(c); 38 C.F.R. § §§ 3.102, 3.156, 3.303, 3.400. 5. The criteria for an effective date of July 12, 2105, and no earlier, for the assignment of a TDIU have been met on an extraschedular basis. 38 U.S.C. §§ 5101 (a), 5103A, 5107, 5110; 38 C.F.R. §§ 3.1 (p)(r), 3.155, 3.156, 3.157, 3.159, 3.321(b), 3.341, 3.400(o)(2), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1980 to December 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2010 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Specifically, the February 2010 rating decision, in part, continued a 20 percent disability rating for the Veteran’s lumbar spine disability. The November 2015 rating decision granted service connection for radiculopathy of the bilateral lower extremities, assigning separate 10 percent disability ratings for each leg effective November 5, 2015. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge (VLJ) in May 2016. A transcript of the hearing is associated with the claims file. This case was previously before the Board in June 2016 at which time it was remanded for additional development. At that time, it was noted that the Veteran was no longer working due, at least in part, to his service-connected lumbar spine disability. As such, the Board took jurisdiction of the TDIU issue as part of the increased rating appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Thereafter, by rating decision dated in October 2018, the RO increased the lumbar spine disability rating from 20 percent to 40 percent disabling effective June 18, 2016 and granted a TDIU effective May 6, 2016, the date that the Veteran met the schedular criteria for a TDIU. This case was again before the Board in February 2019 at which time it was, again, remanded for additional development. As was noted in the February 2019 Board remand, in April 2017 correspondence, the Veteran raised the issue of clear and mistakable error (CUE) in a June 1987 rating decision in connection with his claim for an earlier effective date claims regarding radiculopathy of the lower extremities. However, the Veteran has not yet submitted a formal claim with regard to this issue. The Veteran is advised that, as of March 24, 2015, a claim must be submitted on an application form prescribed by the Secretary. See 38 C.F.R. § 3.1 (p); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). If the Veteran wishes to file a claim, he must do so on the prescribed form. Notably, the development requested in June 2016 and February 2019 has been completed. Significantly, the case was previously remanded, in part, to obtain outstanding VA treatment records dated as early as 1987. Pursuant to these remands, additional VA treatment records dated as early as January 1987 have been obtained and while VA treatment records from the VA medical center in Iowa City do not appear to have been obtained, it appears that VA has made all reasonable attempts to obtain any outstanding treatment records. 1. A disability rating greater than 20 percent prior to June 18, 2016 and greater than 40 percent thereafter for spondylolisthesis, L5-S1 to include DDD, lumbar spine, is denied. The Veteran seeks a higher disability rating for his service-connected lumbar spine disability, both prior to and beginning June 18, 2016. By way of history, service treatment records (STRs) show complaints of intermittent low back pain associated with lifting heavy loads in March 1986. The assessment was grade I spondylolisthesis by X-ray. A subsequent June 1986 STR shows pars defect, L5 and a July 1986 STR shows spondylosis interarticularis, L5 with history of back injuries one year earlier and three months earlier in parachute jumps. The Veteran’s December 1986 separation examination shows a diagnosis of grade I spondylolisthesis. By rating decision dated in June 1988, the RO granted service connection for spondylolisthesis of L-5 on S-1, assigning a 10 percent disability rating effective December 13, 1986. Subsequently, by rating decision dated in May 2000, the RO increased the Veteran’s disability rating for the spine from 10 to 20 percent disabling effective November 18, 1999. The Veteran filed the current claim for an increased rating in November 2009. In the February 2010 rating decision that is the subject of this appeal, the RO continued the 20 percent rating previously assigned. The Veteran disagreed with this decision and perfected this appeal. Thereafter, by rating decision dated in October 2018, the RO increased the lumbar spine disability rating from 20 percent to 40 percent disabling effective June 18, 2016. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  A Veteran’s entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the 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.  In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time.  See DeLuca, supra. Specifically, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. Unfortunately, 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 flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. 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 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.  Pertinent to this appeal, Note (1) of the rating schedule indicates that the agency is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Also, from 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.  Alternatively, the Formula for Rating IVDS 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).  Analysis 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 January 2010, November 2015, and June 2016. Also of record are VA and private treatment records dated through June 2020. During the January 2010 VA spine examination, the Veteran reported that his lumbar spine disability had progressively worsened over the years but he denied any surgery or steroid injections. According to the Veteran, this disability affected his performance at his job. The Veteran reported experiencing constant sharp pain in the low back on a daily basis with a severity of 6/10. This pain radiated down both legs during flare-ups. The Veteran also experienced tingling, weakness, and numbness in his legs and feet on a weekly basis. The Veteran’s lumbar spine disability flared up by bending, lifting, walking, weather, and overuse. This was improved by rest and medication. During flare-ups, the pain was a 11/10 in severity. The Veteran stated that these flare-ups can last for two to three hours up to all day and can occur on a weekly to monthly basis. After repetitive use or during a flare-up, the range of motion and function of his low back are additionally moderately more limited by pain, weakness, incoordination, and fatigability, of which pain has the major functional impact. As it usually is not possible to examine the Veteran during a flare-up or after significant repetitive use, the above report was based solely upon the Veteran’s estimation and approximation of how additionally limited the range of motion is during a typical flare-up or after performing significant repetitive bending. There was no objective finding of additional limitation of movement following brief repetitive use testing with three repetitions during examination of the Veteran. The Veteran stated that, over the past year, he had had incapacitating episodes of low back pain, approximately three over the past year. Each of these episodes lasted two to three hours and were treated with medication and rest. With regard to functional limitations, it was noted that the Veteran’s disability affected walking and standing. He could only walk between ¼ and one mile and felt unsteady but did not fall. He could stand for up to one hour. The Veteran denied the use of assistive devices for his disability. He treated the pain with over-the-counter medication on a daily basis without side effects but with little help. The Veteran was employed but felt that his lumbar spine disability affected his occupational duties causing pain with walking and standing, decreased concentration, need for more frequent rest breaks, and being assigned light duty. His disability also affected his daily and recreational activities by causing limitations on chores, driving, shopping, hunting, fishing, sports, and exercise. On physical examination, the Veteran’s posture was normal. Gait was slightly antalgic with a normal stance phase, bilaterally. He was able to rise onto his toes and heels with a complaint of pain. He was also able to rise from a squat with difficulty and a complaint of pain. He was able to tandem walk with unsteadiness. Romberg test was negative for instability while standing with his feet together and eyes closed. There was diffuse tenderness to palpation over the lower lumbar spine, right and left sacroiliac joints, right and left sciatic notches and adjacent right and left paraspinal muscles. There was palpable spasm but no surgical scars indicative of previous back surgery. Range of motion testing of the lumbar spine revealed flexion to 70 degrees (with pain beginning at 45 degrees), extension to 20 degrees (with pain beginning at 20 degrees), right lateral flexion to 20 degrees (with pain beginning at 20 degrees), left lateral flexion to 20 degrees (with pain beginning at 20 degrees), right lateral rotation to 20 degrees (with pain beginning at 20 degrees), and left lateral rotation to 20 degrees (with pain beginning at 20 degrees). Repetitive use testing with three repetitions showed no change. It was noted that, during a flare-up, the effective functional range of motion for his lumbosacral spine was additionally limited 0 to 45 degrees of flexion and 20 degrees of extension due to increased pain. The range of motion of the lumbar spine was also additionally limited to 0 to 20 degrees of lateral bending in each direction and from 0 to 30 degrees of lateral rotation in each direction due to increased pain. Neurologic examination revealed deep tendon reflexes as 2 + bilaterally at the patellar tendons. Deep tendons were difficult to elicit, bilaterally, at the Achilles tendons. Straight leg raising test was negative, bilaterally. The Veteran stated that there was no pain radiating down his leg during his seated straight leg raising test. Strength was 5/5 in bilateral lower extremities. Sensation was intact to light touch in bilateral lower extremities. X-ray of the lumbar spine showed grade I anterolisthesis of L5 on S1, with at least unilateral right spondylolysis at L5 as well as multilevel degenerative changes, most pronounced at L5/S1. The examiner diagnosed chronic low back strain; spondylolysis, grade 1, L5-S1; and DDD, lumbar spine. During the November 2015 VA examination, the examiner continued a diagnosis of spondylolisthesis and also noted a diagnosis of sciatica, bilateral lower extremities (beginning in 2015). The Veteran reported that experienced constant back pain, rated as 5/10 in severity, as well as stiffness from the back to the neck with loss of range of motion/mobility. He treated this with pain medication and denied surgery, injections, chiropractic care, and physical therapy. The Veteran reported experiencing flare-ups of the lumbar spine, described as 10/10 in severity and aggravated by weather changes, prolonged sitting/standing, walking, flying, driving in a car for long distances, and repetitive lifting/bending. These flare-ups are alleviated by medication and rest. He also reported experiencing functional loss associated with the lumbar spine disability, described as limitations with walking, standing, sitting, and repetitive lifting/bending. Range of motion testing of the lumbar spine revealed flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 8 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. There was evidence of pain with weight bearing as well as objective evidence of localized tenderness or pain on palpation of the lumbar spine and bilateral SI (sacroiliac) joints. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. With regard to repetitive use over time, the Veteran’s spine was examined after repetitive use over time. Significantly, it was noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time but the examiner was unable to describe this in terms of range of motion as there was no additional loss of motion but range of motion was slower and more difficult due to increased pain. The Veteran’s spine was not examined during a flare-up and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-up. The examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-ups but the examiner was unable to describe this in terms of range of motion as there was no additional loss of motion but range of motion was slower and more difficult due to increased pain. There was muscle spasm, guarding, and localized tenderness of the thoracolumbar spine which resulted in abnormal gait or abnormal spinal contour. Additional factors contributing to disability of the lumbar spine included less movement than normal, weakened movement due to muscle or peripheral nerve injury, instability of station, disturbances of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was slightly abnormal, described as hypoactive. Sensory examination was normal and straight leg raising test was negative. There was radiculopathy resulting in mild constant pain of the bilateral lower extremities, moderate intermittent pain of the right lower extremity, mild intermittent pain of the left lower extremity, and mild numbness of the left lower extremity. The Veteran’s radiculopathy was found to involve the L4/L5/S1/S2/S3 bilateral nerve roots (sciatic nerves) and was found to be of moderate severity on the right and mild severity on the left. There was no ankylosis of the spine. There were no other neurologic abnormalities and there was no IVDS. The Veteran occasionally used a brace and regularly used a cart with excessive walking in the grocery store to assist with locomotion due to his back disability. There was no functional impairment of the lumbar spine 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, to include scars. Imaging studies revealed arthritis but there was no thoracic vertebral fracture with loss of 50 percent or more of height. With regard to functional impact, the examiner wrote that the Veteran’s lumbar spine disability impacted his ability to work as the Veteran lost his job in April 2015 working as a plant manager for over 20 plus years. During the June 2016 VA examination, the examiner continued a diagnosis of spondylolisthesis, L5-S1, to include DDD of the lumbar spine and also noted a diagnosis of radiculopathy of the bilateral lower extremities (beginning in 2016). The Veteran reported that he continued to treat his back pain with oral medication, a TENS unit, and physical therapy but denied epidural injections. He experienced pain and stiffness. The Veteran reported experiencing flare-ups of the lumbar spine, described as increased pain and stiffness. He also reported experiencing functional loss associated with the lumbar spine disability, specifically a limited ability to stand and walk for long periods. Range of motion testing of the lumbar spine revealed flexion to 10 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. It was noted that the Veteran was unable to perform activities above and below the waist. There was objective evidence of localized tenderness or pain on palpation of the lumbar paraspinals, described as moderate to severe. There was no objective evidence of pain with weight bearing. The Veteran was unable to perform repetitive-use testing with three repetitions due to severe pain. With regard to repetitive use over time, the Veteran’s spine was not examined after repetitive use over time and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time but the examiner was unable to describe this in terms of range of motion as the Veteran was not examined after repeated use over time. The Veteran’s spine was not examined during a flare-up and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-up. The examiner noted that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups but the examiner was unable to describe this in terms of range of motion as the Veteran was not examined during a flare-up. There was muscle spasm, guarding, and localized tenderness of the thoracolumbar spine, described as increased pain and stiffness, but this did not result in abnormal gait or abnormal spinal contour. There were no additional factors contributing to disability of the lumbar spine. Muscle strength testing was slightly abnormal, described as “active movement against some resistance,” and there was no muscle atrophy. Reflex examination was normal with the exception of the right knee, which was hypoactive. Sensory examination was normal for the bilateral upper anterior thigh (L2) and thigh/knee (L3/L4) but decreased for the bilateral lower leg/ankle (L4/L5/S1) and foot/toes (L5). Straight leg raising test was negative. There was radiculopathy resulting in moderate constant pain, paresthesias and/or dysthesias, and numbness. The Veteran’s radiculopathy was found to involve the L4/L5/S1/S2/S3 bilateral nerve roots (sciatic nerves) and was found to be of moderate severity. There was no ankylosis of the spine. There were no other neurologic abnormalities and there was no IVDS. The Veteran constantly used a cane to assist with locomotion due to low back and knee pain. There was no functional impairment of the lumbar spine 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, to include scars. Imaging studies were not performed. With regard to functional impact, the examiner wrote that the Veteran’s lumbar spine disability impacted his ability to work as it affected his ability to stand and walk for long periods and affected his ability to lift and carry items. VA and private treatment records dated through June 2020 show findings similar to those noted above but are negative for range of motion testing. As for the period of time prior to June 18, 2016, the Board finds that a disability rating greater than 20 percent is not warranted for the Veteran’s lumbar spine disability because there is no medical evidence of limitation of forward flexion to 30 degrees or less, or evidence of favorable ankylosis of the entire thoracolumbar spine.  As above, the January 2010 VA examination report shows lumbar flexion to 70 degrees (45 degrees with pain) and the November 2015 VA examination report shows lumbar flexion to 40 degrees. With regard to the Veteran’s argument that he exhibited additional loss of motion of the lumbar spine prior to June 18, 2016 due to flare-ups of the back pursuant to Sharp, the Board notes that, prior to June 18, 2016, the January 2010 VA examiner appears to have based the findings of flexion limited to 45 degrees on the Veteran’s estimation of loss of motion during flare-ups. Even if this is not the case, the examiner wrote that it was not possible to examine the Veteran during a flare-up or after significant repetitive use. As above, the guidance on how to evaluate flare-ups has not been particularly clear and, pursuant to Mitchell, 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 or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. As above, it appears that the January 2010 VA examiner based the findings of flexion limited to 45 degrees on the Veteran’s estimation of loss of motion during flare-ups. As for the period of time beginning June 18, 2016, the Board concludes that a disability rating greater than 40 percent for the Veteran’s lumbar spine disability is not warranted. As above, a rating higher than 40 percent based on orthopedic impairment requires a finding of ankylosis. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28th ed. 1994) at 86). For VA compensation purposes, unfavorable ankylosis is a condition in which the 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). There is no evidence that the Veteran’s spine is fixed in position, or ankylosed. Significantly, the Veteran had flexion to 10 degrees during the June 2016 VA examination. With regard to the entire appellate period beginning November 2009, 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, the Veteran was not diagnosed with IVDS prior to June 18, 2016 and, even if he had, the evidence is negative for any incapacitating episodes requiring bedrest by a physician both prior to and beginning June 18, 2016.  There are no other applicable codes available for consideration.  Also, with regard to Correia, while none of the VA examinations comply with Correia as they do not include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. The Board notes that the Veteran is already in receipt of a rating for her low back disability that contemplates the maximum loss of range of motion and favorable ankylosis, and that the only way she may receive a higher schedular rating is by demonstrating unfavorable ankylosis. Thus, entitlement to an increased rating may only be demonstrated by showing that the back is fixed in one particular position rather than in another. This rating criterion does not involve assessment of range of motion, as the Veteran’s ability to move her low back would necessarily preclude a finding of unfavorable ankylosis. The Board therefore finds that a remand of this claim in order to obtain an examination that complies with Correia would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran”). In denying higher disability ratings for the Veteran’s lumbar spine disability, the Board has considered the Veteran’s statements that his lumbar spine disability is worse, as well as his report of pain.  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 lumbar spine 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 such as to enable a finding that the disability picture more nearly approximates the next-higher disability ratings either prior to or beginning June 18, 2016. Despite the Veteran’s contention of a debilitating lumbar spine disability, the disability ratings assigned herein indicate a significant impact on his functional ability.  Such disability evaluation assigned by VA recognizes 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.  Effective Date The effective date of an award of disability compensation to a veteran will be the day following separation from active service or date entitlement arose if the claim is received within one year of separation from active service; otherwise, it will be the date of receipt of claim, or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). In general, “date of receipt” means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1 (r). 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). Prior to amendments to the applicable regulation in March 2015, a claim was “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). 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). 2. An effective date earlier than November 5, 2015 for the grant of service connection for radiculopathy of the left and right lower extremities is denied. As above, in November 2009, the Veteran submitted a claim for an increased rating for his lumbar spine disability. While a January 2010 VA spine examination is negative for radiculopathy of the lower extremities, a subsequent November 2015 VA spine examination is positive for radiculopathy of the lower extremities. As such, in a November 2015 rating decision, the RO granted service connection for bilateral lower extremity radiculopathy, assigning separate 10 percent disability ratings for each leg effective November 5, 2015, the date of the VA spine examination report. The Veteran contends that the effective date for his award of service connection for radiculopathy of the lower extremities should be earlier than November 5, 2015, because he began experiencing radiculopathy symptoms prior to November 5, 2015. As above, the Veteran’s STRs show complaints of back pain following lifting and parachute jumping injuries. By rating decision dated in June 1988, the RO granted service connection for spondylolisthesis of L-5 on S-1, assigning a 10 percent disability rating effective December 13, 1986. Subsequently, by rating decision dated in May 2000, the RO increased the Veteran’s disability rating for the spine from 10 to 20 percent disabling effective November 18, 1999. The Veteran filed the current claim for an increased rating in November 2009. In connection with this claim, he was afforded a VA examination in January 2010 which noted some sensory issues of the lower extremities but was, ultimately, negative for radiculopathy of the lower extremities. Specifically, the January 2010 VA examination report showed deep tendon reflexes as 2 + bilaterally at the patellar tendons, negative straight leg raising test, strength of 5/5, and sensation intact to light touch in the bilateral lower extremities. By rating decision dated in February 2010, the RO continued a 20 percent disability rating for the Veteran’s lumbar spine disorder. The Veteran disagreed with this decision and perfected an appeal. The Veteran was afforded a second VA spine examination in November 2015. This examination report shows radiculopathy involving the L4/L5/S1/S2/S3 bilateral nerve roots (sciatic nerves) and was found to be of moderate severity on the right and mild severity on the left. As such, by rating decision dated in November 2015, the RO granted service connection for bilateral lower extremity radiculopathy, assigning separate 10 percent disability ratings for each leg effective November 5, 2015, the date of the most recent VA spine examination report. VA and treatment records dated prior to November 5, 2015 are negative for radiculopathy of the lower extremities. While it appears that the Veteran was seen by a neurologist due to back pain sometime in 2000, there are no findings of radiculopathy at that time and the January 2010 VA examination is negative for radiculopathy. Furthermore, a January 2012 VA treatment record shows a normal neurological examination. Upon review of the above medical evidence, the Board finds that an effective date earlier than November 5, 2015 for the grant of service connection for radiculopathy of the lower extremities is not warranted. In this case, the Board has construed the November 2009 claim for an increased rating for his lumbar spine disorder as the date of claim. The earliest evidence of radiculopathy of the lower extremities secondary to lumbar spine disability is the November 5, 2015 VA examination. While the Veteran complained of pain shooting down his legs during the January 2010 VA examination, neurological examination at that time was normal. As the November 5, 2015 diagnosis is later than the November 2009 claim, the appropriate effective date of service connection for radiculopathy of the lower extremities is November 5, 2015, the date entitlement arose. See 38 U.S.C. § § 5110; 38 C.F.R. § § 3.400. 3. An effective date of July 12, 2015, and no earlier, for the assignment of a TDIU on an extraschedular basis is granted. By way of history, the Veteran filed a claim for an increased rating for his lumbar spine disability November 2009. In the February 2010 rating decision that is the subject of this appeal, the RO continued the 20 percent rating previously assigned. The Veteran disagreed with this decision and perfected this appeal. The Veteran submitted a formal claim for a TDIU in May 2016, indicating that he last worked full-time on July 12, 2015 as a plant manager due to his service-connected lumbar spine disability. In the June 2016 Board remand, the Board took jurisdiction of the TDIU issue as part of the increased rating appeal pursuant to Rice. Thereafter, by rating decision dated in October 2018, the RO granted a TDIU effective May 6, 2016, the date that the Veteran met the schedular criteria for a TDIU. However, as the Veteran’s claim for a higher initial rating has been pending since November 2009, the issue of entitlement to a TDIU prior to May 6, 2016 is still before the Board. The Board has accepted jurisdiction of the TDIU claim pursuant to Rice on the basis of the November 2009, claim for an increased rating. Having determined that November 2009 is the date of claim for purposes of assigning an effective date, the Board must now look to the evidence to determine whether it was “factually ascertainable” that the criteria for a total rating were met beginning November 2009. TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). It is clear from the language of this regulation that what is contemplated as marginal employment is employment that does not accord the veteran a living wage. See Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991) [for the purposes of 38 C.F.R. § 4.16 (a), substantially gainful employment suggests a living wage]. Marginal employment may also be considered to exist when income exceeds the poverty threshold but is earned, for example, in a protected environment, such as a family business or sheltered workshop. Id. Consideration shall be given in all claims to the nature of the employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Veteran’s service-connected disabilities presently include major depressive disorder (50 percent disabling effective March 29, 2018), radiculopathy of the right upper extremity (40 percent disabling effective May 6, 2016), spondylolisthesis, L5-S1, to include DDD of the lumbar spine (40 percent disabling effective June 18, 2016), degenerative arthritis of the right shoulder (20 percent disabling effective May 6, 2016), intervertebral disc syndrome of the cervical spine (20 percent disabling effective May 6, 2016), radiculopathy of the right lower extremity (10 percent disabling effective November 5, 2015), radiculopathy of the left lower extremity (10 percent disabling effective November 5, 2015), meniscal tear of the left knee (10 percent disabling effective May 6, 2016), and tension headaches (10 percent disabling effective March 29, 2018). Significantly, a TDIU has been assigned as of May 6, 2016, the date the Veteran met the schedular criteria for a TDIU pursuant to under 38 C.F.R. § 4.16 (a). However, there is evidence that the Veteran was unemployable due to his service-connected disabilities as early as July 12, 2015. As above, the Veteran submitted a formal claim for a TDIU in May 2016, indicating that he last worked full-time on July 12, 2015 as a plant manager due to his service-connected lumbar spine disability. Also, during the May 2015 Board hearing, the Veteran also testified that he lost his job in July 2015 due to a workforce reduction. Significantly, a November 2015 VA spine examiner opined that the Veteran’s lumbar spine disability impacted his ability to work as the Veteran lost his job earlier that year working as a plant manager for over 20 plus years. Also, in a July 2016 VA opinion, it was noted that the Veteran’s low back disorder affects his ability to stand and walk for long periods. He has a limited ability to perform overhead and below the waist activity and is unable to lift weight greater than 15 pounds more than occasionally. Furthermore, a review of the record shows that the Veteran is in receipt of Social Security disability benefits due, primarily, to his lumbar spine disability as well as unspecified arthropathies. In July 2020, the Veteran’s claim was referred to the Director of Compensation Service by the RO for extraschedular consideration and, in October 2020, the Director determined that an extraschedular TDIU prior to May 6, 2016 was not warranted finding that, while the Veteran had limitations with regard to lifting, standing, and sitting, the Veteran was able to perform sedentary work. The Board finds that the Veteran had been rendered unemployable by his service-connected disabilities since July 12, 2015. While the Director found that the Veteran’s service-connected disabilities do not make him unemployable prior to May 6, 2016, based on the medical evidence discussed above particularly the opinions of the November 2015 and July 2016 VA examiners, the Board finds that the Veteran had been rendered unemployable by his service-connected disabilities since July 12, 2015. Therefore an extraschedular TDIU from July 12, 2015, to May 5, 2016, is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.